TRELLIDOR INNOVATIONS (PTY) LTD t/a TAYLOR BLINDS & SHUTTERS TERMS AND CONDITIONS OF SALE
These general terms and conditions of sale (“Conditions of Sale”) govern the offering, sale, and delivery of all the goods and/or provision of all services (hereinafter jointly referred to as “the Goods”) from or on behalf of Trellidor Innovations t/a Taylor Blinds and Shutters (PTY) LTD, Registration Number 2016/154170/07
1. TERMS AND CONDITIONS
1.1 Taylor Blinds & Shutters shall not be bound by any terms and conditions of purchase of the Customer. Failure by Taylor Blinds & Shutters to object to any terms and conditions of purchase set by the Customer shall in no event be construed as an acceptance of any terms and conditions of purchase of the Customer. Neither Taylor’s commencement of performance nor Taylor Blinds & Shutters’ delivery of the Goods shall be deemed or constituted as acceptance of any of the Customer’s terms and conditions of purchase.
1.2 These Conditions of Sale may only be varied or waived by a duly executed written agreement between Taylor Blinds & Shutters and the Customer. Save for any special terms set out in Taylor Blinds & Shutters quotation or in any warranty, user and care instruction card which may be supplied with the Goods, where the Customer seeks to rely on any document purporting to contain any term or condition which is in conflict with these Conditions of Sale then such conflicting provisions shall not apply to the parties, unless the document specifically refers to these Conditions of Sale and specifically records that these Conditions of Sale are being varied.
1.3 Taylor Blinds & Shutters shall notify the Customer of any proposed amendments to these Conditions of Sale. The amended Conditions of Sale shall apply to transactions between Taylor Blinds & Shutters and the Customer concluded after acceptance thereof by the Customer as envisaged in clause 2.3.
2. QUOTATIONS AND ORDERS
2.1 Taylor Blinds & Shutters shall prepare a quotation for the supply and/or installation of special-order goods (“quotation”) containing inter alia details and specifications relating to the Goods to be supplied to the Customer together with any accessories including, but not limited to the quantity, price, terms for payment, delivery, and installation requirements (if applicable) and special instructions.
2.2 Unless expressly stated to the contrary by Taylor Blinds & Shutters, quotations issued by Taylor Blinds & Shutters in whatever form, will be valid for a period of 14 (fourteen) days from the date of issue thereof. Taylor Blinds & Shutters shall be entitled to amend a quotation and/or refuse to accept an order placed after the aforesaid period without any obligation to furnish reasons therefore to the Customer.
2.3 Orders must be placed by the Customer by indicating their acceptance of the terms of the quotation and these Conditions of Sale by signing the quotation and these Conditions of Sale in the space provided therefore and handing, faxing, or emailing the duly signed the quotation form and Conditions of Sale directly to the person specified therein. The Customer explicitly acknowledges that he/she understands the conditions of the quotation/order and that all abbreviations contained therein are understood.
2.4 Orders will become binding on Taylor Blinds & Shutters only upon receipt of a signed acceptance of quotation and Terms and Conditions of Sale and once a confirmation of order is issued to the Customer.
2.5 The confirmation of any order may be subject to prior credit approval by Taylor Blinds & Shutters and for this purpose the Customer acknowledges and agrees that Taylor Blinds & Shutters may use the service of a credit bureau to obtain a consumer and/or creditworthiness rating and/or other relevant credit information.
3. PRICE AND DISCOUNTS
3.1 The Goods are sold by Taylor Blinds & Shutters to the Customer at the price stated in the quotation. The price is inclusive of Value Added Tax, delivery, and installation (if applicable). All other customs, duties, and taxes payable in respect of the Goods shall be paid by the Customer including, without prejudice to the generality of foregoing, demurrage, surcharges over and above the normal or Value Added Tax.
3.2 Taylor Blinds & Shutters may allow discounts as specifically agreed upon provided that such discounts shall not be allowed on any Goods where payment is overdue.
4. DELIVERY, INSTALLATION, RISK AND OWNERSHIP
4.1 The Customer acknowledges that the time for delivery and/or installation of the Goods is dependent upon the availability of component goods/materials, production scheduling/capacity and is subject to installer work schedules. Accordingly, any delivery and/or installation date specified in the quotation is an estimate only and Taylor Blinds & Shutters shall not be bound by that date but will make reasonable efforts to deliver and/or install the Goods by that date. If no delivery and/or installation date is stipulated in the quotation then Taylor Blinds & Shutters will deliver and/or install the Goods as soon as it can conveniently do so. The Customer shall not have any claim of any nature whatsoever against Taylor Blinds & Shutters arising from late delivery and/or installation.
4.2 In the absence of an agreement to the contrary, the Goods will be delivered in Taylor Blinds & Shutters’ standard packaging. The cost of any special packaging requested by the Customer and agreed to by Taylor Blinds & Shutters shall be determined by Taylor Blinds & Shutters when issuing the quotation and will be added to and form part of the price.
4.3 Regardless of whether the Goods are installed by Taylor Blinds & Shutters or by the Customer itself, risk in and to the Goods will pass to the Customer on delivery at the premises nominated by the Customer. If the Goods are sold by the Customer to a third party who will be performing the installation themselves and are being transported by the Customer or the third party to a destination, then delivery shall be deemed to have taken place and risk in and to the Goods will pass to the Customer or the third party at the place of dispatch from Taylor Blinds & Shutters thereof.
4.4 Unless the Customer has requested an opportunity to inspect the Goods as provided for in clause 4.6, he/she must accept delivery at the agreed premises when delivery is tendered by Taylor Blinds & Shutters, failing which:
(a) risk in and to the Goods shall immediately pass to the Customer; and
(b) the Customer shall be liable for the reasonable storage costs of the Goods.
4.5 Ownership in the Goods shall pass to the Customer only when all amounts due by the Customer to Taylor Blinds & Shutters have been paid, notwithstanding delivery of the Goods and/or the fact that the Goods have been installed in any building or structure.
4.6 When delivery is tendered by Taylor Blinds & Shutters, the Customer may request a reasonable opportunity to inspect the Goods to ensure that they are of type and quality contemplated when placing the order and/or comply in all material respects with the description and/or sample and/or reasonably conform to the material specifications stated in the quotation/order. If the Customer rejects delivery because the Goods do not comply with any of the requirements aforesaid, he must notify Taylor Blinds & Shutters before the Goods are installed, failing which he will be deemed to have accepted delivery once the Goods are installed. The Customer’s attention is drawn to The Provisions of Section 20(3)(B) Of the Consumer Protection Act No 68 Of 2008 which provides that if after having been supplied to the Customer, the Goods have been permanently installed, affixed, attached, joined, or added to or embedded within other property or goods, the customer shall have no right of return and refund. The Customer must accordingly either inspect the goods prior to delivery, alternatively be present when the Goods are delivered in order to examine them and ensure that they are acceptable prior to installation
4.7 Any electrical power required for installation of the Goods shall be provided by the Customer to Taylor Blinds & Shutters on request therefore and free of charge. Taylor Blinds & Shutters shall in no way be liable in the event that the electrical power required to install the Goods, does not conform with Municipal Regulations.
4.8 If whilst installing the Goods, Taylor Blinds & Shutters in its sole and absolute discretion considers that the building or structure into which the Goods are being installed or any portion thereof is not suitable for such installation whether by reason of inferior timber, plaster or brickwork or for any reason whatsoever, Taylor Blinds & Shutters may call upon the Customer to remedy the position at the latter’s sole cost and expense. The Customer shall not have any claim of any nature whatsoever against Taylor Blinds & Shutters and the Customer hereby indemnifies and holds Taylor Blinds & Shutters harmless against any and all claims which may be made against it arising out of any failure in the goods or defect therein or defective installation thereof attributable to any defect in the building or structure into which the goods are being installed or any portion thereof or as a result of a defect in the work carried out in relation thereto by the Customer in terms of this clause 4.8.
4.9 Where the Goods are installed by the Customer itself or sold by the Customer to a third party for installation, the Customer shall be responsible for ensuring that the installation is carried out by properly trained workmen. The Customer shall not have any claim of any nature whatsoever against Taylor Blinds & Shutters arising from defective installation of the Goods and the customer hereby indemnifies and holds Taylor Blinds & Shutters harmless against and and all claims which may be made against it arising out of the defective installation of the Goods as provided for in this clause 4.9.
4.10 After delivery and/or installation the Customer shall indicate their acceptance of the Goods by signing the completion certificate in the space provided therefore and handing it to the deliverer/installer or faxing or emailing it directly to the person specified therein within 3 (three) business days of delivery and/or installation. In the absence of receipt of the duly signed completion certificate within 3 days, the Customer will be deemed to have accepted the goods and/or the installation as being in good order and/or satisfactorily installed.
5.1 Unless otherwise agreed in writing, a deposit is required on placement of order and the balance is to be paid prior to installation or delivery, whichever is applicable, provided that:
(a) where the terms of payment are cash against delivery Taylor Blinds & Shutters may postpone dispatch of the Goods until it receives payment; and/or
(b) if the Customer delays or postpones installation, then payment shall be made on the expiry of a period of 3 (three) days from the date upon which the Customer is informed that the Goods are ready for delivery and installation.
5.2 A failure by the Customer to pay any amount on the due date for payment will result in all amounts due by the Customer to Taylor Blinds & Shutters becoming immediately due and payable and the Customer shall then be deemed to be in mora. Interest shall accrue thereupon at the rate prescribed in the Prescribed Rate of Interest Act, 55 of 1975 in respect of any amounts not paid on the due date. Any discounts granted shall be deemed to be revoked; the gross amount before deduction of discount shall then be the amount due.
5.3 A certificate issued by a manager of Taylor Blinds & Shutters shall be prima facie proof of the amounts outstanding by the Customer.
6.1 Should the Customer breach any of these Conditions of Sale and fail to remedy such breach within a period of 5 (five) days of written notice to do so, then Taylor Blinds & Shutters shall, at its election and without prejudice to any other rights which it may have in law, have the right to:
(a) cancel the order forthwith, without further notice to the Customer, remove and repossess the Goods and recover all damages which Taylor Blinds & Shutters may have suffered consequent upon such cancellation; or
(b) abide by the order and recover from the Customer payment of the balance of the price then outstanding, which shall immediately become due and payable.
6.2 The Customer agrees and acknowledges that in the event of:
(a) the Customer suffering any civil judgement to be taken or entered against them;
(b) the Customer causing a notice of surrender of its estate to be published in terms of the Insolvency Act No. 24 of 1936 as amended;
(c) the Customer passing away;
(d) the Customer’s estate being placed under any order of provisional or final sequestration, provisional or final winding up, or provisional or final judicial management, as the case may:
then Taylor Blinds & Shutters shall, without detracting from any other remedies which may be available to it, be entitled to summarily cancel the order without notice to the Customer, and to rely on the provision of Clause 6.1 and re-possess the Goods should they not yet have been installed, or claim specific performance of all of the Customer’s obligations whether or not such obligations would otherwise then have fallen due for performance, in either event without prejudice to Taylor Blinds & Shutters’ right to claim damages.
7. RETURNS, WARRANTY AND CLAIMS
7.1 After acceptance of the Goods as contemplated in Clause 4.10, the Customer shall lodge any complaints that the Goods do not reasonably conform to the material specifications stated in the quotation/order in writing to the address stated as Taylor Blinds & Shutters’ domicilum citandi et executandi, which complaints must reach Taylor Blinds & Shutters not later than 10 (ten) business days from the date of acceptance of the Goods and/or installation. Complaints will thereafter be dealt with in accordance with clause 7.5. The Customer acknowledges that the goods are special order goods that have been purpose made and that after installation thereof they will have been permanently installed, affixed, attached, joined, added to or embedded within a building or structure. The customer shall not have the right to return the goods to Taylor Blinds & Shutters nor receive a full refund of the price paid. Taylor Blinds & Shutters’ liability in respect of complaints determined as valid in terms of clause 7.5 shall therefore be limited to repair or replacement of non-conforming materials or components of the Goods. The Customer shall not have any claim of any nature whatsoever against Taylor Blinds & Shutters if the incorrect Goods are installed.
7.2 Any complaints regarding defects in the Goods, shall be made in writing to the address stated as Taylor Blinds & Shutters’ domicilium citandi et executandi, which complaint must reach Taylor Blinds & Shutters not later than 10 (ten) business days in respect of any patent defect, and 7 (seven) business days from the date on which any latent defect becomes apparent, but in no event later than the end of the warranty period as stipulated in the warranty, user and care instruction card provided to the Customer. Complaints will thereafter be dealt with in accordance with clause 7.5. The Customer acknowledges that the Goods are special order Goods that have been purpose made and that after installation thereof they will have been permanently installed, affixed, attached, joined, added to or embedded within the building or structure. The customer shall not have the right to return the goods to Taylor Blinds & Shutters. Save for any damage falling within the purview of section 61(5) or regulation 3(a) of the Consumer Protection Act (No 68 of 2008), Taylor Blinds & Shutters’ liability in respect of complaints determined as valid in terms of clause 7.5 shall therefore be limited to repair or replacement of defective materials or components of the goods.
7.3 Any complaints regarding defective installation or faulty workmanship shall be made in writing to the address stated as Taylor Blinds & Shutters’ domicilium citandi et executandi, which complaints must reach Taylor Blinds & Shutters not later than 10 (ten) business days after installation of the Goods. Taylor Blinds & Shutters may be requested either to:
(a) remedy any defect in the quality of the services performed; or
(b) refund the Customer a reasonable portion of the price paid for the services performed.
7.4 Save for any damage falling within the purview of section 61(5) or regulation 3(a) of the Consumer Protection Act (No 68 of 2008), neither Taylor Blinds & Shutters nor any of its officers, employees or agents shall be liable for any loss or damage, whether direct, indirect, consequential or otherwise suffered by the Customer, their family, employees, contractors and invitees arising from any cause in connection with the Goods or their delivery and installation (including without limitation, any act, omission, or default on the part of Trellidor, its agents, employees or sub-contractors) whether such loss or damage results from breach of contract, loss of profit or any other cause without limitation. Trellidor shall take every care during the installation but shall not be liable for incidental redecoration consequent upon the execution of the work.
7.5 If Taylor Blinds & Shutters receives a complaint from the Customer, Taylor Blinds & Shutters shall investigate to determine whether or not the Goods reasonably conform to the material specifications of the order or are defective, as the case may be. The results of such investigation shall be submitted to the Customer, who shall be entitled to conduct their own investigation should they disagree with Taylor Blinds & Shutters’ findings. Should any dispute arise between the parties as to the findings, then such dispute shall be referred to an expert for determination. The expert shall be appointed by agreement between the parties. Should the parties be unable to agree on the expert to be appointed within seven (7) days of the dispute being declared, then an expert shall be appointed by the President of the Arbitration Foundation of Southern Africa [“AFSA”]. Should AFSA not be in existence at the time, the nomination shall be made by the Chairman for the time being of the Society of Advocates of KwaZulu-Natal. The decision of the expert contemplated in this clause 7.5 shall, absent manifest error, be final and binding on the parties. The expert shall be required to use his/her best endeavours to ensure that his/ her determination is made within thirty (30) days of his/her appointment and shall in making his determination consider any submissions made by either of the parties. Any fees or disbursements incurred by the expert shall be borne by the parties in equal shares or in such other proportion as the expert may in his/her discretion deem it. Nothing in this clause 7.5 shall prohibit either party from approaching an appropriate court for relief should it elect to do so.
8.1 In addition to any warranties which may be contained in the warranty, user and care instruction card provided to the Customer, Taylor Blinds & Shutters warrants only that the Goods manufactured by it will conform to the material specifications of the order and as such be reasonably fit for the purpose for which they were manufactured and useable by the Customer. No other warranties, whether express or implied, or representations concerning the quality of the Goods or their fitness for purpose or application will be binding upon Trellidor unless set out in writing and signed by Trellidor. Taylor Blinds & Shutters gives no warranties regarding parts or components supplied by others.
8.2 The Customer acknowledges that it has read the warranty, and user and care instruction card and agrees to the Terms and Conditions contained therein.
9.1 In the event that the Customer is not a natural person, then the signatory hereto binds himself/herself as surety and co-principal debtor in solidum with the Customer in favour of Taylor Blinds & Shutters for the due payment of all amounts which may at any time be payable by the Customer to Taylor Blinds & Shutters from any cause of action whatsoever and whether acquired by Taylor Blinds & Shutters by way of cession or otherwise.
9.2 The surety further waives those benefits of excursions and division and of the legal exceptions non numeratae pecuniae and non causa bebiti and the Customer acknowledges himself/herself to be fully acquainted with the meanings of these terms.
9.3 These Conditions of Sale shall apply mutatis mutandis to the suretyship contained in this clause 9.
9.4 The suretyship contained in this clause 9, is a continuing covering suretyship and shall remain of full force and effect notwithstanding any fluctuation in, or temporary extinction of the Customer’s indebtedness to Taylor Blinds & Shutters. It may not be withdrawn, revoked, or cancelled by the Customer without Taylor Blinds & Shutters’ prior written consent. Any consensual cancellation or withdrawal of this suretyship by the Customer and Taylor Blinds & Shutters shall only be valid and effective if reduced to writing and signed by both parties thereto. Any admission of liability by the Customer shall be binding upon the surety.
10. FORCE MAJEURE
10.1 Taylor Blinds & Shutters shall not be liable in any way for any damage, loss, cost or expense arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the Customer caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws and regulations, administrative measures, orders or decrees of any court, earthquake, flood, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labour disturbances, difficulty in obtaining necessary labour or raw materials, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, delay in delivery or defects in the Goods supplied by suppliers or subcontractors (“Force Majeure”).
10.2 Upon the occurrence of any event of Force Majeure, Taylor Blinds & Shutters shall promptly inform the Customer by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations. In the event of any delay, the estimated delivery date shall be the first day following the period after which the Force Majeure event terminates. However, should a Force Majeure event continue or be expected to continue for a period exceeding 30 (thirty) days after the estimated delivery and/or installation date, either party is entitled to cancel the affected part of the order without any liability to the other party.
11.1 Failure by Taylor Blinds & Shutters to enforce at any time any provision of these Conditions of Sale shall not be construed as a waiver of Trellidor’s right to act or to enforce any such term or condition and Taylor Blinds & Shutters’ rights shall not be affected by any delay, failure, or omission to enforce any such provision. No waiver by Taylor Blinds & Shutters of any breach of the Customer’s obligations shall constitute a waiver of any other prior or subsequent breach.
11.2 In the event that any provision of these Conditions of Sale shall be held to be invalid or unenforceable, the same shall not in any respect whatsoever affect, the validity or enforceability of the remaining provisions between the parties and shall be severed therefrom. The pertaining provisions held to be invalid or unenforceable shall be reformed to provisions satisfying the legal and economic intent of the original provisions to the maximum extent permitted by law.
11.3 The parties’ rights and obligations arising out of or in connection with these Conditions of Sale shall be governed, construed, interpreted, and enforced according to the laws of South Africa.
11.4 For the purpose of any legal proceedings which may arise between Taylor Blinds and Shutters and the Customer, the Customer hereby consents to the jurisdiction of:
(a) The High Court of South Africa; and/or
(b) The Magistrate’s Court having jurisdiction, notwithstanding that the amount in issue exceeds the jurisdiction of the Magistrate’s Court; and Taylor Blinds & Shutters may in its sole and absolute discretion elect to institute any such legal proceedings in either of the courts described in (a) and (b) above.
11.5 The parties nominate as their domicilium citandi et executandi the addresses reflected on the cover page hereof as the address for service upon them of all notices and processes in connection with any matter relating to these Conditions of Sale.
11.6 The parties’ rights and obligations shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, directors, officers, employees, agents, and legal representatives. Termination of one or more of the rights and obligations of the parties, for whatsoever reason, shall not affect the provisions of these Conditions of Sale, which are intended to continue to have effect after such termination.
11.7 The headings contained in these Conditions are included for mere convenience of reference and shall not affect their construction or interpretation.