Terms & Conditions Cabrico

CABRICO BRICK SALES (PTY) LTD – Reg. No. 2012/041484/07
ALL HEREINAFTER REFERRED TO AS CABRICO BRICK SALES (PTY) LTD
CONDITIONS OF SALE
AND CREDIT FACILITIES (where applicable)

  1. SOLE CONDITIONS
    The following will be the sole terms and conditions upon which Cabrico Brick
    Sales (Pty) Ltd will contract to sell goods and these terms and conditions
    supersede any other conditions which a Purchaser may seek to impose on
    Cabrico Brick Sales (Pty) Ltd. Cabrico Brick Sales (Pty) Ltd shall not be bound
    by a Purchaser’s conditions of purchase unless such have been reduced to
    writing and signed and accepted by a duly authorised representative of
    Cabrico Brick Sales (Pty) Ltd.
  2. PRICE
    2.1 The price of goods sold shall be Cabrico Brick Sales (Pty) Ltd’s price as
    at date of despatch of the goods.
    2.2 Should this price be different from the price ruling as at the date at
    which any quotation may have been given to the Purchaser, Cabrico
    Brick Sales (Pty) Ltd shall advise the Purchaser of the said increase
    and the Purchaser shall be entitled to cancel his order provided that
    he does so as soon as possible after being advised of the said
    increase. If, however, at the time of placing the order and the issuing
    of a written acceptance of such order by Cabrico Brick Sales (Pty) Ltd
    both a date for delivery has been agreed to by Cabrico Brick Sales
    (Pty) Ltd and the purchase price of the goods has been paid in full,
    then that price will be the price at which the goods will be sold.
    2.3 Where the price of goods is the delivered price, any increase in the
    transport rate prior to the date of despatch shall be for the account of
    the Purchaser. Any additional charges raised by carriers in connection
    with the delivery of goods to the Purchaser, including demurrage or a
    change in rail tariff, shall be for the account of the Purchaser.
  3. DELIVERY
    3.1 In the case of goods sold for delivery at Cabrico Brick Sales (Pty) Ltd’s
    factories, the Purchaser shall provide transport and labour and take
    delivery of the goods at a rate and at such time or times as agreed to
    by the Purchaser and Cabrico Brick Sales (Pty) Ltd.
    3.2 The carrier taking such delivery on behalf of the Purchaser, whether
    shipper, haulage, contractor or rail carrier, shall be deemed to be the
    Purchaser’s carrier and agent and delivery shall be deemed to be
    effected upon possession of goods sold being taken by the carrier. A
    consignment note issued by the carrier shall constitute prima facie
    proof of delivery of the goods expressed to be covered thereby.
    3.3 In the case of goods sold for delivery by Cabrico Brick Sales (Pty) Ltd,
    the Purchaser may request the delivery of goods in accordance with a
    delivery schedule and depending on the efficient use of its delivery
    fleet and subject to 3.5. Cabrico Brick Sales (Pty) Ltd will attempt,
    but shall not be bound to meet such delivery schedule. In the
    absence of a delivery schedule agreed in terms of 3.5, Cabrico Brick
    Sales (Pty) Ltd shall, when it delivers products, deliver at such time
    and date and offload in such a manner as it determines at or as near
    as possible to the Purchaser’s building site, provided that if a point of
    delivery have been indicated by the Purchaser, it will be attempted to
    deliver at such point. On order to comply with Local Authority Bylaws,
    the Purchaser undertakes to remove the goods from the place where
    they are delivered to within the boundaries of the building site. The
    Purchacer shall ensure that Cabrico Brick Sales (Pty) Ltd has access to
    the building site and the point of delivery at all times. Failure on the
    part of the Purchaser in each or any regard shall entitle Cabrico Brick
    Sales (Pty) Ltd to divert the goods or return them to its premises. In
    either event the Purchaser shall, upon demand, pay Cabrico Brick
    Sales (Pty) Ltd’s expenses incurred in tendering delivery of the goods.
    3.4 Upon delivery or deemed delivery of goods to the Purchaser, all risk in
    and to the goods, including packaging materials thereof, shall pass to
    the Purchaser.
    3.5 Cabrico Brick Sales (Pty) Ltd may agree, in writing, to a delivery
    schedule, then Cabrico Brick Sales (Pty) Ltd shall attempt to deliver
    products in accordance with such delivery schedule, but is not bound
    to do so. Should the Purchaser wish to change an agreed delivery
    schedule then it shall give a minimum of 48 hours’ notice to Cabrico
    Brick Sales (Pty) Ltd. Acceptance shall be subject to availability of
    goods.
    3.6 Cabrico Brick Sales (Pty) Ltd goods correctly despatched per orders
    are not returnable. Where Cabrico Brick Sales (Pty) Ltd agrees to
    goods being returned the cost of returning the goods will be for the
    account of the Purchaser where the reason for returning goods is
    attributable to the Purchaser. Cabrico Brick Sales (Pty) Ltd reserves
    the right to levy a 10% (ten percent) handling charge on all goods
    returned. Only goods returned which Cabrico Brick Sales (Pty) Ltd
    approves as fit for the purpose manufactured in every respect will be
    credited to the Purchaser’s account.
  4. IMPOSSIBILITY OF PERFORMANCE AND INJURY OR BREAKAGES
    4.1 In the event of Cabrico Brick Sales (Pty) Ltd being prevented by any
    cause beyond its control from supplying goods ordered, which shall be
    deemed to include shortage of stocks of the goods, then it shall be
    excused performance during the period for which it is so prevented.
    4.2 The Purchaser indemnifies and holds harmless Cabrico Brick Sales
    (Pty) Ltd/Brick ‘n Tile against all claims of any nature whatsoever in
    respect of loss or damage to persons or goods or property suffered by
    the Purchaser and the Purchaser’s employees, agents and invitees
    while on the premises of Cabrico Brick Sales (Pty) Ltd or alliance
    factories.
  5. WARRENTY
    5.1 The provisions of these Conditions shall apply to and be in lieu of any
    other warranty expressed or implied which may otherwise result from
    the sale of goods by Cabrico Brick Sales (Pty) Ltd.
    5.2 All goods sold by Cabrico Brick Sales (Pty) Ltd are manufactured to
    the standard applicable to and of application at each factory from time
    to time and in accordance with any quotation given by Cabrico Brick
    Sales (Pty) Ltd. In addition, those factories which have the right to
    use the SABS mark warrant that products supplied in accordance with
    the mark scheme comply with the relevant South African Bureau of
    Standards specifications in all respects. Purchasers are required and
    shall be deemed to have made themselves acquainted with such
    standards.
    5.3
    5.3.1 It is further warranted that all goods are manufactured using goods
    and proper materials and workmanship and that in the case of clay
    bricks, goods will be suitable for use in terms of the appropriate
    product classification as classified by the South African Bureau of
    Standards (SABS) applicable to the goods concerned. That is to say,
    under normal conditions, FBX, FBS and FBA classified goods are
    suitable for use without rendering or plastering whereas NFP classified
    goods require such rendering or plastering and NFX classified goods
    are for use in special circumstances. Cabrico Brick Sales (Pty) Ltd’s
    waybill shall constitute prima vacie proof of the SABS concerned.
    5.3.2 Cabrico Brick Sales (Pty) Ltd’s liability in relation to this warranty shall
    not in any circumstance whatsoever exceed the cost to Cabrico Brick
    Sales (Pty) Ltd of replacing the goods giving rise to such loss or
    damage with similar goods to which goods the provisions of these
    Conditions shall apply. Save with regards to the foregoing, no
    warranty is given, expressed or implied that goods will be suitable for
    use for any specific purpose or under any specific conditions, even
    though such purpose or conditions may be known to Cabrico Brick
    Sales (Pty) Ltd.
    5.4 Cabrico Brick Sales (Pty) Ltd shall not be liable to the Purchaser nor to
    any third person for any loss or damage arising directly or indirectly
    from any defect whatsoever other than in respect of the matters
    warranted above.
    5.5 Notwithstanding anything to the contrary contained in any statute or
    other law, any claim which the Purchaser may have pursuant to a
    breach of any of the above warranties shall be deemed to prescribe
    three years after the delivery to him of the goods.
  6. CLAIMS
    6.1 Cabrico Brick Sales (Pty) Ltd will attempt to deliver products in
    accordance with a delivery schedule agreed to in terms of 3.5, but the
    Purchaser shall have no claim of any nature whatsoever against
    Cabrico Brick Sales (Pty) Ltd by reason of any delay by Cabrico Brick
    Sales (Pty) Ltd in giving delivery of goods on any date or dates that
    may be specified in the Purchaser’s order or a delivery schedule
    agreed in terms of 3.5 or within a reasonable time in those cases in
    which no such date is specified or agreed.
    6.2 The Purchaser acknowledges that during the normal transportation of
    goods from factory to site, damages and breakages are likely to occur.
    In the case of goods packaged and transported by Cabrico Brick Sales
    (Pty) Ltd itself, breakage could be as high as 8% (eight percent) in
    the case of non-face bricks and 5% (five percent) in the case of face
    bricks and tiles or such percentage as quoted at the time of sale. It is
    agreed that the Purchaser shall have no claim whatsoever against
    Cabrico Brick Sales (Pty) Ltd, whether by way of reduction of the
    purchase price or otherwise, in respect of losses of up to the aforesaid
    percentages unless Cabrico Brick Sales (Pty) Ltd has specifically, in
    writing, agreed to some lesser percentage of breakages.
    6.3 Products delivered by rail are despatched at the Purchaser’s risk. Any
    claim for damage in transit should be directed to the carrier.
    6.4 In the case of products delivered by road by Cabrico Brick Sales (Pty)
    Ltd’s carrier claims will, as between the Purchaser and Seller, only be
    valid if such claims are endorsed on the waybill at the time of delivery
    or are brought to Cabrico Brick Sales (Pty) Ltd’s attention in writing
    within 7 days of receipt of the goods by die Purchaser or the agent.
    6.5 Should the Purchaser wish to query any item on Cabrico Brick Sales
    (Pty) Ltd’s invoice or should he wish to request proof of delivery
    pursuant to a query as to the quantity of product delivered to him, he
    shall be obligated to make relevant query, claim or request (as the
    case may be) within a period of 30 days from the date of Cabrico
    Brick Sales (Pty) Ltd’s invoice. Failing which his right to do so shall be
    deemed to be waived and he shall have no further claim against
    Cabrico Brick Sales (Pty) Ltd arising pursuant thereto.
  7. PAYMENT OF PURCHASE PRICE
    7.1 The normal form of payment for goods including cartage shall be cash
    payable in advance of delivery or despatch. The term “cash” includes
    payment by means of a credit card acceptable to Cabrico Brick Sales
    (Pty) Ltd. In the event of the purchase price and other charges not
    being paid as aforesaid, Cabrico Brick Sales (Pty) Ltd shall be entitled
    to cancel any contract for the delivery of goods without prejudice
    to its right to recover from the Purchaser any loss or damage
    suffered by it by reason of such cancellation.
    7.2 It is recorded that in those instances where Cabrico Brick Sales (Pty)
    Ltd, whether expressly or otherwise, agrees to grant credit to the
    Purchaser without specifying the period for which the credit will be
    granted, the payment terms shall be strictly 30 days from the date of
    Cabrico Brick Sales (Pty) Ltd’s first statement in respect of the goods
    concerned. No credit cards will be accepted by Cabrico Brick Sales
    (Pty) Ltd for payment of an account where Cabrico Brick Sales (Pty)
    Ltd has granted credit. Where the basis of payment is expressly
    stated in writing and Cabrico Brick Sales (Pty) Ltd accepts that basis
    of payment then such basis overrides this provision, or as agreed
    a 5% credit card charge will be added to the outstanding balance on
    acceptance of a credit card.
    7.3 In the event of Cabrico Brick Sales (Pty) Ltd agreeing in writing to
    give credit to a Purchaser for the payment of the purchase price of
    goods and the Purchaser failing to make payment upon the due date
    in respect of the purchase price or any other portion thereof or in the
    event of a Purchaser being indebted to Cabrico Brick Sales (Pty) Ltd
    arising from any cause whatsoever, then in either or both of such
    circumstance Cabrico Brick Sales (Pty) Ltd shall not be obliged to
    perform under any contract then in existence and may, at its election,
    terminate any such contract, which termination may be made without
    prejudice to its rights to claim damages arising from such termination
    and to its right to recover from the Purchaser any moneys then owing
    to it from whatever cause arising.
    7.4 Ownership of all goods sold and delivered by Cabrico Brick Sales (Pty)
    Ltd to Purchasers, shall to the extent that they have not been built
    into a permanent structure, remain with Cabrico Brick Sales (Pty) Ltd
    until the purchase price thereof shall have been paid in full. A
    certificate issued by Cabrico Brick Sales (Pty) Ltd’s auditors shall
    constitute prima facie proof of the goods for which payment has not
    been made to Cabrico Brick Sales (Pty) Ltd.
    7.5 Without prejudice to the foregoing, in the event of the Purchaser
    failing to pay any amount due to Cabrico Brick Sales (Pty) Ltd on due
    date then such amount as remains unpaid shall bear interest at the
    rate equal to the prime overdraft rate charged by Cabrico Brick Sales
    (Pty) Ltd’s bankers to it plus 2% (two percent), subject to the
    maximum rate prescribed in terms of the Usury Act No.73 of 1968, as
    amended. Such interest shall be calculated monthly in arrears.
    7.6 All payments made by a Purchaser to Cabrico Brick Sales (Pty) Ltd
    shall be attributed by Cabrico Brick Sales (Pty) Ltd firstly towards the
    payment of all interest then owing by the Purchaser to Cabrico Brick
    Sales (Pty) Ltd and thereafter in reduction of the purchase
    consideration in respect of goods due and owing by the Purchaser to
    Cabrico Brick Sales (Pty) Ltd, provided that payment made shall be
    attributed to the amount which has been owing by the Purchaser to
    Cabrico Brick Sales (Pty) Ltd for the longest period of time.
    7.7 A certificate issued by Cabrico Brick Sales (Pty) Ltd’s auditors shall
    constitute prima facie proof of the indebtedness of the Purchaser to
    Cabrico Brick Sales (Pty) Ltd from time to time.
  8. JURISDICTION
    8.1 The Purchaser hereby consents in terms of Section 45 of the
    Magistrate’s Court Act to the jurisdiction of the appropriate
    Magistrate’s Court in respect of any proceedings arising here from
    notwithstanding that such proceedings would otherwise have been
    beyond the jurisdiction of such Magistrate’s Court. However
    notwithstanding such consent, Cabrico Brick Sales (Pty) Ltd shall be
    entitled in its sole discretion, and without prejudge to institute such
    proceedings in the appropriate High Court.
    8.2 The Purchaser hereby consents to the jurisdiction of the High Court in
    which any action is instituted against the Purchaser in respect of any
    Constitutional issues which arise in such action or if this becomes
    permissible in the Magistrate’s Court in which the aforesaid action is
    instituted.
  9. LEGAL COSTS
    In the event of Cabrico Brick Sales (Pty) Ltd instructing its Attorney to collect
    any amount owing by a Purchaser, the Purchaser shall pay Cabrico Brick Sales
    (Pty) Ltd’s attorney and own client costs which include all collection
    commission and other costs incurred by Cabrico Brick Sales (Pty) Ltd with its
    Attorneys in that regard.
  10. NON-WAIVER
    The failure by Cabrico Brick Sales (Pty) Ltd to strictly enforce any provision of
    these Conditions shall not be construed as a waiver by Cabrico Brick Sales
    (Pty) Ltd of any of its rights in terms hereof nor shall it prejudice Cabrico Brick
    Sales (Pty) Ltd’s right to strictly enforce such conditions.
  11. VAT
    Cabrico Brick Sales (Pty) Ltd is a registered vendor for VAT purposes and will
    charge VAT on all taxable supplies made by it to the Purchaser in addition to
    the price of goods.
  12. CONSENT TO ACCESS INFORMATION
    12.1 The Purchaser agrees that Cabrico Brick Sales (Pty) Ltd may use the
    services and records of a registered credit bureau and other supplies
    for information required in the original and future assessment of credit
    facilities. The Purchaser agrees that Cabrico Brick Sales (Pty) Ltd may
    disclose information regarding the Purchaser’s credit worthiness
    and conduct of the Purchaser’s account with it to any registered credit
    bureau and other supplies.
    12.2 If the Purchaser is a private or unlisted public company, close
    corporation or other artificial person then it undertakes to advise
    Cabrico Brick Sales (Pty) Ltd forthwith in writing of any agreement
    concluded for the change of its shareholding, membership or
    ownership. In such event (or if the Purchaser fails to advise Cabrico
    Brick Sales (Pty) Ltd as required in terms hereof), Cabrico Brick Sales
    (Pty) Ltd reserves the right to suspend its credit terms on written
    notice to the Purchaser until all requirements of Cabrico Brick Sales
    (Pty) Ltd as a consequence of such change have been met in full.
    12.3 Cabrico Brick Sales (Pty) Ltd reserves the right to suspend the
    Purchaser’s credit terms at any time on written notice to the
    Purchaser.
  13. RIGHT TO UPDATE
    Cabrico Brick Sales (Pty) Ltd reserves the right to update these conditions of
    sale from time to time on written notice to the Purchaser which shall on
    receipt of the updated conditions of sale from time to time be bound to the
    same as if they were the original conditions of sale.
  14. CLAUSE SEVERABLE AND DIVISIBLE
    14.1 Each and every clause contained in these conditions of sale is
    severable and divisible from the others and separately enforceable as
    such. Should any provision be found not to be binding then this shall
    not affect the enforceability of the remaining provisions.
    14.2 The Guarantee, Suretyship and Co-principle Debtorship overleaf shall
    not, whether properly completed, incorrectly completed, in any way
    whatsoever affect the validity and enforceability of these conditions of
    sale at the instance of Cabrico Brick Sales (Pty) Ltd.
  15. ARBITRATION AND CONSTITUTIONAL ISSUES
    15.1 At the election of Cabrico Brick Sales (Pty) Ltd (made by written
    notice to the Purchaser all disputes, differences, impasses or
    dreadlocks between Cabrico Brick Sales (Pty) Ltd and the Purchacer
    shall be referred to arbitration. All references in this agreement to
    “arbitration” shall be deemed to be a reference to arbitration in terms
    of the Statute which replaces it. The Arbitrator shall be a person
    agreed upon between Cabrico Brick Sales (Pty) Ltd and the Purchaser
    and failing agreement, a person nominated by the President of the
    Cape Town Law Society (or if that Body changes its name the
    President or head of the Body that succeeds it) and such person shall
    not necessarily be a lawyer. The arbitration shall be held in Cape
    Town. No party shall except jointly with all the other parties, invoke
    the provisions of Section 23 (a) of the Arbitration Act or any other
    similar provision which may hereafter exist. The decision of such
    Arbitrator shall be final and binding upon Cabrico Brick Sales (Pty) Ltd
    and the Purchaser and the Arbitration shall also be entitled to
    stipulate who shall pay his costs of resolving such dispute, difference,
    impasse or deadlock.
  16. GUARANTEE, SURETYSHIP AND CO-PRINCIPAL DEBTORSHIP
    16.1 Cabrico Brick Sales (Pty) Ltd reserves the right to require:
    (a) suretyships, co-principals debtor shops and guarantees from all
    members, shareholders, beneficiaries and other persons asso-
    ciated with the purchaser before or after accepting an
    application

(b) holding company guarantees, cessions of book debts and bank
guarantees from the purchaser
(c) at any time on written notice to the purchaser, and Cabrico
Brick Sales (Pty) Ltd shall be entitled to suspend credit facilities
until its requirements are met in full.
16.2 In respect of cash sales; COD; transport cash sales and the
incorporation of the provisions of these conditions of sale onto
waybills and invoices in respect of such sales the provision of clause
16 and clause 17 shall not apply and shall be regarded a pro-non
scripto.
16.3 These conditions of sale apply to all transactions between Cabrico
Brick Sales (Pty) Ltd and the purchaser notwithstanding the fact that
the suretyship, co-principle debtorship and guarantee contained in the
Credit Application form is not completed and/or signed by any person
or is partially completed and/or signed by certain persons.

  1. DOMICILIA AND NOTICES
    (a) The parties choose as their domicilia citandi et executandi for all
    purposes under this agreement, whether in respect of court process
    notice or other documents or communications of whatsoever nature
    the following addresses.

(i) Cabrico Brick Sales (Pty) Ltd Bottelary road
Koelenhof
Stellenbosch
7600

(ii) The Purchaser See physical address, fax number and
email address in application for credit to
which these conditions form part
(b) Any notice or communication required or permitted to be given in
terms of this agreement shall be valid and effective only if in writing
but is shall be competent to give notice by telefax or email.
(c) Any part may by notice to any other party change the physical
address chosen as its domicilium citandi et executandi via-a-vis that
party to another physical address in the Republic of South Africa or its
telefax number or Email address, provided that the change shall
become effective via-a-vis that addressee on the 4th business day
from the deemed receipt of the notice by the addressee.
(d) Any notice to a party
(i) Sent by prepaid registered post (by airmail if appropriate) in a
correctly addressed envelope to it at its domicilium citandi et
executandi shall be deemed to have received on the 4th
business day after posting (unless the contrary is proved).
(ii) Delivery by hand to a responsible person during ordinary
business hours at its domicilium citandi et executandi shall be
deemed to have been received on the day of delivery; or
(iii) Sent by telefax or email to its chosen telefax number or email
address shall be deemed to have been received on the date of
despatch (unless the contrary is proved)
(e) Notwithstanding anything to the contrary herein contained a written
notice or communication actually received by a party shall be an
adequate written notice or communication to it notwithstanding that
it was not sent tie or delivered at its chosen domicilium citandi et
executandi.

  1. CONSUMER PROTECTION ACT
    The purchaser/Debtor by its signature hereto warrants and confirms that his
    asset value or annual turnover at date hereof is in excess of Two Million Rand.
    YES NO (Tick Applicable)