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)
- 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.
2.1 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.
3.1 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
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
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.
- 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
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
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
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.
6.1 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.
- 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.
8.1 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
- 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.
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.
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.
- 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
- 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.
- 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.
- 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.
- 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
(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
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.
- 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
(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
- 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)