These terms and conditions together with the quote signed and accepted by the Customer shall constitute the Sale Agreement between Stretchtents International (Pty) Ltd and the Customer.
1.1 Unless inconsistent with the context, the expressions set forth below shall bear the following meanings:
|1.1.1||“Accepted Quote”||Shall mean the quote that is signed by the Customer, accepting the amounts set out in the quote and all the terms and conditions set out herein;|
|1.1.2||“Clearing Agent”||Shall mean an agent who assists in clearing the Product through customs, preparing and processing any customs documentation, calculating taxes, duties and excises and facilitating communication between the exporter/importer and any government departments;|
|1.1.3||“Cloth”||Shall mean one of the three different fabrics used to manufacture the various Products;|
|1.1.4||“Customs Act”||Shall mean Customs and Excise Act, 1964.|
|1.1.5||“Customer”||Shall mean any person, organisation or company who purchases the Product from STI;|
|1.1.6||“Effective Date”||Shall mean the date upon which the Customer signs the quote and it becomes the Accepted Quote;|
|1.1.7||“Equipment”||Shall mean all poles and pegs required for the Product;|
|1.1.8||“Estimated Freight Quote”||Shall mean the quote obtained when the Product is weighed and sized. This quote is an estimate.|
|1.1.9||“Freight Quote”||Shall mean the actual quote obtained by the Clearing Agent at the Port of Origin when they weigh the Product and calculate all aspects of the shipping (including but not limited to packaging fees, clearing agency fees, local custom clearance, loading of the Product and freighting of the Product);|
|1.1.10||“Handling Agent”||Shall mean the agent appointed by the Shipping Agent to handle the cargo;|
|1.1.11||“Intellectual Property”||Shall mean all right, title and interest in and to all the intellectual property pertaining to copyright, patents, licences, marks, trade names, brands and logos used in connection with the Product, Materials and Equipment;|
|1.1.12||“Manual”||Shall mean the Stretch-tents Manual that accompanies all Products and stipulates the methods of installation, general guidelines and care of the Products.|
|1.1.13||“Material”||Shall mean any of the manufacturing materials used to manufacture the various Products, excluding the Cloth;|
|1.1.14||“Parties”||Shall mean Stretch-tents International and the Customer;|
|1.1.15||“Pilling”||Shall mean the effect caused by the pole to the Cloth causing an inability to retract 100% to its original shape;|
|1.1.16||“Port of Destination”||Shall mean the port where the Product being sent to by one of the following modes of transport: air, sea, road or rail;|
|1.1.17||“Port of Origin”||Shall mean the port where the Product is dispatched from, the mode of transport could be either air, sea, road or rail, shipping;|
|1.1.18||“Product”||Shall mean the wide range of tents and other goods manufactured out of the Materials and sold by STI.|
|1.1.19||“Sale Agreement”||Shall mean these terms and conditions together with the Accepted Quote;|
|1.1.20||“STI”||Shall mean Stretchtents International (Pty) Ltd|
|1.1.21||“Shipping Agent”||Shall mean the Agent appointed by STI to handle documents and all arrangements of shipping and insurance from the loading depot to the port of destination;|
|1.1.22||“Shipping Depot”||Shall mean the depot where the Product is loaded into a container.|
2.1 Unless inconsistent with the context, an expression which denotes:
2.1.1 any gender includes the other genders;
2.1.1 a natural person includes an artificial person and vice versa;
2.1.2 the singular includes the plural and vice versa.
2.2 Any reference to an enactment is to that enactment as at the Effective Date and as amended or re-enacted from time to time.
2.3 When any number of days is prescribed in these terms and conditions, the same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.
2.4 Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
2.5 Expressions defined in these terms and conditions shall bear the same meanings in schedules or annexures, which do not themselves contain their own definitions.
3 PURCHASE AND SALE
3.1 STI has agreed to sell and the Customer has agreed to purchase the Product as set out in the Accepted Quote, upon the terms and conditions contained herein and in particular on the basis of the representations, warranties, undertakings and indemnities set out herein.
4 PURCHASE CONSIDERATION
4.1 The purchase price of the Product is set out in the Accepted Quote. The shipping of the Product is not included in the Accepted Quote but is an additional service which requires an additional quote, the Freight Quote.
4.2 A deposit of 50% (Fifty percent) of the purchase price of the Product shall be paid to STI on the Effective Date, being the date the quote is signed and accepted by the Customer.
4.3 Once the deposit has cleared and appears in STI’s bank account, the manufacture of the Product shall commence. The Product should take approximately 8 (eight) weeks to manufacture, however this is not guaranteed.
4.4 STI shall notify the Customer 1 (one) week prior to completion of the Product that the balance purchase price is due and payable. Once the balance purchase price is paid in full and the funds have cleared, STI shall have 4 (four) days in which to complete branding, packaging and dispatch to the Port of Origin.
4.5 If the Customer delays payment of the balance purchase price or the Freight Quote, STI have a lien over the Product and shall have the right to withhold the Product until payment is received. The Customer shall be liable for all storage costs incurred and penalties levied as a result of their delay.
5.1 STI use Third Parties as agents to assist in the shipping process and therefore STI cannot guarantee times frames and cannot be held liable for any delays caused that are beyond their control.
5.2 The delivery of Products are CIF (Cost, Insurance and Freight) until the Port of Destination.
5.3 STI shall appoint a Clearing Agent who shall facilitate the shipping process from the Port of Origin.
5.4 The Clearing Agent shall weigh and size the Products and get an Estimated Freight Quote, which STI shall forward to the Customer. Neither STI nor the Clearing Agent can be held liable for incorrect tariff codes or incorrect quotes.
5.5 The Clearing Agent may facilitate the transportation from STI’s factory to the Port of Origin, depending on the size of the Product, destination and other circumstances.
5.6 STI cannot be held liable for any delays caused by customs retaining the Product at the Port of Origin for any reason whatsoever, or any indirect or consequential loss arising from these delays. The Customer shall be liable for any storage costs or and penalties levied against them as a result of customs retaining the Product.
6 RISK AND POSSESSION
6.1 All risk in and benefit attaching to the Product shall pass to the Customer on arrival at the Port of Destination, unless otherwise agreed between the Parties.
7 INSTALLATION BY STI
7.1 If STI are requested to do the installation, they shall furnish the Customer with a quote for the basic costs of the installation. The Customer shall be liable for the actual costs incurred by STI in relation to flights, board etc. which shall be invoiced after the installation.
7.2 The Customer shall appoint a single contact person, who will be present on site, to liaise with STI in connection with the installation. This contact person will be required to sign off on the installation, thereby confirming that they are satisfied that the Product has been installed to their satisfaction.
7.3 Once installed the Customer becomes liable for the maintenance of the Product and all the warranties and other terms and conditions referred to herein continue to be apply.
8 CUSTOMER’S RESPONSIBILITIES
8.1 The Customer is liable for all fees incurred by their shipping agents, clearing agency fees, destination charges, tax and duties. The Customer shall ensure that the Product is insured from the time that it arrives at the Port of Destination and all costs relating thereto are for the Customers’ account.
8.2 The Customer must ensure that they are registered importers (if applicable) and that they have complied with all South African legislation and any legal or statutory requirements applicable in their Country before purchasing the Product.
8.3 The Customer hereby indemnifies STI against any claims made as a result of a failure to comply with clauses 8.1 and 8.2 above.
8.4 The Customer must ensure that they have read the Manual and given a copy to all parties who will be responsible for installing or rigging the Product and to ensure that the Product is installed or rigged safely and securely, and in such a way that it can face all weather conditions.
8.5 The Customer hereby indemnifies STI against any claims made as a result of their failure to comply with the installation and rigging requirements and any other safety standards.
8.6 The Customer must ensure that the Product is erected in such a way that it will not cause damage to life or property for the duration that it is installed.
8.7 It is advisable that the Customer requests training from STI, which is an additional service with an additional cost.
8.8 The Product is not a permanent structure but a semi-permanent structure and the Customer must ensure that it is not erected for periods exceeding 2 (two) weeks.
9 DAMAGE TO THE PRODUCTS AND DEFECTS
9.1 MANUFACTURER’S DEFECT:
9.1.1 The Product has a 6 (six) month manufacturer’s warranty. Any manufacturing defects will be repaired by STI unless STI in their sole discretion deem the Product un-useable, in which case they will replace the Product.
9.1.2 A Customer must within 7 (seven) days of becoming aware of a manufacturing defect (within the 6 month period) advise STI and send photos of the defect , a drawing showing where the defect is located and a detailed description of the Product’s specifications (panels, size etc), Product code and estimated dimensions of where the defect is located.
9.1.3 Where the defect is minor, less than R5,000.00 (Five thousand rand) to repair or rectify, STI shall attempt to find a solution in the Customer’s country or shall issue a credit note or discount for the Customer. A quote will be obtained before STI can make this decision.
9.1.4 After the 6 (six) month manufacturer’s warranty has expired and damage occurs, the Customer will be liable to pay an administration fee, all freight charges and repair fees which will be quoted to the Customer.
9.2 DAMAGE CAUSED DURING SHIPPING:
9.2.1 STI shall endeavour to take all precautions and pack the Product in such a way as to reduce the risk of damage occurring during shipping.
9.2.2 If damage is caused to the Product during shipping prior to the risk passing to the Customer, the Customer must advise STI of the damage in writing, within 7 (seven) days of becoming aware of the damage.
9.2.3 STI shall assess the damage and decide in their sole discretion whether the Product can be repaired in the country where the Customer is located or if the Product will need to be returned to South Africa for repairs.
9.2.4 STI shall insure each Product for the value that appears on the Accepted Quote.
9.2.5 Where damage is severe, STI shall claim from their Insurance company and shall only commence with repairs or replace the Product once they have received payment from their Insurance company. The Customer must be aware that any delays caused by the Insurance company in assessing and processing the insurance claim is beyond the control of STI and they cannot be held liable for these delays or any indirect or consequential loss arising from these delays.
9.2.6 Where the damage is minor, less than R2,000.00 (Two thousand rand) to repair or rectify the Product, STI shall attempt to find a solution in the Customer’s country or shall issue a credit note or discount for the Customer.
9.3.1 The Customer acknowledges that after the first installation of the Product, general wear and tear will start which includes but is not limited to the following: scuffing, fading, getting dirty, extended UV exposure will cause fading and breakdown of fabric, stitching can begin to run or unravel and fabric will begin to stretch and reshape itself from the original Product, pilling may occur where the poles are placed and bumps may occur, lugs may be pulled out, logo branding may fade and leaks may occur.
9.3.2 These do not constitute damage or manufacturer’s defects and STI cannot be held liable for the effects of general wear and tear.
10 LIMITATION OF LIABILITY
10.1 STI can advise the Customer of the expected life expectancy of a particular Product but they do not guarantee the life span of any of their Products, because factors such as weather conditions, the type of climate in specific territories and the way in which the Product is used will have an influence on the life span and these factors are beyond the control of STI.
10.2 STI cannot be held liable for any damage caused as a result of the Customer using the Products in an adverse climate or in a manner contrary to those recommended by STI or stipulated in the Manual.
10.3 STI cannot be held liable for any indirect or consequential damage caused to any person, or property arising from damage or defects of the Product or incorrect installation of the Product.
10.4 STI cannot be held liable for any delays caused if the Products have manufacturer’s defects or have been damaged in any way and require repair or replacement.
10.5 If the Customer chooses to use outside contractors (who have not been approved by STI) to install the Product, STI cannot be held liable for any damage or loss caused by these outside contractors.
11 FORCE MAJEURE
11.1 Neither Party shall be liable for failure to perform any obligation required in terms of the Sale Agreement in the event and to the extent that such failure is caused by force majeure.
11.2 For the purpose of the Sale Agreement, “force majeure” shall mean any circumstances beyond the control of the Party giving notice for force majeure and, without prejudice to the generality of the aforegoing shall include war, revolution, invasion, insurrection, riot, civil commotion, mob violence, sabotage, military or usurped power, sanctions, Government Action, strikes, shutdown of the Manufacturer’s Plant for whatever reason or any of the Manufacturer’s supply plants, lightning or other adverse weather conditions, epidemic, quarantine, breakdown or shortage of plant and equipment, shortage of fuel, shortage of power and shortage of materials.
11.3 A Party wishing to invoke the provisions of this clause 10 shall give written notice to the other Party immediately on the occurrence of any event of force majeure which causes, or is likely to cause, any failure to perform any obligations hereunder and shall take such steps as may be reasonable practicable to remove or limit the duration of the force majeure situation.
12.1 Should any party (“the defaulting party”) commit a breach of any of the terms of the Sale Agreement, then the other party (“the aggrieved party”) shall be obliged to give the defaulting party 7 (seven) days’ written notice or such longer period as may reasonably be required in the circumstances, to remedy the breach.
12.2 If the defaulting party fails to comply with such notice, the aggrieved party shall be entitled to cancel the Sale Agreement against the defaulting party and retain any amounts paid by the defaulting party as rouwkoop or to claim immediate payment and/or specific performance by the defaulting party of all the defaulting party’s obligations whether or not the due date for payment and/or performance shall have arrived, in either event without prejudice to the aggrieved party’s rights to claim damages.
13.1 Any notices to be given to the Parties in terms of the Sale Agreement shall be in writing and delivered by hand during ordinary business hours, dispatched by telefax during normal business hours or sent by pre-paid registered mail to the respective addresses set out in the Accepted Quote.
13.2 Every notice shall be deemed to have been properly given, in the absence of proof to the contrary:
13.2.1 If delivered by hand, on the business day following the day of delivery;
13.2.2 If sent to a party at its telefax number on the business day following the day transmission; and
13.2.3 If sent by pre-paid registered mail, it shall have been received 5 (five) days after it is mailed.
13.3 The Parties shall be entitled to change the addresses referred to in this clause from time to time provided that such change shall only be effective after 14 (fourteen) days of the giving of written notice to the other Party of such change.
14 INTELLECTUAL PROPERTY RIGHTS
14.1 All intellectual Property in and relating to the Product shall remain the sole property of STI.
15 APPLICABLE LAW
15.1 The Parties agree that this Agreement shall be governed and construed in accordance with the laws of South Africa.
15.2 STI cannot be held liable for any requirements or regulations or legislation applicable in any other country.
15.3 The South African courts shall have jurisdiction over all disputes, actions and other matters relating thereto.