in this agreement, except where the context indicates otherwise:
"The Customer" means, jointly and severally, the signatory hereto and any person on whose behalf the signatory signs this agreement;
"Italtile" means Italtile Ceramics Limited and its subsidiaries and associate companies as well as the franchisees of those entities, from time to time.
Quotations are valid for 14 days, subject to the availability of goods or services and subject to correction of good faith errors by Italtile and/or its employees or agents.
Prices quoted are subject to increases in cost price, including currency fluctuations, before acceptance of the quotation by the Customer.
The Customer hereby confirms that the goods and/or services on the Tax Invoice issued duly represent the goods and/or services ordered by the Customer at prices agreed to by the Customer and, where delivery / performance has already occurred, the goods and/or services were inspected and the Customer is satisfied that these conform with the quality and quantity ordered and are free from defects.
The Customer may request Italtile to store the goods purchased and paid for by the Customer at the premises of Italtile, in which event the Customer shall bear the risk of damage to, destruction or theft of the goods so stored.
Italtile may appoint a third party to transport the goods on the Customer's behalf on terms deemed fit by Italtile and the Customer hereby indemnifies Italtile from any claims of whatsoever nature which may be brought against Italtile as a result of the a foregoing. The premise of delivery shall be deemed to be at ground floor level at the Customer specified address. No deliveries will be carried out to any level above ground floor level at the address specified by a Customer, by Italtile or by its staff or its representatives. The customer indemnifies Italtile, its staff or its representative from any claims whatsoever in the event that deliveries are carried out above ground level.
Any delivery note or waybill (copy or original) signed by the Customer or a third party engaged to transport the goods and held by Italtile shall be prima facie proof that the goods were delivered to the Customer.
Delivery times quoted are merely estimates and are not binding on Italtile.
The Customer agrees to accept any quantity that does not exceed or fall short of the quantity ordered by more than 10% as good and complete performance.
The Customer accepts that colour shade as well as size variations may occur amongst individual and batches of tiles.
The Customer agrees to pay all costs resulting from any acts or omissions of the Customer including suspension of work, modification of requirements, failure or delay in giving particulars necessary to enable work to proceed on schedule or requirements that work be completed earlier than agreed.
New goods are guaranteed by the Manufacturer's product-specific warranties only.Services carry no guarantee.
Italtile's liability in respect of the manufacture's product-specific warranty shall be limited to the cost of repair or replacement of faulty goods or services or granting of a credit at the sole discretion of Italtile.
The Customer agrees that neither Italtile nor any of its employees or agents will be liable for any innocent or negligent misrepresentations made to the Customer.
It is the responsibility of the Customer to determine that the goods or services ordered are suitable for the purposes of intended use.
No claim under this Agreement shall arise unless the Customer has, within 7 days of the alleged breach or defect occurring, given Italtile 30 days written notice by prepaid registered post to rectify any defect or breach.
All claims shall be supported by the original Tax Invoice.
Italtile shall not be liable for any consequential damages or for any edictal liability of any nature whatsoever, nor for any damage arising from any misuse or abuse of the goods or services.
The Customer shall return any defective goods to the premises of Italtile at the Customer's own cost and packed in the original packaging, provided that Italtile shall in that event be entitled to charge the Customer a handling fee of 10% of the total invoice amount.
No goods will be accepted for return after a period of 6 months has passed from date of purchase, surplus goods returned prior to this period may at management’s discretion attract a handling fee.
The price on the Tax Invoice issued by Italtile shall:
Be paid in cash on issue of the invoice; or
If the Customer is a Credit Approved Customer, be paid within 30 days of the end of the month in which it was first issued.
The Customer agrees to pay the amount on the Tax Invoice at the offices of Italtile or at such other place Italtile may designate in writing.
Any amounts not paid when due will bear interest at the prime rate of interest charged by Italtile's bankers plus 5%.
Discounts are automatically forfeited if payment in full is not made on the due date.
The Customer has no right to set-off or withhold payment for any reason whatsoever. No extension of payment of any nature shall be extended to the Customer unless agreed to in writing by Italtile beforehand.
A certificate under the hand of any executive director or manager of Italtile, whose appointment it shall not be necessary to prove, as to the indebtedness of the Customer in terms hereof, shall, in the absence of manifest error, be prima facie evidence of the Customer's indebtedness to Italtile.
The Customer agrees to the Standard Rates of Italtile applicable from time to time for any goods or services rendered, which rates may be obtained on request.
All goods supplied by Italtile remain the property of Italtile until fully paid for whether such goods are attached to other property or not.
The Customer is not entitled to sell or dispose of any goods unpaid for. The Customer shall not allow the goods to become encumbered in any manner prior to the full payment thereof and shall advise third parties of the rights of Italtile in the goods.
The Customer hereby consents to the storage and use by Italtile of the personal information that it has provided to Italtile for establishing its credit rating and to Italtile disclosing such information to credit control companies, banks and other institutions involved in rating credit. The Customer agrees that Italtile will not be held liable for the good faith disclosure of any of this information to such a third party and that no further specific consent need to be obtained for the transfer of such information to a specific third party.
An event of default shall occur if:-
the Customer fails to make any payment in terms of this agreement on due date and persists in such failure for a period of 3 days after the date of written notice by Italtile to the Customer requiring the Customer to effect such payment;
the Customer commits an act which is an act of insolvency within the meaning of Section 8 of the Insolvency Act and fails to remedy the default within 5 days of receipt by the Customer of notice from Italtile requiring such default to be remedied;
Any of the assets of the Customer are attached under Writ of Execution which Writ is not satisfied within 5 days after the issue thereof;
The Customer ceases to carry on business; or
The Customer compromises or attempts to compromise with any creditor or body of creditors; or
The Customer is provisionally or finally wound-up other than the voluntary liquidation implemented for the purpose of reconstruction or amalgamation; or
The Customer is placed under judicial management, whether provisionally or finally; or
The Customer breaches any of the terms of this agreement (save for a breach contemplated in Clause 7.1 above) and fails to remedy such breach within a period of 7 days from the date of written notice by Italtile to the Customer requiring that such breach are remedied.
Upon the occurrence of any event of default, Italtile shall, without prejudice to any other rights which it may have in law, be entitled to summarily cancel the transaction and declare the outstanding amount of the Customer's indebtedness to be immediately due and payable.
Any order may also be cancelled by Italtile, without any right to claim damages or any other relief on the part of the Customer due to Acts of God from any cause beyond the control of Italtile, including but not limited to inability to secure labour, power, materials or supplies, or by reason of an act of God, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
The invalidity of any part of this Agreement shall not affect the validity of any other part.
The Customer shall be liable to Italtile for all legal expenses incurred by Italtile on the attorney-and-own client scale in respect of any action which may be instituted consequent upon any breach by the Customer of this agreement.
Italtile shall have the right to institute legal action in the Magistrate's Court or the High Court at its sole discretion, and the Customer consents to that jurisdiction.
This Agreement shall be governed by the laws of South Africa and the Customer consents to the exclusive jurisdiction of the South African Courts.
The Customer agrees that Italtile will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate's Courts or in terms of Rule 47 of the Law of the Supreme Court 59 of 1959.
The Customer agrees that no indulgence whatsoever by Italtile will affect the terms of this agreement or any of the rights of Italtile and such indulgence shall not constitute a waiver by Italtile in respect of any of its rights herein.
This document contains the entire agreement between Italtile and the Customer in regard to the matters with which this agreement is concerned and neither party shall be bound by any undertakings, representations, warranties, promises or the like not recorded or otherwise contained herein.
No variation or consensual cancellation of this agreement shall be of any force or effect unless reduced to writing and signed by the Customer and an authorised representative of Italtile.
Italtile shall not be regarded as having waived, or be precluded in any way from exercising any right under or arising from this agreement by reason of its having at any time granted any extension of time for, or having shown any indulgence to the Customer with reference to, any payment or performance hereunder, or having failed to enforce, or delayed in the enforcement of any right of action against the Customer.
The parties choose as their domicilia citandi et executandi the addresses mentioned on the face hereof, but such domicilium of any party may be changed by written notice from such party to the other parties with effect from the date of receipt or deemed receipt by the latter of such notice.
Any notice, demand or other communication properly addressed by a party to any other at the latter's domicilium in terms hereof for the time being and sent by prepaid registered post shall be deemed to be received by the latter on the tenth business day following the date of posting thereof. This provision shall not be construed as precluding the utilisation of other means and methods (including telefacsimile) for the transmission or delivery of notices, demands and other communications, but no presumption of delivery shall arise if any such other means or method is used.