Account Application

1.1 “the goods” means any product as described in the company’s website and/or other goods supplied by company to the customer from time to time;

1.2“the company” means Vermont Sales (Pty) Ltd with registration number 2000/010105/07.

1.3“the customer”means the customer as identified as “the Applicant” on the first page of the Application to commence a business relationship with the company;

1.4“the CPA” means the Consumer Protection Act, 68 of 2008, as amended;

1.5“the NCA” means the National Credit Act, 34 of 2005, as amended.

2.1 The price of the goods shall be the current selling price at the date of the despatch of the goods.

2.2 Company price lists shall be considered merely as a guide to the Customer and the Company has the right, from time to time, for any reason and without notice to the Customer, to change the prices of its goods without reflecting such changes on any price lists.

2.3 When prices are expressed in South African currency for imported goods. These prices are based on the rate of exchange at the date of quotation and may be changed by the Company, at its sole discretion, without prior notice to the Customer.

2.4 All prices are nett unless otherwise stated.

3.1 Payment is to be made by the Customer within the agreed credit terms from date of the Company’s statement unless otherwise agreed to in writing and signed by the director of the Company.

3.2 The Customer shall be entitled to a discount if offered in writing by a duly authorised representative of the Company to the Customer.

3.3 In all cases where the Customer uses a banking, electronic or similar such service to effect payment, such services shall be deemed to be the agent of the Customer.

3.4 Should any amount not be paid by the Customer on due date, the Customer shall be deemed to be placed in mora and then the whole amount in respect of all purchases by the Customer shall become due, owing and payable, irrespective of the dates when the goods were purchased. The Customer shall then be liable to pay interest in respect of amounts unpaid as at the due date, at the compound rate of 2% above the prime overdraft lending rate of the Company’s Bank or as determined by the National Credit Act on all overdue amounts from due date, until date of payment, calculated and payable monthly in arrears and should the said interest not be paid in full as aforesaid, such interest shall be added to the principal sum, and the total shall form the principal debt which shall then bear interest in the manner as set out above.

3.5 If the Customer should fail to object to any item appearing on the Company’s statement of account / tax invoice, by notifying the accounts department of the Company within seven (7) days of date of the dispatch of the statement, tax invoice(s), the company’s account / tax invoice shall be deemed to be in order.

3.6 The Customer shall not be entitled to a claim, set off or deduction in respect of any payment due by the Customer to the Company for goods supplied.

3.7 The Company may appropriate all payments made by the Customer to such accounts as it will in its sole and absolute discretion determine.

3.8 Copies of invoices, statement of accounts and any other relevant documents (including any computer printouts) shall, upon representation by or on behalf of the Company be regarded as being what they purport to be, unless the contrary is shown.

3.9 The Company shall have the right to suspend deliveries and to exercise its rights in terms of Clause 7.1 if any amount due by the Customer is immediately unpaid.

4.1 The Customer understands that the Company’s decision to grant credit facilities to the Customer is at the sole discretion of the Company.

4.2 The Company reserves the right to withdraw or suspend any credit facilities at any time without prior notice and the nature and extent of such facilities shall at all times be in the Company’s sole discretion.

4.3 Despite the fact that the Company may grant the Customer a credit limit or a credit facility up to a certain amount, the Company reserves the right to increase this amount at its sole discretion. The credit limit or the revised credit limit shall not be deemed to be the limit of a Customer’s indebtedness to the Company.

5.1 The Customer shall pay the Company the agreed deposit in instances when orders are placed by the Customer for specific products.

5.2 Orders by the Customer for the Company’s goods shall be made in writing to such address (including an email address) as may be nominated by the Company from time to time.

5.3 Orders shall constitute irrevocable offers to purchase the goods in question at the usual prices of the Company and shall be deemed to be accepted by the Company by the delivery of the goods or by the written acceptance or confirmation of the order.

5.4 The Customer shall provide the Company with an order number when placing any order with the Company.

5.5 Without limiting the generality of the foregoing, the Company reserves the right to cancel and withhold the Customer’s order where the Customer is placed under business rescue, liquidated, sequestrated, makes any attempt of compromise with its creditors, has judgement recorded against its name and/or breaches any of the terms and conditions contained herein.

5.6 Orders accepted by the Company may not be varied or cancelled by the Customer, except with the written consent of the Company.

5.7 The Customer shall not be entitled to deny the validity of any order placed or the authority of the person who placed such an order, despite the fact that such an order may have been given or signed by a person not authorised by the Customer to do so.

5.8 If the execution of any order placed by the Customer is delayed by the Customer or if the Company agrees to cancel the order at the Customer’s request, the Company shall, without prejudice and addition to any other rights which it may have, be entitled to claim from the Customer any loss suffered and/or damages and/or general damages incurred by the Company on behalf of the Customer.

6.1 In the event that the Company transports the goods to the Customer, delivery and passing of the risk in the goods shall be deemed to have taken place when the goods are offloaded at the Customer’s premises. The signature of any employee of the Customer on a Company delivery note or invoice shall be prima facie proof of the proper delivery of the goods.

6.2 In all cases, where delivery to the Customer occurs by carrier, the carrier shall be the Customer’s agent, and delivery to such carrier by the Company shall be deemed to be delivery to the Customer. The signature of any employee of the carrier shall be prima facie proof of proper delivery to the Customer.

6.3 The Company reserves the right to hold the Customer liable for payment of all fees, charges, expenses and the like, due to the said carrier in respect of the transport of the goods to the Customer.

6.4 Should the Company at the Customer’s request, agree to engage a carrier to transport goods to the Customer, such carrier shall be the Customer’s agent and the Company shall engage the carrier on such terms and conditions as it deems fit and the Customer indemnifies the Company against all demands and claims which may be made against it by the carrier so engaged and all liability which the Company may incur to the carrier arising out of the transportation of the goods.

6.5 Delivery of the goods to any delivery address provided by the Customer shall constitute proper delivery of the goods, despite the fact that such address may not be the address or premises of the Customer.

6.6 Whilst every effort will be made to despatch goods as advised, the Company does not guarantee despatch on any specific date and shall not be liable for any damages for failure to effect delivery or to dispatch goods timeously for any reason beyond the Company’s reasonable control, including but not limited to its inability to: secure transport, labour, power, materials, storage charges, equipment or supplies, war, civil disturbance, riot, state of emergency, strike, lockout or other labour disputes, fire, flood, drought, legislative prohibition or an act of God. The Customer shall not be entitled to cancel any order by reason of such delay.

6.7 In the event that the Company makes delivery to the Customer in instalments, each instalment shall be deemed to be the subject of a separate contract and non-delivery or delay in delivery of any instalment shall not affect the balance of the contract or entitle the Customer to cancel the contract.

6.8 It is agreed that at the time of delivery of the goods to the Customer, the Customer will inspect and examine the goods.

6.9 If the Customer fails to take delivery of the goods ordered on the delivery date as determined by the Company in terms of the order and/or order acceptance, or in any other way delay the delivery of goods ordered then:

6.9.1 the risk in the goods shall pass to the Customer on the aforementioned delivery date and the Customer shall be liable to pay the Company the reasonable costs of any storage, insurance and/or handling of the goods, until the Customer takes delivery. The Customer shall be barred from lodging any claim in respect of discrepancies between goods charged and goods delivered, unless the Customer has specified on the delivery note, upon delivery, the nature of the discrepancy;

6.9.2 the Company shall be entitled to store the goods for a maximum period of two weeks from the date which appears on the tax invoice/cash sale slip. The Company shall thereafter charge the Customer a storage charge calculated at the rate of 1% of the value of the goods invoiced for every day that the Company stored the goods on behalf of the Customer.
6.10 The Company will make all reasonable efforts to ensure the delivery of the goods ordered by the Customer. However, in instances, where the Company does not have stock of the goods (other than specialised ordered goods, i.e. goods that the Company was required, to procure, create or alter specifically to satisfy the Customer’s requirements), to the extent that the CPA applies to any sale and the Company is unable to deliver the goods for any reason other than the shortage of stock, the Company will notify the Customer immediately, whereafter the Customer will be entitled to cancel the sale relating to those goods at any time after receiving this notice in which event the Company will refund any payment which the Customer has already made within 30 days of the date of this notice.

7.1 Notwithstanding that all risk in and to all goods sold by the Company shall pass on delivery, ownership in all goods sold and delivered shall remain vested in the Company until the full purchase price has been paid and in the event of a breach of these terms and conditions by the Customer, or if the Customer is sequestrated or placed under liquidation or commits any act of insolvency or enters into any compromise with its creditors or fails to satisfy a judgment granted against it within 7 (seven) days of the date of judgment or changes the structure of its ownership, the Company shall be entitled to take possession of the goods without prejudice to any further rights vested in the Company, and is hereby irrevocably authorised to enter upon the Customer’s premises to take possession of such goods without a Court order.

7.2 In the event of the Customer suffering any civil judgement being taken or entered against it or committing an act of insolvency in terms of the Insolvency Act 24 of 1936, as amended from time to time or being placed under business rescue proceedings, sequestration, liquidation, whether provisional or final, or entering into a compromise with its creditors, or dying, the Company shall, without prejudice to any other remedies that it has available to it, be entitled to summarily cancel the supply of any products to the Customer which have not been paid for and/or claim specific performance of all the Customer’s obligations whether or not such obligations have fallen due for performance, in all events without prejudice to the Company’s right to claim damages.

7.3 In the event of the Customer obstructing the Company in the process of removing its goods from the Customer, necessitating the obtaining of a Court order, the Company shall be entitled to obtain an Award of costs against the Customer on a punitive scale.

7.4 Furthermore, the Customer shall have no claim against the Company for damages caused due to loss of profits or otherwise occasioned by the removal of goods from the Customer’s premises as aforesaid, notwithstanding that such removal was affected without Court order.

7.5 In the event of non-payment of any amounts due, owing and payable to the Company not being paid or breach of any of these terms by the Customer, the goods in the possession of the Customer bearing the Company name, trademarks and labels shall be deemed to be those for which payment has not yet been made, and may be repossessed by the Company in terms of Clause 7.1.

7.6 The Customer shall fully insure the goods purchased from the Company against loss or damage, or damages arising from such loss, in favour of the Company, until the full purchase price has been paid by the Customer for such goods. Pending payment to the Company for goods purchased, all benefits in terms of the insurance policy relating to such goods are ceded to the Company.

7.7 It shall not be necessary for the Company to prove either to the Customer or the Customer’s liquidator which goods in the possession of the Company have actually been paid for and which have not been paid for.

7.8 The Company shall be entitled to identify its goods merely by way of packaging and/or other distinguishing marks. The Company shall not be obliged to identify its goods by way of serial numbers or any other form of intricate identification.

7.9 Specifically, the Company shall be entitled to remove all goods of whatsoever nature owned by it from the Customer’s premises notwithstanding that certain of such goods removed may have been paid for. The rationale for permitting the Company to act in this manner is due to the fact that the Customer’s account is in debit and after a reconciliation thereof, should it emerge that, with the recovery of all goods on the premises of the Company, the said Company is due a credit, such credit shall be passed.

8.1 Regardless of the place of execution or performance under these terms and conditions or domicile of the Customer, these terms and conditions and all modifications and amendments hereof, shall be governed by and decided upon and construed under and in accordance with the laws of the Republic of South Africa.

8.2 The parties agree, notwithstanding the amount in dispute, to submit to the jurisdiction of the Magistrate’s Court and shall be entitled to institute action out of such Court. A certificate issued and signed by any Director or Manager of the Company, whose authority need not be proved, in respect of any indebtedness of the Customer to the Company or in respect of any other fact, including the fact that such goods were sold and delivered, shall be prima facie evidence of the Customer’s indebtedness to the Company and prima facie evidence of such other fact and prima facie evidence of the delivery of the goods.

8.3 The Customer’s physical address as given on the front page of the application, shall be recognised as the Customer’s domicilium citandi et executandi (domicilium) for all purposes in terms of this agreement, whether in respect of the serving of any court process, notices, the payment of any amount or communications of whatever nature.

8.4 The Customer shall pay all legal costs, including attorney/own client costs, tracing agent’s fees and collection charges which the Company may incur in taking any steps pursuant to any breach or enforcement of these terms and conditions by the Customer.

8.5 In addition to any other specific exclusions of liability contained herein and unless otherwise expressly stated herein, the parties agree that the Customer shall have no claim against the Company for any loss or damage, of any nature, occasioned by any defect in any goods supplied, or any failure to provide adequate instructions in respect of any hazards that might arise from the use or incorrect use of the goods save to the extent that such loss or damage is contemplated in section 61 of the CPA, and provided that nothing in these terms and conditions must be construed as in any way limiting the rights of the Company to raise such defences as may be available to it at common law or in terms of any statute.

Goods sold by the Company are not returnable save at the election of the Company. Should the Company in its absolute discretion elect to accept the return of any goods, the following shall apply: -

9.1 All goods returned must be complete, clean, saleable, undamaged and in their original packaging.

9.2 No claim for shortage of goods will be entertained by the Company unless such shortage has been noted by the Customer on the front of the copy of the delivery note and only if the Company has been notified in writing by the Customer within 24 hours after receipt of such goods.

9.3 The Customer may not send back any goods and charge the freight to the Company. All goods returned need to be collected and authorised by a representative of the Company.

9.4 If any defect in the products, or the components of the products, relates to alterations contrary to the instructions or after leaving the control of the Company, the Company will not be liable for those defects, including in respect of any possible liability in terms of the implied warranty of quality contained in the CPA.

9.5 The value of credit for goods returned will be calculated at the invoice value when the goods were purchased, less a 10% handling charge.

9.6 All goods are to be returned at the Customer’s expense and the risk in the goods remains with the Customer until the goods are received by the Company.

9.7 The Customer may return any goods delivered to the Customer by the Company within (21) twenty one days from the date of the delivery of the goods, (unless the Customer is a consumer who is not excluded from the CPA by virtue of section 5(2)(b) of the CPA, in which event the goods have to be returned within 6 months from the delivery date) without penalty or expense, if the goods fail to conform to their specifications or are defective due to faulty workmanship, or otherwise fail to satisfy the requirements and standards of CPA (if applicable). In these circumstances, the Company shall at the Company’s election, either repair or replace these goods or refund the price paid by the Customer for the goods.

9.8 If the Customer wishes to return any of the goods purchased by the Customer from the Company in circumstances where the goods conform to their specifications and/or are not defective in any manner whatsoever, then the Company shall not be obliged to accept the return of any such goods.

9.9 The Company reserves the right to investigate all damaged goods returned, before any such goods are replaced by the Company.

9.10 Any refund given by the Company to the Customer shall be strictly subject to the condition that the Customer shall utilise the refund as a credit to purchase goods from the Company to the value of the credit passed in its favour.

9.11 All returned goods must contain the original company invoice number.

9.12 Items that are non-returnable include:

• Electronic goods like rechargeable batteries
• Electronic spare parts
• Products with an expiry date
• Health care products and goods
• Food related products like vitamins and supplements
• Clothing and workwear
• Custom orders or special-order items
• Items in which there is wear and tear, damage or visible usage
• Items without original packaging and/or is missing parts or accessories
• Products purchased during closeout sales and promotions
• Products specifically marked as “Non-Returnable"

10.1 In the event of an order being cancelled in terms hereof by the Customer, the Company shall be entitled to such loss of profits as is determined by its auditors whose certificate of such loss of profit shall be final and binding on all parties. (U 7.4)

10.2 Warranty on the goods is limited to the Company’s standard warranty. All other warranties, either express or implied, including any warranty that the goods are fit for a particular purpose are expressly excluded.

10.3 The Company disclaims all liability to the Customer in connection with the Company’s performance or the Customer’s use of the goods supplied and in no event will the Company be liable to the Customer for special, indirect or consequential damages, including but not limited to, loss of profits.

10.4 Any liability of the Company for breach of contract will not exceed, in the aggregate of damages, costs, fees and expenses capable of being awarded to the Customer, the price paid by the Customer for the defective goods or services supplied.

10.5 Any advice or opinion given by the Company’s employees is for the Customer’s benefit only and the Company accepts no responsibility for any damages that the Customer may incur as a result of the Customer relying upon such advice.

10.6 The Company’s sole obligations and responsibilities to the Customer in relation to the goods shall be in terms of the warranties as set out in clause 10.2 above, and furthermore, insofar as the relevant transaction(s) is/are subject to the provisions of section 61 of the CPA, the Customer hereby indemnifies the Company against and holds the Company harmless from any harm arising from the death or personal injury suffered by the Customer and from the loss of or physical damage to property belonging to the Customer, caused by the goods supplied by the Company, (subject to the limitations and/or exclusions and/or effects of sub-sections 61(4) and 61(6) of the CPA).

In the event that the Customer will not be the end user of the goods and will on-supply the goods to third party users, the following shall apply:

11.1 The Customer is familiar with the provisions of the CPA insofar as the supply of goods or services to “consumers” as defined in the CPA, is concerned, and the Customer hereby agrees to comply with all the provisions of the CPA insofar as they relate to such “consumers”.

11.2 The Customer hereby undertakes with specific reference to sections 49 and 58 of the CPA, to provide “consumers” with all such notices as may be required in terms of the aforesaid sections 49 and 58, and to provide same in the manner and format prescribed by the CPA.

11.3 The Customer hereby indemnifies and agrees to hold the supplier harmless from any claims, losses or liability made against, suffered by or established by and third-party end user against the supplier, based upon or founded in the failure by the Customer to comply with the provisions of the aforesaid sections 49 and 58.

The Company will not be liable for failure to fulfil its obligation if such failure is due to war, civil disturbance, riots, acts of terrorism, fire, storm, tempest, industrial, disputes, breakdown of plant, transport or equipment, pandemic, act of God or to any event or circumstances, beyond the reasonable control of the Company.

13.1 The Company reserves the right, in its sole discretion, to vary or amend these terms and conditions from time to time and any such amended or varied terms and conditions shall be binding on the Customer from the time that the Customer is notified thereof. Any subsequent dealings shall be on the Company’s amended terms and conditions.

13.2 This contract represents the entire agreement between the Company and the Customer and shall govern all future contractual relationships between the Company and the Customer and shall also be applicable to all debts which the Customer may owe to the Company prior to the Customer’s signature hereto.

13.3 This document contains the terms and conditions on which the Company sells the goods to Customers who are consumers for the purposes of the CPA. Any Customer of the Company who is not a consumer for the purposes of the CPA is not entitled to the benefits of these terms and conditions and any goods supplied by the Company to such a person shall be supplied on the basis of the Company’s standard terms and conditions, copies of which are available from the Company on request.

13.4 The provisions of this clause 11 shall not detract from, and shall be subject to, the Customer’s rights in terms of section 69 of the CPA (if applicable) to enforce any rights through the mechanisms created by the CPA.

13.5 No amendment and/or alteration and/or deletion and/or addition and/or cancellation of these terms and conditions, whether consensual or unilateral or bilateral shall be of any force and effect unless reduced to writing and signed by a director of the Company. No agreement, whether consensual or unilateral, purporting to obligate the Company to sign a written agreement to amend, alter, vary, delete, add or cancel these terms and conditions shall be of any force and effect unless reduced to writing and signed by a director of the Company.

13.6 No warranties, representations or guarantees have been made by the Company or on its behalf, which may have induced the Customer to sign this document.

13.7 No relaxation or indulgence which the Company may give at any time in regard to the carrying out of the Customer’s obligations in terms of any contract shall prejudice, or be deemed to be a waiver of, any of the Company’s rights in terms of any contract.

13.8 The Customer shall not be entitled to cede its rights nor assign its obligations in terms of these Terms and Conditions.

13.9 The Company shall at any time in its sole discretion be entitled to cede all or any of its rights in terms of this application for credit facilities including all terms and conditions to any third party without prior notice to the Customer.

13.10 The Customer undertakes to notify the company within a period of 7 (seven) days of any change of address or any changes in the information as set out in this agreement.

13.11 The headings in this document are included for convenience and are not to be taken into account for the purpose of interpreting this agreement.

13.12 Each of the terms herein shall be a separate and divisible term and if any such term becomes unenforceable for any reason whatsoever, then that term shall be severable and shall not affect the validity of the other terms.