TERMS AND CONDITIONS OF TRADE
All orders placed by the customer ("you") with Brandhouse Beverages (Proprietary) Limited, trading as brandhouse, registration number 2003/021753/07 (“us” or “we”) and all products sold to you are subject to these Terms and Conditions of Trade.
1. GENERAL1.1 Any other terms and conditions contained in any other document, or any amendments to this document, shall be void and of no effect unless specifically agreed to in writing by us.
1.2 No indulgence granted by either you or us (“party”) shall be binding or constitute novation, waiver or estoppel, unless recorded in writing by both you and us (“parties”).
1.3 Each term or condition contained in this document is severable from the other terms and conditions. Should any term or condition be found in law to be invalid or unenforceable for any reason, the remaining terms and conditions shall remain binding and continue to be of full force and effect.
1.4 We may from time to time alter these conditions in such manner as we determine by notice to you in writing. If you do not disagree with the change within 7 days of the notice, you will be deemed to have accepted that change and such change will apply accordingly.
1.5 You agree that we may cede, assign, transfer or otherwise dispose of all our rights and obligations in terms of these conditions to any of our affiliates or any third party without your consent at any time. You will be notified in writing of such cession, assignment or transfer.
1.6 You warrant that all information given by you to us is true and correct and that the signatories of all applications, orders and delivery notes on your behalf are duly authorized thereto.
1.7 You will notify us in writing of any change or alteration of your liquor license. If you fail to notify us, it will be deemed to have not changed and you will remain liable for all outstanding accounts of all products delivered to your premises or collected from us until receipt of written notification of such change is acknowledged by us. Any claims or liability that may ensue or be suffered by anyone due to your failure to notify us of changes as afore required shall be for your account and you hereby indemnify us accordingly against any such claims.
2. PRICE2.1 Prices for our products and where applicable, discounts, VAT, excise and other duties and taxes, are those that apply at the date of order of products. Notwithstanding this, we reserve the right, subject to prior notice to you, to revise our prices at any time prior to the date of dispatch, in which event the revised price will apply.
2.2 We may grant such discounts as we, in our sole discretion, deem appropriate from time to time. Prices are exclusive of delivery surcharges (not applicable to collect orders) and VAT.
2.3 Orders may be subject to surcharges where the order is below the minimum order values stipulated by us as well as surcharges for broken case lots as specified by us from time to time.
3. PAYMENT3.1 Unless otherwise agreed by us in writing, payment for all products sold shall be required without set-off or deduction before delivery of the products to you, in South African Rand and via such method as we may specify in writing from time to time.
3.2 Where we have agreed in writing to grant you a cash-on-delivery facility, payment of our invoice(s) shall be due by you on delivery of the products. We reserve the right not to deliver until payment is received by us.
3.3 Where we have agreed in writing to grant you a credit facility, payment of our invoice(s) shall be due by you before 17h00 on the due date. If the due date falls on a non-working day (i.e. Saturday, Sunday or official Public Holiday in the Republic of South Africa), then the payment due date will be on or before the last working day preceding the due date.
3.4 We may, and you hereby grant us permission to, make enquiries as to your credit record with any third party, and may provide such third party with regular updates regarding the manner in which you conduct your credit facility with us.
3.5 If any amount is not paid by the due date, we will take immediate action to recover the outstanding amount.
3.6 A certificate signed by any of our managers or directors (whose appointment and designation it shall not be necessary to prove) shall be prima facie proof of your liability to us.
3.7 We will be entitled to set off or withhold payment against any amount that may be owed to you, if you are in breach of these terms and conditions and/or if we have a claim against you pursuant these terms and conditions or products sold to you by us or if you commit fraud in relation hereto.
3.8 All bottled products which are packaged in non-returnable bottles will not be subject to returnable deposits.
4. RISK AND TITLE4.1 Risk, damage to or loss of the products shall pass to you upon the earlier of: a) shipment of the products;
b) transfer of the products into custody of the carrier;
c) when we have notified you that the products have been made available for collection as agreed by you and us; or
d) Where the products are placed at your disposal at a named place of destination, when the products have been so placed.
4.2 Notwithstanding delivery and the passing of risk in the products to you, ownership of the products shall remain with us until we have received payment in full cash or via cleared funds of all amounts owing to us by you in regard to such products. Accordingly you shall keep the products separate from other goods, properly stored, protected, insured and identifiable as our property. You agree to provide us with such access to these products as we may require. For avoidance of doubt, this shall not form part of any liquidated estate.
4.3 You must check the products delivered against your invoice or delivery document. You have 10 (ten) business days from date of delivery to return products, provided that the products are in the same condition they were when delivered to you.
4.4 Any cancellation of an order less than 48 hours before scheduled delivery shall be subject to a reasonable cancellation and handling fee determined by us.
4.5 You must advise the name, address and telephone number of the owner of premises, if the business premises you occupy are not owned by you.
5. CLAIMS AND LIABILITY5.1 We will honour or deliver products ordered subject to the availability thereof. We will not be liable for any loss or damage arising from non-delivery or late delivery whether in respect of the whole or part of the product, should such delay or non-delivery result from factors beyond our reasonable control.
5.2 If any of the products are proven defective, our liability in respect of such defects shall be to replace the defective products or to credit you with the price of the defective products.
5.3 Except as provided in the Consumer Protection Act 68 of 2008 (“CPA”), we will not be liable for any consequential or indirect damages or loss of whatever nature however caused.
5.4 You must on delivery satisfy yourself as to the correctness and quality of the products, otherwise you will be deemed to be satisfied with the products delivered unless you immediately refuse to accept delivery of the products concerned and/or notify us accordingly within 10 days of receipt of products.
5.5 Any invoice reflecting your delivery addresses and signature for receipt of the goods appearing in such invoice shall constitute prima facie proof of delivery of such goods. Alternatively, a signed receipt for goods delivered by us on the relevant Calling Customers Schedule or similar document shall constitute prima facie proof of delivery in respect of such goods.
6. RESALE BY THE CUSTOMER6.1 You may only resell the products if they are in good condition in the bottles or from the containers supplied by us or as we otherwise authorise in writing. The bottles and containers of the products shall at all times only be used to contain or dispense the product for which it was produced and no other substance shall be placed in the bottles or containers at any time after sale to you.
6.2 You will dispense (in the case of draught products), store, condition, package and label all products strictly in accordance with our requirements as notified from time to time.
6.3 You will promptly, on demand, permit us and our authorised representatives’ access to your premises at any time during normal business hours to verify your compliance with these conditions.
6.4 You will be responsible for the payment of any taxes that may be due by any governmental taxing authority in relation to the products sold to you by us.
6.5 If at anytime we reasonably suspect that the condition in sub-clause 6.4 has been, or will be breached by you, we will at our discretion and without prejudice to any other rights or remedies we may have in law discontinue to supply the products to you.
6.6 In order to protect the intellectual property, manufacturing and distribution licenses and other licenses relating to the products, the said products are for resale in the Republic of South Africa only and may not, directly or indirectly, be sold, exchanged or disposed of for resale or use, outside the borders of the republic of South Africa without our express written consent.
6.7 You will ensure that persons who purchase the products from you, (except in the case of retail sales to persons not buying for resale), are subject to the same (or equivalent) conditions as those set out in this clause 6, and if requested by us to do so, you will cede the benefit of those conditions to us.
7. INTELLECTUAL PROPERTY RIGHTSAll intellectual property rights in the products and materials provided by us or on our behalf to you shall remain our property or licensors property and you are not entitled to use any of our intellectual property without our prior written consent.
8. ILLEGAL TRADING8.1 Notwithstanding anything to the contrary contained or implied elsewhere, should it come to our notice that you are in any way involved in the procurement, marketing or sale of stolen liquor products, or found guilty of the supply of liquor products to persons under the age of 18 years, we shall be entitled in our sole and absolute discretion upon prior notice to you, to (a) cease the supply of products to you, (b) publish the details of such cessation in the media, and/or (c) notify other liquor manufacturers of such cessation, who may, in their sole and absolute discretion, cease the supply of liquor products to you and to publish the details thereof in the media, in which event you will not have any claim whatsoever against us, arising from such cessation.
8.2 You undertake to abide by all applicable laws including the CPA in regard to the products sold to you by us. In particular, you will not on sell expired products to any person. You hereby indemnify us against any loss or claim by anyone arising from selling any expired products, any of your acts or omissions, breach of these conditions, breach of contracts with your counterparties, breach of other persons’ intellectual property, applicable laws and/or any of your illegal activities.
8.3 We are not obliged and will not take back any stock/products that expire after delivery to you, unless we at our sole discretion otherwise decide.
9. BREACH AND INSOLVENCYIn the event that (a) you fail to comply with any provision of these Terms and Conditions (b) you suffer a change in control or ownership, or sell your business, (c) you pass a resolution placing yourself under business rescue or you propose the passing of such a resolution to your board of directors, or any third person applies to court to place you under business rescue, (d) you, whether voluntarily or involuntarily, make any arrangement with your creditors or (being an individual or firm) become sequestrated or (being a company or close corporation) go into liquidation or receivership (otherwise than for the purpose of amalgamation or reconstruction) or an administrator is appointed in respect of your assets,(e) you are unable to pay your debts generally as they become due or suspend any payments to us or cease, or threaten to cease, to carry on business, or (f) we reasonably consider that any of the above events is about to happen to you and inform you accordingly, the full amount of your indebtedness to us shall become immediately due and payable , and we shall be entitled , without prejudice to our right to any other remedies which we might have or in terms of these conditions, upon written notice to you:
9.1 cancel any contract/orders with or from you and suspend any further deliveries to you, without any further liability;
9.2 withdraw credit facilities and cash-on-delivery facilities and make further supplies of products on a strict cash with order basis only; and /or
9.3 Require you return the products, the title of which has not yet passed to you, as set in clause 4.2.
10. CONFIDENTIALITY10.1 The existence and terms of any supply of products to you and any other information and materials relating to us or our business disclosed to you by or on our behalf in the course of the entering into by us of any contract with you for the supply of products shall be our confidential information and shall not be used or disclosed by you to any third party. You shall return all such information and materials to us on request and shall cease all further use of such information and materials.
10.2 You hereby agree to abide by our data privacy principles regarding our customers per attached Privacy Statement for Customers – Annexure 1.
11. GOVERNING LAWThese terms and conditions and any contract of which these conditions form part shall be governed by law of the Republic of South Africa. Should we institute legal action against you for the recovery of any amounts that may become due to us by you, you shall be liable for all expenses incurred by us including all legal charges at attorney and own client scale, together with collection charges and tracing fees thereto.
NB: By virtue of section 5(2) (b) of the Consumer Protection Act 68 of 2008, the following terms and conditions, 1.1 (a), 1.2, 2.1, 5.1, apply only to customers whose asset value or annual turnover (whichever is greater) is above R2 million (or such other amount as is set in accordance with the Consumer Protection Act from time to time).
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