1. DEFINITIONS AND INTERPRETATION
1.1 In these T&Cs the following expressions have the meanings assigned to them:
(a) “Agreement”: Any contract or agreement between You and Us, for the supply of Goods, whether that agreement arises out of an offer made by Us and accepted by You, or an Order made by You and accepted by Us, and includes these T&Cs.
(b) “BPT”/“Us”/“We”/“Our”: Bicycle Power Trading CC, Registration Number: 2004/020313/23.
(c) “CPA”: The Consumer Protection Act 68 of 2008.
(d) “Customer”/“You”: The person, company or other body placing the Order for Goods and to whom We supply the Goods.
(e) “Goods”: Products We sell and are included in an Order.
(f) “NCA”: National Credit Act, 34 of 2005, as amended from time to time.
(g) “Order”: Your order for Goods communicated to BPT.
(h) “T&Cs”: These T&Cs.
1.2 Unless the context indicates otherwise, in these T&Cs:
a. references to any other agreement or document shall include a reference to that agreement or document as lawfully amended, varied, novated or substituted from time to time;
b. the headings of clauses, sub-clauses and schedules are included for convenience only and shall not affect the interpretation of these T&Cs;
c. any annexures to these T&Cs are an integral part of the T&Cs;
d. the parties acknowledge that each of them has had the opportunity to take legal advice concerning these T&Cs, and agree that no provision or word used herein shall be interpreted to the disadvantage of either party because that party was responsible for or participated in the preparation or drafting of these T&Cs or any part of it;
e. words importing the singular number shall include the plural and vice versa, and words importing either gender or the neuter shall include both genders and the neuter; and
f. the number of days indicated to commit an act or indicated for any other purpose, is calculated by excluding the first day and including the last day.
2. SUPPLY OF GOODS
2.1 The supply of all Goods to You by Us shall be governed by these T&Cs together with any other agreement (if any) concluded between You and Us. To the extent that a conflict between any other agreement and these T&Cs, these T&Cs shall prevail.
2.2 You acknowledge that the T&Cs are fair and reasonable.
3.1 All Orders are to be submitted to Us in writing. Any Orders submitted telephonically shall be at your own risk.
3.2 Acceptance of Orders is subject to the Goods being in stock and to the capacity and planning of orders. Orders of exceptional nature (whether as to either size or content will be subject to review. We reserve the right not to accept any Order/s for reasons We deem relevant for the operation of Our business, and will notify You as soon as possible should We not accept Your Order/s or should We anticipate a delay in delivery.
3.3 We reserve the right to adjust prices from time to time. Any updated prices shall not apply to any Order/s which has/have been accepted by Us.
3.4 The prices on the price list are for standard catalogue products and We reserve the right to develop goods for Our own retail and/or other customers.
3.5 Subject to any other provisions in these T&Cs and/or any agreement, Orders cannot be cancelled or shipments deferred or Goods returned except with Our consent and upon terms that will inter alia indemnify Us against all loss, including the profit on any part of the Order that is cancelled.
4. INVOICING AND PAYMENT TERMS
4.1 We are registered VAT Vendors. Accordingly VAT Invoices will be raised for all Goods provided to You by Us.
4.2 All invoices are to be paid according to the payment terms specified on the invoice.
4.3 Unless stated otherwise on the invoice, payment must be made in South African Rands to the BPT bank account in the Republic of South Africa.
4.4 Interest may be charged on all overdue payments up to the maximum rate permissible in law from due date of payment to date of payment, both days included and cash deposits received will attract bank charges which We reserve the right to pass on to You.
4.5 You shall pay the amounts due to Us in respect of Your Order/s in full and without set-off.
4.6 We shall be entitled to determine and amend any credit limits which may have been provided to You in Our sole discretion without prior consultation with You.
4.7 We shall be entitled in Our sole discretion to require payment of a deposit or payment in full prior to delivery of any Goods.
4.8 You shall not be entitled to withhold or reduce any amount payable to Us under these T&Cs or any agreement/s by reason of claims or alleged claims against Us. You may offset the amount of credit notes issued against unpaid invoices. Without a credit note any deduction is prohibited and constitutes a breach of these T&Cs.
5. DELIVERY, RISK AND OWNERSHIP
5.1 The estimated time frame for delivery of the Order (if any) is an estimate and We shall not be liable for any delay in performance and/or delivery of the Order.
5.2. Delays in respect of delivery of the Order shall not entitle You to cancel the Order.
5.3 In amplification of the above, We will not be liable for delays in performance, including delivery, or for failures to perform, including failure to deliver or perform, due to inter alia:
(a) any causes beyond Our reasonable control; or
(b) acts of God, Your acts, acts of civil or military authorities, governmental regulations or priorities, strikes or other labour disturbances, fires, riots, wars, or natural disasters, including epidemics, droughts, floods, or transportation interruptions.
5.4 Should circumstances in 5.3 arise, the Order shall be suspended until the circumstances allow it and in any case deliver those Goods as it is able to do so.
5.5 The risk of loss, damage or destruction of the Goods shall pass to You upon receipt by You of the Goods which shall be deemed to be upon delivery to You by the carrier instructed by Us for this purpose.
5.6 Notwithstanding prior delivery and the passing of risk, We shall retain ownership of and title to the Goods until the purchase price, and any other amounts owing to Us in respect of the Goods and any other agreement concluded between You and Us, have been paid in full and without setoff.
5.7 In the event that ownership and title has not yet passed to You and the Goods are in your possession, save as may otherwise be agreed between You and Us in writing, You undertake:
(a) To hold the Goods on a fiduciary basis on Our behalf and take reasonable care of the Goods.
(b) To sell or use the Goods in the ordinary course of Your business for Our account, in which event, any sale/s or dealings shall constitute a sale or use of Our property by You as Our agent. The entire proceeds of any aforesaid sale and/or use of the Goods by You as Our agent shall be held in trust for Us and shall not be mixed with other money or paid into any overdrawn bank account and shall at all material times be identified as Our money.
5.8 If payment is overdue in terms of the Agreement or any other agreement between You and Us (in whole or in part), We may recover or re-sell the Goods or any part of them and may enter upon Your premises for these purposes.
5.9 A certificate signed by any director of BPT, whose authority need not be proved, stating the amount due by You with interest thereon and that such is due and payable, shall be prima facie proof of the fact stated therein, enabling BPT to obtain judgement, provisional sentence or summary judgement in any legal proceedings instituted against You.
6. DAMAGED GOODS, RETURNS AND AFTER SALE SERVICES
6.1 All claims in respect of Goods damaged during transportation must be notified to the carrier within 48 (forty eight) hours of receipt of the damaged Goods. We may act as intermediary but You are responsible for:
(a) giving notice of the nature and scale of the damage and/or missing Goods on the delivery notice, which notice must be signed by You and the carrier; and
(b) sending Us a copy of the aforesaid notice within 48 (forty eight) hours, which shall irrevocably transfer Your rights to recover any such claim/s against the carrier, to Us, as Your agent.
6.2 You shall immediately upon receipt of the Goods inspect the Goods and inform Us of any errors in writing, to be received by Us within 5 (five) days of receipt of the Goods by You. Should You fail to notify Us timeously of any claim You may have in terms hereof, such failure shall constitute a complete waiver of any such claim.
6.3 Returns of Goods will only be accepted with written approval from Our office. Returns not conforming to this condition will be refused and all expenses borne by You.
6.4 We shall not accept return of Goods which have been delivered in accordance with the Order unless defective or wrongly delivered, in which events the following procedure shall apply:
(a) You send the transportation document or copy to Us, stating the invoice number, delivery date, the defects, damage or faults together with an explanation and/or evidence that the faults existed prior to delivery to the carrier.
(b) If We accept the explanation and evidence provided by You, We will arrange for the Goods to be collected within 10 (ten) days of the acceptance for further verification. The Goods are to be ready for collection in their original packaging, provided with their original labels and other marks.
(c) In the event that We determine Your complaint to be valid, You will be sent/provided with a credit note in respect of the Good/s forming part of the valid complaint.
6.5 We shall not accept any liability whatsoever for any defects in Goods which were supplied by Us more than 6 (six) calendar months prior to the claim being submitted to Us.
6.6 We shall not be liable under any agreement for any amounts exceeding the amount paid by You for the Order, exclusive of VAT.
6.7 We will not be liable to compensate You for any loss or damages including consequential damages, relating to these T&Cs and/or any agreement, however it may arise.
SERVICE AFTER SALE
6.8 You shall perform proper service after sales for all products sold by Us, regardless of the place of purchase of the Goods, at Your own cost. Where possible, if a repair is required, You shall attend to the repair and where You do not have necessary infrastructure and/or capacity to attend to the repair, shall send the Good/s to the manufacturer as soon as possible.
7. UNDERTAKINGS BY YOU
7.1 By concluding the Order and/or Agreement with Us, You expressly and irrevocably undertake:
(a) Territory: To not, without Our prior written approval, export any Goods to countries outside of the Republic of South Africa (“South Africa”), or sell any Goods to any customer who, directly or indirectly, exports or You know or have reason to know, exports or proposes to export such Goods to any country outside of South Africa. You shall be obliged to include a similar restriction as set out in this clause 7.1(a), in all of Your agreements regarding the Goods and monitor compliance therewith by Your Customers. You accept liability to Us for any contraventions of this provision by You and/or Your Customers.
(b) Website: To not offer for sale or sell Goods through any website other than a website that is exclusively managed by or for You and is operated under Your own name. In particular, You undertake not to offer for sale or sell Goods through e- retailer sites such as inter alia Takealot and discounting prices so as to negatively impact Our brand and other suppliers of Goods.
(c) Counterfeit: To advise Us immediately of any imitation, counterfeit or unfair competition or in general of any fact or action that may be detrimental to Us and shall not offer for sale any imitation of Our Goods and/or confusingly similar products.
7.2 In the event of breach of the undertakings in this clause 7, We shall be entitled to terminate any agreement and/or Order in existence at that time with immediate effect without compensation or indemnity being due to You, and You shall be liable for any damages or loss incurred by Us arising from any such breach.
8. LIMITATIONS OF LIABILITY
8.1 In addition to any other specific exclusions of liability contained herein and unless otherwise expressly stated herein, You agree that You shall have no claim against Us for any loss or damage, of any nature, occasioned by any defect in any Goods, or any failure to provide adequate instructions in respect of any hazards that might arise from the use or incorrect use of the Goods.
8.2 In the event that We provide advice regarding the application of Goods at Your request, Our liability in respect of the non-suitability of the Goods for the purpose for which they are used will be limited to the selling price of those Goods.
8.3 You hereby agree to indemnify and hold harmless Us, Our members, employees, servants, subcontractors and partners from any demand, action or application or other proceedings, including for attorney’s fees and other related costs made by any third party and arising out of or in connection with these T&Cs and/or the Agreement.
8.4 Save to the extent otherwise provided for in these T&Cs and the Agreement (if applicable) We do not make or provide any express or implied representations, warranties or guarantees regarding the Goods.
8.5 BPT expressly excludes all warranties implied by law as to the quality of the Goods or their fitness for any purpose and shall not be liable for any consequential or indirect loss sustained by Your or your Customers. Under no circumstances will BPT be liable for any claim in excess of the purchase price of the Goods; and BPT’s liability will strictly be limited at its option to replacement of Goods shown to be defective or to refund its purchase price provided –
(a) notice of the alleged defect is provided to BPT as contemplated in clause 6 hereof; and
(b) such Goods have not been stored, handled or used in a manner causing the alleged defect.
8.6 You acknowledge that the manufacturer of the Goods is not BPT , however BPT will pass on all manufacturer’s warranties in relation to the product insofar as it is legally permissible. Under no circumstances will BPT be liable for any defects in the Goods not covered by the manufacturer’s warranty, in which event replacement of the defective Goods or a credit in respect of such Goods may be passed by BPT in its sole and absolute discretion.
8.7 If the CPA applies to these T&Cs and/or the Agreement, and any provision of this clause is found by a court or tribunal with jurisdiction over Us to be unfair, unreasonable or unjust, then that provision (whether it be a word, phrase or sub-clause) will be severed and the remainder of this clause will have full force and effect.
9. SUSPENSION AND/OR TERMINATION
In addition to any other rights We may have in these T&Cs, We shall be entitled to suspend or terminate any Order and/or Agreement, automatically and without prior written notice should You fail to comply with Your obligations in terms of the Agreement and/or these T&Cs.
10. DOMICILIUM AND NOTICES
10.1 The physical address given by You in Your Order, or the address to which the Goods are delivered, shall be the address You have chosen where summonses, legal documents and notices can be served on You
10.2 We may also serve notices on You by email and shall use the email address used by You in correspondence with Us (“email domicilium”).
10.3 We choose Our domicilium at 353 Rivonia Boulevard, ground floor, corner Rivonia and Tenth Avenue, Rivonia.
10.4 Either of us shall be entitled from time to time to vary Our domicilium or email domicilium on ten (10) days written notice to the other.
10.5 Any notice which:
(a) is delivered by hand at the addressee’s street address domicilium shall be deemed to have been received by the addressee at the time of delivery; or
(b) is posted by prepaid registered post from an address within the Republic of South Africa to the addressee at the addressee’s domicilium shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the seventh day after the date of posting; or
(c) if transmitted by email to the addressee at the addressee’s domicilium shall be deemed to have been received by the addressee on the date of transmission or, if the transmission is made out of normal business hours, on the first business day following after the date of transmission.
11.1 If either You or We (as applicable):
(a) breach any of the T&Cs of this Agreement and fail to remedy the breach within 7 (seven) days after receipt of written notice from the other party;
(b) commit any act of insolvency;
(c) endeavour to compromise generally with Y/Our creditors or do or cause anything to be done which may prejudice the other party’s’ rights hereunder or at all;
(d) become subject to business rescue proceedings
(whether provisionally or finally);
(e) being an individual, Your estate is sequestrated or voluntarily surrendered;
(f) allow any amount due to Us to be overdue for more than 30 (thirty) days;
(g) the other party shall have the right, as and where applicable without prejudice to any other right which that partymayhave, to:
(h) suspend the Order automatically and without prior notice;
(i) in Our case, treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the Agreement, and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of Our obligations in terms of the Agreement and/or the T&Cs, as well as under any other agreement with You until You have remedied the breach; and/or (j) cancel the Agreement and claim damages.
11.2 The breaching party shall be liable for all costs incurred by the non-breaching party in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
11.3 In the event of Your insolvency, without derogation of rights, We will be entitled to cancel any Order/s during the period allowed for filing of claims against Your estate and will be paid for Our cancellation charges.
12. CREDIT CHECKS
12.1 You hereby consent to, and agree to provide the necessary assistance for Us to obtain a credit report from a recognised credit reporting agency containing personal information for Our business purposes, including the assessment of an order for Goods or the collection of overdue accounts.
12.2 You also agree that We may provide information to a credit reporting agency in relation to any account not operated in accordance with this Agreement and the T&Cs and that direct costs associated with any such collections may be added to Your account.
12.3 We shall be entitled to perform these assessments each and every time You submit an Order.
13. PRIVACY AND PROTECTION OF INFORMATION
13.1 We shall observe all privacy of information best practices, in accordance with the applicable laws of the Republic of South Africa and shall not distribute your personal information (“Personal Information”) (as defined in the Protection of Personal Information Act, 2013) to any third party with the exception of Our suppliers, credit checking service providers or where such information is required in order to provide the Goods or as required by law or order of court.
13.2 You agree and consent to Our processing Personal Information transmitted to Us in a way which is consistent with the Goods being supplied.
13.3 You indemnify and hold Us harmless from any and all expenses, losses, liabilities, damages or third party claims resulting in any third parties obtaining Your Personal Information without Our consent.
14.1 Whole Agreement and Representations This Agreement contains the entire understanding of the parties as to its subject matter. No party shall be bound by any condition, warranty, representation or undertaking of any kind, whether express or implied, unless agreed to by each of the parties.
14.2 Variation. No variation, amendment or consensual cancellation of the Agreement and/or the T&Cs or any provision or term thereof, bill of exchange or other document issued or executed pursuant to or in terms of these T&Cs shall be binding unless recorded in a written document signed by duly authorized representatives from You and Us. We may vary these T&Cs (including pricing and any other terms) at any time and all agreements concluded thereafter will be subject to the variations.
14.3 Cession We shall be entitled, on written notice to You, to delegate, assign, cede, transfer or in any way alienate or dispose of any of Our rights/obligations in terms of these T&Cs to any other person. You may not delegate, assign, cede, transfer or in any way alienate or dispose of any of Your rights or obligations in these T&Cs to any other person without Our prior written consent.
14.4 Failure to require performance The failure of either party at any time to require performance of any provision of this Agreement shall not affect the right of that party to require performance of that provision or of any other provision in the future.
14.5 No waiver No waiver by either of us with respect to a breach of any provision of the Agreement and/or these T&Cs shall be construed as a waiver with respect to any continuing or subsequent breach of that provision, or as a waiver of any other right hereunder.
14.6 Severability Each provision in these T&Cs is severable from all others, notwithstanding the manner in which they may be linked together or grouped. If any provision is found to be defective or unenforceable for any reason, the remaining provisions shall continue to be of full force.
14.7 Jurisdiction These T&Cs will be governed by and construed in accordance with the laws of South Africa. The parties hereby consent in terms of Section 45 of the Magistrates’ Court Act of 1944 to any legal proceedings being instituted in the Magistrates’ Court of any district having jurisdiction in respect of the other by virtue of the provisions of Section 28(1) of the said Act. Notwithstanding such consent, an aggrieved party shall have the option of instituting proceedings against the other party in the High Court of South Africa.
14.8 Authority The persons accepting these T&Cs and/or concluding the Agreement on behalf of the parties warrant that they are duly authorised to do so.
14.9 Implementation The parties agree to do all things as may be required by law or necessary to implement the terms and condition and the Agreement.
14.10 Applicable Law These T&Cs will be governed by and construed in accordance with the laws of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with South African law by a South African court having jurisdiction.
14.11 Termination In the event of any expiration, termination or cancellation of the Agreement and/or these T&Cs, provisions which are intended to continue and survive shall so continue and survive.
14.12 Conflict In the event that any provision of these T&Cs conflicts with any statute, ruling or order of any governmental or regulatory body from time to time, then such provision of this Agreement shall be controlled by the statute, ruling or order.
14.13 These Terms and Conditions of Sale represent the entire agreement between BPT and You, the Customer, and will govern all future contractual relationships between You and Us and will also be applicable to all debts, which You may owe Us prior to your signature hereto.
14.14 The rule of construction that this Agreement shall be interpreted against the party responsible for drafting this Agreement, shall not apply.
14.15 The Customer shall not be entitled to cede its rights or assign its obligations under this Agreement without the prior written consent of the supplier.
15. WARRANTIES BY YOU AND SIGNATORY
I, on electronic acceptance of these Terms and Conditions, do hereby warrant that –
15.1 I have the necessary authority to represent Us herein and to agree to BPT’s Terms and Conditions of Sale on Our behalf;
15.2 We agree that all transactions concluded with BPT will be subject to these T&Cs;
15.3 I have read and understood all the terms and conditions contained herein and acknowledge that the information furnished herein by me is material to the supplier’s decision to grant credit, if any;
15.4 neither I nor the Customer are subject to a debt review or rearrangement order, or agreement as contemplated by the NCA, nor to business rescue proceedings as contemplated by the Companies Act, 71 of 2008;
15.5 I am duly authorised to sign these T&Cs for and on behalf of the Customer and agree that should I not be duly authorised to sign for and on behalf of the Customer, I shall be personally liable for all obligations arising out of this Agreement.