1. SCOPE OF APPLICATION
All products supplied and services offered by BLENDWELL to the Customer shall be governed strictly and exclusively on the basis of these terms and conditions of sale. These terms and conditions supercede any terms and conditions stipulated by Customer irrespective of that stipulated on a Customer’s order.
2. THE GOODS
Goods are defined as the subject matter of any order placed by the Customer and accepted by BLENDWELL in writing.
3. PRODUCT QUALITY, SPECIMENS & SAMPLES
3.1: Unless otherwise specifically agreed between the parties in writing, the quality of the goods is determined strictly and exclusively in accordance with BLENDWELLs product specifications, as updated by BLENDWELL from time to time and which have been made available to the customer and further copies of which may be requested from BLENDWELL at any time.
3.2: The description in respect of the properties and composition of specimens and samples are binding on BLENDWELL only insofar as they have been specifically agreed in writing by BLENDWELL to define the quality of goods.
3.2: BLENDWELL does not warrant the suitability for any specific purpose of the goods, and in so far as permitted under the Consumer Protection Act, any product specifications or other information provided by BLENDWELL shall not relieve the Customer of the need to conduct his own investigations and tests as to the suitability and application of the goods for any particular purpose and the Customer shall have no claim against BLENDWELL if the goods are provided in accordance with the product specifications thereof but are not suitable for any particular purpose not specifically agreed to in writing by BLENDWELL before the goods were supplied.
5.1: Orders placed by the Customer for BLENDWELL’s goods or services, shall be made in writing to the nominated domicllium of BLENDWELL.
5.2: Orders shall constitute offers to obtain BLENDWELL’s services at BLENDWELL’s prevailing fee and/or to purchase the goods in question at the prevailing prices of BLENDWELL and shall be capable of acceptance by BLENDWELL through the delivery of goods and/or provision of the services or by the written acceptance or confirmation of the order.
5.3 BLENDWELL shall not accept orders that are not written.
5.4 In the event that BLENDWELL makes delivery of the Product to the Customer in installments, each installment shall be deemed to be the subject of a separate contract and nondelivery or delay in delivery of any such installment shall not affect the balance of the contract or entitle the Customer to cancel the contract.
5.5: When goods are delivered in accordance with 5.4 above, payments relating to separate deliveries shall be paid on terms as contained in the credit and payment by the Customer shall not be postponed until such times as all the goods ordered have been delivered.
5.6: Should BLENDWELL at its own election and with agreement from the Customer or 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 BLENDWELL shall engage the carrier of fair, just, and reasonable terms and conditions. The Customer indemnifies BLENDWELL against all and any demands and/or claims and/or liability which may arise or be made against BLENDWELL by the aforesaid carrier or which may be claimed by the Customer out of the transportation of the goods by the aforesaid carrier.
5.7: The Customer will be liable for payment of all fees, charges, expenses which will be invoiced by Blendwell to the client.
5.8: If the Customer fails to take delivery of the goods ordered due to a direct /indirect act/omission by the Customer, its employees or agents, then the risk in the goods shall immediately pass to the Customer and the Customer shall be liable to pay BLENDWELL the reasonable costs of storing, insuring and the handling of goods, until delivery takes place.
6.1: Payment in full is to be made in accordance with agreed payment terms.
6.2: In all cases where the Customer uses a postal banking, electronic or similar service to effect payment, such services shall be deemed to be agent of the Customer.
6.3.1: Should any amount not be paid by the Customer on the due date, then the whole amount in respect of all purchases by the Customer shall immediately become due, owing and payable irrespective of the dates when the goods were purchased and the Customer shall be liable to pay interest in respect of the amounts unpaid as at the due date at the compound rate of 2% above the prime rate per annum (as defined in 6.3.2).
6.3.2: The term “prime rate” shall mean the prime overdraft lending rate charged by BLENDWELL’s bank as certified, in the event of a dispute, by any manager of such bank whose appointment and authority it shall not be necessary to prove and whose decision shall be final and binding.
6.3.3: In the event that any agreement between the Customer and BLENDWELL is governed by the National Credit Act (“NCA”), then the interest payable by the Customer shall be the interest rate provided for in the NCA.
6.4: The Customer shall not be entitled to claim set off or deduction in respect of any payment due by the Customer to BLENDWELL for goods or services supplied.
6.5: BLENDWELL may allocate all payments made by the Customer at the discretion of BLENDWELL.
7. CREDIT FACILITIES
7.1: The Customer understands that BLENDWELL’S decision to grant credit facilities to the Customer is at the sole discretion of BLENDWELL.
7.2: BLENDWELL reserves the right to withdraw any credit facilities at any time without prior notice, and the nature and extent of such facilities shall at all times be in BLENDWELL’S sole discretion. In addition, BLENDWELL may request that the Customer provide adequate security in respect of any credit facility.
8. OWNERSHIP & RISK
8.1: Notwithstanding that all risk in and to all goods sold by BLENDWELL shall pass on delivery (as set forth in clause 9) and irrespective of whether BLENDWELL may not be the distributor of the goods, ownership of all goods sold and delivered shall remain vested in BLENDWELL until the purchase price has been paid in full. 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 judicial management 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 days of the date of judgment or changes the structure of its ownership, BLENDWELL shall be entitled to take possession of the goods without prejudice to any further rights vested in BLENDWELL, and is hereby irrevocably authorized to enter upon the Customer’s premises to take possession of such goods without an order of court.
8.2: The Customer shall have no claim against BLENDWELL 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 effected without an order of court.
8.3: Goods in possession of the Customer bearing BLENDWELL’s name, trademarks and labels, shall be deemed to be those for which payment has not yet been made, and should any breach of these terms occur, may be repossessed by BLENDWELL as set forth in paragraph 8.1.
8.4: The Customer shall fully insure the goods purchased from BLENDWELL against loss or damage, until the purchase price has been paid in full by the Customer. Pending payment to BLENDWELL for goods purchased, all benefits in terms of the insurance relating to such goods are ceded to BLENDWELL.
8.5: BLENDWELL shall be entitled to identify its goods merely by way of packaging and for other distinguishing features. BLENDWELL shall not be obliged to identify the goods by way of serial numbers or any other form of intricate identification.
8.6: In the event of Customer processing the goods before payment is made in full, BLENDWELL shall be considered a manufacturer and shall directly acquire sole title to the newly produced product. If the processing involves other materials, BLENDWELL shall acquire joint title to the newly produced product in the proportion to the value of the goods, as invoiced.
8.7: Before payment is made in full and upon request by BLENDWELL, Customer shall provide all necessary information regarding the inventory of the goods. Furthermore, upon request by BLENDWELL, the Customer shall identify on the packaging BLENDWELL’s title of ownership of the goods and shall notify its customers of assignment of its claims to BLENDWELL.
9.1: Delivery shall be affected as specifically agreed between the parties in writing. General commercial terms shall be interpreted in accordance with the INCOTERMS in force on the date the agreement is concluded.
9.2: BLENDWELL shall have the right to defer delivery under this Agreement or any other supply agreement entered into with the Customer if and for as long as the Customer fails to pay any invoice under one or more of the supply agreements entered into with BLENDWELL when due.
10. DAMAGE IN TRANSIT
Notice of claims arising out of damage in transit must be lodged by Customer directly with the carrier within the notification period specified in the contract of carriage and BLENDWELL shall be provided with a copy of the notice.
11. BUYER’S COMPLIANCE WITH LEGAL REQUIREMENTS
The Customer shall comply with all laws and regulations regarding import, transport, storage and use of the goods.
12.1: BLENDWELL shall not be liable to the Customer in any manner in the event of impossibility or delay of BLENDWELL supply due to circumstances entirely beyond the control of BLENDWELL, such as but not limited to those described below, and where BLENDWELL informed the Customer as soon as it became aware of impossibility or delay in the supply.
12.2: BLENDWELL shall not be liable to the Customer for goods delivered in good order and thereafter damaged in the possession of the Customer due to improper care or storage, use or application, contrary to any instructions and/or warnings provided or available for the goods, or any other direct or indirect act or omission by the Customer, its employees or agents resulting in the goods being damaged or causing harm to any person or damage to any property.
12.3: BLENDWELL shall not be liable for any harm caused by the goods to a third party if the harm caused to the third party is due to the Customer, its employees or agents providing inadequate instructions or warnings in respect of the goods to the third party.
If there are reasonable doubts as to Customer’s ability to pay, or if Customer is in default of its payment obligations, BLENDWELL may, subject to further claims, revoke agreed credit periods and make further deliveries dependent on the provision of sufficient security by the Customer.
14. NEGOTIABLE INSTRUMENTS
Acceptance of any negotiable instrument by BLENDWELL shall not be deemed to be a waiver of BLENDWELL’s rights under this agreement. In relation to a cheque furnished by the Customer, it waives its right to insist on notice of dishonor or protests being given to it in the event that the cheque is dishonored.
15. CUSTOMER’S RIGHTS REGARDING ALLEGEDLY DEFECTIVE GOODS
15.1: The Customer must notify BLENDWELL in writing of any
15.1.1: unsuitable goods within 2 (two) weeks of delivery of the goods; or
15.1.2: allegations of defective goods within 1 month of delivery of the goods or prior to the expiry of any durability dating provided thereon, whichever is earlier.
15.2: If the goods are defective and the Customer has duly notified BLENDWELL in writing in accordance with 15.1 above, then BLENDWELL has the right to either remedy the defective goods and supply the Customer with replacement goods, without accepting any liability arising out of such defective good.
16. RETURNED GOODS
The goods sold by BLENDWELL are only returnable, at BLENDWELL’s sole discretion or where the incorrect goods have been supplied, the goods are unsuitable for a purpose stated by the Customer in writing to BLENDWELL and confirmed in writing by BLENDWELL to the Customer, substantially as intended in terms of Section 20 of the Consumer Protection Act, or in terms of Clause 15 above, and is such an instance the following shall apply:
16.1: Unless alleged to be unsuitable or defective at time of use as contemplated in Clause 15 above, all goods returned must be complete, clean, sealed, undamaged and in their original packaging.
16.2: The value of credit or refund for any returned goods will be calculated as per original invoice.
16.3: BLENDWELL must be notified of relevant, packing slip and batch numbers before any claim will be considered.
16.3: 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 BLENDWELL. The Customer shall be liable for a fee of 20% of the value of the invoice for all goods returned.
Should the Customer fail to make any payment of anyamount due on due date, or breach any of the other terms and conditions contained herein (all of which are deemed material) or commit an act of insolvency, or allow a judgment to be entered against it, or be provisionally or finally liquidated or sequestrated, or in the opinion of BLENDWELL has a cash flow problem or other financial or commercial difficulty which may in any way whatsoever negatively impact upon the ability of the Customer to comply with any of its current of future obligations in terms of this or any other contract of the Customer with BLENDWELL, then BLENDWELL without prejudice to and in addition to it other legal remedies shall be entitled to cancel this contract or any unfulfilled part thereof; or to claim payment of the full price or the balance thereof as the case may be, and failing such payment, BLENDWELL is specifically authorised to repossess all unpaid for goods in the possession of the Customer.
18. LEGAL PROCEEDINGS
18.1: Regardless of the place of execution or performanceunder 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 constructed under and in accordance with the laws of the Republic of South Africa.
18.2: The Customer hereby submits to the jurisdiction of Magistrates Court, notwithstanding that the amount of BLENDWELL’s claim may exceed the jurisdiction of the Magistrates Court.
18.3: A certificate issued and signed by any member or manager of BLENDWELL, whose authority need not be proved, in respect of any indebtedness of the Customer to BLENDWELL 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 BLENDWELL and prima facie evidence of such other fact and prima facie evidence of the delivery of the goods.
18.4: The Customer’s physical address as given on the front page of this document, shall be recognized as the Customer’s address for receipt of notices and execution of legal documents 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. BLENDWELL’s chooses its domicilium as 35 Richards Drive, Richards Park Midrand.
18.5: All legal costs, including attorney/own client costs, tracing agent’s fees and collection charges which may incur in taking any steps pursuant to any breach by the or enforcement of these terms and conditions.
19. ALTERNATIVE DISPUTE RESOLUTION
19.1: Where a statutory or accredited ombud has jurisdiction in terms of the Consumer Protection Act, all disputes falling under the jurisdiction of said ombud shall be referred to the ombud for a recommendation.
19.2: Where there is no ombud as contemplated in 19.1, and the dispute is one falling under the Consumer Protection Act, an Alternative Dispute Resolution Agent referred to therein shall be appointed to mediate the dispute or, by agreement between the Customer and BLENDWELL, the dispute will be referred to Arbitration as contemplated in 19.3 to 19.6 below.
19.3: BLENDWELL and the Customer may agree to refer any dispute arising from or in connection with this agreement to arbitration, which arbitration shall be final and binding on both BLENDWELL and the Customer and shall only be subject to Review by the High Court if one of the established grounds for review exist and under no circumstances shall the arbitrator’s decision be appealed to the High Court or any other body.
19.4: When BLENDWELL and the Customer have agreed to refer the matter to arbitration in terms of 19.3 above, in the interests of a speedy and cost effective resolution of the dispute, a short form or expedited form of arbitration shall be adopted and the rules of the arbitration shall not require that any party prepare and file any documents in a form identical to or similar to that of Court pleadings and Heads of Argument. This informality shall not detract from the onus to commence and the burden of proof which shall follow the High Court practice in this respect.
19.5: The arbitrator must be a person agreed upon by the parties and shall at least hold a tertiary qualification in the technical field of the dispute, except where the dispute relates predominantly to the interpretation of this agreement or any law, regulation, or by-law, in which case the appointed arbitrator shall have at least 10 years practical experience as an attorney in private practice or as an advocate of the High Court
19.6: Failing the agreement on the appointment of an arbitrator or the rules of the arbitration, an arbitrator must be appointed by the Arbitration Foundation of South Africa, who shall then finally resolve the dispute in accordance with the rules of the Arbitration Foundation of South Africa.
20. CONTINUING COVERING SURETYSHIP
20.1: I, by my signature hereof (which appears below) do hereby bind myself in my private and individual capacity as surety for and co-principle debtor with the Customer in favour of BLENDWELL for the due performance of any obligation of the Customer and for the payment to BLENDWELL by the Customer of any amounts which may now or at any time be become owing to BLENDWELL by the Customer.
20.2: I understand that my liability for amounts owing by the Customer to BLENDWELL is not limited to any credit limit granted by BLENDWELL to the Customer.
20.3: The amount which BLENDWELL can claim from the suretyship shall not be limited by any credit granted by BLENDWELL to the Customer. Should this credit limit be exceeded by the Customer for any reason whatsoever, the surety shall not be entitled to claim liability for the credit limit amount only.
20.4: I acknowledge and understand that as surety and co-principal debtor, I waive and renounce the benefits to which I may be entitled to arising from the legal exceptions including, but not limited to:
a) Excussion – the right to require BLENDWELL to proceed first against the Customer for payment of any debt owing to BLENDWELL before proceeding against the surety.
b) Cession of action – the right to require BLENDWELL to cession of the action for payments of debts to the surety before any action against the surety may be taken.
c) The benefit of simultaneous citation and division of debt the right of a co-surety to be liable only for his pro rata share of the principal debt.
d) The right to an accounting from BLENDWELL.
20.5: This suretyship is given as a continuing covering suretyship for the present and future obligations of the Customer to BLENDWELL.
21. CESSION OF BOOK DEBTS
21.1: The Customer does hereby irrevocably cede, pledge, assign, transfer and make over unto and in favour of BLENDWELL all of its rights, title, interest, claim and demand in and to all book debts of whatsoever nature and description and howsoever arising which the Customer may now and at any time hereafter have against all and any persons, companies, firms, partnerships, associations, syndicates and other legal persons whomsoever the Customers’ debtors without exception as a continuing covering security for the payment due or at any time hereafter be or become owing by the Customer to BLENDWELL.
21.2: Should it transpire that the Customer at any time has entered into prior deeds of cession or otherwise disposed of any of the right, title and interest in and to any of the debts which will from time to time be subject to this cession then this cession shall operate as a cession of all the Customer’s reversionary rights. Notwithstanding the terms of the aforegoing cession, the Customer shall be entitled to institute action against any of its debtor provided that all sums of money which the Customer collects from its debtors shall be collected on BLENDWELL’s behalf, and provided further that BLENDWELL shall at any time be entitled to terminate the Customer’s right to collect such monies/debt.
21.3: The Customer shall be obligated to deliver all relevant information in documentation form or otherwise to BLENDWELL upon demand to enable BLENDWELL to claim monies owed to the Customer from third parties.
22.1: This contract represents the entire agreement between BLENDWELL and the Customer and shall govern all future contractual relationships between BLENDWELL and the Customer and shall also be applicable to all debts which the Customer may owe to BLENDWELL prior to the Customer’s signature hereto.
22.2: The Customer acknowledges that it is aware that BLENDWELL’S dealers and sales persons have no authority to vary these terms and conditions of sale, and BLENDWELL assumes no liability and shall not be bound by any statements, warranties or representations made by such dealers and or sales persons, save as expressly stated in writing and signed by a manager or a director of BLENDWELL duly authorized thereto whose names are available on request.
22.3: No amendment and/or alteration and/or variation and/or deletion and/or addition and/or cancellation of these terms and conditions, shall be of any force or effect unlessreduced to writing and signed by, the Customer, and a director of BLENDWELL. No agreement purporting to obligate BLENDWELL to sign a written agreement to amend, alter, vary, delete, add or cancel these terms and conditions, shall be of any force or effect, unless reduce to writing and signed by the Customer, and a director of BLENDWELL.
22.4: The Customer acknowledges that no warranties, representations or guarantees have been made by BLENDWELL or on behalf of BLENDWELL which may have induced the Customer to sign this agreement.
22.5: No relaxation or indulgence which BLENDWELL 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 BLENDWELL’S right in terms of this agreement.
22.6: The Customer shall not cede its rights nor assign it’s obligation in terms hereof without BLENDWELL’S prior written consent thereto.
22.7: BLENDWELL 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 with prior notice to the Customer.
22.8: The Customer undertakes to notify BLENDWELL in writing within a period of 7 (seven) days of any change of address, change in ownership, name change or any changes in information as set out in this agreement and shall likewise inform the Customer of any such changes affecting BLENDWELL.
22.9: The headings in this document are included for convenience only and are not to be taken into account for the purpose of interpreting this agreement.
22.10: Each of the terms herein shall be a separate and divisible term and if any such term becomes unenforceable for any reason whatsoever, then the term shall be severable and shall not affect the validity of the other terms.
22.11: Provided that they do not conflict with any of the terms and conditions contained herein, such as general practices, terms and conditions applicable to the industry in which BLENDWELL conducts business shall be applicable to all dealings between BLENDWELL and the Customer.
23. FORCE MAJEURE
To the extent any incident or circumstance beyond BLENDWELL’S control (including natural occurrences, war, strikes, lock-outs, shortages of raw materials and energy, obstruction of transportation, breakdown of manufacturing equipment, fire, explosion, acts of Government), reduces the availability of goods from the plant from which BLENDWELL receives the goods such that BLENDWELL cannot fulfill its obligations under this agreement, and BLENDWELL has informed the Customer accordingly and without delay, BLENDWELL shall:
(i) be relieved from its obligations under this agreement to the extent that BLENDWELL is prevented from performing such obligations and
(ii) have no obligation to procure goods from other sources. If the aforementioned occurrences last for a period of more than 3 (three) months, BLENDWELL is entitled to withdraw from the agreement without the Customer having any right to compensation.
24. DISCLOSURE OF PERSONAL INFORMATION
24.1: The Customer understands that the personal information given in the credit application form is to be used by BLENDWELL for the purpose of assessing the Customer’s credit worthiness. The Customer confirms that the information given is accurate and complete The Customer further agrees to update the information supplied, in order to ensure the accuracy and completeness of the information given, failing which BLENDWELL will not be liable as a result of any inaccuracies or lack of completeness of information.
24.2: BLENDWELL has the Customer’s consent at all times to contact and request information from any persons, credit bureaus or business, including those mentioned in the credit application form and to obtain any information relevant to the Customer’s credit assessment, including but not limited to, information regarding the amounts purchased from the suppliers per month, length of time the Customer has dealt with such supplier, type of goods or services purchased and manner and time of payment.
24.3: The Customer agrees and understands that information given in confidence to BLENDWELL by a third party on the Customer will not be disclosed to the Customer.
24.4: The Customer hereby consents to and authorises BLENDWELL at all times to furnish credit information concerning the Customer’s dealings with BLENDWELL to a credit bureau and to any third party seeking a trade reference regarding the Customer in his dealings with BLENDWELL.
25. NATIONAL CREDIT ACT
In the event that the National Credit Act (“the NCA”) applies to any transaction between BLENDWELL and a Customer, then-
25.1: If any provision of these terms and conditions are in conflict with the NCA, such conflicting terms and conditions shall not apply;
25.2: BLENDWELL and the Customer shall conclude an agreement in compliance with the NCA and BLENDWELL shall not be obliged to deliver any goods or provide any services until such agreement is signed;
25.3: The costs and charges which BLENDWELL is entitled to recover from the Customer shall be the maximum allowed by the NCA and BLENDWELL shall be obliged to comply with the NCA before instituting any legal proceedings against the Customer.
26. CONSUMER PROTECTION ACT
BLENDWELL recognizes that its Customers may be consumers under the Consumer Protection Act and Regulations and in so far as any transactions are protected under the Consumer Protection Act, any clause in respect of such transaction in terms of these terms and conditions shall be interpreted in order to give effect to the Customer’s rights. Likewise, the Customer recognizes and confirms that in so far as they are not in conflict with the Consumer Protection Act and Regulations, the Customer shall perform its obligations under these terms and conditions.
27.1: Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing and if received or deemed to be received by the addressee as stipulated in 27.2 and 27.3 below.
27.2: Any notice to a party sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered shall be deemed to have been received on the 7th business day after posting (unless the contrary is proved).
27.3: Any notice to a party delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery.
In performing its obligations under this Agreement the Customer undertakes to comply with all applicable laws and regulations (in particular, but not limited to, relating to antitrust and anti-corruption).
This agreement shall commence on the day of last party signing and shall continue for indefinite period unless terminated by either party on two months written notice to the other.
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