Terms and Conditions of Sale
1 Interpretation
1.1 In these Conditions:
“BUYER” the person who accepts a quotation of the Seller for the sale of the Goods or Services whose order for the Goods/Services is accepted by the Seller
“GOODS” means the goods which the Seller is to supply in accordance with these Conditions
“SERVICES” means services provided by the Seller in accordance with these Conditions
“SELLER” means BESTBUYONLINESA Pty Ltd.
“CONDITIONS” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller
“CONTRACT” means the contract for the purchase and sale of Goods/Services provided
“WRITING” includes email, WhatsAPP, facsimile transmission and comparable means of communication
1.2 Any reference in these conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods/Service in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller
2.3 The Seller’s employees or agents are not authorised to make representations concerning the Goods whether as storage application or use unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representation not so confirmed.
2.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3 Orders and specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or SABS requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4. Price of the goods
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s price list current at the date of acceptance of the order. All prices quoted are valid for 14 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), due to any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance together with value added tax as appropriate.
5 Terms of payment
5.1 The Seller, shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods within 7 days of the date of the Seller’s invoice, unless otherwise agreed in writing by the Seller and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1. Cancel the contract or suspend any further deliveries to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 2.5 per cent per month until payment in full is made, a part of a month being treated as a full month for the purpose of calculating interest.
6. Delivery
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The
Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods.
6.4 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.4.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.4.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall
7. Risks and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer.
7.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, or if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any others provisions of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’ s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of the Buyer’s business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8 Warranties and liability
8.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months (unless extended or amended by the Seller in writing) from delivery.
8.2 The above warranty is given by the Seller but the Seller shall be under NO liability in respect of:
8.2.1 The above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.2.2 Damage, fault or failure due to alteration or repairs made by anyone other than Us, or the use of supplies and accessories other than those manufactured by Us.
8.2.3 Damage, fault or failure due to causes beyond Our control including, but not limited to, repairs necessary due to operator negligence, improper installation, damage caused by spillage of foods/liquids, wrong usage of electrical supply and voltage, abnormal voltage, excessive heat, dust, corrosive surroundings, chemical reaction, failure to maintain the Product, failure to operate or use the Product according to instructions, accident, mishandling, misuse, tampering, vandalism, theft, fire, lightning, flood, wind, freezing, power failure, static, normal wear and tear, pests, vermin, foreign matter entering the Product, inadequate or excess power supply, unusual atmospheric conditions, or acts of war or acts of God.
8.2.4 Damage, fault or failure resulting from software, virus(es), electrical wiring and connections, user facilitated minor adjustments and settings, external antenna or local reception problems, structural problems of Your premises, inaccessible Products or parts, negligence, misuse, tampering or abuse, whether wilful or not.
8.2.5 Damage, fault or failure due to improper transportation, inappropriate storage conditions or materials, improper ventilation, reconfiguration of the Product, movement of the Product.
8.2.6 Damage, fault or failure due to or arising out of, transit or delivery, packing, unpacking, assembly, installation, routine maintenance, dismantle, relocation or removal.
8.2.7 Non failure problems that do not require parts and intermittent issues, including without limitations, reception and/or incompatibility issues, demonstration, training, reminders, adjustments, set-up, installations, battery change, replenishing of consumables, short circuit, routine maintenance and servicing, periodic checkups, cleaning, checking of improper operation or incorrect use. We will not pay for adjustments or repairs required because of conditions at Your location or specific to You.
8.2.8 Products where the serial number is removed, defaced or made illegible, products sold “AS IS”, “REFURBISHED” or bearing similar notations.
8.2.9 Cosmetic defects, reduced or impaired functionality, reduced lifespan or limitations of Products which, in Our records indicate, are second hand, “Used”, “Refurbished”, “Open Set” or “Display Sets”.
8.2.10 Any utilization of Product that is inconsistent with either the design of the Product or the way the manufacturer intended the Product to be used. Any installation and/or modifications that prevents normal service. Any and all cases in which a reasonable manufacturer of such a product would not honour the warranty of the Product.
8.2.11 Normal wear and tear and cosmetic damage such as, but not limited to corrosion, scratches, dents, rust, stains. Non-functional parts such as, but not limited to, plastics and finishes. Expendable or lost items, such as, but not limited to cables, cameras or skids, etc.
8.2.12 Consumables. Consumables are defined as any part or component of an expendable nature and/or any item that is designed to be consumed (wear out) during the life of the Product, regardless if it is consumer replaceable or not and whether such consumables originate from Us or not. Consumable items include without limitation, replacement parts, o-rings, senrings and other miscellaneous materials for the product, installation materials, which include without limitation, connecting cables, connecting plugs, Cable ends, bearings and electrical wiring.
8.2.13 Consequential losses and/or damages as a result of malfunctioning of, damage to, failure of an operating part of the covered Product, or damages, fault or failure as a result of any repairs or replacements under this warranty. Damages, fault or failure caused by delays in rendering of Our services or loss of use during servicing or otherwise awaiting parts are not covered. You are responsible for creating backups of all Your video data and software on a regular basis.
8.2.14 Damages, fault, failure, imperfections, caused by abuse, tampering, illegal use, negligence, prolonged use or operation.
8.2.15 Products that are leased, rented, used exceeding normal limits, used continuously and/or subject to abuse, unreasonable, abnormal or extreme operations.
8.2.16 War or threat of war, sabotage, insurrection, civil disturbance or requisition.
8.2.17 Import or export regulations or embargoes.
8.2.18 Strikes, lock-outs or other industrial actions or trade disputes whether involving employees of the Seller or of a third party.
We reserve the rights to charge You for any reasonable and applicable costs and expenses (at prevailing rates) relating to or arising out of the repair or replacement under these excluded circumstances.
9 Indemnity
9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights or any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
9.1.1 the Seller is given full control of any proceedings or negotiations in connection any such claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller.
9.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover which the Buyer shall use its best endeavours to do;
9.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
9.1.6 the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
10 Insolvency of Buyer
10.1 This clause applies if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) ; or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur and notifies the Buyer accordingly.
10.2 if this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability and if the Goods have been delivered but not paid for the price shall became immediately due and payable notwithstanding any Previous agreement or arrangement to the contrary.
11 Export terms
11.1 In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce in force at the date when the Contract is made. If there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
11.2 Where the Goods are supplied for export from South Africa, the provisions of this Clause 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
11.3 The Buyer shall be responsible or complying with any legislation regulations or duties governing the importation of the Goods into the country of destination.
11.4 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered ex-works.
11.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’ s premises before shipment if the Buyer so requires. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
11.6 Payment for the Goods shall be made by the Buyer in accordance with clause 5 or as agreed in writing by the Seller.
11.7 Amendment to documents at Buyer’s request may incur charges which Seller reserves the right to levy.
12 General
12 .1 All notices under these Conditions shall be in Writing addressed to other party at its registered office or principal place of business .
12.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
12.4 Any dispute arising under or in connection with these Conditions or the sale of the Goods will be under the jurisdiction of Eden Magistrates
