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TRADING TERMS AND CONDITIONS

TIAGYSTIX (PTY) LIMITED t/a CAPE CUP (“the Company”)


1. Application of Conditions

The Customer agrees that all goods supplied by the Company and/or services rendered by the Company are subject to the conditions contained herein and such other conditions, which may appear on the Tax or Commercial Invoice and/or Waybill of the Company. No variation or alteration of such conditions shall be effective unless reduced to writing and signed by a duly authorized director or manager of the Company. No indulgence granted by the Company shall constitute a waiver of any of the Company’s rights. The “Applicant” who makes application for credit facilities to the Company is referred to in these terms and conditions as the “Customer”.


2. Payment Terms

  1. The Customer agrees that any amount reflected in a Tax Invoice shall be due and payable unconditionally:
    1. Cash on Delivery; or
    2. If The Customer is a Credit Approved Customer, within the terms granted by the Company. Settlement is affected only on receipt of cash or by way of Electronic Funds Transfer (EFT) or any other payment instrument acceptable to the Company and shall be made to the Company free of exchange and without deductions of any nature. Any credit facilities granted to the Customer by the Company is entirely at the discretion of the Company and may be withdrawn at any time.
  2. The Customer agrees to accept the receipt of electronic format statements, tax invoices, shipment documents (proof of delivery), credit and debit notes from the Company, which will be transmitted via email, and the following conditions thereto as required by South African Revenue Services and in terms of the provisions of the Value-Added Tax Act for the issuing of tax invoices, credit, and debit notes:
    1. Electronic documents (tax invoices, credit, and debit notes) will be transmitted and issued to the Customer in 128bit encrypted PDF file format.
    2. Both the Customer and the Company shall retain the electronic documents in its original encrypted format for a period of five years from the date of the delivery to which it relates.
    3. The transmitted electronic document will constitute the original statement, tax invoice, credit, or debit note. No other tax invoice, credit or debit note will be issued in respect of any specific delivery, unless as a copy of the original document.
  3. Interest on overdue accounts shall be charged at 15% (fifteen percent) per annum from the due date for such payment until the date of payment by the Customer.
  4. The Customer is not entitled to set off any amount due by the Customer to the Company against any amount that the Customer contends is due by the Company to the Customer, without first having obtained the Company’s prior written consent.
  5. Payment will only be credited to the Customer’s account once the amount is cleared into the Company’s bank account. Any payments made into an incorrect bank account, or any cheques that are lost in the post, will not discharge the Customer’s liability.
  6. The Customer agrees that the amount due and payable to the Company, including interest thereon may be determined and proved by a Certificate issued and signed by a director of the Company, which Certificate shall be prima facie proof of the Customer’s indebtedness to the Company.
  7. Should the Customer have a valid reason to dispute an entry raised on any Tax or Commercial Invoice issued by the Company, it shall do so within 14 (fourteen) days of the date of the Company’s invoice to the Customer, failing which such entry shall be deemed to be correct and payable in terms of Clause 2 above.


3. Orders

  1. When an order is placed, it is immediately captured into the Company’s ERP system so as to secure prompt delivery. A pick note is issued, and the Customer’s order will be packed, checked, and made ready for dispatch. Should the account for whatever reason not be in order, an internal notice to the credit department will be automatically issued and THE APPLICANT will be contacted. This may delay delivery and could cause inconvenience. As telephonic orders placed, may lead to miscommunication, the Customer shall confirm its order(s) by emailing orders@capecup.co.za, to ensure that it will be executed correctly and promptly.
  2. In the event of any order being given to the Company as aforementioned, reflecting the Customer’s name as the entity from which the order emanates, such order shall be deemed to have emanated from the Customer, notwithstanding the fact that such order may have been given or signed by a person not authorized by the Customer, and such order will be deemed to constitute valid delivery. It is further the sole responsibility of the Customer to determine that goods ordered are suitable for the purposes of the intended use.


4. Quoted Prices

  1. Prices quoted by the Company are determined from time to time and are subject to increases, at the discretion of the Company. The Company shall be entitled to increase the cost of goods delivered or services rendered to the Customer with prior written notice.
  2. Unless otherwise specified, the Company’s prices include packing and delivery in accordance with its standard practice. The Company reserves the right to make additional charges if the Customer requires a method of packing or delivery different to that normally employed by the Company; such charges will be as stated in the Contract. All prices quoted by the Company are subject to any increase in the cost price, including increases pursuant to currency fluctuations occurring before dispatch of the goods by the Company to the Customer.


5. Delivery

  1. In the case of the export of goods to customers outside the Republic of South Africa, delivery and risk shall be governed by the Incoterms specified on the Commercial invoice of the Company.
  2. In all other instances, unless otherwise agreed to in writing by the Company delivery to the Customer takes place at the place of business of the Company, and prima facie proof of delivery to the Customer can be by means of an original/copy of:
    1. the Company’s delivery note signed by the Customer; or
    2. proof of delivery to any transporter if the goods are railed or transported to the Customer by a third party.
  3. In the case of 5.2.2 above, the transporter is deemed to be the Customer’s agent and the Customer authorizes the Company to engage such a third party to transport the goods to the Customer on such terms as the Company deems fit. The Customer hereby indemnifies the Company against any claims that may arise from such agreement with the third- party transporter.
  4. All deliveries are subject to the availability of the goods and the Company shall be entitled, in its sole discretion, to split delivery of the goods ordered by the Customer in the quantities and on the dates that it decides and to invoice them separately to the Customer.
  5. Any date indicated by the Company for delivery of the goods shall be regarded as an estimated date of delivery and does not constitute a binding contractual obligation. The Company shall not be liable for any loss or damage of whatsoever nature incurred or connection with any late, incorrect, partial or non-delivery. The Company will make every endeavor to deliver timeously but the Customer shall not be entitled to cancel or repudiate this agreement (or the applicable order) or claim damages for consequential loss or otherwise or refuse to accept delivery or part delivery on the grounds of delay in the delivery of the order, or any part thereof, for any cause whatsoever.
  6. The Company shall have the right to cancel a Customer’s order where the Company is unable to supply and deliver the goods due to force majeure from any cause beyond the control of the Company, including, but not limited to, inability to secure labor, power, materials or supplies, or by reason of an act of God, or civil disturbance, riot, state of emergency, strike, lockout, labor disputes, fire, flood, drought or legislation.


6. Risk

Risk in the goods shall pass to the Customer on delivery of the goods to the Customer as defined in Clause 5, but ownership in the goods shall remain vested in the Company until the purchase price has been paid in full. The Company reserves the right to inform the end-user or the owner of the premises in which the goods are situated of its claim to ownership. The Customer undertakes to insure the goods until fully paid for.


7. Guarantees, Warranties, Damaged Goods, and Incorrect Deliveries

  1. All products supplied by the Company carry a standard guarantee as to the quality of the product, with the condition that the product has been handled and stored in an appropriate manner. PLA™ products have specific storage and handling instructions with distinct temperature and direct sunlight limitations, that if not followed voids any manufacturing warranty.
  2. The Company does NOT accept PLA (plant-based) merchandise for return.
  3. Goods will or may be accepted for credit only with implicit authorization from the Company. In compliance with Health and Safety standards ISO 45001:2018, as well as FSSC 22000 (Version 5.1), proper storage and handling of stock need to be adhered too. Therefore, returns can only be considered within a maximum of 2 days after delivery and only if goods offered for return are sealed, untouched, undamaged, and in original packaging.
  4. Liability under clause 7.3 is restricted to the cost of replacement of faulty goods or granting of credit to the value of such goods. Any goods returned must be accompanied by the original tax invoice as issued by the Company.
  5. Damage caused by lightning strikes, power surges, power spikes, or other incidents beyond the control of the Company are not covered in any warranties.
  6. Should the Company find no fault with the returned goods, this will be returned to the Customer, and a 10% handling fee will be charged.
  7. The Company shall not be liable to the Customer for consequential losses, howsoever arising.


8. Copyright

The Customer acknowledges the Company’s intellectual property rights in the goods and shall not infringe such intellectual property rights.


9. Breach

  1. Should the Customer fail to make payment on the due date in terms of Clause 2 above, or should the Customer commit any other breach of its obligations hereunder, then the Company shall have the option to either:
    1. Claim from the Customer all sums owing to the Company, whether then due and payable or not, which sums will then immediately become due and payable, the Customer forfeiting all discounts on the goods sold; or
    2. Without prejudice to any other remedy that the Company may have in terms of these terms and conditions, or by law, to cancel the contract with the Customer, retake possession of the goods supplied and not paid for and recover all amounts already due by the Customer as well as damages it may have suffered by reason of the Customer’s breach. To give effect thereto, the Customer irrevocably authorizes the Company to enter its premises to repossess its goods supplied and not paid for.
  2. Subject to the provisions of Clause 9.1, if execution is levied upon the Customer’s assets or should the Customer make any offer of compromise with its creditors or commit any act of insolvency, or if it is a limited liability Company or Close Corporation, an application for the Customer’s liquidation is made, the Company shall have the right to forthwith terminate the contract with the Customer without prejudice to any claim and remedies the Company might have against the Customer for payment of the amounts already due prior to cancellation and damages suffered by the Company by virtue of the Customer’s breach.


10. Arbitration

  1. Save as otherwise expressly provided in these terms and conditions, should any dispute arise between any of the parties in regard to these terms or any transaction concluded between the parties, the Company shall be entitled, but not obliged, to insist that such dispute shall be decided by arbitration in the manner set out herein.
  2. The arbitrator shall be appointed by the parties, and failing an agreement reached by the parties, shall be nominated by the Arbitration Foundation of Southern Africa (“AFSA”).
  3. The arbitration shall be held at Cape Town, South Africa.
  4. The arbitration shall be held in accordance with the Rules of AFSA, or if AFSA shall not be in existence, in accordance with the formalities and procedures settled by the arbitrator, which shall be in an informal and summary manner, that is, it shall not be necessary to observe or carry out either the usual formalities or procedure or the strict rules of evidence, and otherwise subject as aforesaid of the Arbitration Act 42 of 1965 of the Republic of South Africa and any statutory modification or re-enactment thereof.
  5. The arbitrator shall be entitled to:
    1. Investigate or cause to be investigated any matter, fact, or thing which he/she considers necessary or desirable in connection with any matter referred to him/her for decision.
    2. Decide the matters submitted to him/her according to what he considers just and equitable in all the circumstances, having regard to the purpose of these terms and conditions; and
    3. Make such award, including an award for specific performance, an interdict, damages or a penalty or the costs of arbitration or otherwise as he/she in his/her discretion may deem fit and appropriate.
  6. The arbitration shall be held as quickly as possible after it is demanded, with a view to it being completed within thirty days after it has been so demanded and the decision of the arbitrator shall be final and binding on the Parties.
  7. Notwithstanding anything to the contrary contained herein, the Company shall, in its sole discretion, not be precluded from obtaining relief from a court of competent jurisdiction.


11. General

  1. In the event that the Company renders any services to the Customer, these terms and conditions shall also regulate the provision of such services by the Company to the Customer.
  2. The Customer hereby consents to the Company:
    1. Performing a credit search on the Customer’s record, as well as the record of its directors and/or its owners, with one or more of the registered Credit Bureaux when assessing the Customer’s Application for Credit (and at any other time in the Company’s discretion);
    2. Recording the existence of the Customer’s account with any Credit Bureau; and
    3. Recording and transmitting details of how the Customer has performed, and how the account is conducted by the Customer in meeting its obligations on the account.
  3. The Customer acknowledges and agrees that any information regarding its creditworthiness, defaults in payment to the Company, and details of its account with the Company is conducted may be disclosed to any other creditor of the Customer or any registered Credit Bureaux, after 21 (twenty-one) days’ notice having been given to the Customer.
  4. In the event that there is a change of the legal entity or the name or ownership under which the account and credit facilities are being used, the Customer undertakes to notify the Company in writing thereof by registered post not later than 7 (seven) days before the date when the change is intended to take effect. In the event that any third party that acquires the business of the Customer continues to utilize the Customer’s account without the aforesaid written notice having been provided to the Company, the Customer indemnifies the Company against any non-payment by such purchaser.
  5. Should the Customer be domiciled outside the Republic of South Africa, this Agreement and all contracts of sale between the Customer and the Company shall be governed and interpreted in accordance with the laws of the Republic of South Africa and the South African Courts shall have sole jurisdiction in respect thereof.
  6. In the event of it being necessary for the Company to instruct its attorneys as a result of any breach of these conditions by the Customer or to recover any amounts owing by the Customer to the Company, the Customer agrees to pay for all legal costs on the attorney and client scale inclusive of collection commission, tracing charges, validation fees and stamp duties on any form of security the Company may require from the Customer.
  7. The Customer shall notify the Company in writing by registered post within fourteen days of any changes of any of the information set out in the Application for Credit Facilities.
  8. The granting, continuation, and termination of the credit facilities if any, shall be within the sole discretion of the Company. The Company furthermore reserves the right to suspend deliveries, to cancel any undelivered portion of any order or to impose such other conditions as to security and terms of payment as it deems fit.
  9. The Customer chooses its business address appearing in the Application for Credit Facilities as its chosen domicilium citandi et executandi. The Customer hereby consents to the receipt of any notices that may be sent by email, at the email address inserted on the front page of this application.
  10. In these terms and conditions, unless the context otherwise requires, words importing the masculine gender shall include the feminine gender and words importing to the singular shall include the plural and vice versa.
  11. The invalidity of any clause or part thereof of these terms and conditions will not affect the validity of the rest of the terms and conditions.
  12. The Customer warrants that, as of the signature date of this application, it is not in business rescue in terms of Chapter 6 of the Companies Act 2008 (“business rescue”) and that it has not made any application to be placed under business rescue. Furthermore, the Customer warrants that it does not have any intention of making application for business rescue and is not aware of any current or pending circumstances relating to the business that could give rise to an application for business rescue.
  13. The Customer agrees that in the event that the Customer is placed under business rescue the conclusion of any compromise of the debt under such approved business rescue plan will not reduce the liability of any person or entity that has signed surety for the debts due by the Customer to the Company and such surety shall remain liable for the full amount of the debt that was due before such compromise, notwithstanding that it is acknowledged, agreed and understood by the Customer that the surety may be entitled to have recourse against the Customer for amounts paid by the surety to the Company pursuant to such suretyship.
  14. Subject to clause 10 above, it shall be within the discretion of the Company as to whether to proceed against the Customer in the Magistrates Court or the High Court, having regard to the following in terms of Section 45 of the Magistrate’s Court Act 1944, as amended, the Customer hereby consents to the jurisdiction of the Magistrate’s Court having jurisdiction in terms of Section 28 of the said Act in respect of any action to be instituted against it by the Company in terms hereof.