1. DEFINITIONS

1.1. In this Agreement, except in a context indicating that some other meaning is intended:

1.1.1.    “Agreement” means this agreement including the applicable quotation.

1.1.2.   “Supplier” means Marion Reed Design CC, a Close Corporation with registration number 2000/052806/23.

1.1.3.    “Products” means any goods supplied or to be supplied by the Supplier as set out in the quotation.

1.1.4.    “Customer” means any person, juristic or otherwise as described in the quotation.

1.2.  The expressions in the singular also denote the plural, and vice versa.

1.3.  Words and phrases denoting natural persons refer also to juristic persons, and vice versa

1.4.  Pronouns of any gender including the corresponding pronouns of the other gender.

1.5.  The clause headings in this Agreement have been inserted for convenience only and shall not be considered in its interpretation.

1.6. If any period is referred to in this Agreement by way of reference to a number of days, the days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or Public Holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or Public Holiday.

1.7. The contra proferentem rule shall not apply and accordingly, none of the provisions hereof shall be construed against or interpreted to the disadvantage of the party responsible for the drafting or preparation of this agreement.

1.8. The eiusdem generis rule shall not apply and accordingly, whenever a provision is followed by the word “including” and specific examples, such examples shall not be construed so as to limit the ambit of the provision concerned.

2.      SCOPE OF APPLICATION 

2.1. These general terms shall apply to all legal relationships (offers, contract negotiations, agreements, etc.) between the Supplier and Customer concerning (i) the sale, manufacturing and delivery of the Products and (ii) the provision of services, such as measurements and fittings which may be provided by the Supplier at the Customer’s instance and request.

2.2. Unless explicitly agreed otherwise, these terms shall constitute an integral part of the legal relationships in existence between the Supplier and Customer. Any stipulations that depart from these terms shall only be legally binding if accepted by the Supplier in writing.

2.3. By placing an order with the Supplier, the Customer confirms, accepts and consents to the fact that the supply of the Products and services are governed by these terms. The Supplier reserves the right to amend these terms at any time. Any amendments shall take effect upon notification to the Customer in respect of all legal relationships established thereafter between the Supplier and the Customer.

2.4. All the customer’s general terms and conditions and other contract documents are hereby explicitly excluded, unless the Supplier consents thereto in writing, even if such general terms and conditions or other documents of the Customer were included in the Customer’s order or order confirmation or otherwise communicated to the Supplier.

2.5. The Agreement shall be deemed to be formed upon receipt of the acceptance of the quotation by Supplier in accordance with these terms. Offers that contain no deadline for acceptance are not legally binding.

2.6. No agreements or legal declarations between the parties shall be effective unless formulated in writing. Declarations sent or recorded by e-mail shall be regarded as written declarations by the relevant party. 

2.7. The Products to be supplied and/or the services to be rendered shall be listed in the accepted order.

2.8. All descriptions of Products and services and particulars contained in brochures, plans, and so on, are subject to technical modifications and improvements. In principle, such particulars are not deemed to reflect the contractually binding qualities of supplies and services, unless expressly stated as such.

2.9. The Supplier’s price lists, product descriptions, brochures and plans, as the case may be, are not legally binding and may be amended or revoked at any time, unless explicitly specified otherwise in the relevant document.

3.      QUOTATIONS AND INVOICING

3.1. The prices quoted are in South African Rand and exclude any Value-Add Tax (“VAT”) or additional taxes, including any other tax which may come into effect pursuant to the accepted order. The prices quoted also exclude any import duties, levies, clearing charges or transport costs which may be applicable, unless stated otherwise. All prices quoted by the Supplier are net amounts and not subject to any discount, unless stated otherwise.

3.2. A quotation by the Supplier shall be valid and open to acceptance by the Customer for a period of 15 (fifteen) calendar days from date thereof, whereafter the quotation shall not be open to acceptance by the Customer.

3.3. The Customer shall be required to sign and return a copy of the quotation to the Supplier as proof of their acceptance (“accepted order”), alternatively, to communicate its acceptance in writing to the Supplier.

4.      PRICES AND PAYMENT TERMS

4.1. Upon an accepted order being received by the Supplier, the Customer shall immediately become obliged to pay an amount equal to 70% (seventy) percent of the accepted order into the nominated bank account of the Supplier.

4.2. The Customer shall thereafter be obliged to pay the Supplier the balance of 30% (thirty) percent of the accepted order before the Supplier shall be obliged to release the Products to the Customer.

4.3. The Customer may not withhold, deduct or set-off from any consideration due and owing to the Supplier, either in terms of this Agreement or any other agreement, an amount equal to any outstanding claim that the Customer may have against the Supplier.

4.4. In the event that the Customer requires any services to be rendered by the Supplier, including, but not limited to the taking of measurements, such services shall be invoiced according to time and shall be calculated based on the Supplier’s daily or hourly rates applicable at the time the services are performed. The Supplier shall issue the Customer with a quotation stipulating the estimated time and the rate applicable in the event that such services are to be rendered on the same basis set out in this Agreement. 

5.      MANUFACTURING 

5.1. The Supplier takes great care in manufacturing its own Products in accordance with the Customer’s requirements and specifications. The Supplier will not, however, commence with the manufacturing process until such time as the design, style and quantity have been agreed with the Customer. 

5.2. The Supplier and the Customer shall endeavour to complete the ‘design phase’ within 90 calendar days of the accepted quotation. 

5.3. Without derogating from any other rights the Supplier may have in law, in instances where the Customer has not approved the designs within 90 calendar days of the accepted quotation, the Supplier reserves the right to cancel the order and to refund any amounts paid to the Supplier by the Customer, less any amounts to be charged to the Customer by the Supplier for time spent or materials acquired as contemplated by clause ‎11.2 below. 

5.4. In such instance, the Supplier shall not be required to refund the amount to the Customer inclusive of any interest which may be applicable in law. 

6.      PRODUCT LIABILITY

6.1. The Supplier hereby warrants to the Customer that the Products have no substantial defects of processing or material impairing proper use of the Products at the time of their delivery. Any further product warranty and warranty of title is expressly excluded, unless expressly agreed otherwise. 

6.2. The Supplier shall not be held liable for any defects for which the Customer is responsible due to its own fault, negligence, normal wear and tear, improper use, alteration, modification or adjustment. The Supplier shall also not be held liable for any defects arising from the improper care, washing or ironing of the Products contrary to any instructions issued by the Suppler.

6.3.The Supplier’s obligations are limited to replacing any defective Product which are returned by the Customer to the Supplier within a period of seven (7) days of date of delivery. If the Product proves to be defective, then the Customer shall only be entitled to demand the removal of the defects within a reasonable amount of time, provided such defects are imputable to the Supplier. The Supplier may accordingly elect to repair or replace the Product pursuant to such demand being made by the Supplier to eliminate any defects. The Supplier shall have the further option of cancelling that portion of the Agreement which relates to the defective Product.

6.4. The Supplier’s obligation to eliminate the defects is conditional on the Customer giving written notice of the relevant defects within 7 (seven) days after taking delivery of the Products, or in the case of concealed defects, promptly after the detection thereof, but not later than 30 (thirty) days after taking delivery. 

6.5. The Supplier shall bear the costs of remedial action. All other costs shall be charged to the Customer, including, but not limited to, the delivery of the defective Products to the Supplier.

7.      DELIVERY

7.1. The period for delivering the Products by the Customer to the Supplier (“delivery period”) shall commence on payment being received by the Supplier as contemplated in clause ‎4.1 above. The delivery period shall be deemed to be complied with if the Products are made available to the Customer at the Supplier’s office or factory. The Supplier also reserves the right to make part deliveries of the Products to the Customer.

7.2. The Supplier shall endeavour and shall take all reasonable steps to effect delivery on the date specified by it or agreed between the Parties, however, it does not give any warranties or undertakings in respect thereof. 

7.3. The Supplier shall accordingly not be held responsible for any damages of whatsoever nature, or loss of profit, or any consequential or indirect damages which the Customer may suffer as a result of a delayed delivery, unless the delay is considered to be unreasonable in the circumstances. 

7.4. Upon payment of the final amount as contemplated in clause ‎4.2 above, the Supplier shall make the Products available for collection from its premises. The Supplier shall notify the Customer of the Products being made available by providing the Customer with a release notice (“Release Notice”). The Customer, including any agent acting on behalf of the Customer, shall be required to present the Release Notice to the Supplier upon collecting the Products. In the absence of the Release Notice being provided by the Customer, the Supplier reserves the right to deny the Customer or its agent access to its premises, alternatively, to refuse to release the Products to the Customer. 

7.5. Delivery to the Customer of the Products shall be affected in conjunction with a duplicate delivery note (“Delivery Note”). The signing of the delivery notes by a person acting or purporting to act on behalf of the Customer or by a person apparently in charge of the Customer’s premises, as the case may be, shall be deemed to be sufficient proof of delivery thereof. 

7.6. The Customer shall be obliged to inspect all Products upon delivery and shall accordingly endorse the delivery note to reflect any missing or damaged Products. No claims for missing or damaged Products shall be valid or entertained by the Supplier unless the Customer notifies the Supplier in writing within 7 (seven) business days of delivery of the Products of the claim in question. 

7.7. The Customer shall bear the onus of proving that any of the Products are missing or damaged and which has not arisen as a result of the negligence or otherwise of the Customer.

7.8. The Supplier reserves the right to levy a handling fee on any returned Products that are accepted by the Supplier. This clause shall not imply that the Supplier shall be obliged to accept the return of any Products.

7.9. Without derogating from what may be stated in this Agreement, no carrier, acting as agent of the Supplier, shall be obliged to enter the premises of the Customer to enable offloading to be affected. However, if such vehicle should enter the Customer’s premises, it shall be deemed to do so at the Customer’s specific instance and request, and in such event the Supplier and/or its servants and/or agents shall accept no liability for damage or loss occasioned to the Customer or any third party, arising in any way from such entry or for that matter, exiting from the Customer’s premises, or from the offloading thereof, or from any negligent act or omission of the Supplier or of its agent carrier during the course of entering, exiting or offloading. Further, the Customer hereby indemnifies and holds the Supplier harmless against liability for any such damage or loss. 

8.      LIMITATION OF LIABILITY

8.1. Under no circumstances may the Supplier be liable for any consequential damages arising from the use, misuse or otherwise of the Product by any person. The Customer hereby waives any claim of whatsoever nature it would otherwise have against the Supplier other than in terms of this Agreement, but for this waiver, and further indemnifies the Supplier against any claim by any party which may be brought against the Supplier arising out of the supply of the Product by the Supplier to the Customer and the subsequent use of such product by any third party. 

8.2. The Customer shall not be entitled to claim compensation for indirect, collateral and consequential damages, loss of profit and unrealised savings, irrespective of the legal basis for claiming such damages, unless stated otherwise in this Agreement. All rights and claims of the Customer under or in relation to this Agreement or its deficient performance, irrespective of the legal basis, are expressly specified in these terms.

8.3. The onus shall be on the Customer to satisfy itself that the Products ordered are for the purpose for which the Products are to be used, there being no obligation on the Supplier to guarantee such suitability.

9.      RESERVATION OF OWNERSHIP

9.1. The Products shall remain the property of the Supplier until the Customer has complied with its obligation to make payment and the Supplier has received payment in accordance with this Agreement.

9.2. The Customer shall bear the risk of any loss, damage, theft or destruction of the Products howsoever arising upon delivery of the Products in accordance with this Agreement as evidenced by the Delivery Note.

10.    BREACH

Should either Party (“the defaulting party”) breach any of the provisions of this agreement and fail to remedy same within 7 (seven) days after receipt of written notice from the other Party (“the aggrieved party”)  requiring it to remedy that breach, such aggrieved party shall be entitled, without prejudice to any other remedy which it may have in terms of this agreement or in law, to demand fulfillment of all obligations of the defaulting party  in terms of this Agreement or to cancel this Agreement upon written notice to the defaulting party and the aggrieved party shall be entitled to claim such damages as it may have suffered as a result of such breach.

11.    TERMINATION OR CANCELLATION

11.1. The Supplier may terminate this Agreement at any time for any reason by giving at least 7 (seven) days’ notice in writing to the Customer.

11.2. Without derogating from any claim the Supplier may have in law, should the accepted order or part thereof be cancelled due to circumstances not attributable to the Supplier, the Customer will be charged on a pro-rata basis according to the stage at which the accepted order has progressed at the time of cancellation. The Customer will also be liable for the costs of materials and other related costs incurred prior to cancellation of this order.

12.    FORCE MAJEURE

12.1. The Supplier shall not be held responsible and shall not be obliged to reimburse any amount paid in circumstances where the supply or services is not delivered on the scheduled date as a result of a force majeure event. For purposes of this clause, a “force majeure” event shall constitute an event, condition or circumstance including but not limited to war (whether declared or not), revolution, invasion, insurrection, riot, civil commotion, mob violence, boycott, fire, explosion, theft, storm, flood, rain, lightning, any viral pandemic or any other adverse weather condition, epidemic, 

12.2. quarantine, major accident, or acts or restraints of government imposition.

12.3. The Supplier shall, however, take all reasonable steps to reschedule the supply or delivery to another date, subject to their availability. 

13.    CONFIDENTIALITY 

13.1. Any quotation issued by the Supplier contains proprietary information of the Supplier and is disclosed solely for the purpose of evaluation by the Customer. The quotation may not be used to negotiate with the Supplier’s competitors. The information contained herein shall not be utilised for any other purpose, nor shall it be duplicated or disclosed to third parties without the express written consent of the Supplier.

13.2. Accordingly, the Customer undertakes that, except with the express prior written consent of the Supplier, it shall, always: 

13.2.1. Keep all information confidential.

13.2.2. Not disclose, in whole or in part, any information to any third party; and

13.2.3. Not use the information for any purpose otherwise than as contemplated by and subject to the terms of the proposal.

14.    JURISDICTION

The parties consent in terms of section 45 of the Magistrate’s Court Act 32 of 1944, as amended, to the jurisdiction of the Magistrate’s Court in respect of any action which may be instituted out of this agreement, notwithstanding that the amount of the claim may exceed such jurisdiction.

15.    NOTICES AND DOMICILIA

15.1. The Parties choose as their domicilia citandi et executandi their respective addresses set out in the quotation, unless stated otherwise, for all purposes arising out of or in connection with this Agreement at which addresses all processes and notices arising out of or in connection with this Agreement, its breach or termination may validly be served upon or delivered to the Parties

15.2. For the purposes of this Agreement the Parties’ respective addresses shall be or at such other address in the Republic of South Africa, of which the party concerned may notify the other/s in writing provided that no street address mentioned in this sub-clause shall be changed to a post office box or poste restante

15.3. Any notice given in terms of this Agreement shall be in writing and shall: 

15.3.1. if delivered by hand be deemed to have been duly received by the addressee on the date of delivery;

15.3.2. if posted by prepaid registered post be deemed to have been received by the addressee on the 8^th (eighth) day following the date of such posting;

15.3.3. if by email be deemed to have been received by the addressee on the same day of the email being dispatched,

unless the contrary is proved.

16.    NON-VARIATION

No variation, modification or waiver of any provision of this agreement including of this sub-clause, or consent to any departure therefrom, shall be of any force or effect unless the same shall be confirmed in writing and signed by the parties.

17.    APPLICABLE LAWS

The terms shall be governed and construed in accordance with the Laws of the Republic of South Africa.