General Terms and Conditions
Den Braven SA Pty Ltd
Version: Dec 2014
1.1. The following definitions are used in these General Terms and Conditions:
1.1.a. “Den Braven”: Den Braven SA Pty Ltd, a private limited liability company with its registered office in Johannesburg, South Africa;
1.1.b. “Purchaser”: a private individual or a legal entity that wishes to conclude or has concluded a Contract with Den Braven, or that receives a Quotation for that purpose;
1.1.c. “Quotation”: an offer by Den Braven to the Purchaser for the sale and delivery of Products or Services;
1.1.d. “Contract”: any contract for the sale of Products and/or Services by Den Braven and delivery of Products and/or Services to the Purchaser, any addition or amendment to this, and any and all acts (including legal acts) carried out in preparation and performance of the Contract.
1.1.e. “Products”: all goods sold and to be sold by Den Braven under a Contract;
1.1.f. “Services”: all activities (in whatever form and however they may be referred to) carried out by Den Braven for the Purchaser under a Contract.
1.1.g. “General Terms and Conditions”: these General Terms and Conditions.
2.1. The General Terms and Conditions are applicable to and form part of every Quotation and every Contract. The General Terms and Conditions are also applicable to every request for and any negotiations about a Quotation or a Contract.
2.2. If there is an inconsistency between these General Terms and Conditions and the Contract, the provisions of the Contract will prevail.
2.3. Amendments to these General Terms and Conditions will only apply insofar as Den Braven has explicitly accepted them in writing, and they will only apply to the Contract(s) in question.
3.1. Unless Den Braven has explicitly determined otherwise in writing, all Quotations are subject to contract and may always be cancelled.
3.2. Unless Den Braven has explicitly determined otherwise in writing, a Quotation will in no event remain valid for more than thirty (30) working days after being issued.
4.1. A Contract is concluded once Den Braven has received the Purchaser’s written acceptance of the Quotation and Den Braven has not cancelled the Quotation within 4 (four) working days of that acceptance.
4.2. If the acceptance includes reservations or changes in relation to the Quotation, then, notwithstanding the preceding paragraph, the Contract will be concluded if Den Braven has informed the Purchaser that it agrees to these reservations or changes.
4.3. If no Quotation has been issued and the Purchaser has (with or without a framework agreement) placed an order with Den Braven, the Contract will be concluded once Den Braven has accepted the Purchaser’s order. This acceptance is effected by sending an order confirmation or by commencing performance of the Contract.
4.4. Den Braven cannot be obliged to commence performing a Contract before having received all the requisite information from the Purchaser.
4.5. Amendments to the Contract only apply insofar as Den Braven has explicitly accepted them in writing, and they will only apply to the Contract in question. Amendments can lead to an adjustment in the original period of delivery.
4.6. Den Braven is not bound by undertakings given by its non-management personnel unless Den Braven has confirmed them in writing
5. PRICES AND RATES
5.1. Unless otherwise determined in the Contract, prices and rates are exclusive of VAT.
5.2. Den Braven will notify the Purchaser as soon as possible about any changes to prices of Products and Services.
6. DELIVERY OF PRODUCTS
6.1. Den Braven is entitled to deliver the Products in instalments and/or in parts.
6.2. The agreed periods for delivery are only indicated approximately and are free of obligation. With due observance of the standards of reasonableness and fairness, Den Braven will endeavour to comply with the agreed period of delivery. Delivery times that have been indicated or agreed are never to be regarded as deadlines. If goods or services are not delivered on time, the Purchaser must issue Den Braven with a written notice of default, giving Den Braven a reasonable period in which to perform.
6.3. Delivery times and periods will be suspended if and as long as the Purchaser has not fulfilled its outstanding payment obligations to Den Braven or if the Purchaser has not, or has not adequately, fulfilled its obligation to provide the information required in order for Den Braven to deliver.
6.4. Den Braven is not liable for any damage resulting from non-compliance with delivery times or other periods.
6.5. If the Purchaser requests a postponement of the delivery period in writing, such request must be accepted by Den Braven in advance and in writing. Any costs and/or damage incurred or sustained by Den Braven for such postponement must be reimbursed and/or compensated by the Purchaser.
6.6. Den Braven reserves the right to make changes to the Products displayed in its catalogue, brochures and other printed matter as well as to remove Products displayed therein from its range. Den Braven does not accept any liability for discrepancies in delivered Products with the illustrations in its catalogue, brochures and other printed matter.
7. PRIVATE LABEL PRODUCTS
7.1. If the Purchaser does not order a private label product from Den Braven in conformity with the agreed schedule, or if it discontinues a private label product or no longer purchases it from Den Braven or claims a Product with a different composition, Den Braven has the right to charge the Purchaser for base materials stocked for the private label concerned as well as for packaging material at cost price, plus any warehouse / storage costs.
7.2. Due to the nature of the production process it is possible that the number of manufactured Products is not the same as the number of ordered Products. Den Braven reserves the right to deliver 10% more or 10% fewer Products than the number of private label products ordered by the Purchaser. In that case, Den Braven will have fulfilled its obligation to deliver under the Contract.
7.3. Insofar as is not agreed otherwise, Den Braven is in no way liable for any wording affixed to private label products (or their packaging) of the Purchaser. The Purchaser indemnifies Den Braven against any third-party claims in this regard.
7.4. Regarding private label products, Den Braven rules out all liability for instructions issued by the Purchaser. The Purchaser is always liable in this regard.
8. INVOICING & PAYMENT
8.1. Unless otherwise determined in the Contract, Den Braven issues an invoice upon delivery of the Products and Services.
8.2. Den Braven’s invoices must be paid in the agreed currency and within the payment periods indicated on the invoices in question. If the invoice does not indicate a payment period, payment must be made within 30 days of the date of statement. The Purchaser is not authorised to deduct anything from the invoice amount. The Purchaser is not entitled to suspend its payment obligations.
8.3. Unless the Purchaser protests in writing about an invoice within five working days of the date of the invoice, the Purchaser will be deemed to have approved it. If a complaint about an invoice proves to be well-founded, Den Braven will issue a credit note.
8.4. If the Purchaser does not perform its payment obligations under the Contract in a timely manner, the Purchaser will be in default by operation of law without any notice of default being required.
8.5. All judicial and extrajudicial collection costs that Den Braven is forced to incur for the Purchaser failing to perform its payment obligations will be borne in full by the Purchaser. Den Braven is entitled to immediately instruct a third party to collect its claim on the grounds of an unpaid invoice.
8.6. All payments made by the Purchaser to Den Braven go towards settling (1) costs, (2) interest and (3) principal amounts, in the order in which such payments are due and payable.
8.7. Den Braven is entitled to demand what it considers to be satisfactory security for the performance of the Purchaser’s obligations and the Purchaser is obliged to provide it if Den Braven has good grounds to fear that the Purchaser will not perform its obligations.
8.8. Den Braven is at all times entitled to refuse a new order from the Purchaser if the Purchaser has failed to pay any invoices which are already due and payable.
8.9. The Purchaser may not deduct any payment obligations of Den Braven from any of its own payment obligations. The Purchaser’s payment obligation is separate from the other obligations under the Contract.
9. GUARANTEE & COMPLAINTS
9.1. Immediately upon delivery of the Products and performance of the Services, the Purchaser is obliged to examine whether the Products and Services conform to the Contract.
9.2. Complaints about the delivered Products and Services must be reported to Den Braven in writing and backed up with reasons as soon as possible but no later than fourteen days after the defect is discovered or at least no later than fourteen days after the defect reasonably ought to have been discovered. Once this time limit for lodging a complaint has passed, the Contract will be deemed to have been properly performed by Den Braven.
9.3. Complaints by the Purchaser cannot be submitted and will not be handled if:
3.1.a. a defect is the result, either wholly or in part, of unusual, improper, inexpert or negligent use of the Products;
3.1.b. the Product has been modified, used or processed;
3.1.c. the Product has been transferred to third parties;
3.1.d. the Purchaser has not performed all its obligations (including payment obligations) to Den Braven.
9.4. The Purchaser will enable Den Braven to investigate a complaint and will fully cooperate in this regard. Den Braven may engage an expert to verify a complaint. The costs of the expertise may be charged to the Purchaser if the complaint or objection is declared unfounded, either wholly or in part.
9.5. If complaints are not reported in writing in a timely manner, the Purchaser will be deemed to have approved the delivered Products and Services and to have waived all rights and powers available to it by law and/or under the Contract and these General Terms and Conditions.
9.6. A complaint as referred to in this article does not suspend the payment obligation.
9.7. If and insofar as Den Braven declares a complaint by the Purchaser to be well-founded, Den Braven will, at its discretion (i) repair the defect in the Product, (ii) replace the defective Product, or (iii) repossess the defective Product and reimburse the Purchaser with the purchase price. In no event is the Purchaser entitled to compensation for the delivery of a defective Product.
9.8. The Products may only be returned once Den Braven has given its permission in writing, on conditions to be determined by Den Braven.
10. FORCE MAJEURE
10.1. A party to the Contract is not liable for a delay or shortcoming in the performance of the Contract if and insofar as it is the result of force majeure.
10.2. Force majeure includes, but is not restricted to, any form of natural disasters, strikes, industrial conflicts, any failure or delay by suppliers of Den Braven, acts of war, a lack of base materials, epidemics, transport problems, import and/or export bans, government measures, fire, explosions, frost, high temperatures, break-downs in communication connections and power failures, interruptions in Den Braven’s operations or Den Braven’s warehouses or workshops and, furthermore, any and all circumstances under which Den Braven cannot reasonably be expected to perform or continue to perform its obligations towards the Purchaser. Force majeure on the part of Den Braven’s suppliers is also be taken to mean force majeure on Den Braven’s part.
10.3. The parties must inform one another without delay if a force majeure situation occurs.
10.4. In the event of force majeure Den Braven will suspend its obligations for the duration of the force majeure situation without the Purchaser being entitled to any compensation. Force majeure does not release the Purchaser from his obligations to pay.
10.5. If a force majeure situation lasts more than (3) months, either party may dissolve the Contract with immediate effect, without either party being entitled to compensation.
11.1. De Braven is not liable for damage to or loss of the Product and the Products after the goods have been made available to the Purchaser.
11.2. Den Braven is not liable for indirect loss, including, but not limited to, consequential loss, loss of profits, loss due to business interruption, non-economic damage, direct trading loss and other kinds of financial loss, including all possible claims from third parties in the broadest sense of the word, including end buyers and personnel of the Purchaser.
11.3. If Den Braven is liable to the Purchaser for any kind of damage under the Contract, the General Terms and Conditions and/or the law, this liability will in any event be restricted to the amount that is paid out under Den Braven’s liability insurance.
11.4. If Den Braven’s insurer does not pay out for whatever reason, Den Braven’s liability will be restricted to the invoice amount (exclusive of VAT) of the Contract in question. If partial deliveries have been agreed, the liability will be restricted to the invoice amount (exclusive of VAT) of the partial delivery that is most closely connected with the event that caused the damage. In all cases a maximum liability of ZAR 50,000.00 (in words: fifty thousand rand) applies per event or per series of events with the same cause.
11.5. Den Braven does not have to compensate any damage if the Purchaser, at the time of the occurrence of the aforesaid event, is in default of performance of any obligation towards Den Braven, barring intent or gross negligence on Den Braven’s part in the performance of the Contract.
11.6. Den Braven is not liable for damage related to the installation or application of its Products, for which only the party that installed or applied the Products can be held liable.
11.7. Den Braven is not responsible for the accuracy or comprehensiveness of the data, documentation or drawings furnished by the Purchaser to Den Braven and it may assume their accuracy in performing the Contract.
12. PRODUCT STANDARDS
12.1. Regarding the Products and Services (and the selling of them), the Purchaser must act in accordance with the applicable requirements of product safety.
12.2. The Purchaser will not remove the manuals and other instructions for the use of the Products upon selling them and, unless otherwise agreed in writing, will not repackage or remove labels from the Products.
12.3. The Purchaser must grant any and all cooperation necessary if Den Braven wishes to issue a public warning, recall products or take any other measures, whether or not on account of European or Dutch regulations regarding general public safety. In order to facilitate a public warning or a product recall, the Purchaser must at all times keep records of the recipients, time and quantities of supplies of the Products.
12.4. Without prior consultations with and the written consent of Den Braven, the Purchaser will not (i) proceed to take measures regarding product safety, such as a product recall or a public warning, in connection with South African regulations,; or (ii) inform third parties of the unsafeness of a Product on the grounds of any regulations.
13. RESERVATION OF TITLE
13.1. The Products continue to be the property of Den Braven until the Purchaser has fully satisfied all claims. This includes claims to pay for Products and Services as well as claims on account of a failure to perform Contracts.
13.2. The reservation of title does not affect the risk transfer provided by Article 6 above.
13.3. If Den Braven wishes to claim its property, the Purchaser must allow Den Braven access to the place where the Products are stored to enable Den Braven to take possession of and remove the Products. The Purchaser will remove any other items that may be stored among the Products or are otherwise connected with them in a timely fashion. Den Braven will at no time be liable for damage to such items.
14. FAILURE OF THE PURCHASER
14.1. The Purchaser is deemed to be in default by operation of law and its (remaining) debts to Den Braven will be due on demand if:
1.1.a. the Purchaser has applied for its own insolvency or moratorium, is declared insolvent or is granted a deferment of payment;
1.1.b. attachment is levied on a material part of the Purchaser’s capital and this attachment is not lifted within (14) fourteen days after it is levied;
1.1.c. the Purchase fails to perform any of its obligations under the Contract and/or General Terms and Conditions;
1.1.d. the Purchaser is in default of payment of Den Braven’s invoice within the agreed term, either wholly or in part;
1.1.e. the Purchaser is dissolved, liquidated, ceases its business operations or sells its business, either directly or indirectly and either wholly or in part;
1.1.f. the control of the Purchaser’s business (or part of it) is changed, either directly or indirectly.
14.2. In the situations listed in paragraph 1 of this article, Den Braven may, without further default, without court intervention, without being held to pay any compensation and without prejudice to its other contractual and statutory rights:
2.1.a. suspend the performance of its obligations towards the Purchaser until the latter has performed all its obligations towards Den Braven;
2.1.b. terminate the Contract with immediate effect, either wholly or in part;
2.1.c. claim full and immediate payment of any amount that the Purchaser owes Den Braven, including any amount that was not yet due and payable;
2.1.d. obtain adequate security for the timely performance of the Purchaser’s payment obligations before performing a Contract (or continuing to perform it);
2.1.e. repossess any Products and Services that have been supplied but not yet paid for, either wholly or in part, free of any rights of the Purchaser, without any further liability or obligation to deliver (or redeliver) Products and Services to the Purchaser.
14.3. The Purchaser will furthermore take any other measures and perform any acts that are required to enable Den Braven to exercise its rights under the Contract and the General Terms and Conditions.
14.4. Barring the cases specified in this article, the Contract ends upon its performance or at any point in time expressly stipulated by the parties.
15. INTELLECTUAL PROPERTY RIGHTS
15.1. The Purchaser acknowledges that Den Braven exclusively owns all intellectual rights (including any claims to such rights and including any future intellectual rights) vested in and related to Products, Services, designs (made on the instructions of the Purchaser), processes, presentations, opinions, drawings, printed matter, photos, files, websites, brochures and catalogues of Den Braven. This includes, but is not limited to, all copyrights, patent rights, trade mark rights and trade names that are used and/or arise during the term of the Contract (or Contracts).
15.2. If a third party infringes Den Braven’s intellectual property rights, the Purchaser will promptly notify Den Braven of this by telephone and in writing. At Den Braven’s first request, the Purchaser will furnish Den Braven with all the documentation and information regarding the intellectual property rights and grant it all the cooperation requested by Den Braven. Den Braven does not have to indemnify the Purchaser against claims relating to the intellectual property rights.
15.3. The Purchaser may not alter or remove any reference to intellectual property rights of Den Braven and/or a third party to the Products and/or in relation to the Services.
15.4. If Products and Services are produced and/or packaged according to the Purchaser’s guidelines, the Purchaser will indemnify Den Brave against claims from third parties in relation to the Products and Services concerned, including but not limited to claims on account of infringement of an intellectual property right of a third party.
16.1. All information, material or immaterial, that Den Braven provides to the Purchaser is strictly personal and confidential. This information includes information relating to Products or Services, suppliers, customers, methods, technical information, inventions, products, commercial information, and it comprises formulas and technical drawings for Products and production processes, features, processes, trade secrets, patents, inventions, discoveries, know-how and intellectual property rights
16.2. The Purchaser may not disclose to the public or otherwise use the information provided by Den Braven in any way without Den Braven’s consent and it must return all information and data carriers to Den Braven and immediately destroy any copies thereof at Den Braven’s first request. The term of this duty of confidentiality is unlimited.
16.3. The Purchaser must take any and all necessary measures and precautions to preclude the disclosure of information provided by Den Braven to a third party and the Purchaser will impose a duty of confidentiality on its personnel and third parties involved. Any breach of the terms of this article by an affiliated company, management or personnel of the Purchaser will be regarded as a breach of a clause or prohibition by the Purchaser.
16.4. The restrictions on the use and disclosure of the information provided by Den Braven do not apply to information regarding which the Purchaser can demonstrate: (a) that it is publicly known when it is disclosed; (b) that it must be provided as a result of a statutory obligation or a court ruling that has become final.
17.1. If a clause in the General Terms and Conditions or the Contract is void or voided, the other clauses of the General Terms and Conditions and the Contract will remain in force. The parties will replace the void and/or unenforceable clause with a new one that approximates the substance of the original clause as closely as possible.
17.2. Den Braven may amend the General Terms and Conditions. The Purchaser will be deemed to have accepted any amendment to the General Terms and Conditions if it has not filed a written objection within (5) working days of the notification of the amendments by Den Braven.
17.3. Den Braven may engage third parties in the performance of the Contract. It may also transfer rights and obligations arising from the Contract to third parties.
18. APPLICABLE LAW AND COMPETENT COURT
18.1. The General Terms and Conditions, all offers, Quotations and Contracts between the Purchaser and Den Braven are governed by South African law.
18.2. Any and all disputes ensuing from or relating to the General Terms and Conditions, offer, Quotations and/or the Contract between the Purchaser and Den Braven will be submitted to the courts of South Africa.