TRADING TERMS AND CONDITIONS
A.These terms and conditions are applicable in their entirety between yourself and both Dangee Corporation (Pty) Limited (“Dangee”) as well as Carken and Company (Pty) Limited (“Carken”). As such both Dangee and Carken are referred to jointly herein as “the supplier”.
B. You acknowledge your awareness that Dangee and Carken operate jointly with each other and are related corporate entities and businesses.
C. You acknowledge your consent to dealing interchangeably with either Dangee and/or Carken or both from time to time jointly as the supplier.
- PAYMENT TERMS AND SETTLEMENT DISCOUNT
1.1. On approval and full completion of our credit application, we offer the following payment terms: –
1.1.1. COD – less 5% (payment within 7 calendar days of receiving goods)
1.1.2. 30 days – less 2.5% (payment received within 30 calendar days from date of the statement
1.1.3. 60 days – net – payment received within 60 calendar days from date of the statement
1.2. The supplier is entitled to charge a minimum monthly late payment penalty of 2% on all over-term balances as set forth in the National Credit Act No. 34 of 2005.
1.3. The supplier reserves the right to hold back any forward orders where its terms are not adhered to. The stock remains the property of the supplier, whether delivered to you or not until fully paid for. Should no remittance advice be supplied within 2 working days of payments made, payments will automatically be allocated to the oldest debit items per the latest statement supplied by the supplier. In the absence of any written documentation objecting to the allocations applied by the supplier, this will be deemed to be the correct and binding payment allocation. The supplier is entitled to amend these payment and settlement discount terms at any time.
1.4 You acknowledge that the Supplier’s pricing as reflected in any quotation given to you is based upon a currency exchange rate at the time of quotation. Should that exchange rate fluctuate upward, meaning that the goods in question will cost the Supplier more, then the Supplier reserves the right to unilaterally increase the price quoted and you agree to accept such increase in price and to effect payment of same in accordance with the remaining terms and conditions contained herein.”
1.5. Cash deposits – If you elect to pay cash directly into our Bank account, the fees are for your account.
- TRADE DISCOUNTS
Trade discounts are offered at the discretion of management. This incentive is offered to customers who qualify with the minimum quantities set by management and who conduct their account in an exemplary manner. Once your account has been nominated by your salesman and approved by management, your status will be set in the supplier’s systems for automatic discounts. Management will review all the nominated accounts on a regular basis and have the right to revoke the discounts at their discretion.
3 ORDER PROCESSING
3.1. The supplier requires its salesman to process the initial sale on a rough order copy called an order discussion record (“ODR”). The ODR is not an official order and cannot be used as one. The purpose of the ODR is to allow the agent to ensure that the correct information is processed on the supplier’s systems. The official order is computer generated and will ensure that the correct information is processed. The supplier cannot be held responsible for the incorrect information written on the ODR.
3.2. Unfortunately, the processing of an ODR does not guarantee that the stock is available. It is only on the live processing of an order that the supplier can confirm that the stock is available at the time. On the rare occasion that the supplier short delivers stock, or the supplier may encounter problems on delivery, please use the ODR number on the official order as a cross-reference to the discussion you had with the salesman.
4.1. The supplier endeavors to deliver the footwear within the specified period quoted on its official order. Unfortunately, there are numerous factors beyond its control that may not allow the supplier to meet that requirement. On the occasion that this occurs, the supplier will advise you in writing, allowing you time to either accept the delay or make alternative arrangements.
4.2. The supplier’s prices quoted are an ex-warehouse price. All deliveries will incur a delivery charge. Deliveries beyond the borders of South Africa will be for the purchaser’s account. The supplier has contracted its deliveries with a professional courier company who undertakes to deliver within three working days from its warehouse to any main center, although the supplier does not guarantee such a time frame. Please add on two to three days for any outlying areas.
4.3. A minimum of two packs per delivery will be accepted. The supplier reserves the right to hold back a line of footwear to meet the two-pack requirement.
- DELIVERY DATES
The supplier’s official orders automatically quote the last day of the month, even though the footwear may be invoiced from the first day onwards. Payment is from the statement date unless you are paying on the delivery date.
- INTERNET TRACKING
The supplier has an internet tracking service for its deliveries, detailing the date of dispatch and delivery to your store. Proof of delivery is available at your request. Please contact your agent or their staff to provide you instant information.
- WITHDRAWN STYLES
7.1. On occasion, styles or colour options may be withdrawn for a number of reasons. This information will be sent to you in writing so that you can facilitate a replacement if you wish.
7.2. Repeat orders – quick response – a small portion of the footwear that the supplier supplies is available as backup stock. For your convenience, the supplier has implemented a quick response program to facilitate a quicker delivery into your stores. Any orders reaching the supplier before 11h00 will be invoiced out the same day. Anything after 12h00, the shoes will be invoiced out the following day from the supplier’s Johannesburg warehouse.
- GOODS RETURNED
To avoid confusion, the supplier has listed a guideline for returning footwear to its warehouse. Please familiarize yourself with the return policy, as the supplier will not accept any footwear back for any reasons other than those stated below.
8.1. Damaged Shoes
It is the policy of the supplier to credit any footwear that has a factory fault. The salesman representing the region must verify the fault. The salesman will use his/her discretion whether the claim is legitimate and warrants a credit. If a dispute arises, the shoes will be sent to the supplier’s quality control department for analysis. A report will be issued to the salesman who will, in turn, advise the customer of the decision. The damaged shoes must be accompanied by the customer’s debit note with the style number, invoice number and the correct amount to be credited. Please indicate on the debit note the reason for the return and preferably a sticker on the shoe indicating the fault area. No shoes will be credited without the above details.
NB – NO CREDIT WILL BE PASSED FOR FOOTWEAR AFTER 6 MONTHS OF DELIVERY TO THE CUSTOMER.
8.2. Missing shoes in cartons
The supplier has experienced the theft of a few shoes in sealed cartons during delivery. As a result, the supplier has created its own security stickers and these are stuck on all cartons to ensure that this does not occur. If this sticker is damaged or absent from the carton, and you accept the stock without writing on the consignment note and immediately advising the supplier of the problem, The supplier, unfortunately, cannot pass a credit for the missing shoes. Therefore, please ensure that you inspect the contents of the carton/s that look suspicious (IE: damaged sticker or irregular coloured tape on the box). If you sign for the consignment that has missing footwear, the supplier has no claim against the transport company.
8.3. Returns for late delivery
The supplier prides itself on communicating with the customer on any issues surrounding the delivery of the shoes. If a container is late for whatever reason, the customer will be advised of the “new” delivery date by the respective salesman. If the delivery date is unacceptable to you, please immediately on receipt of the advice, inform the salesman in writing of your cancellation. If the customer has been informed of the late delivery and does not advise of the cancellation in writing, The supplier will not accept the return. Please understand that the supplier will be incurring the cost of the transportation to and from the warehouse that could have been avoided.
9 CONSUMER PROTECTION ACT (CPA)
9.1. Notwithstanding the contents hereof, the supplier shall have no liability or obligation to the customer and/or the customer’s consumers with respect to any products which have been subjected to abuse, misuse, improper use, improper testing, negligence, accident, alteration, tampering or faulty repair, or as a result of ordinary wear and tear at the hands of the customer or the customer’s consumer and the customer hereby indemnifies the supplier accordingly.
9.2. The customer hereby undertakes and agrees to comply at all times with the provisions of the CPA regarding repairs and refunds and the implied warranties in respect thereof. To the extent that any claim is made and/or any loss or damages are suffered by the supplier as a result of a failure by the customer to comply with these provisions of the CPA, the customer hereby indemnifies the supplier accordingly.
9.3. In respect of any complaints made and/or repairs or refunds requested by a consumer of the customer, the customer hereby undertakes to immediately advise the supplier in writing of such complaint and/or requests, as the case may be, and to keep a detailed record in order to monitor all complaints accordingly.
- WARRANTIES OF CUSTOMER
In addition to any other obligations of the customer contained in these terms and conditions, the customer hereby warrants and undertakes that: –
10.1. it is in possession of and will maintain for the duration of this Agreement all licenses, consents, and/or permits, as the case may be, to receive delivery and sell the products;
10.2. it shall be in compliance with the CPA in respect of all dealings with the products and with its consumers in respect of the products;
10.3. it shall not market and/or promote and/or advertise the products for a use for which the products were not originally intended;
10.4. instructions for the use of the products will be clear and understandable and each of its employees who deal with consumers purchasing the products from it shall be trained by the customer to give proper advice in respect of the products concerned;
10.5. to the extent that the customer has been expressly informed by the supplier that particular products were offered in a specific condition and it expressly agrees to accept the products in that condition or knowingly acts in a manner consistent with accepting the products in that condition, then the customer will be deemed to have accepted the products in that condition concerned and shall have no claim against the supplier in respect of the nature and quality of those products and hereby undertakes to:-
10.5.1. make such nature and quality of the products clear to its consumers; and
10.5.2. advise its consumers in respect of the specific condition/s concerned.
10.6. in the event that the customer has altered the products contrary to the instructions of the supplier or after the products have left the control of the supplier, the customer hereby indemnifies the supplier in respect of any loss, claim, and/or damage of any nature whatsoever that arises in respect of the products concerned, their sale or use.
- 1 RISK
11.1. Risk in and to products sold to the customer shall pass when the products are delivered to the customer.
11.2. Where products are returned, the risk remains with the customer (who remains liable to any third party to whom the defective products have been sold) until delivery of the defective product to the supplier’s nominated carrier, or to the supplier.
Notwithstanding anything to the contrary contained herein and without prejudice to any other rights which the supplier may have, the supplier may at any time: –
12.1. terminate this agreement concluded in terms hereof by giving the customer written notice that it is in breach of the agreement, which notice of termination is without prejudice to any other rights it may have in terms of this agreement or in law, including any right to claim damages, or to claim immediate specific performance of all of the customer’s obligations under the agreement, howsoever arising, whether or not otherwise then due for performance, or to suspend the carrying out of the supplier’s then incomplete obligations in respect of the customer until payment is made which it is entitled to do in circumstances of any breach contemplated above; or give written notice of termination of this agreement, without penalty or recourse, with immediate effect if the customer dies or, if the customer is a corporate entity, becomes insolvent or wound up or sequestrated or subject to any winding up procedure (whether provisionally or finally) or makes any arrangement with its creditors or if a receiver or administrator or business rescue practitioner or equivalent is appointed of all or any of its assets or undertaking, or if the customer is a partnership if the partnership is terminated.
- NOTIFICATION OF CHANGE OF OWNERSHIP
The customer shall immediately, if it is a corporate entity, inform the supplier of any change in its shareholding, member’s interest, or control.
- LEGAL PROCEEDINGS
14.1. This agreement and all transactions between the customer and the supplier shall be governed by and decided upon in accordance with the laws of the Republic of South Africa
14.2. In any proceedings by the supplier for the recovery of any amounts due by the customer in terms of any invoice: –
14.2.1. the customer consents to the jurisdiction of any Magistrate’s Court otherwise having jurisdiction, notwithstanding that the sum due might exceed the jurisdiction of such court (subject to the right of the supplier not to proceed in such court at its sole discretion);
14.2.2. the customer shall be liable for and pay all the supplier’s legal costs on an attorney and client scale, including collection commission, expenses, tracing agents’ fees, Counsel’s fees, and any other charges incurred by the Supplier in enforcing any of the terms and conditions contained herein;
14.2.3. the customer chooses its address for service of notices the address specified as such in the business application.
- RESTRICTIONS ON SALES BY CUSTOMERS
The customer shall not: –
15.1. sell products other than as a retailer and in and from premises specified in the business application or subsequently specified by the customer and approved by the supplier in writing;
15.2. dispose of any products to any other retailer;
15.3. purchase the products other than from the supplier.
- FORCE MAJEURE
16.1. The supplier will not be liable to the Customer for failing to perform its obligations in terms of this agreement as a result of an act of God or any cause beyond its control including but not limited to war, riot, strike, lockout, civil commotion, fire, drought, flood, interruption of transport, an act of government, destruction or damage to premises, plant or machinery, legislation or any other cause, whether of similar character or not, beyond its control.
16.2. If the force majeure event continues for longer than 90 (ninety) days, either party may terminate the customer’s outstanding orders in writing and the customer shall pay the supplier for work performed prior to termination and all reasonable expenses incurred by the supplier as a result of such termination.
16.3. In the event of delays in delivery or performance caused by a force majeure event or the customer, the estimated date of delivery or performance shall be extended by the period of time the supplier is actually delayed or as mutually agreed in writing.
17.1. The customer shall not be entitled to cede its rights or assign its obligations under this agreement.
17.2. The supplier shall be entitled to cede its rights or assign its obligations under this agreement and such a cessionary shall be entitled to enforce its rights hereunder against the customer in respect of products that it supplies to the customer.
17.3. The supplier may subcontract its obligations hereunder without the customer’s consent
18.1. This agreement constitutes the entire agreement between the parties relating to the subject matter hereof. No party shall be entitled to rely upon any term, warranty, guarantee, condition, or representation unless it is contained herein. The customer acknowledges that it is aware that the supplier’s dealers and salespersons have no authority to vary these terms and conditions and the supplier 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 the managing director of the supplier.
18.2. The supplier may at any time amend these terms and conditions subject to notification to the customer in writing of such amendment, which notification shall be deemed to have been received by the customer 7 days after notification is posted to it at the postal address supplied by it on the business application or any other postal address of which it has subsequently notified the supplier in writing.
18.3. No indulgence or extension of time which either party may grant to the other shall constitute a waiver of, whether by estoppel or otherwise not limit any of the existing or future rights of the grantor hereof, save and in the event and to the extent that the grantor has signed a written document expressly waiving or limiting such right.
18.4. Without prejudice to any other provision of these terms and conditions, any successor in title, including any executor, heir, liquidator, judicial manager, curator, or trustee of any party, shall be bound by the agreement.
18.5. Each provision of this agreement is severable, the one from the other. If any provision is found to be defective, unlawful, or unenforceable for any reason, the remaining provisions shall continue to be of full force and effect.
18.6. The rule of construction that this agreement be interpreted against the party responsible for drafting this document shall not apply
18.7. The customer warrants and acknowledges that any person who signs this agreement or any delivery note on behalf of the customer is and will be deemed to be duly authorized by the customer to sign the document concerned as referred to above on its behalf and to bind the customer to the terms thereof.
18.8. In the event that the customer purchases products in excess of the trade limit granted under the business application (“trade limit”), The supplier shall be under no obligation to inform the customer thereof and the customer shall in such event remain liable for the full purchase price in respect of any products that may have been purchased in excess of the trade limit. Nothing contained in this clause shall however be construed as an authorization by the supplier to increase the customer’s trade limit.
18.9. The trade limit and any trade terms granted pursuant to the business application by the supplier shall be capable of review by the supplier at its sole discretion from time to time. The terms and conditions do not constitute a guarantee of supply of products to the customer. The continued supply of products will always be in the sole and absolute discretion of the supplier.
18.10. The supplier may at any time without reason terminate any trading facility extended to the customer, but only in respect of future transactions in which case the manner of payment will be determined by the supplier.
- OTHER CONDITIONS
19.1. The customer hereby acknowledges and agrees that the supplier may: –
19.1.1. perform a credit search on the customer’s record with one or more of the registered credit bureaux when assessing the customer’s application for credit;
19.1.2. monitor the customer’s payment behaviour by researching its record at one or more or the credit bureaux;
19.1.3. use new information and data obtained from the credit bureaux in respect of the customer’s future credit applications;
19.1.4. record the existence of the customer’s account with any credit bureau;
19.1.5. record and transmit details of how the customer has performed and how the account is conducted by the customer in meeting its obligations on the account;
19.1.6. use information obtained by one or more credit bureaux to assess future credit applications by the customer and members of his/her family if applicable.
19.2. The customer acknowledges and agrees that any information regarding its creditworthiness, defaults in payment, and details of how its account is conducted may be disclosed to any other creditor of the customer or to one or more credit bureaux.
19.3. The customer hereby undertakes to pay its account to the supplier on the payment terms contained herein.
19.4. All goods supplied shall remain the property of the supplier until paid for in full and the customer appoints the supplier as its agent to collect and transport, at the customer’s expense, any such goods back to the premises of the supplier in circumstances where the goods have not been paid for in full by the due date and the supplier shall not be obliged to obtain any form of court order prior to removing such goods.
19.5. The supplier reserves the right not to accept goods back from the customer unless agreed to in writing by the supplier.
20. POPI ACT
The Supplier is and shall remain compliant with the provisions of the Protection of Personal Information Act 4 of 2013 (“POPI Act”) in respect of all dealings with the Customer, and undertakes only to share or use personal information provided to it by the Customer in adherence with the POPI Act.
21.1. The signatory to this agreement (“the surety”) binds himself/herself in his/her private and individual capacity as surety for and co-principal debtor with the customer in favour of the supplier for the due performance of any obligation of the customer and for the payment to the supplier by the customer of any amount which may now or at any time be or become owing to the supplier by the customer.
21.2. The surety’s liability to the supplier shall not be limited by any credit limit granted by the supplier to the customer.
21.3. This surety-ship shall remain in full force and effect for so long as any amounts shall remain owing by the customer to the supplier and notwithstanding the temporary extinction of the customer’s indebtedness to the supplier.
21.4. The surety waives and renounces the legal benefits of excussion (the right to require the supplier to first proceed against the customer for payment of any debt owing to the supplier before proceeding against the surety), cession of action (the right to require the supplier to give cession of the action for payment of debts to the surety before any action against the surety may be taken), 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) and the right to an accounting from the supplier.
21.5. The surety agrees to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings which may be instituted against him/her in terms of or arising out of this surety-ship. Notwithstanding the aforegoing, the supplier will be entitled in its discretion to institute any action or proceedings against the surety in terms of or arising out of this surety-ship in any High Court which has jurisdiction.
21.6. The surety undertakes to pay the supplier’s legal costs on an attorney and client scale including any tracing fees, collection commission, Counsel’s fees in respect of any action or proceedings which may be instituted by the supplier against the surety in terms of or arising from this surety-ship.
21.7. The surety further undertakes to be bound by the remaining provisions of this agreement mutatis mutandis and chooses their domicilium address as the customer’s physical address set out in the application section of this agreement.