Funky FMCG (Pty) Ltd Standard Terms and Conditions of Sale
1.The Customer agrees that (a) this Agreement represents the entire Agreement between the
Customer and Funky FMCG(Pty)Ltd and associated companies (hereinafter called Funky
FMCG), that no alterations or additions to this Agreement may be effected unless agreed to by
both parties, reduced to writing and signed by the Customer and a duly authorised
representative of Funky FMCG, (b) this Agreement will govern all future contractual
relationships between the parties; (c) this Agreement is applicable to all existing debts
between the parties; (d) this Agreement is final and binding and is not subject to any
suspensive or dissolutive conditions; (e) any conflicting conditions stipulated by the Customer
are expressly excluded; (f) these terms supersede all previous conditions without prejudice to
any securities or guarantees held by Funky FMCG and (g) these terms apply to all servants
and subcontractors of Funky FMCG.
2. This Agreement only becomes final and binding on receipt of the acceptance by Funky
FMCG at its business address in 216 Propshaft Road Samcor Park x1,Pretoria.
3. The signatory hereby binds himself / herself in his / her personal capacity as Director (in the
case of a company), Member (in the case of close corporations) or Owner or Partner as codebtor
jointly and severally for the full amount due to Funky FMCG and agrees that these Standard Conditions will apply mutatis mutandis to him / her.
4. The Customer acknowledges that it does not rely on any representations made by Funky
FMCG in regard to the goods and services or any of its qualities leading up to this Agreement
other than those contained in this Agreement. All specifications, price lists, performance
figures, advertisements, brochures and other technical data furnished by Funky FMCG in respect of the goods or services orally or in writing will not form part of the Agreement in any way unless agreed to in writing by Funky FMCG.
5.1 The Customer agrees that neither Funky FMCG nor any of its employees will be liable for
any negligent or innocent misrepresentations made to the Customer.
5.2 It is the sole responsibility of the Customer to determine that the goods or services ordered
are suitable for the purposes of intended use. If goods are returned for any reason
whatsoever, a 20% handling and repackaging fee may be charged by Funky FMCG entirely at
its own discretion plus delivery or collection charges.
5.3 The Customer agrees to pay all costs resulting from any acts or omission of the Customer
including, modification of requirements, failure or delay in giving particular requisites.
6.1 All quotes will remain valid for a period of 7 days from the date of the quote unless
otherwise indicated.
6.2 All quotes are subject to the availability of the goods or services and subject to correction
of bona fide errors by Funky FMCG ; and the prices quoted are subject to any increases in the
cost price, including currency fluctuations, of Funky FMCG before acceptance of the order.
6.3 The amount of the increase shall be certified by any independent auditor and such
certificate shall be final and binding on the Customer.
6.4 The Customer hereby confirms that the goods or services on the Tax Invoice issued duly
represent the goods or services ordered by the Customer at the prices agreed to by the
Customer and, where delivery / performance has already taken place, that the goods or
services were inspected and that the Customer is satisfied that these conform in all respects to
the quality and quantity ordered and are free from any defects.
6.5 Notwithstanding the provisions of section 1 above, all orders or variations to orders,
whether oral or in writing, shall be binding and subject to these standard conditions of
agreement and may not be cancelled.
6.6 Funky FMCG shall be entitled in its sole discretion to split the delivery / performance of the
goods or services ordered in the quantities and on the dates it decides.
6.7 Funky FMCG shall be entitled to invoice each delivery / performance actually made
separately.
6.8 Any delivery note, invoice or waybill (copy or original) signed by the Customer or a third
party engaged to transport the goods and held by Funky FMCG shall be conclusive proof that
delivery was made to the Customer.
6.9 The risk of damage to, destruction or theft of goods shall pass to the Customer on
conclusion of the agreement of sale after delivery as per the terms of the specific transaction
has been completed.
6.10 Delivery and performance times given are merely estimates and are not binding on Funky
FMCG .
6.11 If Funky FMCG agrees to engage a third party to transport the goods, Funky FMCG is
hereby authorised to engage a third party on the Customer’s behalf and on the terms deemed
fit by Funky FMCG
6.12 The Customer indemnifies Funky FMCG against any claims that may arise from such
agreement in clause against Funky FMCG. If Funky FMCG does arrange the transport, it will
also arrange insurance on said shipment.
6.13 Replacement and costs given are merely estimates and are not binding on Funky FMCG
6.14 All goods taken on a consignment basis by the Customer are deemed sold if not returned
within 15 days of issue in a perfect condition, in the original packaging
6.15 The Customer acknowledges all copyrights and shall not duplicate copyrighted material
and that each attempt shall immediately render the full prevailing price payable to Funky
FMCG.
6.16 The Customer shall indemnify Funky FMCG against any claims, costs and expenses
arising out of the infringement of copyright, patent, trade mark or design.
7.1 Products are guaranteed according to the Manufacturer’s product specific warranties.
7.2 Liability under Clause 7.1 is restricted to the cost of repair or replacement of faulty goods
or services or granting of a credit at the sole discretion of Funky FMCG .
7.3 No claim under this Agreement shall arise unless the Customer has, within 2 days of the
alleged breach or defect occurring, given Funky FMCG 30 days written notice by prepaid
registered post to rectify any defect or breach of Agreement.
7.4 To be valid, claims must be supported by the original Tax/Commercial Invoice.
7.5 All guarantees are immediately null and void should any goods be tampered with or should
the seals on goods be broken by anyone other than Funky FMCG or should the goods be
operated or stored outside the Manufacturer’s specifications.
8.1 Under no circumstances shall Funky FMCG be liable for any consequential damages or for
any delictual liability of any nature whatsoever.
8.2 Under no circumstances shall Funky FMCG be liable for any damage arising from any
misuse or abuse of the goods.
9. Delivery of the goods to the Customer shall take place at the place of business of Funky
FMCG .
10.1 The Customer agrees that the amount contained in a Tax Invoice issued by Funky FMCG
shall be due unconditionally (a) payment on order; or (b) if the Customer is a Credit Approved
Customer, within 15 calendar days from the date if invoice.
10.2 The Customer agrees to pay the amount on the Tax Invoice at the offices of Funky FMCG
or into the bank account of Funky FMCG via Electronic Funds Transfer EFT
10.3 No cash payments will be accepted – only card payments and Electronic Funds Transfer
(EFT) will be accepted as methods of payment
11.1 The Customer has no right to withhold payment for any reason whatsoever and agrees
that no extension of payment of any nature shall be extended to the Customer and any such
extension will not be applicable or enforceable unless agreed to by Funky FMCG, reduced to
writing and signed by the Customer and a duly authorised representative of Funky FMCG .
11.2 The Customer is not entitled to set off any amount due to the Customer by Funky FMCG
against this debt.
11.3 All discounts shall be forfeited if payment in full is not made on the due date.
12.1 The Customer agrees that the amount due and payable to Funky FMCG may be determined and proven by a certificate issued and signed by any independent auditor. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer.
12.2 Any printout of computer evidence tendered by any party shall be admissible evidence and no party shall object to the admissibility of such evidence purely on grounds that such evidence is computer evidence or that the requirements of the Computer Evidence Act have not been met.
13.1 The Customer agrees that interest shall be payable on any moneys due to Funky FMCG at the maximum legal interest rate prescribed in terms of the National Credit Act, from the date it falls due. In the case of late payment interest shall be calculated from the date of invoice
13.2 The Customer expressly agrees that no debt owed to Funky FMCG by the Customer shall become prescribed before the passing of a period of ten years from the date the debt falls due.
14.1 The Customer agrees that if an account is not settled in full (a) against order; or (b) within the period agreed in clause 10.1 above in the case of a Credit Approved Customer; Funky FMCG is: (i) entitled to immediately institute action against the Customer at the sole expense of the Customer; or (ii) to cancel the agreement and take possession of any goods delivered to the Customer and claim damages. These remedies are without prejudice to any other right Funky FMCG may be entitled to in terms of this agreement or in law.
14.2 A Credit Approved Customer will forthwith lose this approval when payment is not made according to the conditions of 10.1(b).
15.1 In the event of cancellation, the Customer shall be liable to pay (a) the difference between the selling price and the value of the goods at the time of repossession and (b) all other costs incurred in the repossession of the goods. The value of repossessed or retained pledged goods shall be deemed to be the value placed on them by any sworn valuator after such repossession, and such valuation shall be conclusive proof of the value. If the goods are not recovered for any reason whatsoever, the value shall be deemed to be nil.
15.2 The Customer irrevocably authorises Funky FMCG to enter its premises to repossess any goods delivered and indemnifies Funky FMCG completely against any damage whatsoever relating to the removal of repossessed goods.
15.3 In the event of cancellation Funky FMCG is entitled not to produce any unmade balance of a contract and to recover any loss sustained thereby from the Customer.
16.1 All goods supplied by Funky FMCG remain the property of Funky FMCG until such goods have been fully paid for whether such goods are attached to other property or not.
16.2 The Customer is not entitled to sell or dispose of any goods unpaid without the prior written consent of Funky FMCG .
16.3 If any goods supplied to the Customer are of a generic nature and have become the property of the customer by operation of law (confusio or commixtio) the Customer shall be obliged on notice of cancellation of the agreement to retransfer the same quantity of goods in ownership to Funky FMCG
16.4 The Customer agrees to accept any quantity that does not exceed or fall short of the quantity ordered by more than 3.5% by weight as good and complete performance.
17.1 In the event that Funky FMCG takes any legal steps, of whatsoever nature, against the Customer, for the enforcement of any of the terms and / or conditions of this Agreement, or for the enforcement of any of Funky FMCG’s rights (including without limitation claims) in terms hereof, the Customer shall be liable for and be obliged to pay to Funky FMCG, all legal expenses incurred by Funky FMCG, on the attorney-and-own client scale, The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Funky FMCG may demand.
17.2 The Customer shall pay ten thousand Rand into court or furnish sufficient security in lieu of costs in any action instituted by or against the Customer.
17.3 The Customer agrees that Funky FMCG will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate’s Courts or in terms of Rule 47 of the Law of the Supreme Court 59 of 1959.
18. The Customer agrees that no indulgence whatsoever by Funky FMCG will affect the terms of this agreement or any of the rights of Funky FMCG and such indulgence shall not constitute a waiver by Funky FMCG in respect of any of its rights herein. Under no circumstances will Funky FMCG be stopped from exercising any of its rights in terms of this Agreement.
19. The parties agree and consent to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Division, Pretoria, situated in Pretoria, Gauteng Province, Republic of South Africa, for the resolution of any and all disputes by and between the parties relating hereto. Despite the aforesaid, the parties shall be entitled to institute proceedings in a competent Court having jurisdiction.
20.1 Any document shall be deemed duly presented to the Customer within (i) 3 days of prepaid
registered mail to any of the Customer’s business or postal addresses or to the personal address of any director, member or owner of the Customer; or (ii) within 24 hours of being faxed to any of the Customer’s fax numbers or any director, member’s or owner’s fax numbers; (iii) on being delivered by hand to the Customer or any director, member or owner of the Customer; (iv) within 48 hours if sent by overnight courier;
20.2 The Customer chooses domicilium citandi et executandi at the business address or the physical addresses of any Director (in the case of a company), Member (in the case of close corporations) or of the Owner(s) or Partner(s).
20.3 The Customer undertakes to inform Funky FMCG in writing within 7 days of any change of Director, Member, Shareholder, Owner or Partner or address or 14 days prior to selling or alienating the Customer’s business and failure to do so will constitute a material breach of this agreement.
20.4 The Customer hereby consents to the storage and use by Funky FMCG of the personal information that it has provided to Funky FMCG for establishing its credit rating and to Funky FMCG disclosing such information to credit control companies, banks and other institutions involved in rating credit. The Customer agrees that Funky FMCG will not be held liable for the bona fide disclosure of any of this information to such a third party and that no further specific consent need to be obtained for the transfer of such information to a specific third party – as per the Protection of Private Information (POPI) policy on our website.
21. The Customer agrees to the Standard Rates of Funky FMCG for any goods or services rendered, which rates may be obtained on request.
22. The invalidity of any part of this Agreement shall not affect the validity of any other part.
23. Any order is subject to cancellation by Funky FMCG due to force majeure or inability to deliver from any cause beyond the control of Funky FMCG, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, or by reason of an act of God, war, theft, hi-jacking, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
24. Any order is subject to cancellation if the Customer breaches any term of this Agreement or makes any attempt of compromise, liquidation, sequestration, termination or judgement is recorded against the Customer or any of its principals.
25. The Customer agrees that Funky FMCG will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in clause 23 or 24 occur.
26. Where products are to be manufactured to the specification of the Purchaser, such orders are accepted by Funky FMCG subject to the implied assurance by the Purchaser that no patent or trade-mark or registered design will be infringed in the manufacture of the products and upon the condition that the Purchaser shall indemnify Funky FMCG for all expenses and/or loss incurred by or claims brought against Funky FMCG in consequence of any such infringement. Goods manufactured by Funky FMCG to Purchaser’s specifications are manufactured at the sole risk of the Purchaser. No responsibility is taken for efficiency, safety, workability or suitability of such products. If the execution of the contract is delayed in any way or cancelled through the fault of the Purchaser, the Purchaser shall be liable for any expenses costs, losses, injuries or damages incurred or suffered by Funky FMCG. A cancellation fee of a maximum 20% may be imposed without substantiation of costs, losses or damages.
27. The parties agree that this Agreement and its interpretation is subject to the laws of the Republic of South Africa, which shall inter alia apply to any and all disputes by and between the parties relating hereto.
28. Funky FMCG retains the right to increase the contract price due to unforeseen increases in costs of raw materials in accordance with the global commodity pricing. This clause shall not be called for if the increase is below 5% during the period between order and delivery and the Purchaser shall pay such increased cost on demand. The final selling price shall increase by 1% for every 2% increase in the global commodity price
29. No product shall be delivered until fully paid for.