Terms and Conditions

The following conditions are applicable to all goods and services supplied and/or rendered by DEAN SWART PEN & PENCIL (Pty) Ltd t/a DEAN’S registration number 2010/00714/07 hereinafter referred to as DEAN SWART PEN & PENCIL t/a DEAN’S and shall govern any contract between the Buyer and DEAN SWART PEN & PENCIL t/a DEAN’S

1. DEFINITIONS
   a) “The Seller” means DEAN SWART PEN & PENCIL (Pty) Ltd t/a DEAN’S.
   b) “The Buyer” means the Buyer of any goods supplied by the Seller and is herein referred to as THE BUYER.
   c) “The Goods” means the goods supplied by the Seller to the Buyer.

2. INCORPORATION OF CONDITIONS
   These conditions will form part of any Contract whereby the Seller agrees to supply goods to the Buyer. These conditions will take precedence over any terms and conditions submitted by the Buyer whether before or after these conditions. No variation whatsoever to these conditions will be valid unless specifically agreed to in writing.

3. SPECIFICATIONS
   Any literature published or submitted by the Seller, which contains any descriptions, specifications, drawings or prices of the goods are published for guidance only. The Seller reserves the right to make modifications in the designs and specifications of the goods without notice to the Buyer.

4. PRICE
   a) Unless otherwise agreed in writing any price quoted by the Seller on any quotation or order is subject to variation at the discretion of the Seller to reflect increases which may occur from time to time in list prices and costs (including, without limitation, costs of transportation, materials, labour, taxes or other fees and charges), prior to deliver.
   b) In the event that a variation in price shall occur between the date of the acceptance of the Buyers order and the delivery of the goods by the Seller, the Seller will advise the buyer of any such variation in price (the “new price”) and the Buyer will be obliged to take delivery of the goods at the new price If the Buyer is not prepared to pay the new price for the goods then the Buyer must advise the Seller within seven days of the notification of the new price that he is unwilling to do so whereupon neither party will be under any obligation to the other in respect of goods which have not been delivered.
   c) Where applicable VAT, or any other government taxes at the statutory rate at the date of delivery will be charged.
   d) Unless otherwise stated the price for the goods as stated on the invoice is inclusive of delivery to an address or railhead within the Republic of South Africa. For neighbouring states and other export countries a delivery surcharge may be applied at the discretion of the Seller.

5. PAYMENT
   a) Payment for the good shall be made in accordance with provisions, which are agreed between the Seller and Buyer. If no specific provisions have been agreed between the Seller and the Buyer payment shall be made strictly in accordance with the terms published by the Seller from time to time
   b) All payments due as detailed on the Sellers invoice must be paid in full with the exception of any discount which has previously been agreed in writing by the Seller and the Buyer.
   c) The Seller reserves the right to demand in full or partial payment of any monies due and payable on any invoice before proceeding further with any other order placed by the Buyer.
   d) Where payment of any monies is overdue the Seller may suspend the delivery of any goods ordered by the Buyer or terminate any order place by the Buyer without any further liability to the Buyer. Any costs incurred by the Seller in obtaining payment of overdue amounts will be borne by the Buyer.
   e) Should any amount not be paid by the Buyer on the due date, then the whole amount in respect of all purchases by the Buyer shall immediately become due, owing and payable irrespective of the dates when the goods were purchased and the Buyer shall be liable to pay interest in respect of the amounts unpaid as at the due date at the compound rate of 2% above the prime rate. The term "prime rate" shall mean the prime overdraft lending rate charged by the Seller’s bank as certified, in the event of a dispute, by any manager of such bank whose appointment and authority it shall not be necessary to prove and whose decision shall be final and binding. In the event that any agreement between the Buyer and the Seller is governed by the National Credit Act ("NCA"), then the interest payable by the Buyer shall be the interest rate provided for in the NCA.
   f) Payments effected through the post shall be entirely at the risk of the Buyer.
   g) Acceptance of any negotiable instrument by the Seller shall not be deemed to be a waiver of the Seller's rights under this agreement. In relation to a cheque furnished by the Buyer, it waives its right to insist on notice of dishonor or protests being given to it in the event that the cheque is dishonored.
   h) If the Buyer defaults with payment that is due, the Seller reserves the right to demand payment for all amounts owed by the Buyer, even if it is not due yet.
   i) the Seller may allocate all payments made by the Buyer at the discretion of the Seller

6. OWNERSHIP AND RISK
   a) Property in the goods shall not pass to the Buyer until the Buyer has made payment in full of all sums due to the Seller in respect of the goods provided always that the Seller shall nevertheless be entitled to maintain an action for the invoice price or any part thereof unpaid at any time after the due date for payment.
   b) If payment in full is not made by the due date then without prejudice to any other rights which the Seller may have it shall be at liberty to remove and sell the goods and apply the proceeds of sale towards satisfaction of the Buyer’s liability to the Seller under the contract of sale and the Seller shall be entitled to recover damages in respect of any loss or damage caused by the failure if the Buyers to make payment in full by the due date.
   c) Property in the goods supplied shall not pass to the Buyer or to any other person merely by virtue of their becoming affixed to the real or personal property of the Buyer or some other person.
   d) Pending payment of the purchase price the Buyer shall
   i) store the goods separately or in such a way that they are clearly marked as the property of the Seller.
   ii) not alter or modify then in anyway.
   iii) keep the goods fully insured against all usual risks at the Buyers expense and procure that the Sellers interest is noted on the policy.
   e) The Buyer shall be entitled to sell the goods to a third party within the normal course of it’s business provided that the proceeds of the sale of the goods be for the Sellers account and all monies deriving there from are identifiable until such time as the goods are Page 1 Dean Swart Pen & Pencil (PTY) LTD t/a DEAN’S. Reg. No. 2010/007144/07 VAT No. 4750194682 Directors: D. Swart paid for by the Buyer. All amounts owing to the Buyer by his Buyers for goods purchased from the Seller, are ceded to the Seller for any outstanding amounts owed to him by the Buyer.
   f) For the purpose of this clause only:\

i) where it is not possible to ascertain on the balance of probabilities whether any payment for goods made by the Buyer to the Seller is made in or towards satisfaction of the purchase price of particular goods such payments shall be deemed to have been appropriated and applied by reference to the date of order of the Sellers invoices delivered to the Buyer taking the earliest dated invoice first.
ii) Where it is not possible to ascertain on the probabilities whether goods supplied by the Seller to the Buyer in the possession of the Buyer are goods in which property has passed to the Buyer all goods supplied by the Seller shall be deemed to have been dealt with by the Buyer on a first in first out basis.
*g) i) the risk of the goods shall pass to the Buyer immediately after delivery.
ii) If the Buyer fails to take delivery fall due, DEAN SWART PEN & PENCIL t/a DEAN’S shall be considered to have tendered and the Buyer to have refused to accept delivery, in this event the risk in the goods shall pass to the Buyer immediately.\

7. DELIVERY
   a) The Seller will use it’s best endeavours to deliver the goods (IF SO REQUESTED) to the Buyer in accordance with delivery times agreed between the Seller and the Buyer, notwithstanding this time shall not be of the essence and the Seller shall not be liable in any way for any loss or expense sustained by the Buyer.
   b) The Buyer will supply to the Seller all necessary details to enable the Seller to make delivery of the goods. The Buyer will accept delivery by mutual agreement with the Seller. If the Buyer refuses to accept delivery of the goods then:
   i) the Seller shall be entitled to the payment of all monies due in respect of such delivery.
   ii) the Seller shall be entitled to be indemnified by the Buyer for any consequential loss, damage or expense sustained as a result of the refusal by the Buyer to accept delivery.
   iii) the Seller shall be entitled to sell the goods to a third party without prejudice to its rights to claim damages from the Buyer or the Seller may store the goods at a place of it’s choosing at the cost of the Buyer.
   c) The Seller reserves the right to make delivery instalments unless otherwise expressly agreed in writing.
   d) The Seller reserves the right to postpone or cancel delivery in whole or in part when it is delayed in or prevented from making delivery where such is occasioned by strikes, lockouts, trade disputes or any other cause beyond the control of the Seller but without limitation act of God, act of Buyer or it’s agents, embargo or other government act or regulation, fire, accident, war, riot, delay in transportation, inability to obtain adequate labour, materials or manufacturing facilities, pestilence and the Seller shall not be bound to obtain goods in the open marked with which to replace the goods delivery of which has been postponed or cancelled.
   e) The place of delivery will be the Buyers place of business unless otherwise agreed in writing and on delivery of the goods the Buyer shall be responsible for their unloading.\

8. DAMAGE OR LOST IN TRANSIT
   a) The responsibility of the Seller for damages or loss in transit ends when the goods arrive at the designated point of delivery. The Seller will not be responsible for the damage or loss during or after the unloading and or delivery of the goods. b) Within twenty-four hours of receipt of the goods the Buyer will examine them and where necessary will immediately notify the Seller by telephone, email or facsimile and notify the Carrier by use of the Carrier’s delivery document of any error in quantity or description of the goods delivered, or that the goods were mixed with others not included in those which were to be delivered.

9. GUARENTEE AND LIABILITY LIMITATIONS
   a) The Seller warrants to the Buyer it has the right to sell the goods and that the goods are free from any charge or encumbrance to the Buyer.
   b) If any of the goods sold to the Buyer are faulty in workmanship or material and any such faults become apparent prior to resale by the Buyer, the Buyer shall notify the Seller immediately in writing. Upon receipt of the written notice the Seller shall dependant upon the circumstances, either:
   i) replace the faulty goods with similar goods (if similar goods are available); or
   ii) refund the invoice price.
   PROVIDED that the faulty goods are returned to the Seller
   c) Save for damages for death or personal injury caused by the negligence of the Seller in the performance of the contract the Buyer shall not be entitled to claim from the Seller any loss, damage or consequential loss which arises by way of negligence or other default attributable to the Seller.

10. RESALE OF GOODS
    The Seller and the Buyer acknowledge that goods, which have been purchase by the Buyer from the Seller, are to be resold by the Buyer on his own account. The price of which the goods are to be resold is a matter within the discretion of the Buyer. The Buyer acknowledges that the Seller does not wish the goods to be sold in the open market as loss leaders. The Seller reserves the right to cancel the delivery of any goods where it has evidence that the Buyer has sold or intends to sell goods of the same or similar description whether obtained from the Seller or elsewhere as loss leaders. Before cancelling any delivery in these circumstances the Seller shall serve written notice of the Buyer to this effect,

11. LIEN
    Except to the extent that condition 6 shall apply the Seller shall have a lien on all goods which the Buyer agrees to purchase from the Seller for all monies due from the Buyer to the Seller under any contract between them.

12. DEFAULT BY THE BUYER
    12.1) If the Buyer defaults in or commits any breach of any of its obligation to the Seller or ceases to carry on its business or a substantial part thereof or if any distress or execution is levied on any of the Buyers property or if the Buyer makes or offer to make any arrangements or composition or commits any act of insolvency or if any resolution or petition to wind-up the Buyers business is presented or passed or a Judicial manager is appointed of the Buyers undertaking, property or assets or any material part thereof then the Seller shall be entitled forthwith to terminate any contact with the Buyer then subsisting and on written notice of such termination being [posted by the Seller to the Buyer’s last known address any and every subsisting contract shall be deemed to have been terminated without prejudice to any claim or right which the Seller might otherwise make or exercise.\ 12.2) If the Buyer fails to perform any of its obligations when due, the Seller may decline to accept further orders or make further deliveries to the Buyer or may revoke and/or withdraw and/or suspend and/or cancel and/or close the Buyer’s credit facility/account at any time and any future purchases shall be on terms and conditions as determined by the Seller in its absolute and sole discretion.\ 12.3) Should the Buyer default in making payment of any overdue amounts owing, the Seller shall be entitled, but not compelled, to forthwith demand that the whole amount outstanding on the account be paid, notwithstanding that a portion of the amount would not be owing in accordance with the agreed terms of payment.\ 12.4) In the event of the Seller having to institute any legal proceedings against the Buyer for breach, repudiation, specific performance or for any other reason whatsoever in terms hereof, the Buyer undertakes and agrees to pay the all company’s pre- and post litigation legal costs on scale as between Attorney and own Client, including collection commission, tracing charges and any other charges incurred by the Seller in enforcing its rights in terms hereof.\

A certificate issued and signed by any member or manager of the Seller, whose authority need not be proved, in respect of any indebtedness of the Buyer to the Seller or in respect of any other fact, including the fact that such goods were sold and delivered, shall be prima facie evidence of the Buyer's indebtedness to the Seller and prima facie evidence of such other fact and prima facie evidence of the delivery of the goods.\

NOTICES
Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing and if received or deemed to be received by the addressee as stipulated below.
a) Any notice to a party sent by hand or email or prepaid registered post in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered shall be deemed to have been received on the 3rd business day after posting (unless the contrary is proved).
b) Any notice to a party delivered by hand to a responsible person at the office of the Buyer during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery.

13. GOVERNING LAW
    These conditions and any contract of which they form part shall be governed by and construed in accordance with the laws of The Republic of South Africa.\

14. MISCELLANEOUS
    a) The unenforceability of invalidity of any part of these conditions shall not affect the enforceability or validity of the remainder.
    b) Failure by the Seller in any one or more instances to pursue any breach of these terms by the Buyer shall not be taken to constitute a condonation or waiver of the same.
    c) I/We authorise the Seller to conduct a credit search on my/our credit profile with one or more of the registered credit bureaus, when assessing my/our application for credit, to monitor my/our payment behaviour, to use new information and data obtained from a credit bureau in respect of my/our application and/or future applications for credit, to record the existence of my/our account with a credit bureau, to record and transmit details of how the I/We have performed and how the account is conducted by me/us in meeting our obligations on the account.
    d) In the event of any default by me/us of any provisions of this agreement, I/We hereby consent and authorise the Seller to furnish the name, credit record and repayment history of me/us to any credit bureau as a defaulting debtor.

15. CESSION
    The Buyer may not cede or assign its rights or obligations in terms of the contract to any other party.

16. WAIVER
    Any relaxation, which DEAN SWART PEN & PENCIL t/a DEAN’S may permit on any occasion in regard to any of the Buyers obligation, shall not prejudice or be regarded as a waiver or DEAN SWART PEN & PENCIL t/a DEAN’S’s right to enforce those obligations on any subsequent obligation.

17. JURISDICTION
    DEAN SWART PEN & PENCIL t/a DEAN’S shall be entitled to institute proceedings arising out of the contract in the Magistrate's Court having jurisdiction over the Buyer even if the cause of action exceeds the jurisdiction of the court.

18. RETURN OF GOODS
    i) no goods may be returned or exchanged without DEAN SWART PEN & PENCIL t/a DEAN’S’s written consent.
    ii) if DEAN SWART PEN & PENCIL t/a DEAN’S does consent in terms of 20(i) the Buyer will be obliged to pay a handling fee of 10% (ten percent) of the price of the goods or service.

19. INTERPRETATION
    The headings of these conditions are for convenience only and are not to be taken into account for purposes of interpreting the contract.

20. BUYER ORDER
    The Buyer is deemed to have signified its acceptance of these conditions by, inter alia, placing any order with DEAN SWART PEN & PENCIL t/a DEAN’S or otherwise contracting with DEAN SWART PEN & PENCIL (PTY) LTD t/a DEAN’S. In the event of an order being given to DEAN SWART PEN & PENCIL t/a DEAN’S on the Buyers official order form the Buyer will be stopped from denying the validity of such order, notwithstanding the fact that such order may have been given by a person not authorised by the Buyer.

21. NATIONAL CREDIT ACT
    In the event that the National Credit Act ("the NCA") applies to any transaction between the Seller and a Buyer, then:-\

22.1) If any provision of these terms and conditions are in conflict with the NCA, such conflicting terms and conditions shall not apply;
22.2) the Seller and the Buyer shall conclude an agreement in compliance with the NCA and the Seller shall not be obliged to deliver any goods or provide any services until such agreement is signed;
22.3) The costs and charges which the Seller is entitled to recover from the Buyer shall be the maximum allowed by the NCA and the Seller shall be obliged to comply with the NCA before instituting any legal proceedings against the Buyer