STANDARD CONDITIONS OF CONTRACT OF D-ZIGN (PTY) LTD,
INCORPORATING THE RECOGNISED CUSTOMS OF THE PRINTING INDUSTRY OF SOUTH AFRICA
Unless otherwise agreed in writing, all and any business undertaken by the D-Zign divisions of D-Zign (Pty) Ltd (“D-Zign”) as defined in the Companies Act 71 of 2008 and any other companies with which they are associated, from time to time, both inside and outside the Republic of South Africa, including without limitation the sale and supply of goods and services, is and shall be subject to the terms and conditions hereunder.
1. PRELIMINARY WORK
1.1 The customer shall pay for any preliminary work, which D-Zign produces at its request whether experimentally or otherwise.
2. ESTIMATES AND QUOTATIONS
2.1 No contract shall arise between D-Zign and the customer unless:
2.1.1 D-Zign's estimate or quotation is in writing and is thereafter accepted in writing by the customer; or
2.1.2 D-Zign receives an order placed by the customer which is not declined by D-Zign, and in either event shall be upon the terms which are set out in these Conditions read with the quotation or estimate (if applicable).
2.2 In these Conditions, the term “order” shall, unless the context indicates a contrary intention, refer to a contract for the sale and supply of goods and services arising in terms of paragraphs 2.1.1 or 2.1.2.
2.3 Estimates and quotations not accepted within 30 (thirty) days shall be deemed withdrawn or cancelled.
2.4 Unless otherwise stated, all prices are quoted in South African currency and are exclusive of Value Added Tax. The customer shall, if legally required to do so, pay VAT simultaneously and in addition to, the price at which the goods are sold.
3. INCREASED COSTS
3.1 D-Zign may recover from the customer any increase in cost of production of any order (including without limiting the generality of the aforegoing, any factors beyond the control of D-Zign which cause an increase of whatever nature in the costs of materials or components, any increase in statutory labour charges or government taxes or duties or any other costs not in force at the date of the quotation, estimate or customer’s order being imposed in respect of the goods which are covered by the contract) that occurs prior to delivery of the order.
4. STANDARDS AND MATERIALS
4.1 D-Zign shall not be required to work to tolerances closer than those applicable to the materials obtained by it in the ordinary course of trade. No liability shall arise from variation in the standard, quality or performance of such materials or as a result of the techniques employed by D-Zign.
5. CUSTOMER'S PROPERTY
5.1 D-Zign will not be responsible for imperfect work caused by defects in or unsuitability of material or equipment not supplied by D-Zign or for the customer's material wasted in the course of production. The customer shall pay for any extra costs incurred through the use of any materials or equipment supplied by it.
5.2 Any property of the customer that is delivered to D-Zign will be held at the customer's risk.
6. TIME NOT OF ESSENCE
6.1 Unless otherwise agreed in writing:
6.1.1 The time stated for completion of an order is approximate only and D-Zign does not guarantee delivery on any specific date;
6.1.2 All orders will be executed by D-Zign during normal working hours and without overtime;
6.2 Should delivery of an order be required sooner than the normal time requisite for its proper production, every effort will be made to secure freedom from defects, but reasonable allowance must be made by the customer in such cases. Should such delivery necessitate overtime being worked or other additional cost being incurred, a charge will be made to cover the increased cost.
7. PRINTING CONTENT AND INDEMNITY
7.1 D-Zign shall not be required to reproduce any matter if it does not approve of the content thereof or which, in its opinion, is illegal or defamatory. The customer indemnifies D-Zign against any claims, costs (including legal costs on the attorney and own client scale) and expenses arising out of infringement of copyright, trademarks, patent or design or in respect of the printing of any illegal or defamatory matter.
8. SUBMISSION OF PROOFS
8.1 Proofs, pulls, samples, specimens, sketches, photographs or any representation, whether partial or total, of the finished article in whatever form may be submitted to the customer for approval. After approval the customer shall have no claim against D-Zign for errors in the exemplar as approved by it. Changes required by the customer, other than the correction of D-Zign's errors, may be charged for.
9. OWNERSHIP, RISK AND DELIVERY
9.1 D-Zign retains ownership of all goods printed for the customer until they are paid for in full, unless the goods have been on sold by the customer in the normal, usual and ordinary course of its business.
9.2 Goods will be despatched or must be collected by the customer when ready and the customer shall not refuse or delay in taking delivery. Unless otherwise agreed in writing, the customer shall at its own expense take delivery of the goods at D-Zign's premises. If D-Zign agrees to deliver the goods anywhere else, the customer will be liable for all costs of delivery which shall be paid in accordance with clause 10.
9.3 Risk in and to the goods will pass to the customer:
9.3.1 when the goods are delivered to the customer’s address reflected in the account application form or other address specified by the customer where delivery is effected by D-Zign’s own transport or D-Zign’s agent; or
9.3.2 When the goods leave D-Zign’s premises where the goods are collected by or on behalf of the customer or are delivered in any manner other than provided for in paragraph 9.3.1.
9.4 D-Zign may deliver a quantity which may vary by an amount of up to 10 (ten) % above or below the ordered quantity and in such event the price shall be the pro rata amount of the contract price.
9.5 D-Zign may deliver the goods in more than one consignment. Where the goods are delivered in two or more consignments, D-Zign may issue an invoice in respect of each consignment.
10.1 Unless D-Zign and the customer agree otherwise in writing, all payments shall be made by the customer in South African currency to D-Zign without deduction, demand or set off:
10.1.1 In the case of customers with an approved credit account, within 30 (thirty) days from date of statement, or
10.1.2 in the case of customers without an approved credit account, on delivery of the order to the customer.
10.2 D-Zign does not accept risk for any post-dated cheque or cheque sent to it by post. Such payment will only be deemed to have been made when the cheque has been deposited into D-Zign's bank account and has been cleared.
10.3 A debt due by the customer to D-Zign shall not be regarded as discharged until the amount actually received by D-Zign in South African currency is sufficient to extinguish the debt in full.
10.4 The customer shall pay interest on overdue amounts from the due date to date of payment, both days inclusive, at the rate of 3 (three) % above the prime overdraft rate per annum charged by the Standard Bank of South Africa Limited.
10.5 If applicable, in order to permit the parties to obtain full credit against their own taxes in their respective countries, in accordance with any treaty for the avoidance of double taxation that may apply to any business undertaken in terms of these Conditions, the parties undertake to remit to each other whatever documentation may be necessary to evidence all taxes paid or withheld on payments made in terms of these Conditions.
11.1 If the performance of any contract is prevented or delayed due to any reason outside of D-Zign's reasonable control, including without limitation, strikes, or other labour disputes, shortened working hours, shortage of labour or materials, accidents of any kind, any default or delay by any sub-contractor or supplier of D-Zign, war, political or civil disturbances, acts of God, or legislation then D-Zign shall be relieved of its obligations to complete the contract, to the extent that it is prevented from doing so by such occurrence, for the duration of the intervening circumstance.
11.2 D-Zign will notify the customer in writing, without delay, of any intervening circumstance and of the cessation thereof and will use its best endeavours to remove the impediment as soon as reasonably possible provided that D-Zign may cancel the contract if the intervening circumstance endures for longer than 60 (sixty) days, without any liability for any damages which may be suffered by the customer arising out of such cancellation.
12. NOTIFICATION OF DEFECTS
12.1 The customer shall notify D-Zign of any defects within 7 (seven) days of receiving the completed order, failing which the order shall be deemed to be complete in all respects and the goods supplied or services rendered, to be without any defects.
13. RETENTION OF MATERIALS
13.1 Standing matter and D-Zign's materials of any kind whatever, may be distributed, effaced or disposed of immediately after the order is executed unless written arrangements are made for retention. D-Zign may charge a fee equal to 2 (two) % per month of the value of the order for storage of goods retained at the customer's request which shall be paid in accordance with clause 10.
13.2 Origination work shall remain the property of D-Zign, unless specifically itemised and charged for in D-Zign’s invoice, or agreed in writing with the customer.
14. NO WARRANTY
14.1 It is the sole responsibility of the customer to determine whether the goods or services ordered by it are suitable for the purpose for which it intends using them. D-Zign gives no warranty, express or implied, concerning the suitability of the goods supplied or services rendered for any purpose whatever. D-Zign shall not be liable for any direct, indirect, consequential or other loss which it causes the customer to suffer, in any way, including loss to third parties, loss arising out of errors in carrying out a contract or by delay in delivery or by unsuitability of goods or services for use as intended or any defects in the goods or services.
15.1 All notices to be given in terms of these Conditions shall be in writing and shall be delivered by hand or sent by prepaid post to the D-Zign head office at 15 Totley Road, Sunward Park, Ext.2, Boksburg or P O Box 560, Cramerview, 2060, Gauteng and to the customer at the physical business address, which physical addresses the parties select as their domicilium citandi et executandi.
15.2 Each party shall be entitled at any time to change its domicilium to any other physical address: provided that such change shall take effect only upon delivery of written notice thereof to the other party.
16.1 The customer will be in default if it:
16.1.1 Fails to make payment by due date; or
16.1.2 Commits any other breach of these Conditions and remains in breach for a period of 10 (ten) days after receipt of a notice from D-Zign calling upon the customer to rectify the breach; or
16.1.3 Is sequestrated, liquidated or placed under judicial management, provisionally or finally, voluntarily or compulsorily; or
16.1.4 Commits any act of insolvency or enters into any compromise with its creditors or surrenders its estate or fails to satisfy any judgment granted against it within 10 (ten) days after the date the judgment has become final.
16.2 If the customer is in default, D-Zign may without prejudice to its accrued rights:
16.2.1 invoice all goods held in stock by D-Zign for the customer and claim payment of all amounts then owing by the customer all of which will immediately become due and payable to D-Zign; or
16.2.2 Cancel the contract; and in either event
16.2.3 Suspend all further deliveries to the customer, without notice, until such time as the customer has cured this default; and / or
16.2.4 Repossess goods printed for the customer which have not been fully paid for; and / or
16.2.5 Exercise a general lien on all of the customer's property in its possession and D-Zign may dispose of such property in whatever manner it deems fit and apply the proceeds towards the customer's debts.
16.3 Subject to D-Zign's rights in the event of a default, D-Zign may terminate any contract for printing a periodical publication on 30 (thirty) days written notice to the customer.
17. LANDLORD'S LIEN
17.1 Whenever the customer leases premises, it shall immediately provide D-Zign with the landlord’s name and contact details and it shall notify D-Zign of any change of landlord or contact details as soon as the customer becomes aware of such change.
17.2 The customer must notify its landlord in writing that any goods which it buys from D-Zign belong to D-Zign until they are fully paid for and are thus not subject to the landlord’s hypothec for rent and shall furnish written notification of such notice to D-Zign.
17.3 The customer consents that D-Zign may, at its discretion, also give the customer's landlord notice that any goods which the customer buys from D-Zign belong to D-Zign until they are fully paid for and are thus not subject to the landlord’s hypothec for rent.
18. CONSENT TO CREDIT CHECK
18.1 The customer consents to:
18.1.1 D-Zign carrying out any credit enquiry or investigation about the customer, including accessing credit data bases;
18.1.2 D-Zign providing details of how the customer has performed its obligations in terms of any agreement with D-Zign to any person with whom D-Zign contracts for the provision of credit enquiry services ("the credit bureau");
18.1.3 D-Zign recording with the credit bureau any failure by the customer to properly perform its obligations to D-Zign;
18.1.4 D-Zign recording with the credit bureau the existence of the customer's account with D-Zign;
18.1.5 All information provided by D-Zign to the credit bureau about the customer:
184.108.40.206 Being disclosed by the credit bureau to other credit grantors for use in making risk management decisions;
220.127.116.11 Being accessed by other credit grantors and used to make risk management decisions;
18.1.6 D-Zign providing a trade reference on the customer to any person who contacts D-Zign for that purpose.
19.1 Only D-Zign has authority to alter or vary these Conditions.
19.2 The customer may not rely on a representation which it claims persuaded it to enter this contract.
19.3 No agreement varying, adding to, deleting from or cancelling any of the Conditions, no waiver of any of the Conditions and no cancellation of the contract, shall be effective unless reduced to writing and signed by an authorised representative of D-Zign.
19.4 No indulgence granted by D-Zign shall constitute a waiver of any of D-Zign's rights.
19.5 The customer consents to the jurisdiction of the High Court of South Africa, Durban and Coast Local Division, in respect of any proceedings instituted by D-Zign arising out of or in connection with these Conditions. The customer further consents that D-Zign shall be entitled at its option to institute any legal proceedings arising out of this contract in the Magistrate’s Court of competent jurisdiction over the person of the customer and notwithstanding the fact that the amount of the claim may otherwise exceed the jurisdiction of the Magistrate’s Court.
19.6 If D-Zign institutes or defends any legal or arbitration proceedings to enforce or protect its rights, D-Zign shall be entitled to recover from the customer all legal costs (on an attorney and own client basis) incurred by D-Zign in that regard, including collection commission and tracing fees, if any.
19.7 These Conditions shall be interpreted and implemented in accordance with the law of the Republic of South Africa.
19.8 The customer may not cede any of its rights or delegate any of its obligations in terms of these Conditions unless an authorised representative of D-Zign gives prior written consent.
19.9 Unless it conflicts with the context of these Conditions, words signifying one gender will include the other genders, words signifying the singular will include the plural and vice versa, and words signifying natural persons will include artificial persons and vice versa. Without limiting the generality of the aforegoing, these Conditions have been drafted with reference to the customer in the singular neuter. In the event of the customer being a natural person or consisting of more than one person, these Conditions shall be construed accordingly.
19.10 Headings of clauses are inserted for the purpose of convenience only and shall be ignored in the interpretation of these Conditions.
19.11 If any of the provisions contained in these conditions are invalid and unenforceable, then the remaining provisions shall be construed as if such invalid or unenforceable provisions were not contained herein; and such invalid and unenforceable provisions shall be deemed to have been replaced by a provision which as closely as possible meets the intention of the parties when inserting the originating provision.
20.1 In the event of there being a discrepancy between any of the conditions enumerated in the quotation (if applicable) and these Conditions on the one hand, and any of the conditions enumerated in the customer’s own order on the other hand, then the conditions enumerated in the quotation and these Conditions shall prevail.
20.2 In the event of there being a discrepancy between any of the conditions enumerated in the quotation, and or estimate, and or order, and these Conditions, then the conditions enumerated in these Conditions shall prevail.
1. I hereby certify that the information supplied is true and correct.
2. I am duly authorised to represent the Applicant in making this account application.
3. There has been no omission or misrepresentation of this application which could be material to D-Zign (Pty) Ltd (Registration No 1993/004986/07) (“D-Zign”) in deciding whether to grant credit facilities or prejudice D-Zign if granted.
4. I have read and understood the standard conditions of contract of D-Zign printed on this application and acknowledge that all and any business undertaken by D-Zign (including without limitation the sale of goods and rendering of services) and the granting of credit in respect thereof shall be subject to these conditions.
5. D-Zign may approach our bankers or any of the trade references in this account application with a view to obtaining a credit reference on the Applicant. For so long as D-Zign grants credit to the Applicant, D-Zign is authorised to make periodic enquiries at its discretion as to the Applicant's creditworthiness and any credit report on the Applicant must be made available to D-Zign.
6. D-Zign may, at its sole discretion, refuse to accept this account application.
7. D-Zign may, at its sole discretion, close the account and withdraw the Applicant's credit facilities at any time on immediate written notice.
8. I hereby certify that the original content of this account application, supplied to me either in electronic or hard copy form, has not been altered in any way and further that should any alteration be found to have been made that the Applicant will be bound by the original content of this document.