Standard Terms and Conditions

1. Scope and Application

1. These standard terms and conditions of CP&T shall apply in respect of each and every contract for the supply of goods and/or the provision of services by CP&T, unless specifically otherwise agreed between the parties in writing.
2. The provisions of this document shall overrule any terms and conditions of contract of the customer, unless otherwise agreed between the parties in writing.
3. CP&T may agree to a specific contract on special terms set out in the quotation or tender for such contract. In the event of any inconsistency between the provisions of these terms and conditions and any special terms set out in the quotation or tender for a specific contract, the special terms of that specific contract shall prevail to the extent of the inconsistency.
4. In this document, headings embodied in the clauses are for convenience and shall not be used in its interpretation and, unless the context clearly indicates a contrary intention:
   1. the singular shall include the plural and vice versa;
   2. the reference to one gender shall be capable of being construed as a reference to the other gender; and
   3. the references to a natural person shall be capable of being construed as a reference to a juristic person and vice versa.
5. Unless the context of this document clearly indicates a contrary intention, the following words or phrases shall have the meaning assigned to them:
   1. “agreed terms” means the number of days credit allowed from the date of invoice or from the date of statement, either net or subject to a settlement discount, as agreed to in writing by CP&T;
   2. “business day” means any day of the week excluding Saturday, Sundays and Public Holidays;
   3. “contract” means any contract for the supply of goods and/or the provision of services by CP&T;
   4. “CPA” means the Consumer Protection Act, 68 of 2008, as amended;
   5. “CP&T” means City Paint and Tool (Pty) Limited;
   6. “CP&T services” means services performed directly by CP&T, as specified in CP&T’s quotation or in a contract;
   7. “customer” means any party that purchases goods from, procures services from or enters into a contract with CP&T;
   8. “delivery” in the context of the delivery of goods shall, unless inconsistent with or otherwise indicated by the contents of the quotation or the contract, be regarded as having taken place when delivery of the goods has been made to the customer’s address;
   9. “goods” shall be those goods to be supplied by CP&T as specified in CP&T’s quotation or in a contract;
   10. “NCA” means the National Credit Act, 34 of 2005, as amended;
   11. “OHSA” means the Occupational Health and Safety Act, No. 85 of 1993, as amended;
   12. “order” means a written request or instruction by the customer for the supply of the goods by or from CP&T;
   13. “quotation” means a written quotation or tender by CP&T for the supply of the goods;
   14. “services” means those services to be provided by CP&T as specified in CP&T’s quotation or in a contract;
   15. “terms and conditions” mean the terms and conditions set out in this document;
   16. “third-party contractor” means an independent contractor engaged by CP&T to perform services on behalf of CP&T in terms of a contract, including under a separate workmanship guarantee agreement;
   17. “third-party services” means services procured by CP&T from a third-party contractor for the customer, as specified in CP&T’s quotation or in a contract.

2. Quotations

1. Where CP&T delivers a quotation, no contract between the parties shall exist until acceptance of the quotation by the customer is received in writing by CP&T, together with the official order number of the customer.
2. If the customer purports to accept any quotation subject to any qualification or to any terms other than those contained in this document and in the quotation, no contract shall come into existence and CP&T shall not be bound until it expressly binds itself in writing to those terms.
3. A quotation provided by CP&T to a customer shall remain valid, and unless withdrawn prior to acceptance, shall be capable of acceptance within the period stated therein, or where no period is stated, for a period of thirty (30) days as calculated from the date of the quotation.
4. The validity period of any quotation provided by CP&T shall accordingly be for a period of thirty (30) calendar days, calculated from the date of the quotation, unless otherwise specified therein or withdrawn by CP&T in writing prior to acceptance.
5. The acceptance of any quotation must be accompanied by sufficient information in writing to enable CP&T to proceed with the execution of the order forthwith, including but not limited to the required lead time for order placement, execution and completion, failing which CP&T shall be entitled to amend the quoted price to cover any increases in cost incurred as a result of any delay.
6. Unless otherwise stated, quotation and budget prices are estimates only and shall not bind CP&T.
7. All quotations are subject to the standard proviso of errors and omissions excluded (E&OE). CP&T reserves the right to correct any clerical, typographical, or computational errors or omissions in the quotation without liability, and no contract shall bind CP&T to such erroneous terms.
8. Where a quotation includes third-party services, it shall specify the scope of such services and confirm that they will be performed by a third-party contractor under a separate workmanship guarantee agreement between CP&T and the third-party contractor. Acceptance of the quotation by the customer constitutes acknowledgement that any claims arising from the performance of third-party services shall be directed against the third-party contractor, save for defects in goods supplied by CP&T.

3. Limit of Contract

1. CP&T shall only be obliged to supply the goods and/or perform the services as are specifically quoted for and accepted by the customer.
2. Where a contract involves the supply of goods by CP&T and the provision of third-party services, these terms and conditions shall apply mutatis mutandis to such third-party services, subject to the specific limitations on CP&T’s liability set out in clause 9 (Warranties) and clause 10 (Limitation of Liability). CP&T acts solely as principal in procuring such third-party services and shall invoice the customer for the total value thereof.

4. Packaging

1. Unless otherwise specified, all prices contained in a quotation shall include packaging in accordance with the standard practice of CP&T.

5. Contract Completion, Delivery and Claims in Respect of Goods Delivered and/or Services Performed

1. Delivery of anything to be delivered in terms of a quotation or the contract shall take place upon physical delivery thereof to the addresses referred to in clause 5.2 below, or a mutually agreed storage facility, and the date of such delivery shall be the delivery date for purposes of this contract. In the event that CP&T is ready to deliver the goods and the customer is not ready to accept delivery at the addresses referred to in clause 5.2 below, or, where such delivered goods would be stored is not ready to accept delivery thereof, then CP&T shall store such goods on behalf of the customer in its own storage facilities and shall be entitled to claim from the customer its then prevailing storage charges therefore.
2. The addresses at which the goods shall be supplied and/or services provided shall be those addresses specified on the customer’s order form.
3. Delivery shall not include off-loading, unless otherwise agreed, and the customer shall arrange and pay all costs of hiring any special hoists and other lifting equipment, if necessary.
4. In respect of services, “completion” shall occur upon CP&T’s written notification of performance, unless otherwise specified. The customer shall inspect and accept services within ten (10) days of notification.
5. The customer shall ensure that CP&T is given free and unfettered access to the addresses referred to in clause 5.2 above. In the event of the customer not being able to provide such access or in the event of the customer requesting a suspension or delay in performance by CP&T, CP&T shall be entitled to claim from the customer any additional costs incurred by CP&T by virtue of such suspension or delay.
6. Where applicable, the customer shall prepare any address referred to in clause 5.2 above or where necessary shall procure that such address be prepared, in accordance with CP&T’s recommended specifications as contained in the quotation.
7. CP&T shall endeavour to complete delivery and/or provide the services in the time period specified in the quotation or the contract but shall not incur any liability of any nature whatsoever to the customer in the event of it failing to do so, unless specifically otherwise agreed in writing, the customer’s sole remedy in such an event being to cancel such order or unexecuted portion thereof on ten (10) days written notice to CP&T.
8. Where third-party services are provided, completion shall occur upon the third-party contractor’s performance to the satisfaction of CP&T (or as notified in writing by CP&T), unless otherwise specified. The customer shall inspect and accept third-party services within ten (10) business days of such notification.
9. CP&T shall not be responsible for delays, suspensions, or additional costs arising from the third-party contractor’s performance, save where caused by CP&T’s gross negligence. The customer shall provide access and cooperation to the third-party contractor as if to CP&T.
10. Unless specifically otherwise agreed between CP&T and the customer, where the provision of services in accordance with a contract is due and CP&T tenders performance and the customer refuses to accept such tender, performance of the services shall be deemed to have taken place with effect from the date of the refusal to accept the tender and CP&T shall have the right, without detracting from any other legal remedies it may have in law, to act as if the services had been provided and to issue an invoice for payment, which payment shall then become due in accordance with the agreed terms.
11. It is the duty of the customer to inspect any goods on receipt, and by signing the delivery note the customer shall be deemed to have confirmed the receipt of the goods in good order, except to the extent of any damage thereto which is endorsed on the delivery note.
12. Notwithstanding any other provision herein, tinted and mixed paint products supplied by CP&T shall be non-returnable and non-refundable under any circumstances, including but not limited to defects, errors in ordering, or changes in customer requirements.
13. It is agreed that after delivery to and acceptance of the goods by the customer, the customer will inspect and test the goods and that no defective goods may be returned to CP&T for credit more than ten (10) days after the delivery date, unless the customer is a consumer who is not excluded from the CPA by virtue of section 5(2)(b) of the CPA, in which event the goods have to be returned within six (6) months from the delivery date.
14. Any goods returned to CP&T due to an error in ordering by the customer will be accepted for credit solely at the discretion of CP&T and will in all cases be subject to a handling charge equal to 10% of the value of the order.
15. All goods returned to CP&T must be recorded on a “goods returned by customer” document.

6. Prices, Payments, Credit Limits and Financial Circumstances

1. The price for a specific contract or order shall be as reflected in the quotation, or as agreed and/or amended by the parties in writing.
2. Unless expressly stated otherwise in the quotation or contract, all prices quoted by CP&T shall exclude delivery charges, freight costs, and insurance. The customer shall bear full responsibility for arranging and paying such charges, which shall be invoiced separately by CP&T or the relevant carrier.
3. Unless otherwise agreed, payment terms shall be either payment against invoice or statement whichever is specified in the quotation or the contract.
4. Without prejudice to any of the rights of CP&T, if any payment is not made on the due date it shall bear interest at the rate of three (3) percentage points above the prime interest rate charged on short term loans and facilities by CP&T’s bankers, which interest shall be calculated from the date any such payment falls due until it is paid in full, compounded monthly in arrears.
5. CP&T shall be entitled, in its sole and absolute discretion, to appropriate any payments received on account of the customer’s indebtedness to any indebtedness whatsoever of the customer to CP&T.
6. In the event of the customer disputing any amounts due by it to CP&T, which dispute must be bona fide, then the customer shall only be entitled to withhold payment of that amount in dispute and shall not be entitled to withhold the full payment then due by it to CP&T.
7. A certificate produced and suitably signed by CP&T, detailing the invoice numbers, invoice dates, invoice amounts due, the interest rate applicable in terms hereof and the interest payable, shall be prima facie proof of the facts stated in such a certificate and will be binding upon the customer for purposes of CP&T obtaining summary judgment against the customer.
8. Should the customer at any stage default in the observance of any of the payment terms hereof, CP&T shall be entitled to claim the full amount then owing by the customer to CP&T, notwithstanding the fact that such amount may not at the time be due and payable.
9. CP&T reserves the right to make partial deliveries against any order and the customer shall make payment in respect thereof, as stipulated in the quotation or the contract.
10. Notwithstanding any other provision herein or elsewhere included, unless otherwise specifically agreed to, the supply of all goods to the customer by CP&T shall be subject to an agreed credit limit, which is subject to the successful granting of credit insurance cover by the relevant insurer, contracted to CP&T in this regard and as such may be subject to change in accordance with any change in such insurance cover from time to time. Once the agreed credit limit is reached or exceeded (as the case may be) and notwithstanding any agreed payment terms to the contrary, CP&T shall be entitled to demand payment by the customer of such amount that will, in CP&T’s sole discretion, be necessary to reduce the outstanding balance on the customer’s account after delivery of the relevant goods to an amount less than or equal to the agreed credit limit. CP&T shall be entitled to suspend the supply and delivery of all goods to the customer until such payment is received. CP&T shall not have any liability of any nature whatsoever towards the customer as a result of any such suspended supply and delivery of the goods.

7. Ownership (applies only to goods)

1. The ownership in all goods supplied, delivered or in any other way made available to the customer by CP&T shall remain vested in CP&T until the customer has made full payment of the contract price for such goods.
2. CP&T shall have the right at any time to give notice of its continued ownership in the goods to every possessor and every landlord of premises in or on which the goods are stored or may be placed or installed, whether for sale, repair, assembly or otherwise.
3. Without prejudice to any of its rights in terms of this document or the law, CP&T reserves the right to repossess goods in the event of the customer failing to make any payment on due date or at all.
4. Payment will only be acknowledged when the relevant deposit is acknowledged by CP&T’s bankers as having been deposited into CP&T’s bank account by CP&T or the customer.
5. It is the responsibility of the customer to ensure that payments are deposited directly into CP&T’s bank account (supported by adequate detail to identify the deposit).
6. The customer is obliged to advise CP&T in writing of any change in ownership or control of the customer including the sale of the customer’s business or any part thereof, failing which the customer indemnifies and holds CP&T harmless against any loss, damage claim or expense that CP&T may incur as a result of any change of ownership or control, including but not limited to, any loss sustained by CP&T as a result of continuing to grant any credit facilities to the customer.

8. Risk

1. The risk in the goods and/or outcomes of services shall pass from CP&T to the customer upon delivery of the goods to the customer or its agent and, where applicable, completion of the services.
2. In the event of any goods being repossessed by CP&T, the customer shall be liable for any damage sustained to the goods, from the time the goods were delivered by CP&T to the customer until such time the goods were repossessed by CP&T.

9. Warranties

1. CP&T gives no warranties of whatever kind regarding the services, whether CP&T services or third-party services. Claims for inadequate CP&T services shall lie against CP&T solely in terms of clause 10. Claims for defective goods and/or inadequate third-party services shall lie against the manufacturer and/or the third-party contractor, and not CP&T.
2. It is recorded that any warranties given by the manufacturer(s) of the goods or by the third-party contractor in respect of third-party services, and which have been relied upon by the customer, may be influenced or negated by:
   1. any abuse and/or alterations to the goods or outcomes of third-party services;
   2. any tampering with the goods or outcomes of third-party services;
   3. the goods or third-party services having been used under incorrect operating conditions or for purposes not intended;
   4. the failure by the customer to properly take care of and maintain the goods or outcomes of third-party services; or
   5. the customer having failed to comply with any usage, operating, or application instructions provided by CP&T, the manufacturer of the goods, or the third-party contractor.
3. Where third-party services are provided, the third-party contractor shall guarantee its workmanship in terms of a separate agreement with CP&T, a copy of which shall be made available to the customer upon request.

10. Limitation of Liability

1. CP&T’s sole obligations and responsibilities to the customer in relation to the goods and/or services provided shall be in terms of the warranties as set out in clause 9, and furthermore, insofar as the relevant transaction is subject to the provisions of section 61 of the CPA, to indemnify the customer against and to hold the customer harmless from, any harm arising from the death or personal injury suffered by the customer, and from the loss of or physical damage to property belonging to the customer, caused by the goods supplied by CP&T, subject to the limitations and/or exclusions and/or effects of sub-sections 61(4) and 61(6) of the CPA.
2. CP&T shall under no circumstances be liable towards the customer for any other losses, damages or harm of whatsoever nature, irrespective of whether such losses, damages or harm may have been caused by the fault of CP&T, provided CP&T is not guilty of gross negligence.
3. CP&T’s total cumulative liability to the customer shall under no circumstances exceed the greater of: (i) the value of items for which CP&T may be held liable in terms of the warranties referred to above, together with the liabilities provided for in clause 10.1; and (ii) the total invoiced price of the goods and/or services supplied under the contract (including, where applicable, the invoiced price for third-party services). CP&T shall under no circumstances be liable for any indirect or consequential damage, including but not limited to loss of income, loss of revenue, loss of profits, or any other economic loss, except to the extent caused by its gross negligence.
4. In respect of third-party services, CP&T’s liability is strictly limited to the replacement of defective goods supplied by CP&T. CP&T shall not be liable for any losses, damages, claims, costs, or expenses (including consequential losses, loss of profits, or damage to property) arising from or in connection with third-party services, irrespective of cause, save where resulting from CP&T’s gross negligence in procuring the third-party contractor.
5. The customer indemnifies and holds CP&T harmless against any claims arising from third-party services, including those under the workmanship guarantee provided by the third-party contractor to CP&T.
6. The customer, by accepting the goods subject to the terms and conditions contained herein, acknowledges that the contents of this clause 10, including the limitations contained herein, have been specifically pointed out by CP&T and drawn to the attention of the customer, that the customer has read this clause 10 and that it fully understands and appreciates the implications thereof, that it had sufficient time to consider the acceptability of this clause 10 before it entered into the transaction of purchase with CP&T, and that notwithstanding the provisions of this clause 10, it freely and voluntarily decided to proceed with the transaction to which this clause 10 applies.

11. Relief from Duties under the OHSA

1. The customer undertakes to take such steps as are sufficient, necessary and reasonably practicable in order to ensure that the goods supplied and/or services provided in terms of a quotation or contract, will be safe and without risks to health when properly used, and will comply with the requirements of Section 10 of the OHSA and herewith releases CP&T from any duties imposed on CP&T in terms of Section 10 of the Act.
2. CP&T shall under no circumstances assume any liability for any health and safety hazards arising out of the misuse or abuse of the goods sold, imported or supplied by CP&T.

12. Duties under the CPA

In the event that the customer will not be the end user of the goods and/or services and will on-supply the goods to third party users, the following shall apply:

1. The customer is familiar with the provisions of the CPA insofar as the supply of goods or services to “consumers”, as defined in the CPA, is concerned, and the customer hereby agrees to comply with all the provisions of the CPA insofar as they relate to such “consumers”.
2. Without detracting from the generality of the provisions of clause 12.1, the customer hereby undertakes with specific reference to Sections 49 and 58 of the CPA, to provide “consumers” with all such notices as may be required in terms of the aforesaid statutory provisions, and to provide same in the manner and format prescribed by the CPA.
3. The customer hereby indemnifies and agrees to hold CP&T harmless against any claims, losses or liabilities made against, suffered by or established by any third party end-user against CP&T, based upon or founded in the failure by the customer to comply with the provisions of the aforesaid Sections 49 and 58 of the CPA.
4. Where third-party services are supplied to consumers (as defined in the CPA), the customer shall ensure compliance with CPA provisions relating to service quality and safety, and shall indemnify CP&T against any third-party claims arising therefrom.

13. Retentions

1. No retentions shall apply to any contract unless specifically agreed between the parties in writing and the customer shall under no circumstances be entitled to retain any portions of the contract price.

14. General Price Variation

1. Quoted prices are based on, inter alia, the cost of transport and exchange rates ruling at the date of CP&T’s quotation and, unless otherwise stated, if between that date and the date of delivery, variations occur in these costs, then quoted prices shall be amended to provide for these variations, the detail of which will be written into CP&T’s quotation and/or contract or appear on the itemised invoice rendered to the customer. Such variations shall be reasonable.

15. Law to Apply

1. These terms and conditions and any contract concluded between the parties shall be governed by and construed in accordance with South African law.

16. Breach

1. These terms and conditions shall be deemed to be breached by any party if that party is placed into liquidation in terms of the Insolvency Laws operating in the Republic of South Africa, or in the case of any judicial management of that party or compromise by that party with its creditors, and may under such circumstances immediately be terminated by the one party by registered letter sent to the other party informing it of the termination.
2. Should either party commit a breach of any provision of these terms and conditions and fail to remedy such breach within fourteen (14) days of receiving written notice from the other party requiring it to do so, then the party aggrieved by such breach shall be entitled, without prejudice to its other rights at law, to claim specific performance of all the defaulting party’s obligations, whether or not such obligations would otherwise have fallen due for performance or to claim cancellation of this contract, in either event without prejudice to its right to claim damages, and who shall be entitled to claim payment of any legal costs incurred from the other party on an attorney and client scale.

17. Dispute Resolution

1. In the event of a dispute between the parties remaining unresolved after reasonable attempts have been made to remedy the situation concerned, either party may refer the dispute to an independent third party to determine the dispute. The independent third party (“the expert”) shall sit as an expert and not as an arbitrator.
2. The expert shall be entitled to engage the services of any other person/s whom the expert in his sole and absolute discretion considers has particular knowledge or expertise relating to the matter/s in dispute.
3. The expert shall be a practicing attorney or advocate of at least ten (10) years standing nominated by the chairperson for the time being o the Attorneys Association of the South-Eastern Cape or its successor in title. The aforegoing notwithstanding, if the parties agree upon the appointment of an expert, the person agreed shall act as an expert.
4. The expert shall not be bound to follow the general principles of law, but may decide the matter submitted to him according to what he considers just and equitable in the circumstances, regard being had to the principles of natural justice and, therefore, the strict rules of law need not be observed or taken into account by the expert in arriving at his decision.
5. Any hearing by the expert shall be at such venue or venues in Port Elizabeth as shall be selected by him.
6. In the absence of written agreement by the parties to the dispute, the expert shall be vested with entire discretion as to the procedure and manner to be followed in arriving at his decision.
7. The expert shall be entitled to direct who shall bear the costs of such proceedings, regard being had to the validity of the case presented by either party to the dispute, it being within the discretion of the expert to make such order as he feels just in the circumstances.
8. The parties shall use their best endeavours to procure that the decision of the expert shall be given within fourteen (14) days, or as soon thereafter as possible after it has been demanded.
9. The expert’s decision shall be final and binding upon the parties affected thereby, shall be carried into effect and may be made an Order of any competent Court at the instance of either of the parties.
10. This clause constitutes an irrevocable consent by the parties hereto to the proceedings in terms hereof and neither of the parties shall be entitled to withdraw therefrom or to claim at any such proceedings that it shall not be bound by this clause.
11. If a party shall fail to make representations to the expert, the expert, after having afforded such party reasonable opportunity to make such representations, shall be permitted to deliberate and decide upon the dispute in the absence of such representations.

18. Domicilium

1. The parties choose as domicilium citandi et executandi and for the delivery of all notices arising out of these terms and conditions or the termination or cancellation of any contract, the physical addresses that appears on their respective letterheads and/or formal documents (invoices, orders, requisitions etc);
2. Any notice given and any payment made by any party to any other (“the addressee”) which:
   1. is delivered by hand during the normal business hours of the addressee at the addressee’s domicilium shall be deemed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery;
   2. is posted by prepaid registered post from an address within the Republic of South Africa to the addressee at the addressee’s domicilium, shall be deemed, until the contrary is proved by the addressee, to have been received on the seventh (7^th) day after the date of posting;
   3. is sent by facsimile during the normal business hours of the addressee, shall be deemed, until the contrary is proved by the addressee, to have been received within one (1) hour of transmission.
3. No provision of this domicilium clause shall be taken as affecting the validity of any notice which is actually received by any party, whether at its domicilium or not and whether delivered in terms of the express provisions of this domicilium clause or not and any notice which is actually received by any party shall be deemed to be notice validly given.

19. Cancellation Of Orders

1. Notwithstanding anything to the contrary contained in these terms and conditions, where the customer seeks to cancel any order placed on CP&T for any reason whatsoever, excluding on account of a breach of these terms and conditions on the part of CP&T, then, subject to CP&T agreeing to such cancellation in writing, the customer shall be liable towards CP&T for a cancellation fee equivalent to the higher of 5% (five percent) of the value of the cancelled order or the actual cost incurred by CP&T in the procurement of the goods as well as for other expenses necessarily incurred in connection with the execution or planned execution of the order.

20. General

1. No alteration of, variation of, or addition to these terms and conditions shall be of any force or effect unless reduced to writing and signed by the parties or their duly authorised representatives.
2. Subject to clause 20.1 above, this document contains the sole and entire record of the agreement between the parties. No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein or otherwise created by operation of law.
3. No indulgence, leniency or extension of time which either party (“the grantor”) may grant or show to the other, shall in any way prejudice the grantor or preclude the grantor from exercising any of its rights in the future.
4. Neither party may cede its rights or delegate its obligations in terms of any contract concluded in terms hereof without the prior written approval of the other party.
5. In the event of an order being placed on the official order form of the customer, the customer shall be precluded from denying the validity of such order, notwithstanding the fact that such order may have been signed by a person not authorised to do so.
6. The customer hereby authorises CP&T, subject to the provisions of the NCA and the regulations issued subsequent thereto, to transmit any details contained in this document (including personal details if applicable), as well as any information relating to its performance in meeting its obligations in terms of any contract and/or transaction concluded between it and CP&T, to any credit bureau registered in terms of the NCA. The customer furthermore hereby acknowledges and agrees that such credit bureau may, in the normal course of its business, share any such information with any of its customers and other credit providers registered in terms of the NCA, for the Prescribed Purposes (as defined in terms of the Regulations published in Government Gazette No. 8477, Notice 28864).