1.1 AGREEMENT means the agreement between Seller and Buyer for the sale of Goods or the provision of Services, which shall be governed by these Terms of Sale.
1.2 BUYER, shall mean the buyer as specified in the Order.
1.3 GOODS shall mean any or all of the products included in the Seller’s product brochure or website, and as selected and included in the Order.
1.4 OFFICIAL PRICE is the purchase price as per listed in the Seller’s official printed pricelist, as amended from time to time.
1.5 ORDER means the written, verbal or telephonic order for Goods or Services, which shall form part of the Agreement.
1.6 POPI – the Protection of Personal Information Act, 2013.
1.7 SELLER is Nebeau (Pty) Ltd, with registration number 2014/242182/07 and VAT number 4560268627 with its place of business at 3 Janice Avenue, Flamwood, Klerksdorp, 2571.
1.8 WEBSITE refers to the entire contents of the website under the domain name https://www.nebeau.co.za .
2. Nature of the Agreement
2.1 These Terms of Sale apply to any transaction concluded between the Seller and Buyer in respect of Goods ordered, whether by e-mail, telephone or WhatsApp.
2.2 Each Order shall be deemed to be an offer by Buyer and shall become binding on the parties and be governed by these Terms of Sale only once accepted by Seller.
2.3 Seller may revise these Terms of Sale from time to time.
3. Representations of Goods
3.1 The images of the Goods on Seller’s website and/or other sales literature are for illustrative purposes only.
3.2 Use of the Website includes accessing, browsing or registering to use the Website. By using the Website it is confirmed that the user accepts these Terms of Sale and agrees to comply therewith.
3.3 Buyer may use the website free of charge.
3.4 Although Buyer may access most areas of the Website without registering its details with Seller, certain areas of the Website are only open upon registration and submission of proof of technical training.
3.5 Seller does not guarantee that the Website, or any content on it, will always be available or be uninterrupted. Seller will not be liable to Buyer if for any reason the Website is unavailable at any time or for any period.
3.6 Seller may suspen, withdraw, discontinue or change all or any part of the Website without notice.
4. Purchase price
4.1 All published prices are quoted inclusive of Value Added Tax (“VAT”).
4.2 Seller may revise the purchase price from time to time.
4.3 The official price shall apply at all times. Seller will take all reasonable efforts to accurately reflect the purchase prices for the Goods on the Website. However, should any discrepancy arise between the official price and the price listed on the Website, the official price shall apply. The Seller shall not be liable to fulfil an Order based on any error.
5. Payment for goods
5.1 Unless Seller has extended credit to Buyer, the Buyer shall pay the purchase price in advance of delivery of the Goods.
5.2 No payment shall be deemed to have been made until Seller has received payment in cleared funds.
5.3 Proof of EFT payments may be sent to the designated email address or cell phone number.
5.4 Without prejudice to any other right or remedy, Seller reserves the right to set off any amount due, owing and payable at any time by Buyer to Seller against any amount due, owing and payable by Seller to Buyer.
5.5 Buyer shall not be entitled to assert any credit, set-off, counterclaim or withholding against Seller, whether in whole or in part.
6. Delivery fees
6.1 Seller will deliver Goods free of charge within the borders of South Africa on any order exceeding R1 000 (One Thousand Rand).
6.2 Delivery fees for orders under R1 000 (One Thousand Rand) will be added to the total invoice value payable by Buyer, to which the same payment rules as those for Goods will apply.
6.3 Deliveries outside of South Africa will be for the account of the Buyer from moment of release by the warehouse.
7. Extension of credit
7.1 Buyer may apply for credit from Seller by completing a credit application and submitting the necessary supporting documentation to Seller.
7.2 Buyer hereby gives consent to Seller to perform the necessary reference and credit checks at any Credit Bureaus deemed necessary.
7.3 Any extension of credit is at the sole discretion of Seller.
7.4 Seller will inform Buyer in writing if the credit application is successful, failing which no credit will be extended.
7.5 All invoices will be settled within 30 (thirty) days from date of statement.
7.6 If Buyer fails to make payment on the due date, interest shall be payable on the overdue amount at the prime overdraft rate of ABSA Bank as quoted from time to time plus 4% (four percentage points) per annum, calculated and compounded daily.
7.7 Seller may revoke any previously approved credit limit at any time, at which time the full outstanding balance will become due and payable immediately.
8. Delivery of Goods
8.1 Goods purchased may be collected at Seller’s premises or may be delivered to a physical address as indicated on the Order.
8.2 Orders will be processed and dispatched subject to receipt of payment or credit terms being agreed.
8.3 Orders will be delivered between 1-5 working days from day of despatch.
8.4 Delivery will be made between 8am and 5pm during weekdays only. While Seller is firmly committed to arranging delivery within estimated delivery times, Seller cannot guarantee that Orders will be delivered within the stipulated time frame. Buyer accepts and agrees that Seller will not be liable for any losses, liabilities, costs, damages, charges or expenses arising out of the late delivery of the Order.
8.5 No deliveries are made on weekends or public holidays.
8.6 Buyer will be required to sign for delivery.
8.7 Seeing that Orders will be dispatched subject to receipt of payment, couriers will not accept any cash or cheque payments.
8.8 If Buyer gives Seller or its designated courier company any unique delivery instructions, for example, for Order to be left with security, etc. it will be done so at Buyer’s risk.
8.9 If Buyer is unavailable to take delivery of an Order, the Order will be returned to Seller at a charge of R120, which will be added to Buyer’s account. Seller reserves the right to cancel the Order and refund Buyer the purchase price already paid less any reasonable administration charges and delivery costs incurred.
8.10 Seller is not liable for any incorrect Order placed by Buyer, for example, but not limited to, incorrect item ordered, incorrect delivery address, etc.
8.11 All risk in the products will pass to Buyer upon delivery. From delivery, Seller will not be liable for any loss or destruction of the products.
8.12 Insurance of products delivered by road freight is the responsibility of Buyer, as goods are consigned at Buyer’s risk.
9. Standard Warranty
9.1 Seller warrants that the Goods shall be free from material defects at the time of delivery.
9.2 The warranty given by Seller does not apply to damage or defects arising from fair wear and tear, wilful damage, abnormal storage conditions or accident or negligence by Buyer or any third party.
9.3 All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose other than those expressly set out in the Agreement are excluded from the Agreement to the fullest extent permitted by law.
10.1 Buyer shall check the Order at delivery to ensure that items purchased have not been damaged and are in good condition.
10.2 Buyer shall report any damage within 24 hours of delivery, by contacting a customer service representative to arrange the return.
10.3 Buyer may return any damaged or defective product to Seller within 10 (ten) business days. Seller will either exchange or replace the said product or provide a full refund, at its discretion.
10.4 If the product is returned because it was damaged, defective on delivery or it does not match the order, Seller will arrange for collection at its own cost.
10.5 Exchanges and replacements are provided subject to stock availability.
10.6 Refunds are issued by EFT into the account provided by Buyer, for which documentary proof will be required.
10.7 To be eligible for a return a product must be unopened, unused, in its original packaging.
10.8 Where an item was purchased as part of a promotion together with other qualifying products, the promotional item must be returned with the merchandise it was offered with in order for an exchange, replacement or refund to be processed.
11. Limitation of Liability
11.1 Under no circumstances whatsoever shall the liability of Seller under the Agreement exceed the purchase price of the Goods to which the claim relates. Seller shall not be liable for any indirect, special or consequential loss or damage, any loss of equipment or property, economic loss or damage, loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and punitive damages) or any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill, even if Seller is advised in advance of the possibility of any such losses or damages.
11.2 Buyer’s sole remedy for Seller’s breach of the Agreement or of any express or implied warranty in relation to the Goods shall be replacement or repair, credit or a full refund.
11.3 Buyer hereby indemnifies Seller, its affiliates and its directors, officers, employees, agents and contractors in full against all claims, losses, liabilities, damages and expenses (including legal and other professional fees and expenses) arising as a result of or in connection with Buyer’s purchase, use or resale of the Goods.
11.4 Seller, its affiliates and any other party involved in creating, producing, maintaining or delivering the Website and the directors, officers, employees, shareholders and agents of any of them, exclude all liability and responsibility for any loss or damage of whatsoever nature (including without limitation any direct, indirect, punitive or consequential loss or damages, or any loss of income, profits, goodwill, data, contracts, use of money, or loss or damages arising from or connected in any way to business interruption) and howsoever arising (whether in contract, tort (including negligence), breach of statutory duty or otherwise), even if foreseeable, that may result to Buyer or a third party from or in connection with the use, inability to use or results of use (including without limitation Buyer downloading of any material) of the Website or any websites linked to the Website or the material on such websites, including but not limited to loss or damage due to viruses that may infect Buyer’s computer equipment, software, data or other property. To the extent permitted by law, Seller exclude all conditions, warranties, representations or other terms which may apply to the Website or any content on it, whether express or implied. If Buyer’s use of material on the Website results in the need for servicing, repair or correction of equipment, software or data, Buyer assumes all costs thereof.
12.1 Seller shall have the right at any time to terminate an Order and/or the Agreement by giving written notice to the Buyer forthwith for any reason whatsoever including without limitation due to stock unavailability.
13. Intellectual Property
13.1 The intellectual property rights in the Goods are the property of the product manufacturer.
13.2 Buyer shall not acquire any rights in relation to such intellectual property rights by placing an Order.
13.3 All rights in any trademarks affixed or applied to the Goods shall accrue to the sole benefit of the owner of the trade marks from time to time.
13.4 Buyer shall not remove any copyright notices, confidential or proprietary legends or identification from the Goods.
13.5 Buyer shall not use or seek to register any trade mark or trade name (including any company name) which is identical to, confusingly similar to or incorporates any trade mark or trade name which the manufacturer or any associated company anywhere in the world.
14.1 Buyer shall keep in strict confidence and shall not disclose to any third party the terms of the Agreement including the purchase price of the Goods.
14.2 Each registration on the website is for a single user only. Buyer is not permitted to share its user name and password with any other person nor with multiple users on a network. Responsibility for the security of any passwords issued rests with Buyer.
14.3 Buyer will treat any user identification code, password or any other piece of information issued as part of Seller’s security procedures, as confidential.
14.4 Seller has the right to disable any user identification code or password, whether chosen by Buyer or allocated by Seller, at any time, if in Seller’s reasonable opinion Buyer have failed to comply with any of the provisions of these Terms.
15. Data Protection
15.1 The Buyer herewith consents to:
- the processing of the Buyer’s personal information as provided for in section 11 and 27 of POPI;
- the collecting of the Buyer’s personal information, as provided for in POPI, including in terms of section 12 thereof;
- the retaining of the Buyer’s information in terms of section 14 of POPI; and
- the further processing of the Buyer’s personal information, as provided for in section 15 of POPI.
15.2 The Buyer furthermore specifically agrees to the Seller’s collecting, processing and retaining of all data arising from the Buyer’s Orders for purposes of predicting further sales and sales patterns.
16. Force Majeure
16.1 Delay in Seller’s performance or failure of Seller to perform hereunder shall be excused to the extent caused by circumstances beyond its reasonable control (including without limitation acts of God, lock-outs, strikes or other labour disputes, fire, explosion, flood, epidemic, governmental actions or war).
17. Whole Agreement
17.1 The Agreement and any document referred to herein shall constitute the whole agreement between the parties relating to the subject matter thereof to the exclusion of all other terms and conditions issued by either party.
18. Governing Law and Jurisdiction
18.1 The Agreement and all disputes and matters arising from or relating thereto shall be governed by South African law.
18.2 Disputes arising in connection with these Terms shall be subject to the exclusive jurisdiction of the South African courts.
19.1 A waiver of any right or remedy under the Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
19.2 No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
19.3 No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
20.1 Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its designated e-mail address.
21.1 If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part thereof shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Agreement shall not be affected.