SHEERGUARD SA – STANDARD TERMS AND CONDITIONS OF SALE AND SUPPLY
(Applicable to all quotations, orders, sales, deliveries and installations of goods and/or services by SheerGuard SA and its franchises)
1.1 In these Terms and Conditions, unless inconsistent with the context:
1.1.1 “Company” means SheerGuard SA and/or any SheerGuard franchise supplying Goods and/or Services to the Customer, including where the Company engages third parties to supply any component goods or services;
1.1.2 “Customer” means the person or entity accepting a Quotation, placing an Order, purchasing Goods, and/or receiving Services from the Company;
1.1.3 “Goods” means all goods/products/materials supplied by or on behalf of the Company, including special-order and/or custom-made goods;
1.1.4 “Services” means all services performed by or on behalf of the Company, including measuring, design, delivery, installation and related services;
1.1.5 “Order” means the Customer’s written acceptance of a Quotation and/or written instruction to proceed, including acceptance by payment as contemplated herein;
1.1.6 “Quotation” means any written quotation issued by the Company to the Customer;
1.1.7 “CPA” means the Consumer Protection Act 68 of 2008 (as amended), where applicable.
1.2 These Terms and Conditions apply to every Quotation, Order and agreement for the supply of Goods and/or Services by the Company to the Customer, including any Goods/Services supplied by third parties engaged by the Company.
1.3 Acceptance of any Quotation and/or placement of any Order constitutes acceptance of these Terms and Conditions.
1.4 Any terms and conditions proposed or imposed by the Customer (whether in a purchase order, correspondence, on a website, or otherwise) will not apply unless expressly accepted in writing by the Company. The Company’s commencement of performance and/or delivery of Goods will not constitute acceptance of the Customer’s terms.
1.5 If any provision of these Terms and Conditions is found to be invalid or unenforceable, that provision will be severable and the remaining provisions will remain in full force and effect.
1.6 No variation or waiver of these Terms and Conditions will be valid unless reduced to writing and signed by a duly authorised representative of the Company. Any special terms recorded on a Quotation will apply only to the extent that they expressly vary these Terms and Conditions.
1.7 Any indulgence, extension of time, or failure by the Company to enforce any right shall not constitute a waiver of that right, nor of any other right.
1.8 These Terms and Conditions are governed by the laws of the Republic of South Africa.
1.9 Headings are for convenience only and do not affect interpretation.
1.10 Changes to Terms: The Company may amend these Terms and Conditions from time to time. Any amended Terms and Conditions will apply only to Quotations issued and Orders accepted after the effective date of the amendment, unless the parties expressly agree in writing that amendments apply to an existing transaction.
1.11 Entire agreement: Each accepted Quotation/Order together with these Terms and Conditions constitutes the entire agreement between the parties in respect of that transaction. In the event of conflict, the Quotation/Order prevails only to the extent of the specific conflict.
2.1 The Company will prepare a Quotation setting out, as applicable, the scope, specifications, quantities, pricing, payment terms, disclaimers, installation requirements and any special instructions.
2.2 Quotations are subject to these Terms and Conditions. By accepting a Quotation, the Customer acknowledges that it has read, understood and agrees to the Quotation and these Terms and Conditions.
2.3 Unless otherwise stated in writing, a Quotation is valid for acceptance for 30 (thirty) days from the date of issue. The Company may amend or withdraw a Quotation after expiry without obligation to provide reasons.
2.4 Quotations are based on the scope, quantities, site conditions, measurements/specifications (whether taken by the Company or supplied by the Customer), and pricing applicable on the Quotation date. The Company may revise prices prior to Order confirmation if:
2.4.1 the scope, measurements, quantities or specifications change;
2.4.2 supplier/manufacturer pricing changes;
2.4.3 stock availability changes;
2.4.4 exchange rates, duties, surcharges, transport or clearing costs materially change; or
2.4.5 additional site work, access requirements or remedial work is required to enable installation.
The Company will notify the Customer in writing of any revision before proceeding.
2.5 Where a Quotation is issued on the basis of stock on hand, it remains subject to prior sale until the Order is confirmed.
2.6 Prices are as stated in the Quotation. Unless expressly stated otherwise:
2.6.1 prices exclude VAT; and
2.6.2 any customs duties, levies, surcharges, demurrage and other taxes/charges (other than VAT where included) are for the Customer’s account.
2.7 Discounts, where offered, apply only as recorded in writing and will not apply where payment is overdue or where finance arrangements exclude discounts.
2.8 Promotions may be offered from time to time and will be governed by the promotional terms applicable to the specific promotion.
3.1 The Customer may accept a Quotation and place an Order by:
3.1.1 paying the required deposit and emailing proof of payment to the Company; or
3.1.2 paying the full amount and emailing proof of payment to the Company; or
3.1.3 providing an authorised written purchase order to the Company.
3.2 The Company will be bound to supply and/or install only once:
3.2.1 the required deposit/payment reflects in the Company’s bank account (or written confirmation of approved finance is received where applicable); and
3.2.2 the Company issues an Order Confirmation and/or Tax Invoice.
4.1 Finance: Where the Customer elects to use a finance option made available through the Company, the Customer must apply, sign up, and obtain approval. Additional terms and conditions of the finance provider will apply. Unless expressly agreed otherwise, discounts do not apply to financed transactions.
4.2 Credit (account customers): The Company may, in its sole discretion, grant credit facilities subject to the Customer meeting the Company’s and/or credit bureau’s requirements. Unless otherwise agreed in writing, the invoiced amount is payable within 30 (thirty) days from date of statement.
4.3 The Company may withdraw or amend credit facilities at any time on written notice to the Customer.
5.1 Unless otherwise agreed in writing, a 70% (seventy percent) deposit is required to secure an Order. The deposit must reflect in the Company’s bank account prior to commencement of work and/or placing supplier orders.
5.2 The remaining 30% (thirty percent) balance is payable on the day the job is completed (or upon delivery where no installation is provided).
5.3 No supplier order will be placed prior to receipt of required payment in full (including deposit where applicable).
5.4 Where the Customer purchases Goods only (no installation), payment must be made in full prior to collection/delivery, unless otherwise agreed in writing.
6.1 On delivery and/or performance, the Company will issue an invoice for all amounts owing (“Invoiced Amount”).
6.2 Subject to clause 4.2, payment of the Invoiced Amount must be received within 30 (thirty) days of date of statement by cash or EFT, free of deductions, bank charges and set-off.
6.3 The Company may require a 50% (fifty percent) deposit for Goods that are:
6.3.1 specially imported;
6.3.2 custom-made or manufactured to the Customer’s specifications; or
6.3.3 not ordinarily part of the Company’s standard offering.
6.4 The Customer must provide proof of payment upon request.
6.5 Interest on overdue amounts may be charged at the maximum rate permitted by law, calculated from due date until date of actual payment.
6.6 Payments received may be allocated by the Company in its sole discretion to any portion of the Customer’s indebtedness.
Cancellations
7.1 If the Customer cancels an Order after the Company has placed orders with suppliers and/or commenced work, the Company may retain any deposit paid and/or charge the Customer:
7.1.1 all costs incurred (including supplier cancellation fees);
7.1.2 the value of work performed; and
7.1.3 a reasonable administration fee,
and the Customer remains liable for the greater of the deposit or such costs.
7.2 Where Goods are specially manufactured or modified to the Customer’s specifications, the Customer acknowledges that cancellation may not be possible and any amounts paid may be non-refundable, subject to applicable law.
Late payment
7.3 If the Customer fails to pay any amount on due date, the Customer will be in mora. The Company may suspend performance and/or delivery until payment is made in full, and may charge interest in accordance with clause 6.5.
Damage or loss in transit
7.4 Where the Company delivers Goods, it will accept responsibility for damage/shortages/loss in transit only if reported in writing within 7 (seven) days of delivery.
7.5 Where Goods are collected by the Customer or transported by a third party nominated by the Customer, risk passes on collection/dispatch and the Customer is responsible for insurance in transit.
8.1 Unless otherwise specified in writing, prices are Ex Works Johannesburg. Any transport costs not included in the Quotation are for the Customer’s account.
9.1 Lead times commence from the date the required deposit reflects in the Company’s bank account and may vary by product and workload. Any lead times provided are estimates unless expressly guaranteed in writing.
9.2 The Customer acknowledges that delivery/installation is dependent on availability of components/materials, supplier lead times, production capacity, and installer schedules.
9.3 The Company will use reasonable endeavours to meet estimated delivery/installation dates, but shall not be liable for delays caused by supplier constraints, stock shortages, access limitations, Customer delays, weather, load shedding, or Force Majeure.
9.4 Goods will be delivered in standard packaging. Any special packaging requested and approved will be charged.
9.5 Site suitability: If during installation the Company considers the structure/substrate is unsuitable or unsafe, the Company may suspend installation and require the Customer to remedy the issue at the Customer’s cost. The Company is not liable for defects attributable to unsuitable substrates/structures or work performed by others.
9.6 Where Goods are installed by the Customer or a third party, the Customer remains responsible for proper installation. The Company is not liable for defective installation by others.
9.7 Completion and acceptance: After delivery and/or installation, the Customer must sign a Completion Certificate/Delivery Note. If the Company does not receive a signed certificate or written snag list within 3 (three) business days, the Customer will be deemed to have accepted the Goods and/or installation, subject to latent defects and warranties and applicable law.
10.1 Any work or services not expressly included in the Quotation will constitute additional services/variations and will be charged at the Company’s then current rates or as quoted in writing.
10.2 Any variation requested by the Customer may impact pricing and lead times.
11.1 Risk passes to the Customer on delivery at the premises nominated by the Customer, or on dispatch/collection where collected or shipped by/for the Customer.
11.2 If the Customer fails to accept delivery when tendered, risk passes immediately and the Customer will be liable for reasonable storage costs.
11.3 Ownership of Goods remains vested in the Company until the full invoiced amount is paid, notwithstanding installation or attachment to any structure, to the extent permitted by law.
11.4 The Customer is encouraged to inspect Goods upon delivery and prior to installation (where possible). The Customer’s attention is drawn to CPA section 20(3)(b) regarding goods permanently installed/affixed.
12.1 The Company warrants that installation services will be performed with reasonable care and skill.
12.2 The Company warrants that Goods manufactured by it will materially conform to the specifications in the accepted Quotation/Order and will be free from defects in workmanship for 12 (twelve) months from the date of invoice, unless a different period is stated in the product-specific warranty documentation.
12.3 Goods/components supplied by third-party manufacturers are subject to such manufacturers’ warranties.
12.4 The warranty excludes damage or failure caused by misuse, abuse, impact, attempted forced entry, alterations, poor maintenance, chemical exposure, harsh environmental conditions, accidents, acts of God, normal wear and tear, or work performed by third parties.
12.5 If a valid warranty claim is confirmed, the Company’s liability is limited (at the Company’s election and to the extent permitted by law) to repair, replace, or re-perform the affected portion.
13.1 The Customer is responsible for confirming product suitability for its intended use. Unless the Customer has expressly informed the Company in writing of a specific purpose and the Company has confirmed suitability in writing, no fitness-for-purpose warranty is given beyond what is required by law.
14.1 To the extent permitted by law, the Company is not liable for any indirect, incidental, special or consequential loss or damage (including loss of profit), arising from supply, delivery, installation, delays, use or possession of the Goods.
14.2 The Customer indemnifies the Company against claims by third parties arising from the Customer’s acts/omissions, misuse, unauthorised installation, or failure to comply with instructions.
14.3 Nothing in these Terms and Conditions limits liability where such limitation is prohibited by the CPA or other applicable law.
15.1 The Customer must report any complaints regarding non-conformity to specification or visible defects in writing within 10 (ten) business days of delivery/installation.
15.2 The Customer acknowledges that many Goods are special-order and/or permanently installed. Once permanently installed/affixed, the Customer may not return the Goods for a refund merely due to change of mind, subject always to rights afforded by the CPA.
15.3 Complaints regarding latent defects must be submitted within 7 (seven) business days of the defect becoming apparent, and in any event within the applicable warranty period.
15.4 Complaints regarding defective installation must be submitted within 10 (ten) business days after installation.
15.5 Upon receipt of a complaint, the Company will investigate and provide its findings. If the parties dispute the findings, the matter may be referred to an expert appointed by agreement, failing which by AFSA (or its successor). The expert’s decision will be final and binding, absent manifest error. Costs will be shared as determined by the expert.
15.6 Subject to applicable warranties and law, the Customer must provide a copy of the original invoice for any claim and allow the Company reasonable access and opportunity to inspect.
16.1 The Customer is responsible for compliance with all regulations relevant to installation, storage, use or disposal of Goods.
16.2 The Customer must provide at its own cost:
16.2.1 a laydown area of at least 3m x 3m (where required);
16.2.2 a power source suitable for installation (or alternative arrangements where load shedding affects supply);
16.2.3 a responsible person on site; and
16.2.4 access to the work area.
16.3 The Company is not liable where electrical supply does not conform to regulations, or where load shedding prevents installation.
16.4 The Customer must identify any damaged areas/obstructions prior to installation.
17.1 Neither party may cede, assign or delegate its rights or obligations without the prior written consent of the other.
18.1 No licence or right to use the SheerGuard brand is granted to the Customer. The brand remains the exclusive property of the Company.
18.2 The Customer shall not use the brand without prior written consent and shall not do anything that negatively affects the goodwill or reputation of the brand.
19.1 The Company will not be liable for failure or delay caused by circumstances beyond its reasonable control, including events listed as Force Majeure in clause 19.2.
19.2 Force Majeure includes acts of God, war, strikes, lockouts, labour disputes, fire, flood, legislation, epidemics, riots, sabotage, transport failures, shortages of labour/materials, machinery breakdown, utility shortages, load shedding, supplier delays/defects, and similar events beyond the Company’s control.
19.3 If Force Majeure continues for more than 30 (thirty) days beyond the estimated delivery/installation date, either party may cancel the affected portion of the Order without liability to the other.
20.1 If the Customer breaches these Terms and Conditions and fails to remedy within 7 (seven) days of written notice, or fails to pay any amount due, the Company may, without prejudice to any other remedies:
20.1.1 suspend performance/delivery; and/or
20.1.2 claim payment and damages; and/or
20.1.3 cancel the Order and recover damages; and/or
20.1.4 seek repossession of Goods where lawful and applicable.
21.1 Save for disputes relating to non-payment, any dispute will first be referred to the Managing Director (or duly authorised representative) of each party for resolution.
21.2 Failing resolution, disputes will be referred to mediation. If not resolved within 14 (fourteen) days, the dispute will be referred to arbitration under the Arbitration Act 42 of 1965. The mediator/arbitrator will be agreed within 5 (five) days, failing which appointed by AFSA (or its successor) or AASA.
22.1 If the Customer is not a natural person, the signatory binds themselves as surety and co-principal debtor in solidum for payment of all amounts owed.
22.2 The surety waives the benefits of exclusion and division and acknowledges understanding thereof.
22.3 This is a continuing covering suretyship and remains in force notwithstanding fluctuation or temporary extinction of indebtedness.
23.1 A certificate signed by a director of the Company certifying an amount owing by the Customer will constitute prima facie proof of indebtedness for purposes of legal proceedings.
24.1 If the Company institutes legal proceedings to enforce its rights, the Customer will be liable for legal costs on the attorney-and-client scale, including collection commission and tracing fees.
24.2 The Company may institute action in any Magistrates’ Court or High Court in South Africa having jurisdiction, and the Customer consents to such jurisdiction.
25.1 All notices must be in writing.
25.2 Notices to the Customer may be delivered by hand, email, or prepaid registered post to the address provided by the Customer in the Quotation/Order documentation.
25.3 Notices to the Company may be delivered by hand, email, or prepaid registered post to the Company’s registered address as stated on the Quotation/Invoice, or such other address as the Company may notify in writing.
25.4 Email notices will be deemed received on the first business day following transmission, unless the sender receives an automated “failed delivery” notice.