Terms and Conditions

COLOSSAL CONCRETE PRODUCTS (PTY) LTD

REGISTRATION NUMBER : 2017/231457/07

 

Any quotation, tender, order or contract of sale between Colossal Concrete Products (Pty) Ltd hereinafter referred to as “Colossal”) and the Client in respect of goods, and any variation thereto, shall be subject to the terms and conditions contained in these Terms. 

By placing an order and thereby accepting these Terms, the Client shall be deemed to have agreed that all existing arrangements between Colossal and the Client in respect of goods shall be governed by these Terms and Conditions.

PRICE 

  • Whilst every effort will be made to record the Client verbal or telephonic instructions accurately, it is the responsibility of the Client to check the details of the order and to notify Colossal of mistakes, in writing, immediately. 

  • All telephonic orders made by the Client must be confirmed in writing within twelve hours of placing such. 

  • Quotations are subject to the availability of raw materials and stocks of any goods at the time of manufacture and or delivery. 

  • Save as may be specified on any quotation form, prices are not subject to any discount and are applicable to deliveries made during normal working hours, from Monday to Friday. 

  • All quotations are valid for a limited period, such period as stipulated on the quote from time to time 

  • All prices are strictly nett and exclusive of Value Added Tax. 

  • Prices are subject to adjustment in respect of any increase  in the cost of delivery arising directly or indirectly from any one or more causes, in particular any delays in the acceptance of the goods beyond the validity period of the quote or delays in delivery because of the inability of the Client to take delivery. 

  • In the case of delivery by rail or road any increase in railage and / or transport rates and / or any other transport costs, including fuel costs will be for the account of the Client. 

  • Any statutes or law or regulation, byelaw or notice having the effect of law which have an effect of increasing the price of the goods shall be for the account of the Client.

  • All prices reflected on the Colossal price list are subject to change with reasonable notice to the Client.

PAYMENT TERMS 

  • The Client shall pay to Colossal the full amount reflected on the tax invoice issued by Colossal: 

  • Promptly upon presentation of the proforma or actual invoice made to the Client where such consideration is in lieu of Cash Sales; or 

  • In the case of a Credit Approved Client, within 30 (thirty) days from the date of the tax invoice.

  • Payment of all accounts to be transferred to the designated bank account in the name of Colossal as confirmed by authorised and stamped bank letter issued by Colossal. 

  • All goods delivered to the Client shall serve as a pledge in favour of Colossal for present and past debts and Colossal shall be entitled to retain or realize such pledges as it seems expedient at the value as determined by any independent valuator. The sworn or realized value of pledged goods will be offset against the Client debts and any excess balance will be paid to the Client. 

  • The Client agrees to pay the amount on the tax invoice at the offices of Colossal or at such other place Colossal may designate in writing or through such bank transfer as stipulated herein, or otherwise agreed to in writing by Colossal.

  • Colossal does not accept payments made by cheque.

  • The Client shall not withhold payment and agrees to honour the terms of payment as agreed herein or otherwise extended to the Client by Colossal, such terms or variation thereof if so applicable to be reduced to writing and signed by the Client and a duly authorized representative of Colossal. Notwithstanding any relaxation or indulgence shown by Colossal to the Client pursuant to any of the obligations of the Client in terms hereof or in terms of law or failure or delay on the part of Colossal to exercise any of its rights in terms hereof or in terms of law, shall not be deemed to be a waiver by Colossal of any of its rights hereof or in terms of Law and any such relaxation, indulgence, failure or delay, shall take place completely without prejudice to Colossal of its rights in terms hereof or in terms of Law. 

  • The Client is not entitled to set off any amount due to the Client by Colossal against any debt whatsoever, without the written consent of a representative of Colossal duly authorised to do so. 

  • The Client agrees that the amount due and payable to Colossal may be determined and proven by a certificate issued and signed by any director or similar senior person carrying such authority on behalf of Colossal, whose authority need not be proven by any independent auditor. Such certificate shall be binding and shall be prime facie proof of the indebtedness of the Client. It is the Client responsibility to ensure that the representative of Colossal who signs on behalf of Colossal is appropriately authorised to act in such manner.

  • The Client agrees that interest may be levied at the maximum permissible interest provided for by legislation from time to time on any overdue moneys due to Colossal and that interest shall be calculated daily and compounded monthly from the date payment is due, in the event of the Client having breached any condition contained herein or if otherwise provided. Colossal need not notify the Client that it intends to levy such interest. 

  • Colossal reserves its right at its sole discretion to continue extending or withdrawing credit facilities should the Client be in breach of its terms at any time. 

  • In the event of cancellation, the Client shall be liable to pay (a) the difference between the selling price and the value of the goods at the time of repossession and (b) all other costs incurred in the repossession of the goods. The value of the repossessed or retained pledged goods shall be deemed to be the value placed on them by any sworn valuator after such repossession and such valuation shall be conclusive proof of the value. If the goods are not recovered for any reason whatsoever, the Client shall be liable for the value of the goods based on the selling price. 

  • The Client authorizes Colossal to enter the Client premises to repossess any goods delivered and Colossal shall not be liable for any damage relating to the removal of repossessed goods, which might be caused by its agents or representatives during such repossession. 

  • If any goods supplied to the Client are of a generic nature and have become the property of the Client by operation of law, the Client shall be obliged on notice of cancellation of the agreement to retransfer the same quantity of goods in ownership to Colossal at its own cost 

  • The Client shall be liable to Colossal for all legal expenses on the attorney-and-own Client scale of an attorney and counsel incurred by Colossal in the event of (a) any default by the Client of (b) any litigation in regard to the validity and enforceability of this agreement. The Client shall also be liable for any tracing fees, collection commission or valuation fees incurred as well as for any costs, including stamp duties for any form of security that Colossal may demand.

PURCHASE ORDERS AND DELIVERY OF GOODS

  • Purchase orders raised and submitted to Colossal that are in part or whole production may not be cancelled without the written consent of Colossal.

  • Purchase orders shall be considered as approved by the Client confirming acceptance of the purchase order, either by signing the order, agreeing via email or other electronic form of confirmation.  By furnishing Colossal with an approved purchase order, the Client immediately becomes bound by the terms and conditions as stipulated herein

  • Colossal reserves the right to revise the prices of the purchase orders where the validity period of such orders expires by reason of time, or otherwise as agreed with the Client.

  • Colossal reserves the right to alter pricing after expiry of the purchase order and is not obliged to inform the Client of such increase in price

  • Colossal will not be held liable for any damages once the goods have been signed for.

  • Colossal reserves the right to suspend the Client account once the amount ages beyond agreed terms and all accounts will be placed on hold until the account is paid up to date. Colossal reserves the right to do so without further notification to the Client.

  • Upon acceptance of a purchase order placed by the Client, a contract of sale shall be deemed to have been concluded between the Client and Colossal in respect of the goods which Colossal has agreed to supply. Colossal will produce the goods based on the information contained in the purchase order received from the Client, which once goods are produced, shall not be subject to cancellation or amendment by the Client in any manner whatsoever.

  • Notwithstanding the acceptance of the cancellation or amendment of an order by the Colossal, Colossal shall be entitled to recover all damages incurred by it arising from or in connection with such cancellation or amendment, including but not being limited to all costs, expenses and loss of profit.

CREDIT FACILITIES

  • A credit approved Client, who fails to make payment in accordance with clause 3.1.2, forfeits its right to credit facilities granted in terms of this clause 5 and all amounts outstanding to its account shall become immediately due and payable. Any extension of credit is solely at the discretion of Colossal.

  • Colossal may, in its sole discretion, grant credit facilities to the Client 

  •  Colossal shall have the right, in its sole discretion, to amend or withdraw any credit facilities granted to the Client, upon written notice to the Client, and any amounts then owing to Colossal by the Client under the credit facilities will become due and payable on demand. 

  • Colossal shall have the right, in its sole discretion, to use and to disclose to any source any personal information provided to it for evaluating the Client creditworthiness and protecting Colossal credit risk and the Client hereby consents to such use and disclosure.

  • Colossal shall have the right, in its sole discretion, to stop supply on any account that account terms are not adhered to and immediately start charging interest.

  •  Colossal uses Credit Guarantee Insurance Company (“CGIC”) to insure debt and should the account be overdue, Colossal has the right to submit a CGIC claim against the Client once the terms have not been adhered to without notification to the Client.

  • Any own risk account will be handed to our legal advisors and all legal fees, costs and interest will be for the Client account, where the Client fails to remedy the overdue account.

  • Any payment received for which Colossal does not receive a remittance advice for within 24 hours of receiving the payment will be allocated to the oldest debt in order to ensure the accounts stay allocated.

  • Should there be no trading on the account for six (6) months, the account will automatically be suspended for future trade. Should the Client wish to trade with Colossal again the Client will need to re-apply for a CGIC facility.

DELIVERY

  • Colossal shall provide the dates and times of delivery of goods in good faith and shall not be liable to the Client for any subsequent variations. 

  • Colossal shall be entitled, in its sole discretion, to split the delivery of goods in quantities, on the dates and at the times it decides, and to invoice separately each delivery made. 

  • Any delivery of goods by Colossal to the Client shall be deemed to be completed when the goods are off-loaded  and signed for by Client representative at the delivery address of the Client, failing which, the premises of the Client, or when the goods are handed over to the third party engaged to transport the goods on behalf of the Client in terms of clause 6.6. 

  • The client shall provide suitable access roads to and level ground at the point of off-loading at the delivery address or premises of the Client. 

  • Delivery will be in full economical loads and at one point only. 

  • Should Colossal agree to engage a third party to transport the goods, Colossal is hereby authorised to engage, at the cost of the Client, such third party on the Client’s behalf and on the terms deemed fit by Colossal. The Client indemnifies Colossal and holds it harmless against any claims that may arise from such agreement. 

  • The Client hereby confirms that the goods or services on any tax invoice issued duly represent the goods ordered by the Client at the prices agreed to by the Client and, where delivery/performance has already taken place, that the goods were inspected and that the Client is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects. All goods delivered shall be deemed to be in order as aforesaid unless the Client has given Colossal written notification of such specific quality, quantity and/or other defects in accordance with clauses 6 herein.

  • The signature of any employee or representative of the Client on Colossal delivery note (copy or original) shall be prima facie proof that the type and quantity of goods, manufactured to the correct specifications, were properly delivered to and accepted by the Client.

  • Should the Client fail to notify Colossal of any defects within 7 (seven) calendar days from date of delivery, no claims shall be accepted by Colossal

  • Once goods have been ordered by furnishing Colossal with an approved and signed purchase order, whether such goods were delivered to the Client or not, no returns, variation or cancellation of order shall be accepted by Colossal unless agreed to in writing by Colossal.

RETURN OF GOODS AND GUARANTEES 

  • If the Client inspects the goods and finds all or any of them do not comply with the standards set by the South African Bureau of Standards, where applicable,  or that they have been incorrectly delivered (“the Returnable Material(s)”) or damaged in transit or upon delivery, then the Client must contact Colossal immediately and only return the goods upon mutual agreement within 7 (seven) days of the date of delivery at its own cost and in the original packaging with the delivery note endorsed with details of the complaint. 

  •  Colossal shall have the right, in its sole discretion, to grant credit for, to repair or replace the Returnable Material(s). 

  • Subject to clause 7.1 the Client shall not return any goods except at the sole discretion of Colossal and in accordance with a written agreement with Colossal. 

  • All goods returned shall be subject to administration and handling fees at the discretion of Colossal of 15% of the order value.

  • New goods are guaranteed according to Colossal product specific warranties or agreed specification only and all other guarantees including common law guarantees are hereby specifically excluded. 

  • No claim under this agreement shall arise unless the Client has, within 2 days of the alleged defect occurring, given Colossal 30 days written notice to rectify any defect. 

  • To be valid claims must be supported by the original delivery note or invoice. 

  • All guarantees are null and void should any goods be tampered with or should the goods be operated or stored outside Colossal specifications or otherwise handled in manner not considered appropriate while in the possession of the Client. 

  • Colossal shall not be liable for any consequential damages or direct liability of any nature under whatsoever circumstances. 

  • Colossal shall not be liable for any damage arising from any misuse of the goods.

RISK

  • The risk of damage or destruction or theft of goods shall pass to the Client on delivery and Colossal shall remain the lawful owner of such goods and hold a lien over any material thing to which services was rendered upon (which lien shall automatically revive if possession was lost at any time if possession is obtained once again by Colossal) until payment has taken place by the Client in full, without any set off taking place of any kind whatsoever. 

  • The Client shall insure the goods against loss and damage, to the satisfaction of Colossal, until the goods have been paid for in full. 

  • Until the goods have been paid for in full, the Client shall not encumber the goods or purport to transfer ownership in the goods to any third party and shall advise third parties of Colossal rights in the goods. 

  • The Client authorises Colossal to enter its premises to repossess, pursuant to clause 11.2., any goods delivered and indemnifies Colossal and holds it harmless against any damage whatsoever relating to the removal of such goods. 

  • Where ownership in the goods sought to be repossessed has passed to the Client or to a third party by operation of law, the Client shall procure the re-transfer of such goods to Colossal at its own cost.

WARRANTY

  • Colossal warrants that the goods shall, where applicable, meet the standards set by the South African Bureau of Standards, provided that the goods are not tampered with or stored or used outside Colossal specifications. 

  • All other warranties, whether express or implied, including any warranty that the goods are fit for a particular purpose, including the purpose for which they were ordered, are hereby specifically excluded. 

  • Colossal liability for any breach of this warranty shall be limited to the repair or replacement of the goods. 

  • No amendment and/or alteration and/or variation and/or deletion and/or addition and/or cancellation of these terms and conditions, whether consensual or unilateral or bilateral shall be of any force and effect unless reduced to writing and signed by a duly authorised Colossal representative. No agreement, whether consensual or unilateral or bilateral, purporting to obligate Colossal to sign a written agreement to amend, alter, vary, delete, add to or cancel these terms and conditions shall be of any force and effect unless reduced to writing and signed by a duly authorised Colossal representative.

EXCLUSION OF LIABILITY

  • Colossal shall not be liable to the Client for any loss or damage arising out of the improper or negligent use of goods, and the Client indemnifies Colossal against any claims arising from the use of the goods by third parties. 

  • Colossal shall not be liable to the Client for any loss resulting from the delay in or cancellation of the Client order arising from a cause beyond Colossal control, including but not limited to, inability to secure labour, power, goods or supplies, computer services, act of God, war, civil disturbance, riot, state of emergency, strike, lockout, other labour disputes, fire, flood, drought or legislation. 

  • Colossal shall not be liable for any negligent or innocent misrepresentation made by it or its employees. 

  • Colossal shall not be liable under any circumstances for any special, indirect or consequential damages, including but not limited to, loss of profit. 

  • Colossal will not be bound by any contracts entered into by the Client prior to signing the Credit Agreement or thereafter for the timeous due and proper fulfilment of their duties towards their contractors and any term and condition contrary to the terms and conditions contained in this Credit Application will be of no force and effect against Colossal.

BREACH 

  • If the Client has not paid Colossal in full by the due date or breaches any other term of these Terms, or if Colossal receives information relating to any application for the liquidation or sequestration, any compromise with creditors or any execution against the assets of the Client, then Colossal shall have the right, in its sole discretion and without prejudice to any other right it may have in law: 

  • to cancel the contract; 

  • to repossess and/or recover any goods delivered to the Client, whether attached to property or not; 

  • to institute action to recover any outstanding amounts, which shall be immediately due and payable, and/or damages, and or: 

  • to stop or suspend supply of goods and to demand payment for goods manufactured and/or awaiting delivery

  • For the purpose of clause 11.1 where Colossal repossesses goods, the Client shall be liable inter alia for the difference between the selling price and the value of the goods at the time of repossession, as well as for the costs of repossession. A sworn valuation shall be prima facie proof of the value of the repossessed goods. If the goods are not recovered for any reason whatsoever, the value shall be deemed to be zero. 

 

No claim under these Terms shall arise unless: 

  • It is supported by the original tax invoice; and 

  • The Client has, within 3 (three) days of the alleged breach occurring, given Colossal 30 (thirty) days written notice by prepaid registered post to rectify any breach of these Terms.

COSTS

  • The Client shall be liable to Colossal for all legal expenses on the attorney and own client scale incurred by Colossal in the event of any default by the Client or any litigation regarding the validity and enforceability of these Terms 

  • The Client shall be liable for any tracing fees, collection commission or valuation fees incurred as well as for any costs and for any form of security that Colossal may demand.

RIGHT TO UPDATE 

Colossal reserves the right to update these terms and conditions upon written notice to the Client and on acceptance thereof by the Client