STANDARD TERMS AND CONDITIONS
The Seller provides the information contained on the Website and any of the pages comprising the Website to the Purchaser subject to these Standard Terms and Conditions. By accessing the Website, the Purchaser shall be deemed to have agreed to all these Standard Terms and Conditions. The Seller may at any time modify these Standard Terms and Conditions and the Purchaser's continued use of the Website will be subject to the Standard Terms and Conditions in force at the time of the Purchaser's use. Accordingly the Purchaser agrees to review these Standard Terms and Conditions periodically, and the Purchaser's continued access or use of the Website shall be deemed to be the Purchaser's acceptance, from time to time, of the amended Standard Terms and Conditions.
In these Standard Terms and Conditions unless a contrary intention clearly appears the following terms shall have the meanings assigned to them in this clause and cognate expressions shall have corresponding meanings -
1.1 “Business Day” means any day in the Republic of South Africa other than a Saturday, Sunday or public holiday;
1.2 "Credit Event" means, in relation to any person or entity, the occurrence of any of the following events -
a) an order or declaration is made or a meeting of the directors or shareholders or trustees of such person is convened to consider the passing of a resolution for, or a resolution is passed for, the administration, custodianship, bankruptcy, liquidation, sequestration, winding-up, dissolution or placing under supervision for business rescue proceedings (and whether provisional or final) of it or its estate; or
b) it is unable (or admits inability) to pay its debts generally as they fall due or is (or admits to being) otherwise insolvent or stops, suspends or threatens to stop or suspend payment of all or a material part of its debts or proposes or seeks to make or makes a general assignment or any arrangement or composition or compromise with or for the benefit of its creditors or a moratorium is agreed or declared in respect of or affecting all or a material part of its indebtedness; or
c) it takes any proceeding or other step with a view to the general readjustment, rescheduling or deferral of its indebtedness (or any part thereof which it would otherwise be unable to pay when due) or proposes to take any such step; or
d) any receiver, administrative receiver, judicial receiver, administrator, compulsory manager, judicial custodian, trustee in bankruptcy, liquidator, business rescue practitioner or the like is appointed in respect of it or any material part of its assets or it requests any such appointment; or
e) it commits any act which, if such act was committed by an individual, would be an act of insolvency within the meaning of section 8 of the Insolvency Act or any equivalent legislation in any jurisdiction to which such person is subject; or
f) it ceases to carry on business contemplated in its constitutional documents; or
g) it fails after any judgment awarded against it -
i. to satisfy such judgment within 5 (five) Business Days after becoming aware of such judgment; or
ii. if such judgment is appealable or reviewable, to appeal or commence review proceedings, as the case may be, against such judgment within the time limits prescribed by law or fails diligently to prosecute an appeal lodged or ultimately fails in such appeal or review and then fails to satisfy the judgment within 3 (three) Business Days; or
iii. if such judgment is a default judgment, to apply for the rescission of such default judgment within the time limits prescribed by law (or in any event within 5 (five) Business Days of becoming aware of such default judgment) or fails diligently to prosecute such application for rescission of such default judgment or ultimately fails in such application and then fails to satisfy the judgment within 3 (three) Business Days; or
h) it fails to pay the Seller any amount owing by the Purchaser to the Seller on the due date for payment thereof;
1.3 "Order" means any order submitted by the Purchaser to the Seller to purchase from the Seller goods and/or to have services rendered by the Seller including without limitation, all hard copy orders and electronic orders submitted on the Website or otherwise;
1.4 “Seller” means Bidvest Foodservice (Proprietary) Limited (registration number 1964/002063/07), a profit company incorporated in accordance with the laws of the Republic of South Africa;
1.5 “The ECT Act” means the Electronic Communications and Transactions Act 25 of 2002, as amended;
1.6 “The Insolvency Act” means the Insolvency Act 24 of 1936, as amended;
1.7 “The Magistrates Court Act” means the Magistrates Court Act 32 of 1944, as amended;
1.8 “The National Credit Act” means the National Credit Act 34 of 2005, as amended;
1.9 "Website" means the Bidvest Foodservice247 online shopping website located at www.bfs247.co.za.
2 In these Standard Terms and Conditions, where any provision is qualified by the words “to the extent permitted by law” the Seller and the Purchaser agree that such provision shall only apply to the extent that the laws of the Republic of South Africa allow same to apply, on the basis that if the Seller is precluded from applying –
2.1 any portion of any provision then to the extent of such preclusion the provision shall not apply;
2.2 the full terms of any such provision then the terms of such provision which the Seller is precluded from applying shall not apply,
and be severed from these Standard Terms and Conditions and the remaining provisions hereof shall be of full force and effect.
3 The Purchaser wishes to purchase goods and be provided with services from the Seller and in consideration thereof the Purchaser hereby agrees to be bound by the terms and conditions set out herein in respect of the supply of such goods and services by the Seller.
4 These Standard Terms and Conditions shall apply to all contracts of sale of goods and/or supply of services by the Seller to the Purchaser and no terms or conditions appearing in any of the Purchaser's documents, including the Purchaser's buying order, which are at variance with these conditions shall be binding on the Seller unless specifically agreed to in writing by the Seller.
5 Should any Order be given to the Seller on an order form reflecting the Purchaser's name as the entity from which the Order emanates or electronically using the Purchaser's allocated username and password, such Order shall be deemed to have emanated from the Purchaser, notwithstanding the fact that such Order may have been given, submitted on the Website or signed by a person not authorised by the Purchaser and such Order will be deemed to constitute a valid Order.
6 The Seller reserves the right to refuse to accept and/or execute an Order without giving any reasons therefor. The Seller also reserves the right to cancel Orders in whole or in part in the Seller's sole and absolute discretion. The Seller shall only be liable to refund monies already paid by the Purchaser.
7 Should the Purchaser be entitled to purchase goods on credit from the Seller in terms of a credit application ("Credit Application") executed by the Purchaser and accepted by the Seller, then the Seller shall be authorised to debit the aggregate amount payable for the goods ordered against the Purchaser's account. The Seller shall be entitled to debit the Purchaser's account on acceptance of an Order prior to delivery.
8 Unless otherwise agreed in writing by the Seller and subject to clause 7above, payment shall be made by the Purchaser to the Seller without deduction or demand and free of all bank and exchange charges, set off and any other deduction of any nature whatever into the bank account ("the Nominated Bank Account") nominated in writing by the Seller. The Seller shall notify the Purchaser in writing of any changes to the Nominated Bank Account.
9 The Purchaser acknowledges that it is aware of fraudulent activities which are perpetrated whereby a change of banking details is advised on the Seller's letterhead or by other means. The Purchaser agrees that any payment made to any bank account other than the Nominated Bank Account shall not constitute a valid discharge of the Purchaser's obligation to make such payment. The Purchaser shall be obliged to notify the Seller of any receipt by it of a notification of change of banking details and shall only give effect thereto if same is confirmed telephonically and in writing by the Financial Director of the Seller. All loss suffered as a result of any amounts being paid by the Purchaser into any bank account other than the Nominated Bank Account due to any error on the part of the Purchaser or any of its employees or as a result of the Purchaser or its employees not complying with the aforegoing provisions of this clause or otherwise shall be borne solely by the Purchaser.
10 Should the Purchaser become subject to a Credit Event the whole balance outstanding by the Purchaser to the Seller will immediately become due and payable. Notwithstanding anything contained herein, in the event of the Seller granting credit terms to the Purchaser, the Seller reserves the right to withdraw such credit terms at its sole discretion if it believes that the Purchaser's financial position has deteriorated after the date that the credit terms were granted.
11 Should the Purchaser not make payment on or before the due date for payment for any goods purchased or services provided then the Purchaser shall be obliged to pay the Seller interest thereon at the Prime Rate plus 2% calculated from the due date until payment (both dates inclusive) which interest shall be calculated daily and compounded monthly in arrear on the last day of each month. The "Prime Rate" shall mean the rate publicly quoted by The Standard Bank of South Africa Limited, from time to time, as being its prime rate (expressed as a nominal annual compounded monthly in arrear rate), calculated on a 365 day a year factor, irrespective as to whether or not the year is a leap year and prima facie proven, in the event of there being a dispute in relation thereto, by a certificate signed by any manager of the aforesaid bank (whose appointment, qualification or authority need not be proven).
12 Delivery will be subject to the Seller’s delivery terms as specified on the Website.
13 To the extent permitted by law, the Seller shall incur no liability in respect of the non‑delivery or late delivery of any goods ordered or services required to be rendered by the Purchaser.
NOTE: This clause 13limits and excludes the rights and remedies of the Purchaser and places various risks, liabilities, obligations and legal responsibilities on the Purchaser.
14 Signature by the Purchaser or by any representative of the Purchaser of the Seller's delivery note shall be regarded as acceptance by the Purchaser that the goods reflected in such delivery note have been properly and completely delivered. Goods that are posted or are to be transported by a carrier according to the Purchaser's instructions shall be deemed to have been delivered to the Purchaser on receipt of the goods by the Post Office or Carrier, as the case may be.
NOTE: This clause 14limits and excludes the rights and remedies of the Purchaser and places various risks, liabilities, obligations and legal responsibilities on the Purchaser.
15 Risk in and to the goods shall pass to the Purchaser on delivery.
16 Notwithstanding the delivery of any goods to the Purchaser ownership thereof shall not pass until the Seller has received payment of the full purchase price. The Seller shall in its own discretion be entitled to take back possession of any of the goods which have not been paid for and in respect of which payment is overdue.
17 The Purchaser shall not permit or allow the goods or any portion thereof to become subject to any landlord’s lien or hypothec until the price payable therefor has been settled in full, on the basis that the Purchaser shall be obliged to inform the landlord of the premises at which the goods are stored from time to time (to the extent that such premises are not owned by the Purchaser), in writing, of the Seller's ownership of the goods and to provide the Seller on request with an acknowledgement of receipt from the aforesaid landlord of such notification.
18 Where the Seller does not transport the goods, the Seller accepts no liability for goods damaged or lost in transit.
NOTE: This clause 18limits and excludes the rights and remedies of the Purchaser and places various risks, liabilities, obligations and legal responsibilities on the Purchaser.
19 To the extent permitted by law, the Purchaser shall have no claim for short delivery unless the Purchaser has specified on the Seller's delivery note and/or invoice the quantity of the short delivery.
NOTE: This clause 19limits and excludes the rights and remedies of the Purchaser and places various risks, liabilities, obligations and legal responsibilities on the Purchaser.
20 To the extent permitted by law, the Seller shall be exempted from and shall not be liable under any circumstances whatsoever for any direct or indirect loss or damages of any nature (including without limitation consequential loss) or any loss of profit which the Purchaser may suffer as a result of any breach by the Seller of any of its obligations or arising out of the use of the goods, except where such loss is attributable to any negligence on the part of the Seller or its servants or agents.
NOTE: This clause 20limits and excludes the rights and remedies of the Purchaser and places various risks, liabilities, obligations and legal responsibilities on the Purchaser.
21 To the extent permitted by law, the Seller shall have no liability in respect of any claim –
21.1 based on defective goods where such defect arose directly or indirectly as a result of the Purchaser failing to comply with generally accepted storage conditions applicable for such product and/or the Seller's specific instructions for the storage of the goods, where applicable, or where such defect is directly attributable to the negligence of the Purchaser;
21.2 in respect of any defect in any perishable goods unless the Purchaser inspects such goods at the time of delivery thereof to the Purchaser and notifies the Seller in writing of any such defects forthwith on delivery;
21.3 in respect of any goods in circumstances where the outer packaging thereof has been altered or broken by the Purchaser; and/or
21.4 in respect of any goods (other than perishable goods) unless the Purchaser notifies the Seller thereof, in writing, within five days after delivery thereof to the Seller.
NOTE: Clause 21limits and excludes the Purchaser's rights and remedies.
22 To the extent permitted by law, the Purchaser hereby agrees to indemnify the Seller against all claims of whatsoever nature which may be made against the Seller by any third party arising out of the use of the goods sold by the Seller to the Purchaser and/or the services provided by the Seller to the Purchaser, unless such loss is attributable to the gross negligence of the Seller, its servants or agents.
NOTE: This clause 22limits and excludes the Purchaser’s rights and remedies and places various risks, liabilities, obligations and legal responsibilities on the Purchaser.
23 The Purchaser acknowledges that it is aware that the Seller is only a distributor of the goods and is not in any way involved in the manufacture of the goods. The Purchaser accordingly, to the extent permitted by law, hereby waives all claims of every nature whatever which it may have against the Seller in respect any loss of any nature whatever suffered by the Purchaser due to any of the goods being defective (including without limitation due to any defect in the goods, the goods constituting an unsafe product, there being any failure, defect or hazard in any of the goods or inadequate instructions or warnings being provided pertaining to any hazard arising from or associated with the use of the goods as envisaged in section 60 of the Consumer Protection Act, Act 68 of 2008, as amended).
NOTE: This clause 23limits and excludes the rights and remedies of the Purchaser and places various risks, liabilities, obligations and legal responsibilities on the Purchaser.
24 Notwithstanding the amount which may at any time be owing by the Purchaser to the Seller, the Purchaser does hereby consent to the extent permitted by law, in terms of Section 45 of the Magistrates Court Act (as amended), to the jurisdiction of the Magistrate's Court having jurisdiction for the determination of any action or proceeding otherwise beyond the jurisdiction of the said court which may be brought by the Seller against the Purchaser arising out of any transaction between the parties, it being recorded that the Seller shall be entitled, but not obliged, to bring any action or proceeding in the said court and that all costs incurred in any action against the Purchaser in any competent court including costs on an attorney/client scale and attorneys collection commission will be paid by the Purchaser. The Purchaser and the Seller agree that the laws of South Africa will govern any dispute between the parties.
25 Save as otherwise provided herein, should any dispute arise between the Seller and the Purchaser in connection with the formation or existence of, the implementation of, the interpretation or application of the provisions of, the parties’ respective rights and obligations in terms of or arising out of the conclusion, breach or termination of, the validity, enforceability, rectification, termination or cancellation, whether in whole of in part of and/or any documents furnished by the parties pursuant to the provisions of, these Standard Terms and Conditions or which relates in any way to any matter affecting the interests of the parties in terms of these Standard Terms and Conditions, such dispute shall, if required by the Seller and unless resolved amongst the parties, be referred to and be determined by arbitration in terms of the Rules of the Arbitration Foundation of Southern Africa (“AFSA”) and failing any such rules, shall be governed by the arbitration laws in force in the Republic of South Africa from time to time, on the basis that -
25.1 the Seller may demand that a dispute be determined in terms of this clause 25by written notice given to the Purchaser;
25.2 this clause 25shall not preclude any party from obtaining interim relief by way of motion proceedings on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator;
25.3 the parties hereby consent to the arbitration being dealt with in terms of the expedited Rules of arbitration of AFSA;
25.4 the arbitrator shall be, if the matter in dispute is principally -
25.4.1 a legal matter, a practising advocate or attorney or retired judge of Gauteng of at least fifteen years standing nominated by the Seller;
25.4.2 an accounting matter, a practising chartered accountant of Gauteng of at least fifteen years standing nominated by the Seller; or
25.4.3 any other matter, any independent person nominated by the Seller;
25.5 should the parties fail to agree whether the dispute is principally a legal, accounting or other matter within seven days after the arbitration is demanded, the matter shall be deemed to be a legal matter;
25.6 the arbitration shall take place in Gauteng or in such other place as is mutually agreed to by the parties, with only the parties and their representatives being present;
25.7 the arbitration shall be determined in accordance with the provisions of South African law and the parties submit to South African jurisdiction for the purpose of this arbitration;
25.8 the decision of the arbitrator shall be final and binding on the parties and may be made an order of the court referred to in clause 25.9at the instance of either of the parties;
25.9 the parties hereby consent to the non-exclusion jurisdiction of the South Gauteng High Court of South Africa, Johannesburg in respect of the proceedings referred to in clause 25.2 and/or clause 25.8;
25.10 the parties agree to keep the arbitration including the subject-matter of the arbitration and the evidence heard during the arbitration confidential and not to disclose it to anyone except for purposes of an order to be made in terms of clauses 25.2 and 25.8;
25.11 the provisions of this clause 25 -
25.11.1 constitute an irrevocable consent by the parties to any proceedings in terms hereof and no party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions; and
25.11.2 are severable from the rest of these Standard Terms and Conditions and shall remain in effect despite the termination of or invalidity for any reason of these Standard Terms and Conditions; and
25.12 the parties agree that the written demand by the Seller in terms of clause 25.1that the dispute be submitted to arbitration, is deemed to be a legal process for the purpose of interruption of extinctive prescription in terms of the Prescription Act, Act 68 of 1969, as amended.
26 The Purchaser hereby chooses as its Domicilium Citandi et Executandi for all purposes arising out of these Standard Terms and Conditions the address inserted by the Purchaser on the latest Credit Application form executed by the Purchaser in favour of the Seller, and failing any such address the Purchaser selects as its Domicilium Citandi et Executandi any address to which goods have been delivered to the Purchaser by the Seller.
27 Unless the context otherwise requires, the words importing the singular shall include the plural and vice versa, a natural person shall include an artificial person and vice versa and the one gender shall include the other gender and vice versa.
28 The Purchaser undertakes to notify the Seller, in writing, within seven days of any change in ownership of the Purchaser's business, or should the Purchaser be a company or close corporation, of any share transaction or change of members interest whereby the majority shareholding or members interest, as the case may be, of the Purchaser is affected, failing which notice the entire balance of all amounts owing by the Purchaser to the Seller, whether due or not, will immediately be deemed to be due and payable by the Purchaser. In addition to the aforegoing, the Purchaser acknowledges that immediately upon any change as aforesaid occurring any outstanding amount whether due or not shall be deemed to be forthwith payable by the Purchaser to the Seller.
29 Cession of Book Debts:
29.1 The Purchaser does hereby irrevocably and in rem suam cede and pledge, in securitatem debiti, unto and in favour of the Seller, all of its right, title, interest, claim and demand in and to all claims/debts/book debts of whatsoever nature and description and howsoever arising (collectively referred to as “the Debts”) which the Purchaser may now or at any time hereafter have against all and any persons, companies, corporations, firms, partnerships, associations, syndicates and other legal personae whomsoever (collectively referred to as "the Purchaser's debtors") without exception as a continuing covering security for the due payment of every sum of money which may now or at any time hereafter be or become owing by the Purchaser to the Seller from whatsoever cause or obligation howsoever arising which the Purchaser may be or become bound to perform in favour of the Seller.
29.2 Should it transpire that the Purchaser at any time entered into prior deeds of cession or pledge or otherwise encumbered any of the right, title and interest in and to any of the Debts which will from time to time be subject to this cession then this cession shall operate as a cession of all the Purchaser's reversionary rights in such Debts.
29.3 Notwithstanding the terms of the aforegoing cession the Purchaser is hereby authorised by the Seller, until such authorisation is revoked by the Seller by notice in writing to the Purchaser to institute action, in its own name, against any of the Purchaser’s Debtors provided that all sums of money which the Purchaser collects from the Purchaser’s Debtors shall be collected on the Seller's behalf and provided further that the Seller shall at any time be entitled to terminate the Purchaser's right to collect the Purchaser’s Debtors.
29.4 The Purchaser agrees that the Seller shall be entitled at any time or times hereafter to give notice of this cession to all or any of the Purchaser's debtors.
29.5 The Purchaser further agrees that the Seller shall, at any time, be entitled to inspect any of the Purchaser's books or records and in addition shall be entitled to take possession of such books and records (of whatsoever nature) to give effect to the terms of this cession.
29.6 Parate Executie
The purchaser acknowledges that -
29.6.1 the Debts ceded by the Purchaser to the Seller in terms hereof are securities which underlie a transaction of a commercial nature and that possession of these securities is vested in the Seller;
29.6.2 the exercise of the Seller’s rights in relation to the Debts, in the circumstances described herein, will confer on the Seller certain procedural advantages, which in the light of the commercial nature of the transaction secured hereby are fair, reasonable and necessary to ensure that the Seller does not suffer unfair commercial prejudice by being deprived of these procedural advantages;
29.6.3 if any court of competent jurisdiction to which the Seller may apply in terms hereof refuses to sanction the exercise of the Seller’s rights in relation to the Debts, or any of them in terms hereof, then the Seller shall nevertheless be entitled to realise the securities or any of them secured under and in terms hereof by judicial process, or to exercise such other rights as may be available to it at common law, and the refusal to sanction the exercise of the Seller’s rights in relation to the Debts shall not render the cession contained herein or any part of it invalid or unenforceable;
29.6.4 the Purchaser appoints each of the directors of the Seller irrevocably and in rem suam as its agent to apply for surrender, to realise or otherwise deal with the Debts in its absolute discretion in the event of the Purchaser’s failure to pay any amount which it may owe or in which it may be or become indebted to the Seller and to apply the proceeds of such surrender, realisation or other dealings to its aforesaid debt.
30 To the extent permitted by law the Purchaser hereby consents to the cession by the Seller of all or any of its rights in terms hereof to any third party without prior notice to the Purchaser.
31 Should the Purchaser at any time be subject to a Credit Event any goods delivered by the Seller to the Purchaser and in respect of which payment has not been made at the date of the Purchaser becoming subject to such Credit Event, (whether payment in respect thereof be due or not) shall immediately be returned to and recoverable by the Seller and the agreement pursuant to which such goods were sold shall be deemed to have been cancelled in respect of the goods so returnable/recoverable.
32 Save as otherwise provided herein the Purchaser shall not be entitled to return and/or refunds in respect of, any of the goods unless they are returned at the time delivery is made to the Purchaser.
33 The Seller does not appoint the Post Office as its agents for payments by post. Should any payments be mislaid or lost in the post, the Purchaser shall still be liable to the Seller for payment.
33.1 Records of Transactions
Purchases made on the Website are confirmed by a statement displayed online immediately after the Order is submitted and can be copied and pasted or printed. The record of any transaction can be accessed by viewing the Purchaser's Order status which record is available for a period of three months from the date of submission of the Order.
33.2 Alternative Dispute Resolution
All disputes regarding –
33.2.1 access to the Website; and/or
33.2.2 the inability to access the Website;
may be referred by the Seller to arbitration in accordance with the terms of clause 25.
34 Content of the Website
34.1 Whilst every effort is made to update the information provided on the Website on a regular basis, the Seller makes no representations or warranties, whether express, implied in law or residual, as to the accuracy, completeness and/or reliability of any information, data and/or content contained on the Website and/or which may, from time to time, be sent to the Purchaser pursuant to the Purchaser's registration of the “keep me informed” service offered via the Website (including but not limited to any information which may be provided by the various companies within the Seller's group of companies and/or their suppliers (collectively “Information”) and shall not be bound in any manner by any of the Information.
34.2 The Seller reserves the right at any time to change or discontinue without notice, any aspect or feature of the Website. No Information contained on the Website (and whether posted by the Seller or any of the companies within the Seller's group of companies and/or any of their suppliers) shall be construed as advice and same are offered for information purposes only.
35 Warranties, Disclaimers and Limitation of Liability
35.1 To the extent permitted by law, the Seller shall not be responsible for and disclaims all liability for any loss, liability, damage (whether direct, indirect, or consequential), personal injury or expense of any nature whatsoever which may be suffered by the Purchaser or any third party, as a result of or which may be attributable, directly or indirectly to –
35.1.1 access to and use of the Website;
35.1.2 access to and use of the services available from the Website;
35.1.3 access to websites linked to the Website;
35.1.4 the Purchaser's inability to access the Website or use the services available from the Website;
35.1.5 the Purchaser’s inability to access websites linked to the Website;
35.1.6 content available on the Website;
35.1.7 any failure and/or unavailability of the Website for any reason whatever and/or the failure/delay by any third party service provider to render any services which are necessary to ensure the availability and proper functioning of the Website;
35.1.8 the Purchaser's use of or reliance on any Information offered on or via the Website; and/or
35.1.9 any other reason not directly related to the Seller's gross negligence.
The Purchaser hereby indemnifies the Seller and waives any rights the Purchaser may have or may acquire against the Seller in respect of any loss, liability, damage (whether direct or consequential) or expense of any nature whatsoever, which may be suffered by the Purchaser and/or third party as a result of or which may be attributable directly or indirectly to any of the aforesaid.
35.2 The Website is supplied on an "as is" basis and has not been compiled or supplied to meet the Purchaser's individual requirements. It is the sole responsibility of the Purchaser to satisfy itself that the service available from and through the Website will meet the Purchaser's individual requirements and be compatible with the Purchaser's hardware and/or software.
35.3 The Seller makes no warranties, representations, statements or guarantees (whether express, implied in law or residual) regarding the Website and/or any of the Information contained on or referenced by the Website, including without limiting the generality of the aforegoing, the Seller does not warrant or represent that (i) the Website shall be available at all times, (ii) the content and technology available from the Website will be free from errors or omissions; or (iii) the service will be 100% uninterrupted and error free. Without limiting the generality of the aforegoing, the Seller gives no warranty of whatever nature regarding the accuracy or appropriateness in any jurisdiction of any Information provided on or referenced by the Website.
NOTE: THIS CLAUSE 35LIMITS AND EXCLUDES THE RIGHTS AND REMEDIES OF THE PURCHASER AND PLACES VARIOUS RISKS, LIABILITIES, OBLIGATIONS AND LEGAL RESPONSIBILITIES ON THE PURCHASER
36.1 The Seller is sensitive to the private nature of information the Purchaser provides to the Seller over the Internet. When the Purchaser uses the Website the Purchaser may be providing the Seller with the Purchaser's personally identifiable information. The personally identifiable information the Purchaser provides consists of limited personal data such as name, company details, address and e-mail address. The Seller does not knowingly collect personal information from children under the age of eighteen. In addition, the Seller's web servers may automatically collect web site usage information from the Purchaser when the Purchaser visits the Website. Website usage information informs the Seller about how its visitors and subscribers use and navigate the Website, including the number and frequency of users to each webpage, their IP address and the length of their stays.
36.2 The Seller may combine the personally identifiable information the Purchaser provides the Seller with other information about the Purchaser that is available to the Seller, including website usage information and information from other sources. The Seller may use this information to, inter alia, enable it to improve the Purchaser's experience on the Website, to improve and develop new products, features and services, to provide marketing with aggregate information about the Seller's user base and usage patterns, to allow the Seller to personalise the advertising users see based on their personal characteristics or preferences and for other purposes. The Seller may share such information with third parties to help it improve its content and for the purposes as aforesaid.
36.4 The personally identifiable information the Seller collects about the Purchaser is stored in limited access servers. The Seller maintains safeguards to protect the security, integrity, and privacy of these servers and of the Purchaser's personally identifiable information.
36.5 The Seller may review and update the personally identifiable information the Purchaser provides to the Seller as part of the registration process by accessing the Purchaser's registration information.
36.7 Access to Website
The Purchaser agrees and warrants to the Seller that the Purchaser's log-in username and password provided to it by the Seller to enable the Purchaser to access the Website shall be used for the Purchaser's personal use only and shall not be disclosed to any third party. The Purchaser agrees that it is the Purchaser's responsibility to ensure that its username and password are kept confidential at all times.
36.8 Pricing Policy
The Purchaser will be charged the prices as they are reflected on the Website, subject to availability.
36.9 Security of Personal Information
36.9.1 All reasonable steps will be taken to secure the Purchaser's personal information and to secure the content of the Website. The Seller does not warrant however that the content hereof will be completely secure.
36.9.2 It is expressly prohibited for any person, business, or entity to gain or attempt to gain unauthorised access to any page on the Website, or to deliver or to attempt to deliver any unauthorised, damaging or malicious code to the Website. Any person who delivers or attempts to deliver any unauthorised, damaging or malicious code to the Website or attempts to gain unauthorised access to any page on the Website shall be held liable for all damage and loss suffered by the Seller as a result thereof.
36.9.3 The Seller is under no legal duty to encrypt any content or communications from and to the Website and is also under no legal duty to provide digital authentication of any page of the Website.
NOTE: This clause 36.9limits and excludes the rights and remedies of the Purchaser and places various risks, liabilities, obligations and legal responsibilities on the Purchaser.
36.10.1 In terms of section 21 of the ECT Act, no information or data on the Website is an offer, but merely an invitation to do business. No agreements shall be concluded merely by sending a data message to the Website or its owners. Valid agreements require an acknowledgement of receipt from the Website.
36.10.2 The Purchaser has the right to review, correct and cancel electronic transactions before the Purchaser effects payment and/or places an Order.
36.10.3 By using the Website or communicating with the Seller by electronic means, the Purchaser consents and acknowledges that any and all agreements, notices, disclosures, or any other communication satisfies any legal requirement, including but not limited to the requirement that such communications should be "in writing".
36.10.4 All credit purchases made by the Purchaser on the Website shall be subject to the Credit Application.
36.10.5 The Seller reserves the right to –
184.108.40.206 refuse to accept and/or execute an Order without giving any reasons therefor; and/or
220.127.116.11 cancel Orders in whole or in part in the Seller's sole and absolute discretion.
36.10.6 Placing an item in a shopping basket or adding it to a wish list without completing the purchase cycle shall not -
18.104.22.168 constitute or give rise to any agreement between the Seller and the Purchaser cannot hold the Seller liable if such items are not available when the purchase cycle is completed later; and/or
22.214.171.124 constitute an Order for such an item.
36.10.7 The Seller may remove any service rendered and/or products offered from the shopping basket at its sole discretion if no stock is available. All merchandise displayed on the Website are subject to availability.
36.10.8 An agreement of sale only comes into effect if and when –
126.96.36.199 the Purchaser electronically submits a properly completed Order for products on the Website;
188.8.131.52 the Purchaser's account with the Seller is debited, or payment is either authorised, or received by the Seller in its bank account; and
184.108.40.206 an acknowledgement of the transactions concluded has been sent to the Purchaser.
36.10.9 All purchases made using the Purchaser's account with the Seller shall be subject to the terms and conditions set out in the Credit Application and other documents executed by the Purchaser in respect of the Purchaser's account. Should there be a conflict between any such terms and conditions and these Standard Terms and Conditions then, in so far as Orders for goods or services placed electronically are concerned, these Standard Terms and Conditions shall prevail.
37 Copyright and Intellectual Property Rights
37.1 Copyright and all intellectual property rights in all materials, domain names, content, software, graphics, icons, hyperlinks, designs, texts, drawings and data made available on the Website (collectively “Materials”) are owned by the Seller alternatively, the Seller is the lawful user thereof and is protected by both South African and international intellectual property laws. Accordingly, any unauthorized copying, reproduction, retransmission, distribution, dissemination, sale, publication, broadcast or other circulation or exploitation of the Materials or any component thereof will constitute an infringement of such copyright and other intellectual property rights. the Purchaser may, however, use the Materials or any component thereof for internal business purposes.
37.2 The trademarks, names, logos and service marks (collectively “Trademarks”) displayed on the Website are registered and unregistered trademarks of the Seller, the other members of the Bidvest group of companies or of the Seller's suppliers. Nothing contained on the Website should be construed as granting any licence or right to use any Trademarks without the prior written consent of the Seller.
38 External links
38.1 External links may be provided for the Purchaser's convenience but they are beyond the control of the Seller and no representation is made as to their content. Use or reliance on any external links provided is at the Purchaser's own risk. When visiting external links the Purchaser must refer to that external website’s terms and conditions of use.
38.2 No hypertext links shall be created from any website controlled by the Purchaser or otherwise to the Website without the express prior written permission of the Seller.
38.3 Links To Third Party Sites
38.3.1 The Seller may provide links to the Purchaser only as a convenience and the inclusion of any link does not imply the Seller's endorsement of such sites or an agreement with such site.
38.3.2 Linked websites or pages are not subject to the control of the Seller. The Seller shall not be held responsible or liable, directly or indirectly, in any way for the contents, use, or inability to use or access any linked websites or any links contained in a linked website.
38.4 Linking And Framing
38.4.1 Any third party site may link to the Website provided that such a link is directed at the homepage of the Website. It is expressly prohibited for any person, business, entity or website to link to any page other than the home page of the Website, without the prior written approval of the Seller.
38.4.2 It is expressly prohibited for any person, business, entity, or website to frame any page on the Website, including the home page, in any way whatsoever, without the prior written approval of the Seller.
38.5 Changes and Amendments
38.5.1 The Seller expressly reserves the right, in its sole and absolute discretion, to do any of the following at any time without prior notice to the Purchaser -
220.127.116.11 change these Standard Terms and Conditions;
18.104.22.168 change the contents and/or services available from the Website;
22.214.171.124 discontinue any aspect of the Website or any services available from it.
38.5.2 The Seller reserves the right to change and amend the prices and rates quoted on the Website without any notice.
38.5.3 The Purchaser undertakes to check the Website frequently and to acquaint itself with the changes and/or amendments in the information supplied on the Website.
39.1 The Seller has the Purchaser's consent at all times to contact and request information from any persons, credit bureaus or businesses and to obtain any information relevant to the Purchaser's credit assessment including, but not limited to, information regarding the amounts purchased from supplier's per month, length of time the Purchaser has dealt with such supplier, type of goods or services purchased and manner and time of payment.
39.2 The Purchaser agrees that information given in confidence to the Seller by a third party in respect of the Purchaser will not be disclosed to the Purchaser.
39.3 The Purchaser hereby consents to and authorises the Seller at all times to furnish personal and credit information concerning the Purchaser's dealings with the Seller to a credit bureau and to any third party seeking a trade reference regarding the Purchaser in its dealings with the Seller.
39.4 The Seller reserves its rights to request further information from time to time as may be required to assess and re-assess the Purchaser's financial position.
39.5 The Purchaser acknowledges that the Seller has advised the Purchaser that various suppliers (collectively “the suppliers”) may, from time to time, be granted access to the Website and be able to get information regarding, inter alia, the quantity/volume of different products ordered per channel. The Purchaser consents to the Seller making all such information available to the suppliers.
39.6 The Purchaser shall have no claim against the Seller if any of such information is inaccurate in any respect. The Purchaser acknowledges that the suppliers shall be entitled, from time to time, to access the Website and update the information regarding products available via the website, to add pictures, details of the halal status, allergens etc in various products.
39.7 The Purchaser hereby waives any claims it may have against the Seller as a result of any of the information contained on the Website, which is provided and/or loaded thereon by any of the suppliers being incorrect in any respect.
NOTE: This clause 39limits and excludes the rights and remedies of the Purchaser and places various risks, liabilities, obligations and legal responsibilities on the Purchaser.
40 ADDRESS FOR SERVICE
40.1 The address for service of the Seller for all purposes relating to these terms including the giving of any notice, the payment of any sum, the serving of any process, is –
60 Saturn Crescent
Linbro Office Park
Telephone: +27 (11) 553-9600
Fax: +27 (11) 553-9642
40.2 The Seller shall be entitled from time to time, by giving notice to the Purchaser to vary its physical address for service to any other physical address within the Republic of South Africa, and to vary its facsimile address for service to any other facsimile number.
41.1 These Standard Terms and Conditions constitute the sole record of the agreement between the Purchaser and the Seller in relation to the subject matter hereof. Neither the Purchaser nor the Seller shall be bound by any express tacit or implied representation, warranty, promise or the like not recorded herein. No addition to, variation or agreed cancellation of any provision of these Standard Terms and Conditions shall be binding upon either the Purchaser and the Seller unless agreed to in writing by the Seller. No indulgence or extension of time which either the Purchaser or the Seller may grant to the other will constitute a waiver of or, whether by estoppel or otherwise, limit any of the existing or future rights of the grantor in terms hereof, save in the event or to the extent that the grantor has signed a written document expressly waiving or limiting such rights.
41.2 The Seller shall be entitled to cede, assign and delegate all or any of its rights and obligations in terms of these Standard Terms and Conditions to any third party.
41.3 All provisions of these Standard Terms and Conditions are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision of these Standard Terms and Conditions which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions of these Standard Terms and Conditions shall remain in full force and effect.
41.4 Should the Seller be prevented from fulfilling any of its obligations to the Purchaser as a result of any event of force majeure, then those obligations shall be deemed to have been suspended to the extent that and for as long as the Seller is so prevented from fulfilling them and the Purchaser’s corresponding obligations shall be suspended to the corresponding extent. In the event that force majeure continues for more than thirty days after it has first occurred then the Seller shall be entitled (but not obliged) to terminate all of its obligations in terms of or arising out of these Standard Terms and Conditions by giving notice to the Purchaser. An “event of force majeure” shall mean any event or circumstance whatsoever which is not within the reasonable control of the affected party including, without limitation, vis major, casus fortuitous, any act of God, strike, theft, riots, explosion, insurrection or other similar disorder, war (whether declared or not) or military operations, the downtime of any telecommunications line and/or unavailability of any telecommunications facilities, power failure, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority, any court order, export control or shortage of transport facilities.
41.5 These Standard Terms and Conditions shall be governed by and construed in accordance with the laws of the Republic of South Africa without giving effect to any principles of conflict of law.
41.6 Notwithstanding anything to the contrary contained in these Standard Terms and Conditions –
41.6.1 these Standard Terms and Conditions only apply to Orders placed electronically by the Purchaser on the Website;
41.6.2 all other Orders placed by the Purchaser on the Seller, which are placed other than via the Website, will not be governed by the Standard Terms and Conditions but by the Standard Terms and Conditions of the Seller in respect thereof.
42 ELECTRONIC TRANSACTIONS
To the extent permitted by law, the following additional terms and conditions contained in this clause 42shall apply to all Orders submitted electronically via the auspices of the Website.
Access to and use of the Website may be classified as "electronic transactions" in terms of the ECT Act. To the extent that the ECT Act applies to any electronic transaction between the Seller and the Purchaser, the Purchaser will have the rights detailed in Chapter 7 of the ECT Act and the following information is disclosed in terms of section 43 of the ECT Act –
Full name and legal status of the Seller
Refer to clause 1.4
Registered address of the Seller
Bidvest House, 18 Crescent Drive, Melrose Arch, Melrose, 2196
Physical address for receipt of legal service of the Seller
Telephone number of the Seller
Refer to clause 40.1.2
Website address of the Seller
email address of the Seller
Membership by the Seller of any self- regulatory or accreditation bodies
The Seller is a member of the Consumer Goods Council - Food Safety Initiative (FSI).
The Seller deals with CMI, a certification body for conducting of independent third party distribution and storage standards aligned to voluntary standards such as BRC (British Retail Consortium).
The Seller's manufacturing is certified by the SABS to voluntary standards for food safety, HACCP and ISO 22000.
Codes of conduct to which the Website subscribes
Registration number of the Seller
Names of directors of the Seller
EA Hasrod, LI Jacobs, GC McMahon, BM Varcoe, A Bischoff, S Marie, R Licht and K Havenga
Place of registration of the Seller
Republic of South Africa
Main business of the Seller
The main function of the Website is to provide information about the Supplier and its retail services. In addition it provides a facility for account holders of the Seller to purchase goods and/or services via the Website.
Full price of the goods or services, including transport costs, taxes and any other fees or costs
The full price of the goods or services shall be viewed at the time of placing the order as the pricing is "live".
The manner of payment
Refer to clause 8
Any terms of agreement, including any guarantees, that will apply to the transaction and how those terms may be accessed, stored and reproduced electronically by consumers
Any terms of the agreement, including any guarantees, that will apply to this transaction may be obtained by contacting the branch of the Seller that the Purchaser's account is registered with.
The time within which the goods will be dispatched or delivered or with in which the services will be rendered
Refer to clause 12
The manner and period within which consumers can access and maintain a full record of the transaction
Refer to clauses 25and 33.1
The return, exchange and refund policy of the Seller
Refer clause 32.
Any alternative dispute resolution code to which the Supplier subscribes and how the wording of that code may be accessed electronically by the consumer
Refer to clause 33.2
Currently no payment information will be handled by the Seller on the Website.
The cooling‑off provisions detailed in section 44 of the ECT Act may apply to the goods and/or services available on the Website. Refer to clause 42.2of these Terms and Conditions
42.2 Cooling-off Period
To the extent that the ECT Act applies to any electronic transaction between the Seller and the Purchaser, the Purchaser has the right in terms of section 44 of the ECT Act to return goods purchased from the Website within seven days if such goods are not listed in section 42 of the ECT Act ("the cooling-off right"). Should the Purchaser wish to make use of the cooling-off right in respect of goods purchased, then the Purchaser shall be liable to arrange for the return of the goods to the Seller's premises at the Purchaser's costs. The Purchaser will not be entitled to a refund of the delivery charges should the Purchaser exercise the cooling-off right.