Terms and Conditions

Terms and Conditions applicable for confirmation of quotation/Invoice

A.Conditions precedent on confirmation of quotation

1. Upfront payment if required for general sales.

2. Minimum 80% Deposit required on acceptance of quotation, and the balance of the payment once allthe goods have been procured for project-based sales only. All goods to be fully paid before de

3. Signed copy of Quotation.

4. Delivery/Collection will only be done once payment reflects in Xquisite Bathrooms Pty Ltd bank account.

5. Quotes confirmed will be accepted within 7 days of expiry of quotation date or if otherwise agreed upon.

B. Conditions post acceptance of the Quote.

1. Goods are mandated to be delivered/collected within 2 months of acceptance of quote unless certain. Items required have extended ETA dates.

2. Please note that a storage charge is applicable for all goods kept in storage on behalf of client exceeding 1 month.

3. A single delivery at no charge will be allowed and there after delivery charges will be applicable forstaggered deliveries. (Delivery charges are calculated at AA rates.)

NB: Minimum volumes per delivery are applicable.

C. Conditions applicable to delivery to site

1. A minimum of 7 working days notification for deliveries must be arranged.

2. Please note that due to traffic conditions and unforeseen circumstances delivery times are notguaranteed.

3. Deliveries are scheduled Monday – Friday only between 09h00 – 15h00.

4. A designated person should be allocated to receive delivery on site and relevant contact details ofthe said person should be shared.

5. Access codes to sites with security control must be arranged and communicated prior to delivery.

6. Deliveries will be made to one location/site. Items will only be offloaded on the ground level at site.

7. It is the client’s onus to ensure that there is sufficient assistance to offload Items from deliveryvehicle and packed in a convenient designated storage area, as per point number 6.

8. Each Item must be checked and signed for individually.

9. Responsibility of the goods is passed on to the client once received and signed for.

10. Client shall have no claim whatsoever against the company in respect of any loss or damage of aconsequential nature which may be sustained by the customer as a result of any defect in the goodssupplied or as a result of late delivery, notwithstanding that such loss or damage may have beenoccasioned by the negligent act or omission of the Company or its agent or employees.

11. All fragile goods must be checked by designated person and signed for as “Checked –confirmed nodamages”.

12. All sanitaryware must be opened and checked for damages and fittings that are included forinstallation.

13. Concealed cisterns – All fittings included for installation must be checked and signed for.

14. Note all warranties/guaranties are as per manufactures/distributors and not by Xquisite Bathrooms Pty Ltd. Xquisite Bathrooms (Pty) Ltd are wholesalers / retailers, not manufacturers of goods. Xquisite Bathrooms (Pty) Ltd will not be held liable for incorrect installation or if installation is carried out by non-qualified artisans.

15. Notification of cancellation of delivery should be communicated within two working days prior to arranged delivery date.

16. Ab initio, upon signature of acceptance of goods, there will be no recourse for damages or shortages.

17. Installation, maintenance, and cleaning information is available on request.

D. Conditions for returns

1. Any goods that are returned on a pre-arranged delivery must not be signed for and the driver will accept such goods only on instruction from the relevant salesperson handling the sale.

2. Only goods in its original sealed undamaged packaging with no markings will be accepted for returns.

3. All special-order items cannot be returned or refunded.

4. Certain standard stock items will carry a handling fee when returned.

5. Refunds will only be paid according to the method of original payment. P.S.: EFT Refunds will only be processed upon receipt of a bank letter confirming banking details.

E. Conditions for collection of goods

1. All goods must be checked and signed for individually.

2. Ab initio, upon signature of acceptance of goods, there will be no recourse for damages or shortages.

3. Xquisite Bathrooms (Pty) Ltd cannot be held liable for goods damaged after collection and in transit to site.

4. 48- hour pre- arrangement should be communicated for all collections.

5. Xquisite Bathrooms (Pty) Ltd staff will assist in loading the collection vehicle but will not be responsible for securing of such goods.

F. Conditions for tiles

1. Any access tiles purchased cannot be returned for credit.

2. Colour variations are expected on the supply of tiles from different manufacturing batches. Xquisite Bathrooms (Pty) Ltd will not entertain claims once tiles have been laid. Variations in shades, size or surface, may occur. It is the responsibility of the client to ensure satisfaction of the tile quality as no responsibility for removal or replacement of tiles will be entertained once laid.

3. Cement and Grout – cannot be returned once purchased. If the owner/contractor is supplying tile cement, Xquisite Bathroom will recommend quality of tile cement to be used depending on the type of tile purchased and will not be held liable of any installation defects.

4. It is the onus of the client and site manager to ensure that cement and tile grout are stored in a dry and secure place.

5. All measurements are to be calculated by the client’s architect, designer, or contractor; Xquisite Bathrooms (Pty) Ltd will not be held liable for any shortfall in calculation.

1. TERMS AND CONDITIONS OF SALE

2. INTRODUCTION

a. All sales of goods will be subject to the Terms and Conditions contained herein.

b. Signature of the credit application to which the Terms and Conditions of Sale are attached means acceptance of the terms and conditions of sale.

c. The customer confirms that he has read and understands the Terms and Conditions of Sale as set out in this document.

3. DEFINITIONS

4. In these Terms, the following words shall, unless otherwise stated or inconsistent with the context in which they appear,
bear the following meanings and other words derived from the same origins of such word (that is, cognate words), shall bear corresponding meanings:

a. “Annexes” means an annexure to this Contract which shall be deemed to be incorporated in and to form an integral part thereof.

b. “Application” means the Credit Application to which these terms and conditions are attached.

c. “Business Day” means any day, which is not a Saturday, Sunday, a public holiday, a religious holiday, provided that no day during the period 15 December to 15 January shall be regarded as a business day.

d. “Contract” means this agreement between supplier and the Customer on these Terms.

e. “Customer” means the Customer set out in the Application to which these terms are attached.

f. “Deed of Suretyship” means the Deed of Suretyship attached hereto as annexure “B”.

g. “Supplier” means: Xquisite Bathrooms (Pty) Ltd (Registration Number; 2022/6493538/07)

h. “Party” means a party to this agreement and “Parties” has a corresponding meaning. Any reference thereto includes a natural person, company, close corporation or other juristic person or corporate entity, charity, partnership, trust, joint venture, syndicate or other association of persons or entities.

i. “Prime Rate” means the publicly quoted prime overdraft rate of supplier’s primary banker from time to time, nominal annual compounded annually, as evidenced by a certificate of any branch manager or senior manager of that bank, whose appointment and designation it will not be necessary to prove and whose determination of the Prime Rate will constitute proof thereof until the contrary is established.

j. Products/Goods” means all products/goods sold from time to time by supplier.

k. Services” means all services rendered from time to time by supplier.

l. “South Africa” means the Republic of South Africa.

m. “the / these Terms” means these general terms of business.

5. CONSTRUCTION

a. References to a statutory provision include any subordinate legislation made from time to time under that provision and include that provision as modified or re-enacted from time to time.

b. Words importing the masculine gender include the feminine and neuter genders and vice versa; the singular includes the plural and vice versa; and natural persons include ratification persons and vice versa.

c. If a definition imposes substantive rights and obligations on a Party, such rights and obligations shall be given effect to and shall be enforceable, notwithstanding that they are contained in a definition.

d. Where any word is defined within the context of any particular clause in this Contract, that word, unless it is clear from the clause in question that that word has limited application only to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Contract, notwithstanding that that word has not been defined in clause 2.
e. Words defined in this Contract shall bear the same meanings in the Annexes unless the Annexes contain their own definitions of such words.

f. Except where otherwise provided in a particular clause of this Contract, where any number of days is prescribed, those days shall exclude the first day and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which event the last day shall be the next succeeding Business Day.

g. Any provision in this Contract, which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be treated has having not been written (i.e., pro non script) and severed from the balance of this Contract, without invalidating the remaining provisions of this Contract.

h. The rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (ie the eiusdem generis rule) shall not apply, and whenever the word “including” is used followed by specific examples, such examples shall not be interpreted so as to limit the meaning of any word or term to the same genus or class as the examples given.

6. CUSTOMER ORDER CONDITIONS AND PRICE

a. Specifications and price list contained in brochures, pamphlets, advertisements, made verbally by employees, are for information only and do not constitute offers to sale.

b. A quotation issued by a duly authorised representative of the supplier to the customer, will constitute an order once accepted in writing by the customer and the Supplier has generated it is official in respect of such quotation/order.

c. No order submitted by a customer shall be deemed to have been accepted by the supplier unless.

d. The customer’s official order form duly signed by its authorised representative has been received by the supplier.

e. The supplier has generated its official invoice in respect of the order received.

f. Orders will be executed at the prices and the terms of payment thereof as indicated in the supplier’s invoices.

g. All amounts due shall be paid in full in accordance with the terms of payment as set out in its official invoice referred to in 4.5 above without any deduction or withholding. The customer shall not be entitled to assert or claim any set off or counterclaim against the supplier to justify withholding payment of any such amount, in whole or in part.

7. DELIVERY AND RISK

a. The product/goods shall be delivered at the location and on the date and time as specified in the customer’s order and/or supplier’s invoice.

b. The risk in the products shall pass to the customer upon acceptance of the delivery. The customer is deemed to have accepted delivery on the earliest of the following circumstances.
i. When the customer expressly or implicitly communicates to the supplier that it has accepted the delivery.
ii. When the goods have been delivered to the customer; and
iii. The customer does anything in relation to the goods that would be inconsistent with the supplier’s ownership of them.
iv. After the lapse of a reasonable time, the customer retains the goods without communicating to the supplier that it has rejected delivery of the goods.

c. When the supplier tender’s delivery to the customer of any goods, the supplier on request must allow the customer a reasonable opportunity to examine the goods for purposes of ascertaining whether the customer is satisfied with the goods are of a type and quality as ordered.

d. If the supplier tenders delivery of the goods at a location or on a date and at a time other than as specified in the suppliers’ invoice, the customer may either.
i. Accept delivery at that location, date, and time.
ii. Cancel the agreement without penalty, treating the goods as unsolicited goods.

e. If the supplier delivers to the customer a larger quantity of goods than that as specified in the supplier’s invoice, the customer may either:
i. reject all of the delivered goods.
ii. accept delivery of the goods and.
iii. pay for the agreed quantity at the agreed rate,
iv. treat the excess goods as unsolicited goods.

f. If the supplier delivers to the customer some of the goods described in the invoice mixed with goods of a different description not identified in the invoice the customer may.
i. Accept delivery of the goods that are described in the invoice and reject the rest.
ii. Reject all of the delivered goods.

8. CUSTOMER’S RIGHT TO RETURN GOODS

a. The customer shall be entitled to return goods and receive a full refund of any amount paid for those goods, if the supplier has delivered:
i. The goods that the customer did not have an opportunity to examine before delivery and the customer rejects the delivery of those goods for the reasons as set out in 5.3 above.
ii. A mixture of goods and the customer has refused delivery of any of those goods for reasons set out in 5.6 above.

b. The customer may not return goods and will not receive a refund of any amount paid for the goods which goods have been partially or entirely dissembled, physically altered, permanently installed, affixed, attached, joined or added to, branded or combined with or embedded within other goods or property.

c. Goods returnable in terms of 6.1.1 must be returned by the customer at its risk and expense within ten (10) days after the delivery of the goods to the customer.

d. Goods returnable in terms of 6.1.2 above must be returned by the customer at the supplier’s risk and expense within ten (10) days after the delivery of the goods to the customer.

e. Upon return of the goods, the supplier shall refund to the customer the price paid for the goods.

f. If the goods are returned to the supplier are:
i. in the original unopened packaging, the seller may not charge the customer any amount in respect of the goods; and
ii. in the original condition or repackaged in their original packaging, the supplier will be entitled to charge the customer a handling fee of 20%.

g. Within 6 months after the delivery of the products, the customer may return the goods to the Supplier, at the Supplier’s risk and expense, if the goods:
i. are not reasonably suited for the purposes for which they are generally intended; and
ii. are not usable and nor durable for a reasonable period of time having regard to the use to which goods would normally be put and to all the surrounding circumstances of their supply.
iii. do not comply with any applicable standards set under the Standards Ac,1993 (Act 29 of
1993).

h. If the Supplier repairs any particular goods or any component of any such goods and within three months after that repair, the failure, defect or unsafe feature has not been remedied, or a further defect, failure or unsafe feature is discovered, the supplier must:

i. replace such goods; or
ii. refund to the customer the price paid by the customer for the goods.
i. The Supplier warrants every new or reconditioned part installed during any repair or maintenance work and the labour required to install it for a period of three months from the date of installation or such longer period as the supplier may specify in writing.

j. A warranty in terms of Clause 6.9 above:
i. is concurrent with any other deemed, implied, or express warranty.
ii. is void if the customer has subjected the part, or the goods or the property in which it was installed, to misuse or abuse.
iii. does not apply to ordinary wear and tear, having regard to the circumstances in which the goods are intended to be ordinarily used.

9. COMPLAINTS AND RETURNS PROCEDURE

a. In the case of a complaint concerning the delivery or quality of the Products or a query concerning an invoice, the Customer must, in the first instance, telephone Suppliers Customer Service team in an effort to resolve the issue. Failing the issue having been resolved, complaints regarding deliveries must be sent in writing to Suppliers Customer Service team within 7 days of delivery or, in the case of loss or invoice query, within 7 days of receipt of invoice.

b. In case of a delivery discrepancy, the invoice / delivery note must be endorsed by the Customer, at the time of delivery, clearly stating the nature of the discrepancy. This endorsement must be counter-signed by the Customer and the delivery company’s /Supplier’s driver as confirmation of the discrepancy. A copy of the invoice / delivery note must be immediately faxed to the Supplier Customer Service Team.

c. Products may only returned with Suppliers’ prior written consent. Suppliers, drivers, or delivery carriers are not authorised to collect products for return without written approval of Supplier evidenced by a returns approval voucher.

10. OWNERSHIP OF GOODS

11.The goods shall only be passed to the customer upon payment of the full purchase price. Risk relating to all goods supplied to the customer will pass to the customer on delivery of the goods to it or its agent.

12. BREACH

13. Should the Customer:

a. fail to pay any amount on the due date of payment; and / or

b. commit a breach of any of these terms or conditions; and / or

c. be placed under a provisional or final order of sequestration, liquidation or judicial management, or compromise or attempt to do so with its creditors; and / or commit any act of insolvency; and/or

d. allow a judgment to be entered against it and thereafter fail to satisfy that judgment within 7 days; and/or

e. commit any breach of these terms and conditions by virtue of any misrepresentation whether oral or in writing in connection with this agreement or its financial affairs or any particulars thereto.

14. then SUPPLIER shall, without prejudice to any rights then accrued under the Contract and to any other rights or remedies which Suppliers may have in terms of the Contract or otherwise in law, be entitled, within Suppliers absolute discretion:

15. to suspend the credit facility in terms of the Contract until such breach is rectified and / or payment of all amounts payable hereunder has been made and / or is secured to the satisfaction of Supplier; and/or.

16. to cancel the Contract with immediate effect and claim immediate payment of all amounts payable by the Customer irrespective of whether such amounts are due for payment at that stage and any and all expenses and costs, including costs as between attorney and his own client, which Supplier may have incurred against the Customer in enforcing its rights in terms of this Contract.

17. CERTIFICATE OF INDEBTEDNESS

18. A certificate under the signature of any director or manager of Supplier (who is appointed as such need not be proved) shall be, in the absence of manifest error, prima facie proof of the amount due and payable by the Customer to Supplier or by Supplier to the Customer.

19. FORCE MAJEURE

20. Supplier is not liable for delays in performance (including delivery or service) caused by circumstances beyond its reasonable control including the following: strikes, terrorist acts, war, supplier / transport / production problems, exchange fluctuations, governmental or regulatory action and natural disasters. If this lasts more than 3 months, this Contract may be unilaterally terminated by either party without compensation.

21. CONFIDENTIALITY

a.Each party must treat all information herein contained including annexes hereto as confidential between the parties.

b.The customer consents to the supplier carrying out a credit enquiry in respect of the customer and the customer understands that the information given in this credit application form to which this document is attached is to be used by the supplier for purposes of accessing the customer’s credit worthiness.

22. GENERAL

a. This agreement constitutes the sole record of the agreement between the parties in relation to the subject matter hereof. Neither party shall be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded herein. This agreement supersedes and replaces all prior commitments, undertakings, or representations, whether oral or written, between the parties in respect of the subject matter hereof.

b. No addition to, variation, novation or agreed cancellation of any provision of this agreement shall be binding upon the parties unless reduced to writing and signed by or on behalf of the parties.

c. No waiver of any of the terms and conditions of this Agreement will be binding or effectual for any purpose unless expressed in writing and signed by the Party giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either Party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

d. Each of the Parties hereby acknowledges and agrees that it has been free to secure independent legal, tax, accounting, financial and/ or other advice as to the nature and effect of all of the provisions of this Agreement, and has either taken such legal, tax, accounting, financial and/or other advice, or waived and/or dispensed with the necessity of doing so. Each of the Parties acknowledges and agrees that all of the provisions of this Agreement and the restrictions herein contained are fair and reasonable in all of the circumstances and are part of the overall intention of the parties in connection with this Agreement.

e. Should any of the terms and conditions of this Agreement be held to be invalid, unlawful, or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable. If any term or condition held to be invalid is capable of amendment to render it valid, the Parties will negotiate an amendment to remove the invalidity.

f. No indulgence or extension of time which either party may grant to the other shall 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 and to the extent that the grantor has signed a written document expressly waiving or limiting such right.

g. Unless the context clearly indicates to the contrary herein all payments made in terms of this agreement shall be deemed to be inclusive of value added tax, as defined above.

h. Without prejudice to any other provision of this agreement, any successor-in-tile, including any executor, heir, liquidator, judicial manager, curator, or trustee, of either party shall be bound by this agreement.

i. The signature by either party of a counterpart of this agreement shall be as effective as if that party had signed the same document as the other party.

23. JURISDICTION

24. The customer consents to the jurisdiction of the Magistrates Court in respect of any proceedings that may be brought against it by the supplier irrespective of the value of the claim.

25. ARBITRATION

a. Introduction

26. This clause is a separate, divisible Contract from the rest of this Contract and shall:
i. not be or become void, voidable, or unenforceable by reason only of any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority or other cause relating in substance to the rest of the Contract and not to this clause. The Parties intend that any such issue shall be subject to arbitration in terms of this clause.
ii. remain in effect even if the Contract terminates or is cancelled.

b. Disputes subject to arbitration –
i. any dispute arising out of or in connection with this Contract, or the subject matter of this Contract, including, without limitation, any dispute concerning:
ii. the existence of the Contract apart from this clause.
iii. the interpretation and effect of the Contract.
iv. the Parties’ respective rights or obligations under the Contract.
v. the rectification of the Contract.
vi. the breach, termination or cancellation of the Contract or any matter arising out of the breach, termination, or cancellation.
vii. damages in delict, compensation for unjust enrichment or any other claim, whether or not the rest of the Contract apart from this clause is valid and enforceable.

27. a claim for any amount due, owing, and payable under and in