The commercial terms of any transaction with Swipewire Pty Ltd (t/a Malvilox) may be contained in Specific Terms that will incorporate (include) these General Terms.

These Terms form an agreement between you and us.

By buying any product from us, you accept and agree to these Terms. These Terms also cover any transactions (including any transaction carried out electronically using a computer or network, or in person) where you receive Goods or services from us.

The commercial terms of any transaction between you and us will be contained in the specific document we give you and that document will incorporate (include) these Terms. This means that these general terms and any other document we give you must be read together. These terms will prevail if there is a conflict of meaning and we will update it regularly on our website. Nothing in these Terms obligates either party to enter into any orders or to accept any quotations or tenders.

You undertake to notify us forthwith in writing of any change of address.

In this agreement, unless the context otherwise requires, the words importing the singular shall include the plural and vice versa.

Purchase Price Purchase consideration that you will pay us for the Goods.

Working Days All days excluding Saturdays, Sundays and public holidays.

The Purchase Price is as set out in the latest price list we give you. These are current and effective on the date of dispatch of the Goods they relate to.

If our listed Purchase Price has increased or decreased between the date of our tender, quotation (valid for 30 days) or other offer (or, failing that, the date of the contract) and the date of delivery of the Goods to you, the Purchase Price (or discounted price) will be increased or decreased accordingly.

We will be entitled in our discretion to amend the price list that applies to any or all of the Goods.

The Purchase Price must be paid and cleared before delivery, unless we have arranged other terms of payment with you.

If we have arranged for other terms of payment the following terms will apply, unless otherwise agreed in writing and signed by both parties:

• Each invoice we issue to you must be paid without deduction within 30 days of the date of the monthly statement for all invoices issued during that month.
• We may charge a penalty on any overdue amount at the maximum rate permitted by law. If no maximum is prescribed, the rate will be 3% per month.

If we find that your financial position is not to our satisfaction at any time, we may:

• ask you to pay us in advance; or
• provide us with adequate security for payment
• and suspend our obligations in terms of this contract until you have done so.

All prices are exclusive of any tax, impost or other levy which you may have to pay as a result of this Agreement and we will be entitled to ask you to pay these amounts we have paid or to require you to pay them.

All payments made in terms of this contract must be made in South African Rand.

Payment is payable free of deduction at the address stated on the invoice.

If payment of any particular purchase made is overdue, the purchase price for all purchases made from you shall immediately become due and payable despite the provisions of the preceding paragraph.

Should you be in default in any respects whatsoever, we shall be entitled in our sole discretion to institute action against you in any competent Court of Law and I/we Consent to the jurisdiction of the Magistrate’s Court in terms of Section 45 of Act 32 of 1944 as amended.

We are not liable if the estimate is not accurate and you may not claim for shortages or over-supply of Goods.

Goods sold are subject to the following conditions:

• All Goods provided are on Collection bases
• We are only responsible for the loading of the Goods, not the cost of transport or unloading of the Goods. We only load palleted Goods and you will be responsible for loading loose tiles and fittings.
• On collection you or your agent must sign a delivery note. This delivery note will be proof that the Goods listed on the delivery note were received in good condition and in the correct quantities.
• We will not be responsible for any breach of the Agreement caused by circumstances beyond our control, including floods, your actions, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, labour unrest, shortages of material or labour, shipping and other transport delays, delays on the part of any manufacturer, supplier or acts of God.
• Each sale by us to you is ‘Voetstoots” and without any warranties whatsoever by the Company and any warranties implied by Law are hereby specifically excluded.
• We will not be held responsible for any breakages once the goods have left the premises. All goods are to be inspected by the you or your agent before leaving the premises.
• You shall rely on your judgement and skill in all respects and satisfy yourself as to the condition, quality and suitability of the goods and fitness for the purpose(s) for which you wish to use the goods.

Storage costs – If the execution of the agreement is delayed by you, we will be entitled to make a reasonable charge for the storage of the Goods during the period of such delay.

When you load the Goods, you or your agent must check the stock and must indicate all breakages and shortages on the delivery note. We shall not be responsible for shortages or broken Goods once the Goods has left our premises.

Please note due to the nature of our product we will not be responsible for breakages which are less than 5% of the total delivered Goods.

We warrant that the characteristics and capabilities of the Goods will be substantially the same as advertised. Please note certain differences may occur and in particular no warranty is given as to the colouring of the Goods, whether regarding shades of colour or colour fastness or discolouration due to efflorescence or otherwise.

We will not be held responsible for any damage or breakages to the Goods caused by:

• after-trades;
• bad fixing practice;
• negligence or mishandling; or
• your own transport of collected Goods

We do not provide any warranty on the Goods provided. We only warrant that the Goods will be free of apparent defects (keeping in mind the nature and colour variations in the Goods) and suitable for its intended purpose, but not that the Goods are suitable for any other purpose.

Claims arising from any warranty will only be recognised if written notice is given to us:

• within 10 days with regards to unsuitability, and
• 6 months with regards to any defect becoming apparent except where specifically excluded in this agreement and in so far as permitted by the Consumer Protection Act 68 of 2008.

We do not warrant or represent that any advice given by of our employees of the Company is correct, and you rely on this advice at your own risk.

We will not be responsible for any breach of warranty if we supply, free of charge, goods replacing those found to be defective. Our decision as to whether goods are defective or not, will be binding on all parties, unless you can prove that the defect was our fault.

We will not be liable to you for special, indirect or consequential damages including, but not limited to, loss of profits, unless otherwise stipulated in law.

All specifications, illustrations, drawings, diagrams, price lists, dimensions, performance figures, advertisements, brochures and other technical data we give you with the Goods, and whether in writing or not, will not form part of the contract or be relied upon by you for any purpose except as guideline.

If any Goods or any part of them must be supplied according to specifications, measurements, or any other instruction you gave us, you will not have any claim of any nature whatsoever against us, our employees, agents, subcontractors or associates:

• for any loss or damage you sustained as a result of any error, discrepancy or defect in those specifications, measurements or other instructions; or
• a claim for refund or return if the Goods in question are not suitable for the purpose for which they are required.

We will not be responsible for any indirect, incidental, special, or consequential damages or losses arising from the Agreement. This includes loss of profits, revenue, anticipated savings, business transactions, goodwill or other contracts. It is irrelevant if this is due to negligence (carelessness) or breach of contract. This includes, any cause in connection with the Goods sold or the use, resale or other disposal of those Goods, or anything done or not done pursuant to this Agreement. It does not matter whether such loss, expense, damage, injury or death results from breach of contract, delict, negligence or any other cause without limitation, an whether this contract is cancelled or not.

If you dispose of any of the Goods to a third party, or otherwise permit a third party to use any of the Goods, you must give us similar protection in your Agreement with them.

Until you have paid all amounts for this Agreement:

• we will remain the owners of the Goods;
• you agree to cede any claim which you may have relating to the Goods as security for payment.

We will not refund the Purchase Price for the Goods later than 10 days from collection date unless they are in a saleable condition and a manager has sanctioned it and we may charge you:

• A maximum of 20% of the value of Goods returned. This charge covers the cost of sorting, packing, strapping and administration.
• All transport costs we may incur in return of the Goods.

Collection customers who are returning Goods with the approval of a manager will be responsible for the off-loading of those Goods at our premises.

If you breach any of your obligations to us, or become insolvent (bankrupt), have some legal disability, for example, if you are placed under administration; take steps to deregister yourself (close down) or is deregistered, We may, without any prejudice to any other remedies to which we may be entitled:

• claim immediate payment from you of all amounts you owe us, whether due under this or any other contract, and whether then due and payable or not;
• suspend the performance of any obligation owed by us;
• cancel this agreement;
• claim such damage as we may have suffered.

The Agreement is the entire agreement between the parties on the subject.

No agreement varying, adding to, deleting from or cancelling this agreement must be effective unless reduced to writing and signed by or on behalf of the parties.

Any favour we may allow you will not affect [or substitute] any of our rights against you.

You must pay all legal costs, including attorney and client costs, collection, commission and tracing fees, incurred by us as a result of the breach your breach of this Agreement.

We will be entitled, but not obliged, to institute any proceedings arising out of or in connection with this agreement in any Magistrate’s Court having jurisdiction over the matter, despite the facts that the proceedings may otherwise exceed the jurisdiction of that Court.

In the absence of an express agreement to the contrary, these conditions must apply to all future contracts between you and us relating to the Goods.

The parties will handle any and all disputes in the following way:

• Notifying each other. There will be a dispute about or from this Agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:
• Each party must make sure that their chosen representatives meet within 10 business days of notification, to negotiate and try to end the dispute by written agreement within 15 more business days.
• If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.
• If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision). The arbitration will be held in English in Johannesburg. The parties will agree and appoint one arbitrator.
• The parties may agree in writing to change the periods for negotiation or mediation.
• Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).
• This clause is separate and divisible from the rest of this Agreement and remains effective even if the Agreement ends or is invalid.