Standard Terms and Conditions
1.1. The terms and conditions contained in this document shall, together with the relevant quotation, pro forma invoice, tax Invoice, product care instruction manual, agreement for rendering of services and delivery of goods ("Credit Customer Agreement") (if applicable) and any documentation cross- referenced in each of those documents (if applicable), govern each order and the sale and delivery of Products by WOODBENDER.
1.2. The Customer and WOODBENDER specifically agree that ownership of the goods hereby sold or manufactured shall vest in WOODBENDER until the full amount as per the relevant quotation, pro forma or tax invoice, together with all interest and any additional costs of whatsoever nature, is paid in full and until such full payment has been made, WOODBENDER retains the right to at any stage collect and remove the goods from the Customer, subsequent to obtaining the necessary court order.
1.3. These terms and conditions supersede and replace all prior commitments, undertakings or representations, whether oral or written, between WOODBENDER and the Customer in respect of the subject matter hereof.
1.4. When used in these terms and conditions “Products” and “Furniture” shall mean any and all furniture, household accessories, products and/or items sold by, or available for sale by, WOODBENDER, including, but not limited to those products reflected on WOODBENDER’s website and in-store showroom.
1.5. No variation of, addition to, consensual cancellation of or waiver of any right arising in terms of this Agreement (including this clause 1.5) shall be of any force or effect unless it is agreed between both WOODBENDER and the Customer in writing.
2.1. No quotation given by WOODBENDER to the Customer shall constitute, or be construed as, an offer by WOODBENDER to sell the Products in question to the Customer, but instead constitutes an invitation by WOODBENDER to the Customer to do business with WOODBENDER.
2.2. WOODBENDER reserves the right to accept or reject in whole or in part any order placed upon it by the Customer pursuant to any quotation given by WOODBENDER to the Customer.
2.3. Unless otherwise determined by WOODBENDER in its sole discretion and by written communication, signed by WOODBENDER, to the Customer, any quotation given by WOODBENDER to the Customer may be revoked at any time by WOODBENDER prior to receipt by WOODBENDER of (i) the deposit contemplated in clause 2.4 and (ii) a copy of the quotation signed by or on behalf of the Customer., provided that WOODBENDER shall at all times (including after receipt of the deposit and signed quotation contemplated in clause 2.4) be entitled to revoke any acceptance of order and/or any quotation which contains or is subject to a manifest error.
2.4. Unless otherwise (i) determined by WOODBENDER in its sole discretion and by communication to the Customer in writing or (ii) contemplated in a Credit Customer Agreement, any order placed by a Customer shall, subject to clause 2.3, become binding and effective upon receipt by WOODBENDER of (i) a deposit payment in an amount equal to 50% of the total price for the Products in question (as reflected on WOODBENDER’s invoice) and (ii) a copy of the quotation signed by or on behalf of the Customer.
3. OWNERSHIP AND TRANSFER OF RISK
3.1. Ownership of, and all right, title and interest in and to, all Products sold and/or manufactured by WOODBDENDER shall vest in WOODBENDER until receipt by WOODBENDER, in full, of all amounts owing by the Customer to WOODBENDER in respect of such Products (as reflected on the relevant quotation, pro forma or tax invoice, and including all interest and any additional costs of whatsoever nature due by the Customer to WOODBENDER). WOODBENDER shall at all times be entitled, without prejudice to any other rights which WOODBENDER may have under these terms and conditions or in law, to require the Customer to return any Products which have not been timeously paid for in full.
3.2. All risks in relation to the Products shall vest exclusively in and with the Customer from:
3.2.1. the moment at which the Products are offloaded by WOODBENDER at the relevant delivery point, if the Products are delivered by WOODBENDER to the Customer and the delivery of the Products is not delayed by virtue of any reason contemplated in clause 5.7; or
3.2.2. the moment at which WOODBENDER makes the Products available for collection by the Customer on the due date for collection as communicated by WOODBENDER to the Customer, if the Customer collects the Products on the due date for collection; or
3.2.3. the due date for delivery or collection of the Products as communicated by WOODBENDER if (i) the delivery of the Products is delayed by virtue of any reason contemplated in clause 5.7, or (ii) the Customer fails to collect the Products on the due date for collection, notwithstanding the fact that such delivery or collection has not been effected.
3.3. WOODBENDER shall not be required to insure any of the Products under its control or possession and the Customer is advised to insure the Products from the date of transfer of risk to the Customer in accordance with clause 3.2.
[NOTE TO CUSTOMER: THIS CLAUSE PROVIDES FOR THE FORFEITURE BY THE CUSTOMER OF ITS DEPOSIT PAYMENT IN CERTAIN CIRCUMSTANCE]
4.1. In the case of a Customer to whom WOODBENDER extends credit in respect of Products agreed to be purchased (“Credit Customer”) in terms of a Credit Customer Agreement:
4.1.1. payment of a deposit prior to commencement with the production and/or manufacture of any Products shall not be required; and
4.2.1. WOODBENDER shall commence with production of the Products upon receipt of a signed version of the Credit Customer Agreement,
unless (i) otherwise contemplated in the Credit Customer Agreement, or (ii) otherwise agreed between WOODBENDER and the Customer in writing.
4.2. Except in the case of Credit Customers, in which case clause 4.1 above shall apply, WOODBENDER shall not be required to commence with the production and/or manufacture of any Products until such time as the deposit reflected on the relevant invoice has been paid in full.
4.3. ALL DEPOSITS PAID BY THE CUSTOMER TO WOODBENDER ARE STRICTLY NON-REFUNDABLE.
4.4. The Customer expressly acknowledges and agrees that WOODBENDER will incur significant costs in manufacturing any Products ordered by the Customer (whether or not the manufacturing of those Products has been completed) and that WOODBENDER shall, without prejudice to any other rights which it has under these terms and conditions or in law (including, without limitation, WOODBENDER’s rights in clause 5.5), be entitled to retain any deposit paid by the Customer if the Customer fails to make payment of the outstanding balance in full and take possession of the Products.
5.1. Except to the extent expressly stated otherwise in the invoice or quotation delivered by WOODBENDER to the Customer, all amounts reflected in the invoice shall be exclusive of all taxes, levies, assessments, imposts, deductions, charges and withholdings (“Taxes”) in terms of any tax legislation.
5.2. Payment of the balance of the amount due to WOODBENDER (as reflected on the relevant invoice) is to be paid into WOODBENDER’s designated bank account by no later than the earlier of (i) the date reflected on the invoice issued in respect of the Products in question, and (ii) the 3rd (third) business day after the date on which WOODBENDER notifies the Customer that the order has been completed and is ready for delivery. Upon receipt by WOODBENDER of payment in full from the Customer, ownership of, and all right, title and interest in and to the Product shall pass to the Customer.
5.3. WOODBENDER will under no circumstances whatsoever be obliged or required to deliver,ship, freight or permit the collection of any Products until payment in respect of such Products has been made in full and the funds have been cleared and are reflected in WOODBENDER’s nominated bank account as being fully paid.
5.4. In the event that any amounts due by the Customer to WOODBENDER, including but not limited to the deposit contemplated in clause 2.4 and the balance of the purchase price contemplated in clause 5.2, are not paid timeously, interest shall be levied on such amounts at a rate of 2% above the prime rate of interest charged by WOODBENDER’s bankers.
5.5. Should the Customer fail to make payment to WOODBENDER timeously and strictly in accordance with the provisions of these terms and conditions, then WOODBENDER shall, without prejudice to any other rights or remedies which it may have under these terms and conditions or otherwise in law, including the right to claim damages, be entitled to:
- claim specific performance and enforce the provisions of these terms and conditions (read together with the relevant quotation or pro forma or tax invoice; or
- cancel the agreement.
5.6. If any discounts and/or favourable payment terms were afforded to the Customer by WOODBENDER, all such discounts and/or favourable payment terms, as the case may be, shall (unless otherwise agreed between WOODBENDER and the Customer in writing) immediately cease to apply and/or be of any force and effect if payment is not made by the Customer timeously and strictly in accordance with the provisions of these terms and conditions. It is expressly recorded and agreed that any such discounts and favourable payment terms are given by WOODBENDER strictly on the basis that payment will be made by the Customer in full by no later than the due date of payment therefor. Should any discount/s provided by WOODBENDER cease to apply, including by virtue of this clause 5.6, then the full amount of such discount/s shall be added to the total sum outstanding and owing by the Customer to WOODBENDER and shall become payable to WOODBENDER immediately upon demand.
5.7. If the Customer:
- fails to make payment to WOODBENDER timeously and in accordance with the provisions of these terms and conditions, thereby delaying the delivery, shipping, freight or collection of the Products; or
- is unable or unwilling to receive the Products on the delivery date as communicated by WOODBENDER to the Customer;
then the Customer shall be required to pay to WOODBENDER, upon demand, such costs as WOODBENDER may reasonably incur in relation to the storage and warehousing of the Products, together with any additional delivery, shipping, freight or collection costs incurred by WOODBENDER. For the avoidance of doubt, it is expressly recorded and agreed that the provisions of this clause 5.7 shall not be deemed nor construed to not create any obligation on WOODBENDER to store or warehouse any Products ordered by the Customer.
5.8. No latitude or extension of time which may be allowed by WOODBENDER to the Customer in respect of any payment provided for herein or any other matter or thing which the Customer is bound to perform or observe in terms hereof shall be deemed to be regarded as a waiver of any of WOODBENDER’s rights under law.
6. DESIGN, MANUFACTURE AND PRODUCT DESCRIPTIONS
[NOTE TO CUSTOMER: THIS CLAUSE EXCLUDES ANY LIABILITY ON THE PART OF WOODBENDER FOR VARIATIONS IN THE PRODUCT’S COLOUR, FORM, SHAPE AND FABRIC AND/OR WOOD COMPOSITION]
6.1. Although WOODBENDER uses its reasonable commercial endeavours to ensure that the Furniture corresponds as closely as possible to the sample shown in WOODBENDER’s in-store showroom or on the WOODBENDER website, final manufactured Products may vary from the aforementioned samples. Such variations may include, amongst others, a variation in colour, form, shape and fabric and/or wood composition. Under no circumstances whatsoever shall the Customer be entitled to (i) reject the manufactured Product, (ii) a reduction of the purchase price, (iii) a replacement of the Product or any component or part thereof, or (iv) any other recourse of any nature whatsoever against WOODBENDER, as a result of any such variance.
6.2. If no detailed drawings or specifications for customised Products are provided by the Customer to WOODBENDER in a form reasonably requested by WOODBENDER, WOODBENDER shall be entitled to interpret the requirements, specifications and instructions of the Customer in the manner which WOODBENDER, in its sole discretion, deems appropriate, and WOODBENDER’s interpretation thereof shall be deemed to be correct in all respects and shall be final and binding on the Customer.
6.3. WOODBENDER reserves the right to make any reasonable change to the design or form of any Product provided that the quality of the Product and the Product specifications are not adversely impacted in any material respect.
6.4. Although WOODBENDER uses its reasonable commercial endeavours to ensure that all information pertaining to the Products is accurate in all material respects, WOODBENDER shall not be liable for any loss which the Customer may suffer as a result of any such error or inaccuracy. WOODEBENDER reserves the right to correct any such errors, inaccuracies or omissions at any time.
6.5. Product descriptions are for marketing purposes only and are presented in a simple easy-to understand format. Product descriptions shall not be deemed nor construed to provide an exhaustive technical analysis or description of the Product in question.
6.6. Provided that the Customer has given its permission thereto, WOODBENDER shall be entitled to refer to the sale of the Products to the Customer in its sales and marketing material and may for this purpose publish, amongst other things, photographs and descriptions of the Products.
[NOTE TO CUSTOMER: THIS CLAUSE EXCLUDES ANY LIABILITY ON THE PART OF WOODBENDER FOR, AMONGST OTHER THINGS, ANY DELAY IN THE DELIVERY OF THE PRODUCT]
7.1. Any delivery date(s) indicated by WOODBENDER, whether on the quotation, invoice, via separate correspondence or otherwise, shall serve only as a good faith estimate of the date of delivery and shall not give rise to any obligation on WOODBENDER to procure delivery of the Products on or before such date.
7.2. WOODBENDER shall not be liable for any loss or damage incurred or suffered by the Customer on account of any delay in delivery or failure to deliver the Product on or before the date communicated by WOODBENDER to the Customer, including, but not limited to, any delay arising due to any delay in the supply of materials, products and/or services by any one or more of WOODBENDER’s suppliers
or service provider (including any logistics service provider);
7.3. WOODBENDER shall not be required to carry or transport the furniture into the relevant building/premises nor to install the Products at any such building/premises and the Customer shall bear all risk in relation to the carrying or transporting of the Product into the building/premises (irrespective of whether or not any representative of WOODBENDER assists in carrying/transporting such Product).
8. WARRANTIES AND LIMITATIONS OF LIABILITY
[NOTE TO CUSTOMER: THIS CLAUSE EXCLUDES LIABILITY ON THE PART OF WOODBENDER FOR DEFECTS AND/OR DAMAGES IN AND TO PRODUCTS IN CERTAIN CIRCUMSTANCES]
8.1. WOODBENDER warrants to the Customer that the Products purchased by the Customer are free from structural and/or manufacturing defects, and in good working order, having regard to the purpose for which the Products are intended to be used.
8.2. Subject to clause 8.4, in the event of a failure of the warranty contemplated in clause 8.1, WOODBENDER shall, at its sole election and discretion, (i) repair any structural damage or replace any defective parts/components or (ii) replace the Product in question, free of charge provided that WOODBENDER shall under no circumstances whatsoever bear any freight or shipping costs in respect of Products located outside of the Republic of South Africa and the Customer shall bear all such freight or shipping costs.
8.3. The Customer shall not be entitled to make any claim against the warranty unless such claim is made by no later than the 6th (sixth) anniversary of the date of delivery/collection of the Products (as stated on the invoice), in relation to WOODBENDER’s indoor Furniture range only, but subject to clause 8.4.
8.4. Notwithstanding the provisions of clauses 8.2 and 8.3 or anything to the contrary contained elsewhere in these terms and conditions, the following shall apply in relation to Products sold to a Customer outside of the Republic of South Africa:
8.4.1. the Customer shall not be entitled to make any claim against the warranty unless such claim is made by no later than the 2nd (second) anniversary of the date of delivery of the Products (as stated on the invoice).
8.4.2. the Customer shall notify WOODBENDER in writing by no later than the 7th (seventh) day after delivery of the Products (as reflected in the relevant proof of delivery documentation) of any damage to or defects in the Products, in which case WOODBENDER shall replace the Product/s in question at WOODBENDER’s cost, provided that:
126.96.36.199. the damage/defect constitutes (i) a material manufacturing defect, or (ii) if the Product is transported by WOODBENDER and WOODBENDER has agreed in writing that such transportation shall be effected at WOODBENDER’S risk, material damage caused during the transportation of the Product,
188.8.131.52. the Customer has provided sufficient evidence (including photographic evidence) of such defect/damage to WOODBENDER’s reasonable satisfaction; and
184.108.40.206. all shipping, freight, transport and other logistics costs will be for the Customer’s account; and
8.4.3. should the Customer fail to notify WOODBENDER of any damage/defect timeously and strictly in accordance with clause 8.4.2, then the Products shall be deemed to have been delivered in good working order and free from all defects and damages and WOODBENDER shall not, under any circumstances, be required to replace any such Products.
8.5. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS AND CONDITIONS OR ANY OTHER DOCUMENT OR AGREEMENT BETWEEN WOODBENDER AND THE CUSTOMER, WOODBENDER SHALL NOT UNDER ANY CIRCUMSTANCES WHATSOEVER BE LIABLE FOR ANY INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL LOSS OR DAMAGE (INCLUDING ANY PURE ECONOMIC LOSS) SUFFERED BY THE CUSTOMER OR ANY OTHER PERSON.
8.6. THE CUSTOMER ACKNOWLEDGES THE RISKS INVOLVED IN THE USE OF FURNITURE AND HEREBY INDEMNIFIES WOODBENDER FROM ANY AND ALL CLAIMS ARISING IN RESPECT ANY HARM, LOSS AND/OR DAMAGE CAUSED TO PERSON/PROPERTY SAVE TO THE EXTENT THAT SUCH HARM, LOSS OR DAMAGE IS CAUSED SOLELY AND DIRECTLY BY ANY GROSSLY NEGLIGENT CONDUCT ON THE PART OF WOODBENDER OR ANY OF ITS EMPLOYEES (WHILE ACTING STRICTLY IN THE COURSE AND SCOPE OF HIS/HER EMPLOYMENT WITH WOODBENDER).
8.7. WOODBENDER shall not, under any circumstances whatsoever, be required to replace or repair any Product nor to effect any refund or remission in price in respect of any Product, nor bear any liability or responsibility for any harm, loss or damage arising, in respect of any of the following:
8.7.1. any damage caused to the Products during the transportation thereof if (i) such transportation is not effected by WOODBENDER, or (ii) WOODBENDER has not agreed in writing that such transportation shall be effected at WOODBENDER’S risk. In this regard, the Customer is advised to insure all Products during transit;
8.7.2. any defect or damage to a Product which has been altered, modified or added to by the Customer or any person other than WOODBENDER;
8.7.3. any defect or damage caused as a result of the Customer’s failure to comply strictly with WOODBENDER’s Product care instructions, which are available on WOODBENDER’s website;
8.7.4. any defect or damage which did not exist at the time of delivery of the Product;
8.7.5. any defect in the Products, unless WOODBENDER has been notified of such defect prior to the expiry of the warranty period contemplated in clause 8.3 or 8.4 (as the case may be);
8.7.6. any defect or damage caused, whether in whole or in part, by any misuse of the Product, including any use of the Product for any purpose or in any manner other than the purpose for which the Product was manufactured by WOODBENDER and the manner in which it is generally intended to be used;
8.7.7. any defect or damage caused, whether in whole or in part, by any neglect of the Product by the Customer;
8.7.8. any defect or damage which constitutes normal wear and tear. In this regard, (i) wear marks on painted surfaces and (ii) slight surface cracking, end splits and movement on natural timber Products, constitute normal wear and tear;
8.7.9. any defect other than in relation to the structure of the Furniture. In the event that a Customer supplies, sources or otherwise elects to use any fabric which is not part of the WOODBENDER standard range of fabric, WOODBENDER shall not be responsible for the material used to upholster the Furniture nor shall WOODBENDER be liable for any failure, defect or damage relating to such material. In this regard, the Customer shall be required to resolve any dispute or dissatisfaction with the fabric directly with the relevant material supplier;
8.7.10. any defect or damage caused by or attributable to any circumstance other than any circumstances reasonably within the control of WOODBENDER;
8.7.11. any defect or damage to any Product for which the Customer is unable to supply WOODBENDER with the original proof of purchase, in the form of the original tax invoice;
8.7.12. any failure on the part of the Customer to permit WOODBENDER access and inspect the Product for purposes of assessing (i) whether or not the Product is defective, and (ii) if the Product is in fact defective, the reasons for such defect; and/or
8.7.13. any variations contemplated in clause 6.1,
and the warranty contained in clause 8.1 is qualified accordingly.
8.8. In assessing whether or not any of the facts or circumstances contemplated in clause 8.7 are applicable, WOODBENDER will be entitled to rely on the findings of its in-house production experts and will not be required to (i) enter into any further communication with the Customer or its representatives or (ii) appoint, engage or enter into communication with any third party expert as to whether or not any of the provisions of clause 8.7 apply.
8.9. WOODBENDER gives no warranties or representations (whether express, implied or tacit) in relation to or in connection with the Products:
8.9.1. other than the warranty contained in clause 8.1; and
8.9.2. in relation to any Product other than the Products contained in WOODBENDER’s standard Furniture range. For the avoidance of doubt, no warranty is given by WOODBENDER in relation to any customised Furniture and the Customer shall be fully liable for any defects and/or damages in such customised Furniture and for any and all harm, loss or liability which may arising from the use of such customised Furniture, unless otherwise agreed between the Customer and WOODBENDER in writing.
9. PRODUCT RETURNS AND REFUNDS
[NOTE TO CUSTOMER: THIS CLAUSE LIMITS THE CUSTOMER’S ENTITLEMENT TO RETURN DEFECTIVE OR DAMAGED PRODUCTS AND/OR TO CLAIM RECOURSE AGAINST WOODBENDER AS A RESULT OF ANY SUCH DEFECT OR DAMAGE]
9.1. Other than in relation to Products sold to Customers outside of the Republic of South Africa (in which case clauses 8.4.2 and 8.4.3 shall apply), the Customer shall inspect all delivered Products immediately upon delivery. In the event that any of the Products are defective, damaged or blemished upon delivery thereof to the Customer, the Customer (or its representative taking possession of the Products) shall note all such defects, damages and/or blemishes in writing on the relevant proof of receipt/delivery document, which document shall be countersigned by the relevant WOODBENDER representative. Should the Customer (or its representative) fail to note any defect, damage and/or blemish on the stated proof of receipt/delivery document, the Products shall be deemed to have been delivered in an undamaged and blemish free condition and WOODBENDER shall not be liable to repair or replace the Products, except to the extent contemplated in clause 8.
9.2. In the event that WOODBENDER accepts the return of any Product for any reason other than the failure to deliver the Products in an undamaged and unblemished state or pursuant to a valid claim under the Product warranty contemplated in clause 8.2, which for the avoidance of doubt, WOODBENDER shall not be obliged to accept, the Customer shall be liable for all of the logistics and related fees incurred by WOODBENDER in the delivery, collection inspection and or storage of such returned Product.
9.3. The Customer is solely responsible for ensuring that the quotation received is accurate in all respects before completing the placement of any order and/or making payment of any deposit. Under no circumstances whatsoever shall WOODBENDER be required to permit any alteration or cancellation to any order placed by the Customer.
9.4. WOODBENDER reserves the right to (i) inspect any Product before a processing any refund, repair or replacement of Product and/or (ii) reject any claim under the warranty contemplated in clause 8.1 should WOODBENDER, acting reasonably, be of the view that any of the provisions of clause 8.7 apply in respect of the Products in question.
9.5. WOODBENDER shall under no circumstances whatsoever be required to accept any returns, exchanges or refunds in the event that the Customer is no longer in possession of the original invoice in respect of the Products in question.
11.1. Any failure by WOODBENDER to exercise or enforce any of its rights under these terms and conditions shall not constitute a waiver of such right or provision, nor shall any waiver by WOODBENDER of any right in any one instance constitute a waiver of any other right (including any right subsequently arising).
11.2. No waiver by WOODBENDER of any of its rights shall be effective unless it is signed by WOODBENDER and communicated to the Customer in writing.
11.3. Except in the case of clauses 4.2 and 11.2, where these terms and conditions require any (i) notice or consent to be given, or (ii) agreement to be made, in writing; such consent or notification may be given and such agreement may be made via electronic mail.
11.4. Each provision of these terms and conditions is severable and distinct from the others. If any provision of these terms and conditions (wholly or partly) is or becomes illegal, invalid or unenforceable, then (i) such provision will, to that extent, be severed from the remaining terms and (ii) such illegality, invalidity or unenforceability shall not affect the legality, validity or enforceability of any other provision of these terms and conditions, which provisions shall remain valid and enforceable to the fullest extent permitted by law.
11.5. WOODBENDER and the Customer hereby consent to the jurisdiction of the Magistrates Court in respect of every legal proceeding which may emanate from any breach of any of these terms and conditions.
11.6. In the event of WOODBENDER instructing attorneys to take measures for the enforcement of any of its rights under these terms and conditions, the Customer shall pay to WOODBENDER on demand all:
11.6.1. collection charges;
11.6.2. legal fees (including the costs of any writ of execution and any other costs incurred by WOODBENDER subsequent to the obtaining of an order or award against the Customer for the purposes of enforcing the order or award), on an attorney and client basis, as shall be lawfully charged by such attorneys to WOODBENDER; and
11.6.3. other costs reasonably incurred by WOODBENDER in enforcing its rights under these terms and conditions.
11.7. These terms and conditions and any agreement concluded by WOODBENDER in relation to the sale of Products or the provision of any related, connected or ancillary service, shall be governed by the laws of the Republic of South Africa.
12. CARE INSTRUCTIONS
[NOTE TO CUSTOMER: IT IS CRITICAL THAT THE CUSTOMER COMPLIES WITH THE CARE INSTRUCTIONS WHICH ARE MADE AVAILABLE ON WOODBENDER’S WEBSITE]
12.1. Care instructions and maintenance advice regarding the use and application of Products are provided for all Products.
12.2. Such instructions are available on the WOODBENDER website.
12.3. The Customer shall at all times adhere to and comply with the provisions of the care instructions.