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1.1 The headnotes to the clauses of these Conditions are inserted for reference purposes only, and shall in no way govern or affect the interpretation of nor modify nor amplify these Conditions.
1.2 Unless inconsistent with the context, the expressions set forth below shall bear the following meanings and cognate expressions shall bear corresponding meanings:
“Bank Account”: the bank account notified by Nemesis Distributors to the Customer in writing as being the account into which all monies due and payable by the Customer to Nemesis Distributors are to be paid;
“Business Day”: any day other than a Saturday, Sunday or official public holiday in South Africa;
“Conditions”: these standard terms and conditions of Nemesis Distributors;
“Confidential Information”: proprietary or confidential information relating to Nike Products and or other products or the business of Nemesis Distributors;
“Credit Application”: an application submitted by a Customer to Nemesis Distributors for the supply of Products on credit;
“Control”: the holding or control of shares or other securities entitling a person to exercise or cause to be exercised 50% or more of the voting rights at meetings of securities holders of a corporate body;
“Customer”: the entity to whom Nemesis Distributors supplies Products;
“Custom Order”: an Order for specific Products supplied to the order of the Customer and incorporating features specific to the Order and/or differing in any way whatsoever from Nemesis Distributor’s standard ex-stock product specifications;
“Defectives Claim Form”: the standard claim form as supplied by Nemesis Distributors to the Customer from time to time to be utilised by the Customer to notify Nemesis Distributors of returns of defective Product;
“Disposal”: any sale, exchange, donation, disposal of, or any other lawful form of alienation and “Dispose” shall have a corresponding meaning;
“Freight Charges”: the actual costs incurred by Nemesis Distributors in transporting of Products to the Customer;
“Futures Defective Allowance”: an annual allowance in respect of defective Product supplied in terms of Futures Orders in the form of an off-invoice discount expressed as a percentage of the purchase price of Products supplied by Nemesis Distributors to the Customer;
“Futures Discount”: an off-invoice discount which may in Nemesis Distributor’s discretion be granted to a Customer in respect of a Futures Order;
“Futures Orders”: Orders placed by the Customer to Nemesis Distributors for delivery of Products on a specified future date, in terms of Nemesis Distributor’s “Futures” programs in force from time to time;
“Invoice”: the standard form invoice used by Nemesis Distributors from time to time and upon which a description of Product supplied by Nemesis Distributors to the Customer, and the price thereof, are recorded;
“Nemesis Distributors”: Nemesis Distributors CC;
“Nike Products”: any goods bearing the names “Nike” or “Nike Air” or any other trademark, device or name registered in South Africa in the name of Nike, Nike International Limited or Nike Incorporated, or in which Nike, Nike International Limited or Nike Incorporated has any proprietary right (whether arising from usage or howsoever);
“Order”: an order placed by the Customer to Nemesis Distributors for the supply of Products (including, for avoidance of doubt, Futures Orders);
“Parties”: Nemesis Distributors and the Customer, and “Party” shall as the context requires be a reference to either of them.
“Person”: any person, firm, company, trust, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) or two or more of the aforegoing;
“Prime Rate”: the publicly quoted basic rate of interest percent per annum compounded monthly in arrear and calculated on a three hundred and sixty-five day year from time to time published by Nemesis Distributor’s principal bankers as being its minimum overdraft rate;
“Product”: Nike Products and other goods which Nemesis Distributors is entitled to supply to the Customer;
“South Africa”: the Republic of South Africa as constituted from time to time;
“Statement”: the monthly statement of account by Nemesis Distributors to the Customer reflecting the amount due and payable to Nemesis Distributors by the Customer; and
“VAT”: value-added tax levied in terms of the Value-Added Tax Act, 1991.
1.3 Unless inconsistent with the context, an expression which denotes:
1.3.1 any gender includes both the others;
1.3.2 a natural person includes a juristic person and vice versa; and
1.3.3 the singular includes the plural and vice versa.
2. GENERAL
2.1 Extracts of these Conditions containing the most material provisions are printed on each Order and Invoice.
2.2 On signature of any Credit Application the Customer is required also to sign these Conditions which form an annexure to the Credit Application, thereby confirming its consent to be bound by these Conditions.
2.3 These Conditions are specifically drawn to the attention of Customers purchasing Products by:
2.3.1 the extracts of these Conditions printed on Orders and Invoices, and
2.3.2 the notices posted in Nemesis Distributors premises.
2.4 These Conditions are of general application to all sales of Products, and no departure from these Conditions shall be deemed to have occurred unless specifically assented to by Nemesis Distributors in writing, and then only to the extent specified and in respect of the particular Orders to which such departure relates.
2.5 Nemesis Distributors may in its sole discretion at any time amend these Conditions, provided that such amendment shall be deemed to be binding on and enforceable against the Customer:
2.5.1 on notification to the Customer in writing of such amendment, which notification shall be deemed to have been received by the Customer seven days after notification is posted to him at the postal address supplied by him on the Credit Application or such alternative postal address of which he has subsequently notified Nemesis Distributors in writing, or
2.5.2 if the Customer has accepted delivery of any Product supplied to him in terms of an Order, or an Invoice delivered with the Product, which Order or Invoice reflects an extract of the amended Conditions, notwithstanding that such extract does not specify that, or in what respects, these Conditions have been amended.
2.6 Nemesis Distributors may at any time without reason terminate any credit facility extended to the Customer, but only in respect of future credit.
3. CREDIT TERMS AND INVOICE CLAIMS
3.1 Payment by the Customer to Nemesis Distributors is due 30 days after the date of any Statement to the Customer in which is reflected the credit purchases delivered and invoiced during the month of the Statement including Futures Orders.
3.2 Any payment received from the Customer may, in Nemesis Distributor’s discretion, be applied first to any interest due and payable by the Customer to Nemesis Distributors and thereafter to the longest outstanding debits on the Customer’s account with Nemesis Distributors
3.3 All orders will be invoiced to the Customer on the date of goods issue.
3.4 Interest calculated at the Prime Rate plus a margin of 4% shall accrue on the outstanding balance of all amounts due and payable but unpaid by a Customer to Nemesis Distributors. Such interest shall be calculated on a daily basis from the due date of each such overdue amount to date of actual payment thereof and shall be compounded monthly in arrears and shall be paid by the Customer on demand.
3.5 All payments to be made by a Customer to Nemesis Distributors shall be made free of exchange, and any other costs, charges or expenses, and without any deduction, set-off or counterclaim whatsoever.
3.6 No payment by the Customer shall be deemed to have been received unless actually received by Nemesis Distributors.
3.7 In all cases where a Customer uses a postal, banking, electronic or similar service to make payment of any amount to Nemesis Distributors, the provider of such service shall be deemed to be the agent of the Customer.
3.8 Upon the expiry of a period of 10 Business Days from date of Invoice, prices on the Invoice shall be deemed to have been accepted by the Customer as being the correct price, discount and VAT amount, unless Nemesis Distributor’s claims department has previously received written notice from the Customer disputing the accuracy of such amounts.
3.8.1 Nemesis Distributors shall have no liability for any Customer charges (including, without limitation, administrative and/or handling charges) that result from the Customer’s claims process.
3.9 All payments are to be effected directly into Nemesis Distributor’s Bank Account and the Customer’s account number shall be utilised as a reference.
4. ORDERS
4.1 Nemesis Distributors may in its sole discretion accept or reject any Order, and no Order shall be deemed to have been accepted by Nemesis Distributors, unless Nemesis Distributors has communicated its acceptance of the Order to the Customer or its agent in writing or has delivered and invoiced Product in satisfaction of an Order.
4.2 Save as expressly provided in clause 4.3, a Customer shall not be entitled to vary or cancel an Order (including a Customer Order) after the date of acceptance by Nemesis Distributors of the Order.
4.3 A Customer shall only be entitled to amend or cancel Futures Orders, and such amendment or cancellation shall only be effective, if Nemesis Distributors receives written notification of such amendment or cancellation from the Customer not less than 60 days prior to due delivery date, but in the event that any amendment results in a reduction of the quantum of the Product reflected in the Futures Order in excess of 5%, the Customer will forfeit its entitlement to any Futures Discount on the relevant Futures Order.
5. PRICES
5.1 Orders other than Futures Orders will be invoiced to the Customer at the wholesale prices prevailing at the time of shipment of Products for delivery to the Customer.
5.2 Futures Orders may, in Nemesis Distributor’s discretion, be subject to a Futures Discount which shall be notified by Nemesis Distributors to the Customer in writing.
5.3 Written acknowledgement of a Futures Order shall be furnished by Nemesis Distributors to the Customer not less than 60 days prior to the anticipated delivery date which acknowledgement shall confirm the pricing of the Futures Order.
6. DELIVERY AND CLAIMS FOR SHORT DELIVERY
6.1 Delivery shall be made:
6.1.1 in respect of Orders other than Futures Orders, as soon as is reasonably possible after an Order is placed for Product, or by the date specified in Nemesis Distributor’s acceptance of the Order (if a delivery date is specified);
6.1.2 in respect of Futures Orders, within the period commencing one month before and ending one month after the anticipated futures delivery month.
6.2 Delivery of Products by Nemesis Distributors to the Customer shall be deemed to have taken place on signature by a representative of the Customer of a delivery note or other documentation indicating delivery of the Products ordered, notwithstanding that the consignment may not have been physically checked and/or counted on delivery by the Customer’s representatives.
6.3 No claim by the Customer for a credit arising from short delivery will be accepted by Nemesis Distributors unless:
6.3.1 notified to Nemesis Distributors in writing by no later than close of business on the third Business Day after delivery of the consignment which the Customer alleges was short-delivered; and
6.3.2 the Customer establishes, to the reasonable satisfaction of Nemesis Distributors, that the consignment was physically checked by the Customer or its representative in the presence of the representative of the carrier making the delivery at the time when the delivery was made; unless
6.3.3 in respect of clause 6.3.1 and/or clause 6.3.2, Nemesis Distributors, in its sole discretion (and with no obligation to do so), accepts that there is good and sufficient reason for late notification or inadequate physical checking.
6.4 Upon expiry of a period of 3 Business Days after delivery, the delivered Products shall be deemed to have been accepted by the Customer as being of the correct number, type, color, size, packaging, and of suitable quality and containing no other visible or otherwise immediately detectable defects, unless the Nemesis Distributors claims department has previously received a written notice from the Purchaser contending to the contrary.
7. FREIGHT CHARGES
7.1 With the exception of Orders for delivery outside South Africa (in respect of which the Freight Charges shall be negotiated on a per shipment basis and shipment will not occur until the Parties have agreed the Freight Charges in writing) prices for Futures Orders will include Freight Charges.
7.2 In respect of Orders other than Futures Orders, the Orders will:
7.2.1 not incur Freight Charges if the invoiced value of Products exceeds R1 000; or
7.2.2 otherwise incur Freight Charges, which charges will be debited to the Customer.
8. DEFECTIVE PRODUCT
8.1 The Customer shall be granted a Futures Defective Allowance determined by Nemesis Distributors in its sole discretion, which shall be subject to annual review by Nemesis Distributors. For the avoidance of doubt the Futures Defective Allowance shall only apply to Futures Orders.
8.2 The Futures Defective Allowance shall be processed as an off-invoice discount on all Futures Orders invoices.
8.3 Subject to clause 8.4, in the event that the Customer should establish to the reasonable satisfaction of Nemesis Distributors that the aggregate purchase price of defective Products supplied to the Customer by Nemesis Distributors during the previous year exceeded the aggregate amount of the discounts granted by Nemesis Distributors to the Customer as a Futures Defective Allowance during the year in question, then Nemesis Distributors shall reimburse the Customer in a sum equivalent to the positive difference between the two aforementioned amounts.
8.4 The Customer shall not be entitled to reimbursement as contemplated in clause 8.3 unless:
8.4.1 defective Product is returned by the Customer to the Nemesis Distributors distribution centre within three months of date of delivery;
8.4.2 return of defective product is accompanied by a duly completed and signed Defectives Claim Form; and
8.4.3 Nemesis Distributors, in its sole discretion, determines that the Product so returned is defective.
9. RETURNS OF STOCK
Save as expressly provided in clause 8, the Customer shall not be entitled to return stock of Product to Nemesis Distributors unless Nemesis Distributors consents thereto in writing upon such terms and subject to such conditions as Nemesis Distributors may in its sole discretion deem appropriate, provided that Nemesis Distributors shall not under any circumstances accept return of Product more than 30 days subsequent to date of delivery.
10. CREDIT FOR RETURNS
10.1 The passing of any credit by Nemesis Distributors in favour of the Customer in respect of returns of Products as contemplated in clause 9 is subject to the following terms:
10.1.1 no returns shall be accepted unless they have been pre-approved by and are clearly marked with the returns authorization number provided to the Customer by Nemesis Distributors customer claims department;
10.1.2 returns shall be effected at the expense of the Customer;
10.1.3 returned product will be credited at its invoiced price or, if no invoice is provided by the Customer, the applicable price for the Product at the date of shipment as determined by Nemesis Distributors in its sole discretion;
10.1.4 VAT charged on the sale of the returned Product will not be credited unless the original Invoice is provided with the return;
10.1.5 no credit shall be passed unless the Product returned is in clean, satisfactory and merchantable condition as determined by Nemesis Distributors in its sole discretion;
10.1.6 no credit shall be passed in respect of returned Product that includes items sold by Nemesis Distributors as closeouts or B-Grades; and
10.1.7 a 10% restocking fee will be charged by Nemesis Distributors on the Invoice price of returned Product which shall, in Nemesis Distributor’s discretion, be debited to the Customer’s account or deducted from the credit passed.
10.2