Terms and Conditions

1. Contract

1.1 These terms and conditions of sale of goods (“Contract”) apply to all goods supplied via www.thistree.co.za (“Website”) or directly by Thistree (Pty) Ltd, Thistree herein (“Thistree”) whose registered office is at 1A Harvest Close, Richmond Park, Richwood, Cape Town, 7441.

1.2 All references to “Customer” refer to the person or juristic person who the products are marketed or supplied to by Thistree, including Dealers and Retail Customers.

1.3 This Contract will come into force between the Customer and Thistree for the sale of any goods when Thistree has – 1.3.1 received the Customer’s order (“Order”) for the goods (“Goods”); and 1.3.2 accepted the Order by issuing the Customer with a proforma invoice (“Proforma Invoice”) or in the case where no Proforma Invoice is issued, a tax invoice (“Tax Invoice”).

1.4 Once the above requirements have been met, there is a legally binding contract between the parties.

1.5 Thistree reserves the right to vary or amend the terms of this Contract from time to time with regards to future sales. The Customer may request a free copy of the latest Contract from Thistree.

2. Dealer and Retail customers

2.1 Customers who have applied and been accepted as registered dealers for Thistree (“Dealers”) will receive dealer prices.

2.2 All Customers who are not Dealers are considered to be retail Customers (“Retail Customers”) and retail prices will apply.

3. Prices and Availability of Goods

3.1 Prices displayed on the Website are Dealer price Excluding VAT and Retail price Including VAT.

3.2 Dealer pricing applies only to Registered Dealer Customers.

3.3 All prices are exclusive of delivery charges.

3.4 The images of the Goods on the Website are for illustrative purposes only and may differ from the actual Goods.

3.5 The prices of the Goods are as per the Thistree prices at the time of the Order or quotation (“Quotation”), however prices are linked to the Rand – US Dollar exchange rate and are subject to change until date of Proforma Invoice or Tax Invoice, whichever is issued first.

3.6 The price payable by the Customer will be the price as at the date of the Tax Invoice, this price may differ to the price on the Website or Quotation due to the fluctuation in the exchange rate of the Rand.

3.7 The Goods are subject to availability of stock. If on receipt of the Order, the Goods the Customer has ordered are not available in stock, Thistree will inform the Customer as soon as possible.

3.8 Availability of stock from third party affiliate suppliers may also affect the prices. Every effort is made to ensure that prices shown on the Website are accurate at the time the Customer places the Order. If an error is found, Thistree will inform the Customer as soon as possible and offer the Customer the option of reconfirming the Order at the correct price, or cancelling the Order. If Thistree does not receive an Order confirmation within Seven (7) business days of informing the Customer of the error, the Order will be cancelled automatically. If the Customer cancels the Order, or if the Order is cancelled automatically due to the expiry of the Seven (7) business day period, Thistree will refund the Customer the price paid for the Goods, if any.

3.9 Thistree has the right to change the prices of the Goods from time to time without prior notice to the Customer.

4. Placing of Orders

4.1 Thistree will accept written (including via the Website) and verbal Orders. Thistree will not be responsible for any errors or misunderstandings occasioned by the Customers’ failure to place a written Order.

4.2 If telephone Orders are placed by the Customer, Thistree may require such Orders to be confirmed in writing by the Customer, prior to acceptance thereof by Thistree.

4.3 In the event that Goods are not collected within 7 business days of placing the order, Thistree reserves the right to cancel the Order.

4.4 Orders for non-standard Goods (“Special Order Goods”) (local or international) and Orders for large quantities of Goods will require the Customer to pay a 30% (thirty per cent) deposit of the estimated Order value to Thistree.

4.5 In the event that the Customer cancels the Order for Special Order Goods or Order for large quantities at any time after acceptance thereof by Thistree, Thistree shall be entitled to charge the Customer a reasonable penalty fee. The penalty fee payable will be equivalent to the 30% (thirty per cent) deposit paid.

4.6 No stock will be reserved for any orders placed until payment has been made and reflects in our bank account. It is the responsibility of the customer to confirm the correct bank details are always used to avoid any possible fraudulent correspondence.

4.7 Quotations issued are only valid for one (1) working day. Payments processed on expired quotations will require the customer to pay in any shortfall on price changes.

5. Payment

5.1 Payment terms are strictly cash on delivery (“COD”) unless a credit facility has been approved by Thistree. Goods will only be released once payment has been received by Thistree and reflects in our bank account.

5.2 For Customers with credit facilities authorised by Thistree, payment is strictly 7 (seven) days from date of the statement (“Statement”).

5.3 Payment options available

5.3.1 Electronic Funds Transfer (“EFT”) directly into one of Thistree’s bank accounts 5.3.2 Debit/Credit Card payment option online or at each branch 5.3.3 The Customer is responsible for any bank charges incurred by Thistree when Cash Deposit payments or Forex payments are paid directly into one of Thistree’s bank accounts. 5.4 Thistree will provide the Customer with a Tax Invoice with delivery of the Goods.

5.5 The Customer shall not withhold payment or make set offs or deductions from any payment due by it for any reason whatsoever. No extension of payment of any nature will be granted unless reduced to writing and signed by the Customer and a duly authorised representative of Thistree.

5.6 Thistree shall have the right to suspend deliveries, refuse to accept Orders and exercise its rights in terms of clause GRANTING AND WITHDRAWAL OF CREDIT if any amount due by the Customer is unpaid or the Customer’s credit limit is exceeded.

5.7 If any amount owed is not settled in full on due date or on demand, Thistree is entitled to, without prejudice to any of its rights;

5.7.1 immediately institute action against the Customer;

5.7.2 hand the Customer over to its attorneys for collection of the outstanding debt, the Customer shall be liable for any legal costs incurred related to such collection; and/or

5.7.3 list the defaulting Customer as a defaulter with credit bureaux in line with Regulation 19(4) of the National Credit Act 34 of 2005.

5.8 Should any amount not be paid by the Customer on due date, the full outstanding amount in respect of all purchases by the Customer shall become due and payable, and the Customer shall be liable to pay interest in respect of amounts unpaid at the prime rate (prime rate shall be the variable interest rate calculated and charged from time to time by Nedbank Bank Limited to its most favoured corporate customers in respect of unsecured overdraft facilities, as certified by any manager or director of such bank, whose appointment need not be proved and whose certificate shall, save in the event of manifest error, be final and binding on the parties). Such interest shall be calculated and payable daily on the balance outstanding from time to time by the Customer and shall be added to the amount/s due to by the Customer in respect of the outstanding purchase prices of the applicable Goods ordered.

5.9 Thistree does not accept payment via cash deposits.

5.10 No discount or extension is allowed unless agreed to in writing by a duly authorised representative of Thistree.

5.11 Card transactions will be acquired for Thistree via Peach Payments (Pty) Ltd who are certified according to the highest industry standard – PCI Level 1. Various fraud detection algorithms are enabled, such as 3DSecure authentication and real-time checks to screen transactions. Thistree also has an SSL certificate enabled on our site. Users may go to www.peachpayments.com/products/protect to view their security policy.

5.12 Customer details will be stored by Thistree separately from card details which are entered by the client on Peach Payment’s secure site.

6. Granting and Withdrawal of Credit

6.1 Thistree will only consider credit applications from Dealers.

6.2 Thistree’s decision to grant credit to the Dealer and the nature and extent thereof is at the sole discretion of Thistree.

6.3 In order to assess whether credit will be granted, the Dealer consents to a credit check to be conducted by Thistree through credit bureaux.

6.4 Thistree reserves the right to withdraw, increase or decrease any credit granted at any time.

6.5 A Dealer with approved credit facilities as aforesaid hereby undertakes to ensure that any credit limit approved by Thistree is never exceeded. Accordingly the Dealer hereby agrees and undertakes to promptly make whatsoever payments are necessary to ensure that any such credit limit is never exceeded. No Orders of the Dealer will be executed by Thistree while any such credit limit is exceeded or any payment is overdue beyond the payment period set out above.

6.6 Where credit facilities of the Dealer have been withdrawn by Thistree, the Dealer agrees to make payment on a COD basis.

7. Delivery

7.1 Goods will only be released once payment has been received by Thistree and reflects in our bank account.

7.2 Any delivery note (copy or original) (“Delivery Note”) signed by the Customer and/or its authorised representative and/or its nominated agent and held by Thistree, shall be prima facie proof that delivery was made to the Customer.

7.3 The Customer must inspect the Goods on receipt and be satisfied that the Goods conform in all respects to the quality and quantity ordered and are free from any defects.

7.4 Upon receipt of the Goods the Customer will be asked to sign for the Goods received in good condition. If the package does not appear to be in good condition, or the Customer is unable to check the contents then please refuse the delivery. Failure to do so may affect any warranty claims that the Customer may make thereafter.

7.5 Thistree reserves the right to charge delivery charges.

7.6 The Customer may elect to instruct the appointed third party courier as elected by Thistree to deliver the Goods purchased, the delivery charges will be added to the Tax Invoice, alternatively the Customer may elect to instruct their own courier service for collection of the Goods and pay that courier directly. In either circumstance, the Customer indemnifies Thistree against any claims of any nature whatsoever that may arise therefrom.

7.7 When authorising Thistree to engage a Third Party Courier, the Customer understands and agrees that

7.7.1 the Customer and the appointed courier will be the parties to the Courier Service Agreement.

7.7.2 the Customer is bound by the terms and conditions of the appointed courier available on request from Thistree or from the courier directly.

7.7.3 the Customer will be liable for the couriers’ fees and same will be added to the Customer’s invoice, and payment thereof is as per the existing, agreed payment terms with Thistree.

7.8.1 All risk of the Goods passes to the Customer when the Customer collects the Goods from Thistree.

7.8.2 Should the Customer elect to use one of our appointed couriers, Thistree will provide insurance on all Goods dispatched to the value shown on the Tax invoice while in transit. An invoice, signed by the courier shall be proof that the order was collected by the courier. All risk of the Goods passes to the Customer once they sign a waybill to confirm the receipt of all Goods in good order. Thistree shall thereafter no longer be held liable for any damage to, or loss of the Goods. Apart from insurance claims, the Customer hereby indemnifies Thistree from any other claims of any nature whatsoever that might arise from engaging with one of our appointed couriers.

7.9 When using the appointed courier,

7.9.1 When not making use of one of Thistree’s appointed couriers, it is advisable that the Customer takes out additional insurance (making use of a third party insurance company) for the Goods while in transit.

7.9.2 Any complaints regarding damaged and/or missing Goods can be made with Thistree’s sales department.

7.9.3 The turn-around time given for delivery is an estimate and Thistree can not be held liable should the courier not deliver on time.

7.9.4 Delivery coverage areas may be adjusted from time-to-time by the appointed couriers. Thistree Sales Consultants should be contacted to verify coverage.

7.9.5 The appointed courier rates relevant to Thistree per coverage area are available from our Sales Consultants.

7.10 Thistree is entitled to engage a third party courier to transport Goods to or from the Customer on its behalf.

7.11 A delivery date is only an estimate as to when the Goods will be delivered, Thistree does not guarantee that the Goods will be dispatched or delivered on any particular date and time, and the Customer shall have no claim against Thistree in respect of any loss occasioned by any reasonable delay in dispatch or delivery of any Goods ordered, nor may the Customer cancel any Order by reason of such delay.

7.12 The Customer undertakes to grant access to Thistree, its subcontractors and/or their respective employees to deliver the Goods ordered at such premises, and neither Thistree, its subcontractors nor their respective employees shall be liable for any loss and/or damage caused, whether be negligence or otherwise, to any person and/or property, and/or consequential loss or damages arising from the entry and/or activities of Thistree, its subcontractors and/or their respective employees, effecting delivery of the Goods ordered.

7.13 Thistree shall be entitled to split the delivery of the Goods ordered in the quantities and on the dates it decides with the prior consent of the Customer, which consent shall not be unreasonably withheld.

7.14 Orders to Namibia, Botswana, Eswatini and Lesotho can nowbe made online with our appointed courier Namlog. When selecting Namlog courier on checkout, VAT will be charged at zero percent. If you select alternative shipping methods, please note that VAT at 15% may have to be added depending on who arranges the courier.

8. Ownership and Risk

8.1 Ownership in all Goods sold and delivered shall remain vested in Thistree until the full purchase price has been paid.

9. Return of Goods

9.1 Return of Goods that did not match the Order

9.1.1 If the Goods do not match what was ordered, the Customer is requested to notify Thistree as soon as possible after delivery and the Goods must be returned to Thistree within 10 (ten) business days after delivery.

9.1.2 If the Goods are returned because they did not match what was ordered and the Goods are not in their original condition and repackaged in their original packaging, Thistree may be entitled to charge a reasonable amount for use of the Goods during the time they were in the Customer’s possession, any consumption or depletion of the Goods, or for necessary restoration costs to render the Goods fit for re-stocking.

9.2 Return of defective Goods

9.2.1 All Goods sold have a 1 (one) year warranty against defects unless otherwise determined by Thistree. The Customer must keep their proof of purchase to verify the date of purchase. Please note that this warranty may fall away if the Goods have been altered contrary to instructions or after leaving the control of Thistree.

9.2.2 If the Goods are returned within 1 (one) year of purchase, and has been proven to be defective by a Thistree technician, Thistree, at it’s election, shall either replace, repair or refund the Goods.

9.2.3 Any Goods damaged due to power surges, black outs or lightning will not be exchanged under warranty.

9.2.4 The Customer hereby agrees to cover the full cost of returning any Goods to Thistree.

9.2.5 Thistree offers a free return shipping service within South Africa at election of the customer. This only applies to goods deemed defective by Thistree’s technicians. It is the responsibility of the customer to ensure correct return shipping address details and Thistree shall not be held liable for non delivery due to incorrect or incomplete details.

9.2.6 The Customer hereby agrees that any item returned for warranty or any other purpose will be collected within 30 days after a collection notice is issued to the customer by Thistree. Thistree reserves the right to credit, ship to the customer or dispose of any uncollected items once the 30 day notice period has lapsed.

9.3 Return of unwanted Goods

9.3.1 Thistree reserves the right to charge a handling fee of up to 15% (fifteen per cent) of the value of the returned Goods in the event that a Customer cancels an Order and Thistree accepts the return of unwanted Goods. Thistree will only entertain such requests if made within 10 (ten) business days of delivery of the Goods.

10. Breach

In the event of either party committing a breach of this Contract and failing to remedy such breach within 7 (seven) days of receipt of a written notice to this effect from the other party then the aggrieved party shall, be entitled to, without prejudice to any of its rights –

10.1 Claim specific performance; or 10.2 Cancel this Contract; or 10.3 Claim such damages as it may have sustained by reason of such breach.

11. Warranties

11.1 Thistree shall not be liable for any defects in the Goods sold unless such defects arise within 1 (one) year after delivery of the Goods to the Customer and arise solely from faulty materials or workmanship in the manufacture of the Goods.

11.2 The Customer acknowledges that he is aware of the limitations and exclusions of liability of Thistree and that Thistree’s liability is limited to the guarantee provided by the manufacturer of the Goods.

11.3 To the maximum extent permitted by law, all terms implied by law, statute or otherwise as to the satisfactory quality, fitness for purpose or conformity with description of the Goods are excluded.

12. Limitation of Liability

12.1 The Customer acknowledges that the Goods are not manufactured or supplied by Thistree and that Thistree shall not be liable for any defects or non-compliance in the Goods or for any injury or damage, loss, or expense, whether direct or indirect, arising from the use or the installation of the Goods, or for any loss of profits or other consequential loss or damages.

12.2 Notwithstanding anything herein contained to the contrary, Thistree shall not be liable for any consequential loss or damages of any nature whatsoever suffered by the Customer as a result of any breach by Thistree of any of its obligations in terms of this Contract or any cancellation of this Contract.

12.3 In the event that Thistree is held liable in any circumstances, the maximum amount of damages payable by Thistree shall be limited to the purchase price of the Goods.

13. Force Majeure

13.1 Thistree shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods, if the delay or failure is due to any cause beyond Thistree’s reasonable control.

13.2 Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond Thistree’s reasonable control:

13.2.1 act of God, explosion, flood, tempest, fire, or accident; 13.2.2 war or threat of war, sabotage, insurrection, civil disturbance, or requisition; 13.2.3 acts, restrictions, regulations, bye-laws, prohibitions, or measures of any kind on the part of any governmental, parliamentary, or local authority; 13.2.4 import or export regulations or embargoes; and 13.2.5 strikes, lock-outs, or other industrial actions or trade disputes.

14. General

14.1 This Contract contains the entire agreement between the parties and supersedes all previous negotiations, understandings, and agreements between the parties.

14.2 No amendment to this Contract shall be effective unless it is in writing and signed by both parties.

14.3 No waiver by either party of any breach of this Contract shall be considered as a waiver of any subsequent breach of the same provision or any other provision.

14.4 If any provision of this Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Contract and the remainder of the provision in question shall not be affected thereby.

14.5 The Customer shall not cede, delegate or assign any of its rights, or transfer any of its obligations, under this Contract without the prior written consent of Thistree.

14.6 Thistree shall be entitled to cede, delegate, assign, transfer, or subcontract any of its rights, or transfer any of its obligations, under this Contract to any third party without the prior written consent of the Customer.

14.7 This Contract shall be governed by the laws of the Republic of South Africa.

14.8 Each party consents to the jurisdiction of the Magistrate’s Court in respect of any action that may be brought against it in terms of or arising out of this Contract.

14.9 Any legal costs incurred by Thistree in the recovery of outstanding amounts or otherwise enforcing its rights under this Contract shall be for the account of the Customer on an attorney-and-own-client basis.