Diamond Terrarium

By ordering, purchasing, or receiving any products, good or services from Angles and Earth, you irrevocably and immediately agree and bind yourself to the terms and conditions of sale and service as disclosed hereunder.
1 Definitions
In these Standard Terms and Conditions, including the annexures to these Standard Terms and Conditions, unless a contrary intention clearly appears the following terms shall have the meanings assigned to them in this clause and cognate expressions shall have corresponding meanings –

1. 1.1  “BusinessDay”-anydayintheRepublicofSouthAfricaotherthanaSaturday,Sundayorpublicholiday;
2. 1.2  “BiodiversityAct”–theBiodiversityActNo10of2005andanyassociatedregulations;
3. 1.3  “CPA” – the Consumer Protection Act No. 68 of 2008 and any associated regulations;
4. 1.4  “ESTA” – the Electronic Transactions and Communications Act No. 25 of 2002 and any associated regulations;
5. 1.5  “goods/products” – used interchangeably, and can refer to any plants, flora, terrariums, soils, earth, or other item sold by the Seller and which relates to the

   creation of living plant-life within a terrarium or other man-made container;

6. 1.6  “Purchaser”-anypersonwhoorder,purchases,hires,orappointstheSellertodelivergoods,servicesorproducts;
7. 1.7  “Seller” – A and E Terrarium (Pty) Ltd, 20168407718/07, trading as Angles and Earth;
8. 1.8  “services” are the maintenance, repair, gardening and replacement services offered by the Seller in respect of its products.

2 In these Standard Terms and Conditions, where any provision is qualified by the words “to the extent permitted by law” the Seller and the Purchaser agree that

such provision shall only apply to the extent that the laws of the Republic of South Africa allow same to apply, on the basis that if the Seller is precluded from

applying –

1. 2.1  anysuchprovisionthenthetermsofsuchprovisionwhichtheSellerisprecludedfromapplyingshallnotapply;or
2. 2.2  thefulltermsofanyprovisionthensuchprovisionshallnotapplyandshallbeseveredfromtheseStandardTermsandConditions,

   and the remaining provisions hereof shall be of full force and effect.

3. 3  The Purchaser does hereby accept to be bound by the terms and conditions set out herein.
4. 4  These Standard Terms and Conditions shall apply to all contracts of sale of goods and/or supply of services by the Seller to the Purchaser and no terms or

   conditions appearing in any of the Purchaser’s documents, including the Purchaser’s buying order, which are at variance with these conditions shall be binding

   on the Seller unless specifically agreed to in writing by the Seller.

5. 5  Should any order be given to the Seller on an order form reflecting the Purchaser’s name as the entity from which the order emanates, such order shall be

   deemed to have emanated from the Purchaser, notwithstanding the fact that such order may have been given or signed by a person not authorised by the

   Purchaser and such order will be deemed to constitute a valid order.

6. 6  Unless otherwise agreed in writing by the Seller, payment shall be made by the Purchaser to the Seller without deduction or demand and free of all bank and

   exchange charges, set off and any other deduction of any nature whatsoever.

7. 7  In the event of any of any fraudulent activities which are perpetrated whereby a change of banking details is advised on the Seller’s letterhead or by other means,

   the Purchaser agrees that any payment made to any other bank account shall not constitute a valid discharge of the Purchaser’s obligation to make such payment. The Purchaser shall be obliged to notify the Seller of any receipt by it of a notification of change of banking details and shall only give effect thereto if same is confirmed telephonically and in writing by a Director of the Seller. All losses suffered as a result of any amounts being paid by the Purchaser into any bank account other than the account of the Seller shall be borne solely by the Purchaser.

8. 8  Should the Purchaser become subject to a Credit Event the whole balance outstanding by the Purchaser to the Seller will immediately become due and payable. Notwithstanding anything contained herein, in the event of the Seller granting credit terms to the Purchaser, the Seller reserves the right to withdraw such credit terms at its sole discretion if it believes that the Purchaser’s financial position has deteriorated after the date that the credit terms were granted.
9. 9  Should the Purchaser not make payment within 30 days of the due date for payment for any goods purchased or services provided then the Purchaser shall be obliged to pay the Seller interest thereon at the Prime Rate plus 2% (two per centum) calculated from the due date until payment (both dates inclusive) which interest shall be calculated daily and compounded monthly in arrears on the last day of each month. The “Prime Rate” shall mean the rate publicly quoted by The South African Reserve Bank, from time to time, as being its prime rate (expressed as a nominal annual compounded monthly in arrear rate), calculated on a 365 (three hundred and sixty five) day a year factor, irrespective as to whether or not the year is a leap year and prima facie proven, in the event of there being a dispute in relation thereto, by a certificate signed by any manager of the aforesaid bank (whose appointment, qualification or authority need not be proven).
10. 10  To the extent permitted by law, the Seller shall incur no liability in respect of the non-delivery or late delivery of any goods ordered by the Purchaser, and Purchaser’s damages, costs or losses shall be limited to a refund of any amounts paid in respect of the goods.

    NOTE: This clause limits and excludes the rights and remedies of the Purchaser and places various risks, liabilities, obligations and legal responsibilities

    on the Purchaser.

11. 11  Signature by the Purchaser, or by any representative of the Purchaser, to the Seller’s delivery note shall be regarded as acceptance by the Purchaser that the goods reflected in such delivery note have been properly and completely delivered. Goods that are posted or are to be transported by a carrier according to the Purchaser’s instructions shall be deemed to have been delivered to the Purchaser on receipt of the goods by the Post Office or Carrier, as the case may be.

    NOTE: This clause limits and excludes the rights and remedies of the Purchaser and places various risks, liabilities, obligations and legal responsibilities

    on the Purchaser.

12. 12  Risk in and to the goods shall pass to the Purchaser on delivery.
13. 13  Notwithstanding the delivery of any goods to the Purchaser, ownership thereof shall not pass until the Seller has received payment of the full purchase price.

    The Seller shall in its own discretion be entitled to take back possession of any of the goods which have not been paid for and in respect of which payment is

    overdue.

14. 14  The Purchaser shall not permit or allow the goods or any portion thereof to become subject to any landlord’s lien or hypothec until the price payable therefor

    has been settled in full, on the basis that the Purchaser shall be obliged to inform the landlord of the premises at which the goods are stored from time to time (to the extent that such premises are not owned by the Purchaser), in writing, of the Seller’s ownership of the goods and to provide the Seller on request with an acknowledgement of receipt from the aforesaid landlord of such notification.

15. 15  Where the Seller does not transport the goods, the Seller accepts no liability for goods damaged or lost in transit.
16. 16  To the extent permitted by law, the Purchaser shall have no claim for short delivery unless the Purchaser has specified on the Seller’s delivery note and/or invoice

    the quantity of the short delivery.

    NOTE: This clause limits and excludes the rights and remedies of the Purchaser and places various risks, liabilities, obligations and legal responsibilities

    on the Purchaser.

17. 17  To the extent permitted by law, the Seller shall be exempted from and shall not be liable under any circumstances whatsoever for any direct or indirect loss or damages of any nature (including without limitation consequential loss) or any loss of profit which the Purchaser may suffer as a result of any breach by the Seller of any of its obligations or arising out of the use of the goods, except where such loss is attributable to gross negligence on the part of the Seller or its servants or agents.

    NOTE: This clause limits and excludes the rights and remedies of the Purchaser and places various risks, liabilities, obligations and legal responsibilities

    on the Purchaser.

18. 18  To the extent permitted by law, the Seller shall have no liability in respect of any claim –
    1. 18.1  based on defective goods where such defect arose directly or indirectly as a result of the Purchaser failing to comply with generally accepted storage conditions

       applicable for such product and/or the Seller’s specific instructions for the storage of the goods, where applicable, or where such defect is directly attributable

       to the negligence of the Purchaser;

    2. 18.2  in respect of any defect in any perishable goods unless the Purchaser inspects such goods at the time of delivery thereof to the Purchaser and notifies the

       Seller in writing of any such defects forthwith on delivery;

    3. 18.3  in respect of any goods in circumstances where the outer packaging thereof has been altered or broken by the Purchaser; and/or

18.4 in respect of any goods (other than perishable goods) unless the Purchaser notifies the Seller thereof, in writing, within five days after delivery thereof to the Seller.

NOTE: This clause limits and excludes the Purchaser’s rights and remedies.

19. 19  To the extent permitted by law, the Purchaser hereby agrees to indemnify the Seller against all claims of whatsoever nature which may be made against the Seller by any third party arising out of the use of the goods sold by the Seller to the Purchaser and/or the services provided by the Seller to the Purchaser, unless such claims arise out of gross negligence of the Seller.

    NOTE: This clause limits and excludes the Purchaser’s rights and remedies and places various risks, liabilities, obligations and legal responsibilities on

    the Purchaser.

20. 20  The Seller shall be entitled to bring any action or proceeding against the Purchaser in any competent court, and that all costs incurred in any action including costs on an attorney/client scale and attorneys collection commission will be paid by the Purchaser. The Purchaser and the Seller agree that the laws of South Africa will govern any dispute between the parties.
21. 21  The Purchaser hereby chooses as its domicilium citandi et executandi for all purposes arising out of these Standard Terms and Conditions the address selected by the Purchaser for the delivery of any goods and services by the Seller, alternatively the address expressly recorded and notifying the Seller in writing.
22. 22  Any notice required to be given by either party to the other in terms of this agreement shall be in writing and shall either be delivered by hand or be forwarded by pre-paid registered post or by telegram or fax; and unless and until the contrary is proved, a notice:
    1. 22.1  sent by pre-paid registered post shall be deemed to have been received on the fourteenth calendar day after posting;
    2. 22.2  sent by telegram shall be deemed to have been received on the second calendar day after lodgement with the post office (excluding Saturdays, Sundays and

       Public Holidays);

    3. 22.3  sent by e-mail or telefax shall be deemed to have been received on the first business day following that on which it was sent;
    4. 22.4  delivered by hand will be deemed to have been received at the moment of delivery directly to the parties to this agreement.

23. 23  Unless the context otherwise requires, the words importing the singular shall include the plural and vice versa, a natural person shall include an artificial person

    and vice versa and the one gender shall include the other gender and vice versa.

24. 24  The Purchaser shall not, under any circumstances, be entitled to withhold or set-off payments to the Seller. A certificate from a manager or director of the Seller

    shall constitute prima facie proof of the Purchaser’s indebtedness.

25. 25  Where the Seller renders services to the Purchaser, including maintenance, gardening, repair and replenishment of products (primarily on-site at the Purchaser’s

    address), and Seller’s obligations shall be limited as follows.

    1. 25.1  The Seller charges for the services on a per unit or product basis, and reserves the right to charge pro-rata or higher amounts for products of different

       characteristics, sizes, and needs. Replanting with a new plant is not included as part of any monthly service charges, and as such the charges for same will be levied separately, depending on the characteristics of the applicable terrarium and plant. The Purchaser acknowledges that the Seller may not be permitted to act in contravention of the Biodiversity Act.

    2. 25.2  The Seller will attend to services and call-out to the Purchaser’s premises a maximum of twice per month. Any additional requirements for services or call-outs may be done upon the Purchaser’s request and at the Seller’s discretion, and the Seller reserves its right to invoice further amounts to the Purchaser for such services.
    3. 25.3  In the event that a particular product is damaged, stolen, or lost while in the Purchaser’s care, the Seller shall not be liable for the repair, maintenance, or replacement of that product. It is specifically recorded that the services do not include replacement of broken or damaged glass.
    4. 25.4  The Seller shall only perform its service at the date and time of its own discretion, on business days, from 09:00 to 17:00.
    5. 25.5  The Seller will render the services in any major metropolitan area, however it reserves the right to charge travel costs at a rate of R3/km where it deems

       necessary.

    6. 25.6  The Purchaser is not entitled to request a refund, change, or replanting of any plant or flora as a part of the services rendered by the Seller. The Seller may, at

       its discretion, attend to such refund, replacement or replanting for an additional charge, to be payable by the Purchaser.

    26. 26  If the products ordered by the Purchaser are special order goods as defined in the CPA, the Purchaser shall not enjoy the rights afforded by Section 17 of the

        CPA, which include the cancelling of any advance order or booking.

    27. 27  If the Purchaser is not exempt from the application of the CPA in terms of Section 5 therein, and it orders products not defined as special order goods in terms

        of the CPA, then the Purchaser may cancel the order, provided that: the Seller may require payment of a reasonable deposit for such products in advance; and

        the Seller may impose a reasonable cancellation charge in the event of the Purchaser cancelling the order.

    28. 28  The Purchaser acknowledges that the deposit and cancellation charge levied by the Seller is reasonable and fair in the circumstances.
    29. 29  If the Purchaser is not exempt from the application of the CPA in terms of Section 5 therein, then in addition to warranties the Purchaser will enjoy the protection

        afforded by Section 20 of the CPA, which includes, inter alia:

        1. 29.1  The right to return products to the Seller, where the products were intended to satisfy a particular purpose as communicated to the Seller, and within 10 (ten)

           business days after delivery to the Purchaser, the products have been found to be unsuitable for that particular purpose;

        2. 29.2  Products returned as aforesaid must be returned to the Seller at the Purchaser’s risk and expense, provided that upon the return of the products, the Seller

           shall refund the Purchaser the price paid for the goods less any amount that the Seller may charge as provided for in Section 20(6) of the CPA.

    30. 30  The Purchaser may not return products to the Seller without the prior written consent of a duly authorised representative of the Seller and, in the event of such consent being granted, the Purchaser will not be entitled to a credit for the returned products unless, when returning such products, it simultaneously advises

        the Seller in writing of the original delivery note number or the original invoice number.

    31. 31  Should the Purchaser return products in accordance with this agreement, a restocking charge might be levied by the Seller. In addition, if any of the returned

        goods had been specifically imported for the Purchaser, the Purchaser will be liable for the cost that was incurred by the Seller in transporting the products from

        the overseas supplier to the Seller.

    32. 32  As prescribed by the ESTA, if the goods are purchased entirely through an automated online portal, the Purchaser shall have 7 (seven) days to return the goods

        to the Seller, and request a refund – provided the goods are returned to the Seller in the same condition in which they were originally delivered.

    33. 33  Should the Purchaser have any claims for delivery of any incorrect quantity or for any damaged or lost products, it shall be obliged to notify the Seller of such

        claim within 5 (five) business days of delivery having been effected, failing which any such claim will lapse.

        NOTE: This clause limits and excludes the rights and remedies of the Purchaser and places various risks, liabilities, obligations and legal responsibilities

        on the Purchaser.

    34. 34  Any condonation of any breach of any of the provisions hereof or other act or relaxation, indulgence or grace on the part of the Seller shall not in any way operate as or be deemed to be a waiver by the Seller of any rights hereunder, or be construed as a novation thereof.
    35. 35  Each clause of these Standard Terms and Conditions is severable, the one from the other and if any one or more clauses are found to be invalid or unenforceable, that clause/clauses shall not affect the balance of these Standard Terms and Conditions, which shall remain of full force and effect.
    36. 36  This contract contains the entire agreement between the parties and any other terms thereof whether express or implied are excluded herefrom and any variations, cancellations or additions to this contract shall not be of any force or effect unless reduced to writing and signed by the parties or their duly authorised representatives.