LEVI STRAUSS SOUTH AFRICA (PTY) LIMITED
STANDARD CONDITIONS OF TRADING
The following shall be the sole terms and Conditions of the contract arising from any
order placed with and accepted by Levi Strauss South Africa (Pty) Limited unless
otherwise expressly agreed in writing and signed by Levi Strauss South Africa (Pty)
Limited.
1
1.1
INTERPRETATION
In the interpretation of these Conditions the following words and
expressions shall have the following meanings unless the context
otherwise requires:
1.1.1
"Complementary Products" means certain other high-quality, highimage clothing and clothing accessories which are compatible with
the common identity and reputation of Levi’s® Stores and which are
not Levi’s® Products;
1.1.2
"Conditions" means the terms and conditions contained in this
document;
1.1.3
"Customer" means such person as shall have placed an order with
Levi Strauss for the supply of the Products which has been accepted
by Levi Strauss and/or any other person whom Levi Strauss has
contracted to supply;
1.1.4
"Levi’s® Products" means Levi’s® jeans and other clothing items
and accessories bearing the Trade Marks as distributed by Levi
Strauss from time to time;
1.1.5
"Levi’s® Stores" means the retail outlets for the display, marketing
and sale of the Products using the Trade Marks;
1.1.6
"Levi Strauss" means Levi Strauss South Africa (Pty) Limited,
registration number 1994/009168/07, a limited liability private
company duly incorporated in the Republic of South Africa;
1.1.7
"LS & Co" means Levi Strauss & Co of San Francisco, California, a2
company incorporated in the United States of America;
1.1.8
"Order Confirmation" means Levi Strauss' written confirmation
given to the Customer which confirms availability of the Products
ordered and acceptance of the Customer's order;
1.1.9
"Price" means the amount set out in Levi Strauss' quotation or
invoice subject to any variation confirmed by Levi Strauss and/or any
subsequent adjustment to be made thereto in terms of these
Conditions;
1.1.10
"Prime Rate" means the publicly quoted rate (per cent, per annum)
from time to time charged by Nedbank Ltd for similar amounts on
unsecured overdraft to its prime customers in good standing in the
private sector, as certified by any manager of that bank whose
appointment it will not be necessary to prove, calculated on a daily
basis and compounded monthly in arrear;
1.1.11
"Products" means the Levi’s® Products and the Complementary
Products as well as all products supplied by Levi Strauss to the
Customer in terms of these Conditions or in terms of any contract
entered into between the Customer and Levi Strauss, the
manufacture and/or assembly thereof by Levi Strauss, all material or
components incorporated therein, and any services rendered or work
performed by Levi Strauss to or for the benefit of the Customer;
1.1.12
"Trade Marks" means the trade marks and trade names and their
associated trade marks, symbols, logos, colour schemes and
designs generally used in the promotion of Levi’s® Products and
other branded products, owned by or licensed to LS & Co's and/or its
associated companies or any of them, from time to time;
1.1.13
"VAT" means value-added tax as levied from time to time in terms of
the VAT Act;
1.1.14
1.2
"VAT Act" means the Value-Added Tax Act, 1991.
Any substantive provision, conferring rights or imposing obligations on a
Party and appearing in any of the definitions in this clause 1 or elsewhere
in these Conditions, shall be given effect to as if it were a substantive
provision in the body of these Conditions.
1.3
Words and expressions defined in any clause shall, unless the application3
of any such word or expression is specifically limited to that clause, bear
the meaning assigned to such word or expression throughout these
Conditions.
1.4
Subject to clause 1.5, defined terms appearing in these Conditions in title
case shall be given their meaning as defined, while the same terms
appearing in lower case shall be interpreted in accordance with their plain
English meaning.
1.5
Reference to "days" shall be construed as calendar days unless qualified
by the word "business", in which instance a "business day" shall be any
day (other than a Saturday, Sunday or public holiday in the Republic of
South Africa). Any reference to "business hours" shall be construed as
being the hours between 08h30 and 17h00 on any business day. Any
reference to time shall be based upon South African Standard Time.
1.6
Any number of days prescribed shall be determined by excluding the first
and including the last day or, where the last day falls on a day that is not a
business day, the next succeeding business day, unless where specifically
otherwise provided in terms of these Conditions.
1.7
Where figures are referred to in numerals and in words, and there is any
conflict between the two, the words shall prevail, unless the context
indicates a contrary intention.
1.8
No provision herein shall be construed against or interpreted to the
disadvantage of a party by reason of such party having or being deemed to
have structured, drafted or introduced such provision.
1.9
The expiration or termination of these Conditions shall not affect such of
the provisions of these Conditions as expressly provide that they will
operate after any such expiration or termination or which of necessity must
continue to have effect after such expiration or termination, notwithstanding
that the clauses themselves do not expressly provide for this.
1.10
The use of any expression in these Conditions covering a process
available under South African law, such as winding-up, shall, if any of the
parties to these Conditions is subject to the law of any other jurisdiction, be
construed as including any equivalent or analogous proceedings under the
law of such other jurisdiction.
1.11
The words "include" and "including" mean "include without limitation" and4
"including without limitation".
The use of the words "include" and
"including" followed by a specific example or examples shall not be
construed as limiting the meaning of the general wording preceding it.
1.12
Any reference in these Conditions to these "Conditions" or any other
agreement or document shall be construed as a reference to these
Conditions or, as the case may be, such other agreement or document, as
amended, varied, novated or supplemented from time to time.
2
2.1
APPLICABILITY OF CONDITIONS
These Conditions supersede all prior negotiations, representations and/or
agreements, and all other terms express or implied whether by law or
custom or otherwise including usages of trade; and no other conditions nor
any amendment hereof or warranty or guarantee (including terms and
conditions in any standard order forms, letter, e-mail or other Customer’s
document which conflicts with or adds to these Conditions) whether
purporting to have been given by any officer, employee or agent of Levi
Strauss or otherwise shall be binding on Levi Strauss unless specifically
accepted by a director of Levi Strauss in writing.
2.2
No variation from these Conditions and no contrary stipulation by the
Customer shall be valid unless specifically accepted by a director of Levi
Strauss in writing and then only to the extent of such acceptance. In the
event of any conflict between any conditions purporting to have been
introduced by the Customer whether before or after these Conditions have
been conveyed to the Customer and which have not been so accepted, the
provisions of these Conditions shall prevail.
3
3.1
ACCEPTANCE
Any order placed with Levi Strauss is subject to a written Order
Confirmation by Levi Strauss as soon as is practical after receipt of the
Customer's order, which Order Confirmation must be in writing, pending
which no contract binding upon Levi Strauss shall be deemed to have been
established.
3.2
In the event of Levi Strauss being unable to confirm less than 80% (eighty
percent) of a Customer's particular order in terms of the Order
Confirmation, that Customer may cancel such an order, provided that
written notice is given to Levi Strauss not later than 14 (fourteen) days5
after receipt by the Customer of the abovementioned Order Confirmation,
failing which a binding contract in respect of the order as indicated in the
Order Confirmation will come into place.
4
4.1
PRICE
Prices for the Products and, where applicable, discounts, VAT, excise and
other duties and taxes, are those that apply at the date of receipt by Levi
Strauss of the relevant order for the Products. Levi Strauss reserves the
right to revise the Prices at any time before the date of the Order
Confirmation, in which event the revised Price as contained in the Order
Confirmation will be binding on the Customer.
4.2
Levi Strauss may grant such discounts as it in its sole discretion may deem
appropriate from time to time.
4.3
Prices are stated exclusive of VAT, excise duty and delivery surcharges
(not applicable to collect orders).
4.4
Orders are subject to surcharges where the order is below the minimum
order values stipulated by Levi Strauss from time to time, as well as
surcharges for broken case lots, as specified by Levi Strauss from time to
time.
4.5
All variation orders must be in writing and shall not be binding upon Levi
Strauss unless accepted by it. If as a result of the Customer's instructions
for variations as aforesaid or the Customer's failure to give instructions, all
extra costs incurred by Levi Strauss shall be paid for by the Customer.
4.6
Prices quoted are conditional upon placement of an order for all the
Products encompassed by the quotation. If any items are excluded in the
order placed by the Customer, Levi Strauss will be entitled to confirm
acceptance making such allowance for the excluded items as Levi Strauss
may in it discretion determine as indicated above in the Order
Confirmation.
5
5.1
TERMS OF PAYMENT
Accounts are due and payable not later than 30 (thirty) days from the date
of the Levi Strauss invoice, unless otherwise agreed in writing by Levi
Strauss, provided that if such 30 (thirty) day period falls on a day which is
not a business day, payment shall be due on the immediately preceding
business day. All payments shall be free of set-off, deductions or charges6
other than any settlement discount agreed to by Levi Strauss in writing.
5.2
All payments shall be made to Levi Strauss in South African currency free
of exchange into the following bank account or such other account or place
as Levi Strauss may from time to time in writing direct:
Bank: HSBC Bank
Branch name: HSBC – Johannesburg Branch
Branch number: 587000
Bank Account number: 1 21 009252 001
Swift code: HSBCZAJJ
Some banks in South Africa do not cater for 12 digit accounts. Please
remove the 1 at the front of the account number if your EFT system only
allows for 11 digits.
5.3
No payment may be delayed by the Customer on the grounds of alleged
default by Levi Strauss, nor shall the Customer be entitled to set off any
claim alleged against Levi Strauss whether arising out of the contract in
question or otherwise.
5.4
In the event of Levi Strauss having to take legal action against the
Customer to collect amounts owing by the Customer –
5.4.1
Levi Strauss shall be entitled (but not obliged) to institute proceedings
in any magistrates court having jurisdiction over the Customer's
person notwithstanding the amount of Levi Strauss's claim and the
Customer by submitting his order shall be deemed to have consented
thereto;
5.4.2
a default certificate issued under the hand of any director of Levi
Strauss (whose status as such need not be proved) showing the
amount due by the Customer at any given time, shall be prima facie
evidence of the amount due by the Customer and such certificate shall
be sufficient for purposes of judgment or provisional sentence or other
legal proceedings;
5.4.3
the Customer shall be responsible for payment of all legal fees and
costs incurred by Levi Strauss on an attorney and own client basis,
including collection commission.
5.5
In the event of any amount due not being paid by the Customer on the7
due date thereof, interest shall, without prejudice to Levi Strauss' other
remedies, accrue on the amount which is due and owing, at 5 (five)
percentage points above the Prime Rate, from due date of payment until
the date of receipt of payment, both days inclusive.
5.6
Levi Strauss accepts no responsibility for the mis-allocation of payments
received by Levi Strauss unless such payment is accompanied by full and
proper particulars to enable it to be identified, including the Customer's
account number in the books of Levi Strauss.
No payment shall be
deemed to have been received by Levi Strauss until it is credited to the
account of the Customer in Levi Strauss's books and all payment shall first
be allocated to interest accrued and thereafter to the capital amount due.
6
6.1
DELIVERY
The Customer agrees that the signature of any of the Customer's
employees or any authorised independent carrier, on the official delivery
note or invoice of Levi Strauss, constitutes delivery of the Products
purchased by the Customer.
6.2
Unless otherwise stated all orders are quoted C.I.F. Cape Town.
6.3
If Levi Strauss agrees to arrange transport of the Products to any other
place, all costs of such transport shall be for the Customer's account, and
delivery will be deemed to have taken place when the Products leave Levi
Strauss's premises.
6.4
Levi Strauss's obligations cease with the clear receipt obtained when
Products are delivered to the station stated in 6.2 above or otherwise as
stipulated in 6.3. The risk in the Products sold, passes to the Customer on
delivery as aforesaid and the Customer shall insure the same for such
sums and against such risks as Levi Strauss may reasonably require.
Ownership of the Products shall however only pass to the Customer after
Levi Strauss shall have received full payment for the Products and
ownership shall remain vested in Levi Strauss until that time.
If third
parties try to assert or substantiate rights to any Products in which Levi
Strauss still has proprietary rights, the Customer shall be obliged to inform
Levi Strauss immediately, and Levi Strauss shall in the event of any such
claim, whether the Customer has notified Levi Strauss or not, be entitled to
take whatever action it may deem fit to protect its rights, including8
cancellation of the sale and repossession of the Products.
6.5
In the event of any cancellation of a sale, whether in terms of this clause or
by virtue of any other provision of these Conditions, the Customer
undertakes to look after and keep the Products safe until repossessed by
Levi Strauss, and upon request from Levi Strauss the Customer
undertakes to hand over and return the Products to Levi Strauss. Levi
Strauss shall remain entitled to payment for all work completed up to date
of cancellation.
6.6
The Customer shall give such notices and obtain such undertakings as
Levi Strauss may reasonably require to protect Levi Strauss's rights in
terms of this clause.
6.7
The time given for delivery is to be dated from the date of the Order
Confirmation. Levi Strauss shall not be held responsible for any delays of
delivery or non-delivery due to the failure of the Customer to supply any
instruction or component or material which the Customer is required to
supply or to any cause beyond Levi Strauss's control including (without
limiting the generality of the aforegoing) delays by suppliers, breakdowns of
machinery, labour disputes, war, rebellion, riots, lockouts, civil commotions,
fire, accidents, droughts, floods and storms, regulations or orders of any
government or authority or Act of God, or Levi Strauss's inability to obtain
any necessary licence or permit required.
6.8
In the event of any such delay, the contract in so far as it relates to further
deliveries and implementation of Levi Strauss's obligations, will be deemed
to be suspended with the right to Levi Strauss to cancel it, in which event
no further liability shall rest on Levi Strauss other than to refund monies
already paid in respect of Products which have not been delivered; or,
unless the contract has by then been terminated by mutual agreement, to
continue the same as soon as the impediment to delivery has been
resolved in which event delivery will be effected as soon as reasonably
possible thereafter. Any delay in delivery whether arising out of any of the
causes aforementioned or otherwise shall be deemed not to be of the
essence of the contract and the Customer shall not be entitled to cancel
the contract on that ground.
6.9
Anything to the contrary herein contained notwithstanding, Levi Strauss9
shall be entitled to suspend delivery until the full Price as contained in the
Order Confirmation has been paid by the Customer.
7
STORAGE
Levi Strauss will not be obliged to retain the Products or any part thereof as
may from time to time be available for delivery for a period of more than 15
(fifteen) days after notification to the Customer that such Products are so
available. If the Customer shall fail to furnish written instructions as to the
disposal of such Products to Levi Strauss within the time aforementioned,
Levi Strauss shall be entitled without further notice to the Customer to
remove such Products or any part thereof to a place of storage appointed by
Levi Strauss and the cost of such removal and all costs of and incidental to
such storage shall be paid by the Customer or refunded by the Customer to
Levi Strauss if disbursed by Levi Strauss. Delivery in terms of 6 above shall
in such circumstances be deemed to have been effected when the Products
leave Levi Strauss's premises.
8
8.1
REFUNDS AND CLAIMS
Subject to the provisions of this clause, and in particular to 8.2 below,
provided that Levi Strauss in its sole discretion is satisfied that Products
are materially defective in material or workmanship, Levi Strauss will
either:-
8.1.1
replace the Products; or
8.1.2
repay the purchase price of the Products if paid, or pass a credit if not
paid, or
8.1.3
repair the Products
as Levi Strauss may in its absolute discretion determine.
8.2
No claims will be recognised unless made within 7 (seven) days after
delivery and Levi Strauss' agreement to repay, replace or repair the
Products in terms of the aforegoing provisions must be obtained before any
Products are returned.
Levi Strauss' acceptance of liability under sub-
clause 8.1 above will be limited to the invoice value of the Products.
8.3
Under no circumstances will Levi Strauss be responsible for any loss10
suffered by the Customer including (without derogating from the
generality of the foregoing) loss of Customer's profits or for any direct,
indirect and/or consequential damages or other loss nor will the Customer
be entitled to any claims for cancellation or rescission of the contract or
return of the Products arising out of errors in carrying out the contract, or
for alleged latent or patent defects, or for delay in delivery, or for
unsuitability of Products for use as intended, whether occasioned by
negligence of Levi Strauss or any other person or not; or for defective
workmanship or materials or in any manner.
8.4
Any advice or assistance given, whether concerning processing or
application
possibilities
relating
to
the
Products,
technical
recommendations or similar indications, or otherwise is given in good faith
but without obligation and subject specifically to the exclusion of any
liability whatever on Levi Strauss's part, or on the part of its employees for
damages whether direct or consequential, or otherwise howsoever, and
whether such claim is based upon alleged breach of contract, or
negligence, or otherwise.
8.5
All data, statements and recommendations made are based upon
information
believed
to
be
reliable,
but
are
made
without
any
representations or guarantee or warranty of accuracy. The Customer is
solely responsible to determine whether the Products ordered by it are
suitable for the purpose for which the Customer intends using them. All
warranties expressed or implied, whether statutory, in terms of common
law or otherwise, are expressly excluded save in so far as specifically
accepted by Levi Strauss in terms of its quotation, and, if so accepted, shall
not extend to any proprietary articles or components supplied by or
incorporated in the Products supplied by Levi Strauss, which articles or
components will be subject to the warranty of the manufacturer (if any)
only.
8.6
Levi Strauss shall not be liable for any alleged shortage in delivery, unless
such shortage is endorsed by the Customer as well as by the driver
employed by the designated transporters as appointed by Levi Strauss on
the delivery consignment notes relating to the Products in question and that
written notice of such claim is received by Levi Strauss within 48 (forty
eight) hours after the receipt of the Products at their destination.
9
9.1
DEFAULT BY CUSTOMER
11
In the event of the Customer failing to fulfil on due date any of the terms
and/or Conditions hereof including specifically the failure to make payment
of any amount on the due date for payment thereof, or in the event of the
Customer suffering the judgment of any competent court of law to be taken
against him and failing to settle or to note an appeal against the same
within 7 (seven) days of the granting of such judgment or of application
being made for the sequestration of the Customer's estate as insolvent (or
for its liquidation or judicial management in the case of a company) or of
the Customer assigning or offering to assign his estate for the benefit of his
creditors, then and in any such event Levi Strauss shall be entitled without
further notice (in addition to and without prejudice to any other rights
available at law):
9.1.1
to suspend deliveries and/or any further work on or in connection with
the Products, and
9.1.2
to claim immediate payment of the entire balance of the Price whether
or not Levi Strauss is then able to complete delivery, subject only to
Levi Strauss's obligation upon receipt of payment in full to fulfil delivery
in accordance with the terms of the Contract; and/or
9.1.3
to cancel the Contract and claim payment of all arrear instalments due
(if any) and to retain any payments already made by the Customer,
either as rouwkoop, or by way of penalty or as liquidated damages, or
as payment in respect of the prejudice which it is agreed will be
suffered by Levi Strauss as a result of the Customer's breach
aforementioned; and/or
9.1.4
in lieu of exercising Levi Strauss's rights under 9.1.2 above, to cancel
the contract and claim and recover from the Customer such damages
as Levi Strauss may be able to prove Levi Strauss has sustained and
Levi Strauss shall be entitled to retain all payments made by the
Customer prior to cancellation until the actual amount of damages has
been determined by a court, and thereupon set off such damages12
against the amount so held.
9.2
In the event of cancellation by Levi Strauss in terms of any provision of this
clause 9, Levi Strauss without prejudice to any of its rights, may take
possession of and remove any Products or works or materials in respect of
which the Price has not been paid in accordance with the provisions of 5
above.
10
10.1
SCOPE OF ORDERS
Drawings, designs, photographs and other descriptive matter furnished by
Levi Strauss shall be deemed to be for purposes of description only and
shall not form part of the Contract unless specifically stated to be so in
terms of any order.
10.2
Weights and dimensions stated in any order or any accompanying
documents are given as accurately as circumstances permit but shall be
deemed to be descriptive only and shall not constitute terms of the
Contract unless specifically stated to be so.
10.3
Whilst Levi Strauss will endeavour to supply all Products as closely as
possible to the stated dimensions and weights, reasonable tolerances will
be acceptable and no reasonable discrepancies between the quotation,
order or other definition and the Products as supplied shall vitiate the
Contract or render Levi Strauss liable to the Customer in any way.
10.4
The quoted Price is based upon such drawings, specifications, parts lists
and other data as may have been furnished by the Customer and include
only such items as are called for therein. Should the completion of the
articles require additional work or material, the Customer shall be liable to
pay therefor at Levi Strauss's current Prices.
10.5
All data, drawings, information, specifications, intellectual property rights
and like matter submitted by Levi Strauss in connection with its quotation or
the subsequent supply and promotion of Products shall remain the property
of Levi Strauss and shall not be divulged to any third party without Levi
Strauss's consent. All documents shall be returned to Levi Strauss on
demand. All such matter furnished by the Customer may be disclosed to
such third parties as Levi Strauss may deem necessary for the proper
performance of its obligations hereunder.
10.6
The Customer shall never and under any circumstances acquire any13
rights in respect of the Trade Marks, or in respect of Levi Strauss' or LS
& Co's intellectual property or any of the goodwill relating thereto.
10.7
Point-of-sale materials and/or signage provided to Customer will at all
times remain the property of LS and their use by Customer must comply
strictly with the scope of use specified by LS. LS will be entitled to require
return of any such point-of-sale materials and/or signage at any time.
Customer shall be responsible to LS for maintaining any such point-of-sale
materials and/or signage in good condition, fair wear and tear excepted.
10.8
Products sold to Customer may only be resold through retail by Customer
to the public within the territory that LS specifically authorised in writing.
Customer may not sell Products or allow Products to be sold to
wholesalers, distributors, other retailers, exporters, agents or other
purchasers for purposes of resale unless otherwise approved by LS in
writing prior to such sale.
All sales must be personal and conducted
through pre-approved retail outlets.
10.9
Customer must not directly or indirectly sell, buy or otherwise deal in any
pre-owned Products. Customer must not source any Products from any
person other than from LS or its designated distributors.
11
LAW APPLICABLE
The contract between Levi Strauss and Customer arising herefrom, shall in all
respects be governed by the laws of the Republic of South Africa.
12
12.1
NOTICES
The Customer selects as its domicilia citandi et executandi the physical,
postal and telefax addresses as furnished in writing to Levi Strauss, and for
the purposes of giving or sending any notice provided for or required under
these Conditions, provided that the Customer may change its domicilium or
its address for the purposes of notices to any other physical address or
telefax number by written notice to Levi Strauss to that effect.
Such
change of address will be effective 5 (five) business days after receipt of
the notice of the change. Levi Strauss' domicilium citandi et executandi
shall be as indicated on its invoice from time to time.
12.2
All notices to be given in terms of this Agreement will be given in writing
and will –
14
12.2.1
be delivered by hand or sent by telefax;
12.2.2
if delivered by hand during business hours, be presumed to have been
received on the date of delivery. Any notice delivered after business
hours or on a day which is not a business day will be presumed to
have been received on the following business day; and
12.2.3
if sent by telefax during business hours, be presumed to have been
received on the date of successful transmission of the telefax. Any
telefax sent after business hours or on a day which is not a business
day will be presumed to have been received on the following business
day.
13
13.1
GENERAL
These Conditions constitute the only Conditions between the parties
relating to the matters dealt with herein and, save to the extent otherwise
provided herein, no undertaking, representation, term or condition relating
to the subject matter of these Conditions not incorporated in these
Conditions, shall be binding on any of the parties.
13.2
Levi Strauss shall be entitled to vary these Conditions on not less than 30
(thirty) days' written notice given to the Customer, save where a shorter
notice period is specifically provided for in these Conditions.
13.3
Failure or delay on the part of any party in exercising any right, power or
privilege hereunder will not constitute or be deemed to be a waiver thereof,
nor will any single or partial exercise of any right, power or privilege
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
13.4
The parties record that whilst they may correspond via email during the
currency of these Conditions for operational reasons, no formal notice
required in terms of these Conditions, nor any amendment of or variation to
these Conditions may be given or concluded via email.
13.5
All provisions and the various clauses and sub-clauses of these Conditions
are, notwithstanding the manner in which they have been grouped together
or linked grammatically, severable from each other. Any provision, clause
or sub-clause of these Conditions which is or becomes unenforceable in
any
jurisdiction,
whether
due
to
voidness,
invalidity,
illegality, 15
unlawfulness or for any other reason whatever, shall, in such jurisdiction
only and only to the extent that it is so unenforceable, be treated as pro
non scripto and the remaining provisions, clauses and sub-clauses of these
Conditions shall remain of full force and effect. The parties declare that it is
their intention that these Conditions would be executed without such
unenforceable provision if they were aware of such unenforceability at the
time of execution hereof.