SALES TERMS AND CONDITIONS
1. Definitions of seller, purchaser, products, invoice and quotation agreements
i. Gabz Tool Mart will for the remainder of this contract be known as “the seller”.
ii. Any purchaser of our products or services will for the remainder of this contract be known as “the consumer”.
iii. All products referred to will be products that are sold under the trade name “MACAFRIC”, unless stated otherwise on the equipment, or by the seller.
iv. You as the purchaser are deemed to have read, understood, accepted and be bound by these terms and conditions upon requesting a quotation or an invoice from the seller.
2. Products, marketing, prices and stock availability
i. All attempts are made by the seller to keep the products as up to date as possible by placing new pictures and prices on our website, as well as in our brochure that is distributed periodically.
ii. We do reserve the right to amend any products’ description, specifications and prices at any time, without prior notification to the consumer.
iii. Prices on our website will be amended on the day that the change is effective.
iv. We strongly advise any prospective consumer to check the prices before visiting the branch.
v. We will accommodate consumers with price changes under the following circumstances:
vi. The consumer has a printed quotation from any of our branches, which is valid for a period of 7 (seven) days from being requested.
vii. The seller has the right to keep a limited amount of stock in their warehouses, calculated using the history on previous sales of each item.
viii. Any item is subject to the availability of the item from the seller’s supplier, and also to the transport system which we rely on to transport our goods.
ix. We will not take responsibility for items not available by reason of Vis Maior, or from any other cause whatsoever beyond the seller’s control, inter alia, inability to secure labour, materials, power, telephone line, or internet failure, or by reason of war, civil disturbances, riot, state of emergency, strike, lock out or other labour disputes, fire, theft or legislation.
x. The seller undertakes to do his utmost best to have any promoted items available during the stipulated time of the promotion.
xi. In the event of items running out due to high sales, it will be up to the seller’s discretion to supply a different item for the same price as that of the promotional item, of similar quality and specifications, if they have such an item available.
xii. The seller collects consumer data on invoices for the following reasons:
a. To send marketing information to the consumer, such as specials on items, information regarding our products that will be helpful to our consumers as well as the latest edition of our product brochure.
b. To be able to get into contact with consumers, whether private individual or entity, to recall faulty equipment.
c. That the consumer may be contacted on payments that have defaulted, such as a cheque payment or electronic bank transfer payment, to collect any outstanding monies owing to the company.
d. In the event that the consumer would not want to receive any marketing from the seller, please notify the seller either by phone, e-mail, and facsimile or by completing the online removal form. The same applies for consumers that wish to receive our brochure, by post. A form may be completed online at www.gabztoolmart.co.bw A facsimile requesting the brochure by post may be sent to 3952822. An e-mail may also be send to firstname.lastname@example.org
xiii. The seller will not take any responsibility for referring consumers, whether private individuals or entities, to alternative suppliers during times that we do not have stock, or on items that we do not supply.
3. Payments, quotation validity dates and refunds
i. Payment terms are strictly Cash on Delivery (“COD”).
ii. In respect of COD consumer, payment shall be done on or before collection of goods. No goods is allowed to leave the premises of any of the sellers’ branches without payment being made. The following payment types are accepted:
b. Credit or debit card – subject to our company policies and procedures, a copy of which is available in each branch for viewing.
c. Cheque – we reserve the right to accept or reject offers to pay by cheque without providing reasons for acceptance or rejection of the offer.
d. Electronic bank transfers – subject to a 48 (forty eight) hour clearance period, or upon the money reflecting in the seller’s bank account. A printed proof of payment must also be made available to the branch.
e. Direct cash deposits – subject to the clearing of the monies and a valid proof of payment i.e. stamped deposit slip being sent to the branch.
f. Direct cheque deposits – subject to a 5 (five) day clearance period, and also upon receiving proof of payment i.e. stamped deposit slip being sent to the branch.
iii. The consumer indemnifies and undertakes to make payment to the seller of all costs and interest, including costs as between attorney and client, debt collection costs, or any other costs on a fixed or contingent basis with regard to the collection of any monies owed by the consumer to the seller.
iv. Any printed quotation will be valid for a period of 7 (seven) days, from the date of being issued.
v. Any dispute regarding price changes will only be looked at if a printed quotation is produced.
vi. The seller will only do cash pay-outs of refunds up to the value of BWP 1000.00 (one thousand Pula) from its premises. This only applies if the original payment type was cash. Any amounts higher than BWP 1000.00 (one thousand Pula) will be refunded via an electronic bank transfer.
vii. Refunds on all other payments types will be refunded via an electronic bank transfer.
viii. No refunds will be made to the consumer’s credit card.
ix. No refunds will be made to any third parties, especially where the consumer is an entity.
x. The bank details supplied for the refund must be for the same name as the consumer that purchased the item/s.
4. Transport – fees, liabilities and responsibilities
i. The seller does not do deliveries except by special arrangement.
ii. The consumer is responsible to organize his/her own transport.
iii. A courier company of the seller’s choice will be used. The consumer has however the option to requests the seller to organize on the consumer’s behalf a courier company to deliver the items purchased to his/her preferred location. The consumer will be subjected to the following conditions:
a. All risk in and to the goods shall pass to the consumer at the moment that the goods leave the premises of the company.
b. The total costs of the courier company are for the consumer’s account. This will include the following:
bi. The courier companies’ total costs (including the value added tax levied) – the quote from the courier company can be sent through on request.
bii. Mandatory insurance fees as levied by the courier company.
iv. It is the consumer’s responsibility to inform the seller immediately of any defects found on the transported goods before signing acceptance of the package. Clearly indicate on the waybill that the item/s has/have been damaged. The seller will subsequently advise the consumer on the correct procedure to remedy this incident.
v. Where the consumer arrange their own transport company for collection and delivery of the goods, the consumer will take full responsibility for any damages sustained on items being transported by their courier company. All risk in and to all goods sold by the seller to the consumer shall pass to the consumer upon the departure of the goods from the premises of the seller.
5. Warranty and exclusion of liability
i. The seller will refund or exchange most goods if the consumer return them within 10 (ten) business days of purchase on condition that the purchased goods are returned in:
a. Their original condition.
b. Their original packaging.
c. You may not have used the item at all.
ii. Items not being returned in the above conditions will be subjected to at least a 15% (fifteen percent) handling fee.
iii. Any goods returned after this period will be booked in for repair, during which time an assessment will be made to determine whether the goods may be repaired, replaced or refunded. Accordingly, we reserve the right to refer returned goods for technical assessment by the manufacturer or our repair centre prior to repairing, replacing or refunding and to provide you with feedback within 10 (ten) business days of receipt of the returned goods and to act accordingly.
iv. Goods that have been booked in for repair will not be repaired without you approving a quotation first.
v. Repaired goods can only be collected on the following conditions:
a. Payment, if any, for the repair has been done by the consumer,
b. Upon providing the original repair note. We will not release any repaired goods unless the original repair note is supplied by the consumer or his/her appointed agent.
vi. Goods that have been repaired and not collected after 3 (three) months of the consumer being notified will be sold to defray repair and storage costs.
vii. The seller undertakes to cover the products sold under the trade name “MACAFRIC” for a period of 1 (one) year against:
a. Manufacturers fault, where the defect was not immediately visible upon the initial opening of the parcel’s packaging.
b. Faulty workmanship by the manufacturer.
viii. The seller guarantees all electrical components of a product for a period of 1 (one) month. Such guarantee includes motors and switches.
ix. Petrol and diesel motors are covered for a period of 3 (three) months, or 500 (five hundred) hours, whichever comes first.
x. The warranty does not cover the following:
a. Damage caused by lightning, electrical disturbance or power surges.
b. Perishables that are damaged due to normal wear and tear i.e. seals, O-rings, bearings, bushes, nuts, bolts, blades, cutters, drill bits, etc.
c. Damage caused by misuse, abuse or improper use of the goods – this is where the product was used outside the given specifications.
d. Any alteration or modification or attempt to repair by consumer that has been made to any part of a product. This will render the warranty null and void. The seller does not accept any liability as a result of this.
e. Negligence on the part of the consumer. Any injuries, damages or death incurred due to the consumer’s negligence will not be the liability of the seller.
f. Improper installations. With any item that needs installation such as generators, three phase units etc. it is the consumer’s responsibility to engage a competent , qualified contractor and ensure that a compliance certificate is issued by the contractor
g. Goods used contrary to their instruction manuals.
h. Accidental damage.
i. Some items are supplied with batteries. We do not guarantee the battery at all. It is the consumer’s responsibility to buy a new battery for the unit.
j. The seller also sells items that have a manufacturer’s guarantee. The seller will do its best to ensure that faulty items are returned to the supplier of these items, but do not cover these items under their own warranty. A list of these products is available in store.
k. The seller has a 1 (one) year carry-in guarantee. In other words, it is the consumer’s responsibility to bring the purchased item back to the seller for warranty purposes.
l. The seller will not be liable for any loss of income, costs, damage incurred or death due to faulty products, or any monies lost during the time that an item is being repaired.
m. It is not the seller’s responsibility to provide specialized training on any of our machines. We will endeavor to make as much information as possible, in the form of videos, manuals and troubleshooting lists, available to the consumer.
6. Risk and Ownership
i. All risk in and to all goods sold by the seller to the consumer shall pass to the consumer upon the collection thereof by the consumer at the premises of the seller or upon the departure of the goods from the premises of the seller en-route to the consumer irrespective of whether such goods are collected by a courier company appointed by the consumer or appointed by the seller on the consumer’s behalf.
ii. Ownership in all goods sold and collected shall remain vested in the seller until the full purchase price has been paid.
7. Consumer Protection Act
i. The Consumer Protection Act aims to provide consumers with certain rights and protection. Gabz Tool Mart acknowledges and supports the intention and spirit of the Consumer Protection Act.
ii. We commit and aim to uphold the principles of the Act in all our dealings with consumers, whether it be marketing, the actual sale of goods or after sales service.
iii. If the consumer resells any goods not paid for, the consumer shall be deemed to sell such goods as the agent of the seller and the proceeds of such sale shall be paid over to the seller as payment of the price for the goods;
iv. Special order goods are goods that the seller was expressly or implicitly required or expected to procure, create or alter specifically to satisfy the consumer’s requirements;
a. The seller may require payment of a reasonable deposit for such goods in advance; and
b. Impose a reasonable cancellation charge in the event of the consumer cancelling the order.
v. The consumer acknowledges that the deposit and cancellation charge levied by the seller is reasonable and fair in the circumstances.
vi. A consumer may not return goods to the seller without the prior written consent of a duly authorized representative of the seller and, in the event of such consent being granted, the consumer will not be entitled to a credit for the returned goods unless, when returning such goods, it simultaneously advises the seller in writing of the original invoice number.
vii. Should a consumer return goods a restocking charge might be levied by the seller; In addition, if any of the returned goods had been specifically imported for the consumer, the consumer will be liable for the cost that was incurred by the seller in transporting the goods from the overseas supplier to the seller.
viii. Should a consumer have any claims for delivery of any incorrect quantity or for any damaged or lost goods, it shall be obliged to notify the seller of such claim within 2 (two) business days of delivery having been effected, failing which any such claim will lapse.
ii. Information Collected –
a. Gabz Tool Mart collects the details provided by you:
i. Through the transactions you undertake when visiting any of our stores,
ii. Through the information we learn about you from your use of our products or services,
iii. Through you registering on our website www.gabztoolmart.co.bw,
iv. Through sending your information to us via facsimile and/or e-mail to email@example.com.
b. We make use of various data enhancement services to ensure that customer data is as accurate as possible.
c. Use of your Information –
Gabz Tool Mart uses consumer information to:
a.i. Send marketing information to the consumer, such as specials on items, information regarding our products that will be helpful to our consumers as well as the latest edition of our product brochure.
a.ii. To be able to get into contact with consumers, whether private individual or entity, to recall faulty equipment.
a. iii. That the consumer may be contacted on payments that have defaulted, such as a cheque payment or electronic bank transfer payment, to collect any outstanding money owing to the company.
b. Our authorised staff and specific third party supplier serving the direct marketing industry have access to the information for the purposes described above.
c. Gabz Tool Mart is committed to protecting consumer privacy and does not sell or disclose information to anyone for purposes other than as outlined above, unless legally obliged to do so.
d. In the event that the consumer would not want to receive any marketing from the seller, please notify the seller either by phone, email and facsimile or by completing the online removal form. The same applies for consumers that wish to periodically receive our brochure, by post. A form may be completed online at www.gabztoolmart.co.bw. A fax requesting the brochure by post may be sent to 3952822.
9. Warranty, Representations, Indemnities and Liability
i. No warranties other than those provided in these Terms and Conditions, express or implied, shall apply.
ii. The seller specifically disclaims the implied warranty of merchantability or fitness for a particular purpose other than those contained in the manufacturer’s product specific warranty as at the time of collection of the goods, except to the extent that this is prohibited by any consumer laws.
iii. No representation or warranty, including but not limited to statements of capacity and suitability for use or performance, made by employees of the seller shall be considered to be a warranty by or binding on the seller. Any such statements shall not give rise to any liability of whatsoever nature on the part of the seller. The seller, its employees or subcontractors renounce and disclaim all liability in respect of the seller’s special indirect or consequential damages including but not limited to loss of profits.
iv. The Seller shall not be liable for consequential damages, whether such damages shall arise out of breach of contract, failure to remedy any breach of contract, delict or otherwise.
v. Save as provided for in this clause, the seller shall not be liable in any way to the consumer and all conditions, representations, warranties and undertakings, whether implied by statute or common law, are hereby excluded, provided that if by reason of law, the seller is obliged to pay damages to the consumer, the same shall be limited to the consumer’s actual loss of the cost of the goods or services, whichever is the lesser amount.
vi. Goods are guaranteed according to the manufacturer’s product specific warranties only as at the time of collection of the goods.
vii. Under no circumstances will the Seller be liable for any damage arising from:
a. Any misuse of the Goods supplied and/or services rendered
b. Damage caused by force majeure, lighting and/or power surges
c. Negligence on the part of the Customer to fully understand and comply with the correct installation procedures.
10. Limitation of Liability
i. Except the extent prohibited by any consumer laws, the seller shall not be liable for any loss, injury, death, damage, costs, expenses, loss of profits or other special damages or any consequential loss or other damages arising from any cause whatsoever (whether or not the seller is negligent or grossly negligent) suffered or incurred by the consumer and/or its employees, contractors, sub-contractors, agents, authorised representatives and/or any third party in connection with any goods or services supplied by the seller.
ii. The consumer indemnifies and holds harmless the seller for any claims described in clause 10.i above instituted by the consumer and/or its employees, contractors, sub-contractors, agents, authorised representatives and/or any third party.
iii. The maximum aggregate liability of the seller in respect of any and all claims which may arise out of or in connection with a particular sale of goods or services rendered, whether based in contract (including breach, warranty or indemnity) or delict (including fault, negligent or strict liability) or otherwise, shall not exceed the price reflected on the seller’s invoice for that particular sale, at which price the goods or services were purchased by the consumer from the seller.
i. Any part of these terms and conditions are severable, the one from the other, and if any provision is held to be invalid or unenforceable for any reason, then the enforceability of that term or condition shall not affect the remainder of these terms and conditions, which will remain in full force and effect.
ii. This document contains the entire agreement between the parties and neither party shall be bound by any undertakings, representations or warranties not recorded herein.
iii. No alteration, cancellation, variation of or addition hereto shall be of any force or effect unless reduced to writing and signed by the parties as an addendum to this terms and conditions or their duly authorised signatories.
iv. No indulgence, leniency or extension of time which either party (“the grantor”) may grant or show to the other, shall in any way prejudice the grantor or preclude the grantor from exercising any of its rights in the future.
12. Legal Proceedings
i. In the event of the consumer breaching any of its obligations and/or failing to timeously make payment of any amount due to the other party, it agrees to pay, and shall be liable to pay all legal costs incurred by the other party in enforcing its rights in terms of these Terms and Conditions.
ii. The seller shall have the right at its sole discretion to institute any action arising out of or in connection with these Terms and Conditions and/or any business dealings with the consumer in any Magistrate’s Court having jurisdiction, notwithstanding that the cause of action may exceed the jurisdiction of that court and the consumer hereby consents to the jurisdiction of the Magistrate’s Court for this purpose. Nothing herein contained however shall preclude the seller from electing to institute action in the appropriate High Court having jurisdiction.
iii. These Terms and Conditions shall be governed and construed according to the laws of the Republic of Botswana and shall be subject to the exclusive jurisdiction of the courts of the Republic of Botswana.