GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF BSH HOME APPLIANCES (PTY) LTD (“BSH”)
IN THIS AGREEMENT THERE ARE CERTAIN CLAUSES OF SIMILAR FONT AND COLOUR TO THIS TEXT WHICH CONTAINS PROVISIONS THAT MAY HAVE THE EFFECT OF (I) LIMITING THE RISK OR LIABILITY OF THE COMPANY OR OF ANY OTHER PERSON AND/OR (II) MAY CONSTITUTE AN ASSUMPTION OF RISK OR LIABILITY BY YOU AND/OR (III) MAY IMPOSE AN OBLIGATION ON YOU TO INDEMNIFY THE COMPANY OR ANY OTHER PERSON FOR ANY CAUSE AND/OR (IV) MAY BE AN ACKNOWLEDGEMENT OF ANY FACT BY YOU. THESE PROVISIONS ARE VERY IMPORTANT AND YOU MUST ENSURE THAT YOU READ THEM CAREFULLY AND THAT YOU UNDERSTAND THEM CLEARLY.
1.1. All contracts are exclusively subject to our terms and conditions of delivery and sale, the COMPANY rejects any terms and conditions of the customer to the contrary or deviating from our terms and conditions unless the COMPANY has expressly consented to their validity in writing.
1.2. The terms and conditions set out herein cancel all previous issues, terms and conditions.
1.3. If the CPA (Consumer Protection Act 86 of 2008) is applicable to this AGREEMENT, the provisions of the CPA will be applied and take precedence where they contradict any provision of this AGREEMENT.
1.4. These terms and conditions, as re-issued or revised by the COMPANY from time to time, apply to all orders placed with the COMPANY and such orders are subject to acceptance by the COMPANY and shall be deemed to be made subject to these terms and conditions.
In this AGREEMENT unless the context otherwise requires –
2.1. The singular shall import and include the plural and vice versa;
2.2. Words indicating one gender shall import and include other genders;
2.3. Words indicating natural persons shall import and include artificial persons;
2.4. The headnotes to this AGREEMENT are used for the sake of convenience only and shall not govern the interpretation of the clauses to which they relate;
3. CONTRACT PRICE & ORDERS
3.1 Price lists issued by the COMPANY from time to time, are for information only and do not constitute offers for sale.
3.2 Save insofar as may be otherwise specifically agreed in writing to the contrary by the COMPANY, orders are accepted only at prices and transport tariffs ruling on that date of dispatch.
3.3 Unless otherwise agreed in writing, the CONTRACT PRICE (“means the price of the GOODS as set out in the invoice”) shall, inter alia, be deemed to include charges for landing costs, packing and storage.
3.4 The CONTRACT PRICE shall specifically exclude Value Added Tax (VAT) and any other taxes that may be levied in respect of the GOODS. The COMPANY reserves its rights to affect price increases from time to time without notification to the CUSTOMER (“person or legal entity who contracts with BSH to purchase GOODS and/or SERVICES”). The onus shall be on the CUSTOMER to remain informed of the prices of the COMPANY. No COMPANY employee, official, agent or nominee shall have the authority to effect or authorise any discounting of the CONTRACT PRICE of the GOODS save the Managing Director of the COMPANY.
3.5 Notwithstanding the stated price on the INVOICE, the CONTRACT PRICE shall, at all material times, be subject to any increase of duties, levies, taxes, transport, storage and packing costs and the COMPANY shall endeavour, where reasonably possible, to inform the CUSTOMER in advance of any anticipated increases of the aforestated.
3.6 The COMPANY reserves its right to add a reasonable charge for storage on any items which have not been collected or could not be delivered within fourteen (14) days of the date on which they were available for delivery or collection, as the case may be, and in the event that this is as a result of the CUSTOMER’S conduct.
3.7 The CONTRACT PRICE is strictly net and not subject to any discounts unless otherwise agreed in writing and signed by a Member of the COMPANY.
3.8 If any discount is agreed to as required in 3.7 above, it shall only be allowed if payment is received by the COMPANY on or before the due date and shall apply to the actual price of the GOODS themselves.
3.9 It is specifically agreed and recorded that interest on overdue accounts shall be at the rate as per the Prescribed Rate of Interest Act 55 of 1975.
4.1 Unless otherwise agreed payment in full without deduction or set off in respect of GOODS sold shall be made on cash on delivery basis.
4.2 The COMPANY reserves the right to extend credit facilities to CUSTOMERS from time to time without any obligation to do so notwithstanding having extended such facilities in the past to any CUSTOMER.
4.2.1 Where the COMPANY has agreed to supply GOODS on credit, payment in full shall be due within 30 (thirty) days from date of the first monthly statement rendered by the COMPANY.
4.2.2 The monthly accounts of the COMPANY are closed on the 25th day of each month. Payment must be credited to the banking accounts of the COMPANY by the 25th day of the following month.
4.3 Credit facilities shall only be afforded to CUSTOMERS after completion of the necessary documents required by the COMPANY and having provided the COMPANY with the required guarantees/suretyships.
4.4 The COMPANY reserves its right to, at any time and after having provided the CUSTOMER with reasonable notice, and reasonable notice to be deemed to be 30 (thirty) days, advise that credit facilities to a CUSTOMER by the COMPANY will be terminated, and the COMPANY will be under no obligation whatsoever to provide any reasons for such termination.
4.5 It is specifically agreed and recorded that at all material times, it shall be the sole prerogative of the COMPANY to decide to which CUSTOMERS it would be willing to extend credit facilities, it specifically being understood by CUSTOMERS that any differentiation shall not be deemed to be discriminatory, but shall be deemed to form part of the COMPANY’S internal credit risk limitation policy.
4.6 The COMPANY shall be entitled to refuse sale of the GOODS to any CUSTOMER in the event of overdue accounts owing by the CUSTOMER to the COMPANY or in the event that a CUSTOMER is not able to obtain/provide satisfactory guarantees/suretyships. It is specifically recorded and agreed that any late payments by a CUSTOMER shall constitute an automatic breach of any credit facility agreement entered into between the COMPANY and the CUSTOMER and provided to the CUSTOMER by the COMPANY and accordingly, the COMPANY reserves the right at any time to refuse any further sale of GOODS to the CUSTOMER on a cash on delivery basis until all outstanding accounts including any accrued interest on such outstanding accounts have been settled in full by such CUSTOMER.
4.7 IT IS SPECIFICALLY RECORDED AND AGREED THAT THE CUSTOMER WAIVES ALL CLAIMS AGAINST THE COMPANY FOR ANY DAMAGES OR LOSSES THAT IT MAY SUFFER AS A RESULT OF THE REFUSAL OF THE COMPANY TO SELL GOODS TO THE CUSTOMER IN THE EVENT OF AN OVERDUE ACCOUNT, OR IN CONNECTION WITH ANY OTHER DISPUTE WHATSOEVER ARISING OUT OF PAYMENT FOR GOODS.
5.1 Time shall not be of the essence in any sale.
5.2 WHILST EVERY EFFORT WILL BE MADE TO DISPATCH AND DELIVER THE GOODS AS ADVISED, THE COMPANY DOES NOT GUARANTEE DISPATCH AND/OR DELIVERY ON ANY SPECIFIC DATE AND SHALL NOT BE LIABLE FOR ANY DAMAGES INCLUDING CONSEQUENTIAL DAMAGES THAT MAY BE SUFFERED BY THE CUSTOMER AS A RESULT OF ANY DELAYS IN THE DELIVERY OF THE GOODS THAT MAY OCCUR, SAVE TO THE EXTENT THAT THE COMPANY MAY BE LIABLE FOR ANY LOSSES IN TERMS OF SECTION 47 OF THE CONSUMER PROTECTION ACT 68 OF 2008 AS AMENDED.
5.3 The CUSTOMER shall not be entitled to cancel any order by reason of such delay.
5.4 Should the COMPANY be prevented from the performance of any of its obligations as a result of Force Majeure, or any cause whatsoever beyond the control of the COMPANY, the COMPANY shall be entitled at its option to cancel the AGREEMENT or to suspend performance of its obligations thereunder and shall not be liable whatsoever for any loss or damage consequential or otherwise resulting from such inability to perform its obligations, cancellation or suspension.
5.5 Unless otherwise agreed in writing, delivery and passing of the risk in the GOODS shall be deemed to have taken place when the GOODS are offloaded at the CUSTOMER’S premises.
5.6 The COMPANY reserves the right to refuse an order after seven (7) days of being lodged, where costs have escalated due to any contingencies or circumstances not within the COMPANY’S control.
6. RESERVATION OF OWNERSHIP
6.1 The COMPANY shall reserve ownership of GOODS delivered, until receipt of all payments due in terms of this AGREEMENT. Further, the COMPANY reserves ownership of retained GOODS until the CUSTOMER has paid any further payments due in terms of this AGREEMENT of whatever nature.
6.2 In the event that the CUSTOMER defaults in payment, he shall deliver the GOODS to the COMPANY upon receipt of notice by the CUSTOMER from the COMPANY, without undue delay.
6.3 The COMPANY may elect without retracting from other remedies which may be available to it, to continue with the AGREEMENT or to cancel it and cancel the sale of any further GOODS to the CUSTOMER and to rely on the provisions of this clause to repossess those GOODS sold and delivered by the COMPANY to the CUSTOMER or to claim specific performance of all the CUSTOMER’S obligations whether or not such obligations would otherwise have fallen due for performance, in either event, without prejudice to the CUSTOMER’S rights to claim damages.
6.4 The CUSTOMER undertakes to handle the delivery items with care; in particular, he is obliged to insure them adequately at the reinstatement value against damage caused by fire, water, and theft at his expense.
6.5 In case of attachments or other intervention by third parties, the CUSTOMER shall inform us in writing without undue delay. The CUSTOMER shall be liable to us for the judicial and extra-judicial costs of any necessary action pursuant to third-party action against execution.
6.6 The COMPANY shall retain the title to and copyrights in all offer documents; these may not be made available to third without our express written consent.
7. RETURN OF GOODS
7.1 A PRECONDITION OF THE WARRANTY RIGHTS (CLAIMS BASED ON DEFECTS) OF THE CUSTOMER, IN TERMS OF THE AGREEMENT, IS THAT A CUSTOMER WHO IS A MERCHANT, INSPECTS THE GOODS UPON RECEIPT WITHOUT UNDUE DELAY AND GIVES WRITTEN NOTICE OF ANY VISIBLE DEFECTS WITHOUT UNDUE DELAY, AFTER THE INSPECTION OR OF HIDDEN DEFECTS AFTER THEIR DISCOVERY, SPECIFYING THE DEFECT. THIS SHALL ALSO APPLY TO WRONG DELIVERIES OR ITEMS IN INSUFFICIENT QUANTITIES BEING DELIVERED. NOTIFICATION MUST BE GIVEN WITHIN A PERIOD OF 7(SEVEN) DAYS. OTHER CUSTOMERS SHALL ALSO EXAMINE ITEMS AT THEIR OWN EXPENSE AND THEN NOTIFY THE COMPANY OF APPARENT DEFECTS INCLUDING WRONG DELIVERIES OR INSUFFICIENT QUANTITIES IN WRITING AND WITHOUT UNDUE DELAY. FOR NON-MERCHANTS NOTIFICATION MUST BE GIVEN WITHIN A PERIOD OF (7) SEVEN DAYS.
7.2 If the CUSTOMER notifies the COMPANY as such, the CUSTOMER shall arrange for a fact finding immediately upon receipt. The results shall be forwarded to the COMPANY directly.
7.3 SHOULD THERE BE AN ALLEGATION THAT ANY GOODS ARE UNSAFE, OR DEFECTIVE THE COMPANY SHALL NOT BE LIABLE FOR ANY HARM CAUSED WHERE SUCH ALLEGED UNSAFE GOODS CHARACTERISTIC, FAILURE, DEFECT OR HAZARD DID NOT EXIST IN THE GOODS AT THE TIME AT WHICH THEY WERE SUPPLIED TO THE CUSTOMER BY THE COMPANY. THEREFORE IF NO SUCH NOTIFICATION IS RECEIVED IN TERMS OF CLAUSE 7.1 ABOVE, IT WILL BE REGARDED AS PRIMA FACIE PROOF THAT NO DEFECTS WERE PRESENT AT THE TIME OF DELIVERY AND THAT THE GOODS WERE DELIVERED IN ACCORDANCE WITH THE AGREEMENT.
7.4 In the event that the COMPANY receives notification in terms of clause 7.1 above and it is satisfied that the GOODS are defective or do not conform to specifications, then the COMPANY will, at the CUSTOMER’S election, replace such quantity of GOODS with an equal quantity of GOODS or refund the applicable portion of the purchase price to the CUSTOMER, against return of the defective portion of the GOODS (the return to be made at the COMPANY’S risk and expense).
7.5 The CUSTOMER may not however return to the COMPANY any GOODS for any reason whatsoever unless:-
7.5.1 the parties have agreed in writing to such return and to the conditions of such return;
7.5.2 the GOODS are being returned in accordance with the provisions of clauses 7.1 and 7.4 above;
7.5.3 the GOODS were intended to satisfy a particular purpose communicated to the COMPANY prior to the PURCHASE thereof and have been found not to satisfy the purpose for which they were intended, within 10 (ten) business days of delivery and the COMPANY has been notified of this within that time period.
7.5.4 the CUSTOMER was not permitted to inspect the GOODS upon delivery thereof;
7.5.5 the CUSTOMER is exercising its right to cool-off in terms of section 16 of the Consumer Protection Act 68 of 2008 as amended.
8. REPRESENTATION AND WARRANTIES
8.1 For a period of six months from the date of the CUSTOMER’S receipt of the GOODS sold hereunder, the COMPANY warrants that such GOODS shall be of the COMPANY’S standard quality and are reasonably suitable for the purposes for which they are generally intended. The COMPANY makes no other warranty of any kind, express or implied, including without limitation, any warranty of merchantability, or non-infringement. The COMPANY specifically makes no warranties as to any services or as to compliance with laws, regulations, standards and/or conventions including any related to the environment or to the packaging, labelling and/or transport of hazardous GOODS. No warranty shall apply to shipping damage, damage caused by improper installation or improper wiring, including incorrect electrical voltage, GOODS that have been modified or altered in any way, damage caused by corrosion, abrasion, or severe temperatures, or GOODS that have been subjected to improper maintenance, abuse, misuse, abnormal usage, or accident.
8.2 THE CUSTOMER WARRANTS THAT IT SHALL FULLY COMPLY WITH ALL LABEL DIRECTIONS FOR THE HANDLING, STORAGE, POSSESSION OR USE OF THE GOODS SOLD HEREUNDER AND THE CUSTOMER AGREES THAT IT SHALL INDEMNIFY AND HOLD THE COMPANY HARMLESS FROM ALL CLAIMS (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) OF PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM ANY NEGLIGENCE, RECKLESSNESS OR WILLFUL MISCONDUCT ON THE PART OF THE CUSTOMER OR FROM ANY FAILURE OF CUSTOMER TO COMPLY WITH THE TERMS OF THIS WARRANTY.
8.3 Specifications, illustrations and the like remain the property of the COMPANY and may only be used for the purpose specified in the AGREEMENT and must be returned upon the request of the COMPANY.
8.4 WHILST THE COMPANY SHALL TAKE ALL REASONABLE STEPS TO ENSURE THAT THE GOODS TO BE SOLD AND DELIVERED TO THE CUSTOMER IN TERMS HEREOF ARE MANUFACTURED IN ACCORDANCE WITH THE CUSTOMER’S SPECIFICATIONS, THE COMPANY DOES NOT WARRANT THAT THE SAID GOODS WILL BE FIT FOR THE SPECIFIC PURPOSE FOR WHICH THE CUSTOMER INTENDS TO USE THE SAID GOODS, AND THE CUSTOMER ACCORDINGLY ABSOLVES THE COMPANY FROM ANY LIABILITY WHATSOEVER AS A RESULT OF THE SAID GOODS NOT BEING FIT FOR THE PURPOSE FOR WHICH THE CUSTOMER INTENDS TO USE THE SAID GOODS, UNLESS THE CUSTOMER HAS SPECIFICALLY INFORMED THE COMPANY IN WRITING OF THE PARTICULAR PURPOSE FOR WHICH THE CUSTOMER WISHES TO ACQUIRE ANY GOODS OR THE USE TO WHICH THE CUSTOMER INTENDS TO APPLY THOSE GOODS AND THE COMPANY AGREES TO SUPPLY SUCH GOODS.
8.5 NO LIABILITY FOR DAMAGES RESULTING FROM; UNSUITABLE OR IMPROPER USE, IMPROPER ASSEMBLY AND IMPROPER COMMISSIONING OR HANDLING BY THE CUSTOMER OR BY THIRD PARTIES, ANY OTHER DISREGARD OF INSTALLATION AND OPERATING INSTRUCTIONS OR OF GENERALLY ACCEPTED TECHNICAL RULES AND NORMAL OPERATIONAL WEAR AND TEAR, WILL ATTACH TO THE COMPANY.
9. LIMITATION OF LIABILITY
9.1. IN NO EVENT SHALL THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING PUNITIVE DAMAGES OR ATTORNEYS’ FEES, WHETHER FORESEEABLE OR UNFORESEEABLE. BASED ON CLAIMS OF THE CUSTOMER OR ITS CLIENTS OR THE CUSTOMERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF BUSINESS, GOODWILL, PROFITS, LOSS OF MONEY OR USE OF GOODS OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, IN DELICT OR OTHERWISE IN CONNECTION WITH OR ARISING OUT OF THE CONTRACT, EXCEPT IN THE CASE OF PERSONAL INJURY OR PROPERTY DAMAGE WHERE AND ONLY TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. TO THE EXTENT THE CUSTOMER INCORPORATES OR CAUSES OTHERS TO INCORPORATE THE GOODS IN ITS OWN GOODS OR THE GOODS OF ANY THIRD PARTY, THE COMPANY SHALL NOT BE LIABLE FOR THIRD PARTY CLAIMS FOR INFRINGEMENT OF LETTERS PATENT, REGISTERED DESIGN, TRADEMARK OR COPYRIGHT RESULTING FROM SUCH INCORPORATION AND BASED UPON THE USE OF THE GOODS OR THE MANUFACTURE, USE, SALE OR OFFER FOR SALE OF ANY GOODS CONTAINING SUCH GOODS, EXCEPT AS SUCH LIABILITY FOR THIRD PARTY CLAIMS FOR INFRINGEMENT IS EXPRESSLY REQUIRED BY APPLICABLE LAW AND NOT WAIVABLE BY THE CUSTOMER. THE CUSTOMER ASSUMES RESPONSIBILITY FOR ALL PERSONAL INJURY AND PROPERTY DAMAGE RESULTING FROM HANDLING, POSSESSION, USE, RESALE OR DISPOSAL OF THE GOODS.
9.2. ANY ACTION BY THE CUSTOMER FOR BREACH OF THE CONTRACT OR ANY OTHER CAUSES OF ACTION OF THE CUSTOMER EXPRESSLY ALLOWED UNDER THE CONTRACT MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
9.3. THE CUSTOMER HEREBY EXPRESSLY WAIVES ITS RIGHT TO CLAIM PRESCRIPTION UNDER THE RELEVANT PROVISIONS OF THE PRESCRIPTION ACT NO. 68 OF 1969, AS AMENDED FROM TIME TO TIME.
In the event that the CUSTOMER:
10.1 Breaches any condition contained in these conditions and failing to pay any amount due and payable on due date, and having failed to rectify such breach or outstanding payment within 10 (ten) days of having been requested to do so in writing by the COMPANY’;
10.2 Suffering any civil judgment to be taken or entered against it, causing an notice of surrender of its estate to be published in terms of the Insolvency Act of 1936 (as amended);
10.3 The CUSTOMER dying or ceasing to exist;
10.4 The CUSTOMER, being a company, is placed under a provisional or final order of liquidation, or business rescue as the case may be, then, and in that event, the COMPANY shall, without retracting from other remedies which may be available to it, be entitled to cancel this AGREEMENT and cancel the sale of any GOODS to the CUSTOMER, without notice to the CUSTOMER; and to rely on the provisions of this clause to repossess those GOODS sold and delivered by the COMPANY to the CUSTOMER or to claim specific performance of all the CUSTOMER’S obligations, whether or not such obligations would otherwise have fallen due for performance, in either event, without prejudice to the COMPANY’S rights to claim damages.
The CUSTOMER’S exclusive remedy for shortage of the GOODS, damaged or defective GOODS (whether or not occurring as a result of the COMPANY’S alleged negligence) or any other cause of action arising out of the contract, including breach of warranty, is expressly limited to replacement of nonconforming GOODS or payment of an amount not to exceed the purchase price of the GOODS for which damages are claimed, at the COMPANY’S option. The CUSTOMER shall have no right to setoff, to withhold payment or to make a reduction in price. The CUSTOMER’S remedy of replacement or refund is available only if non-conformance was not caused by the CUSTOMER or by accident, fire or other hazard.
The CUSTOMER indemnifies and hold harmless the COMPANY and the COMPANY’S directors, officers, employee’s and agents, and the directors, officers, employees and agents of any the COMPANY’S parent, subsidiary or related company (the “COMPANY Indemnities”) from and against any and all claims, suits, losses, damages, costs, fees and expenses arising out of the death or injury to person or damage to property resulting from the sale, marketing or use of the GOODS by the CUSTOMER, except that such claims, suits, losses, damages, costs, fees or expenses arise or result from any negligent or wrongful act or omission of the COMPANY.
13. LEGAL ACTION & JURISDICTION
13.1. In the event of the COMPANY instructing attorneys in regard to any breach of the CUSTOMER, of the conditions of this AGREEMENT, then the CUSTOMER shall pay all the costs on the scale between Attorney and Client, including any costs incidental to such action instituted against the CUSTOMER.
13.2. The Parties do hereby consent that the Magistrate’s Court shall have jurisdiction to determine any action or proceedings which may arise under or in connection with this AGREEMENT.
13.3. This AGREEMENT, as well as the relationship between the COMPANY and the CUSTOMER is governed by the Law of the Republic of South Africa.
13.4. A certificate under the hand of the Managing Director of the COMPANY as to the existence and the amount of the CUSTOMER’S indebtedness to the COMPANY, as well as the amount of interest accrued thereon, and as to any other fact, matter or thing relating to the CUSTOMER’S indebtedness to the COMPANY, shall be accepted as sufficient (prima facie) proof of the contents and correctness thereof and of the amount of the CUSTOMER’S indebtedness for the purpose of provisional sentence or summary judgement or any other proceedings against the CUSTOMER in any competent Court and shall be valid and constitute a liquid document for such purposes. Furthermore, it shall not be necessary to prove the appointment of the person signing such a certificate and it shall be deemed to be sufficient particularly for the purpose of any action or any other proceeding instituted by the COMPANY against the CUSTOMER.
14.1. If any of the provisions of this AGREEMENT are held to be invalid, the validity of the remainder of this AGREEMENT shall not be affected and the rights and obligations of the Parties shall be construed and enforced as if this AGREEMENT did not contain the invalid term and to this end the provisions of this AGREEMENT and the application thereof are hereby declared to be severable.
14.2. This AGREEMENT constitutes the entire AGREEMENT between the Parties and no representation by either of the Parties or their agents, whether made prior or subsequent to the signing of this AGREEMENT, shall be binding on either of the Parties unless done in writing and signed by both Parties hereto.
15. NOTICE AND DOMICILIA
15.1 Any notices to be given to the Parties in terms of this AGREEMENT shall be in writing and delivered by hand during ordinary business hours or posted by pre-paid registered post to the addresses mentioned hereunder, which addresses the Parties choose as their domicilium citandi et executandi for all purposes arising out of this AGREEMENT.
15.2 The COMPANY: 96 15th Road, Randjespark, Midrand, 1685.
15.3 The CUSTOMER: The delivery address as reflected on the face of the latest delivery note issued to the CUSTOMER, or such other address within the Republic of South Africa as either party may choose by written notice to the other.