(b) It excludes or restricts the consumer’s legal rights or remedies if the supplier breaches (in total or in part) the agreement.
It provides that a consumer cannot deduct any debt owing by the supplier from any debt owed by the consumer to the supplier.
(c) It limits the supplier’s duty to honour commitments made to the consumer by his agents.
It makes the supplier’s obligations under the contract subject to a condition which is entirely under the control of the supplier.
(d) It limits the supplier’s liability for the actions of its employees.
(e) It forces the consumer to pay for any claims which may be made against the supplier by a third party.
(f) It provides that the consumer cannot rely on the fact that the supplier’s claim has prescribed (that more than 3 years have lapsed since the claim became due or the supplier became aware of the debtor and the facts giving rise to the claim).
(g) It provides that the consumer must bear the risk of damage to or destruction of the goods before the goods have been delivered to the consumer.
(h) It provides that the supplier can change the price after the agreement was concluded without giving the consumer the right to cancel the agreement if the consumer is not satisfied with the new price.
(i) It provides that the supplier can change the terms of the agreement (including the characteristics of the goods or services) without the consumer’s consent.
(j) If the supplier has the right to declare that the goods or services which were delivered are in conformity with the contract or if the supplier can determine what interpretation is given to a term of the agreement and the consumer must abide by it.
In effect these two terms are referring to terms which restrict the consumer’s right to declare a dispute with the supplier regarding whether the supplier has performed his part of the contract or a dispute as to what a particular term means.
(k) If it allows the supplier to cancel the agreement without giving the consumer the same right.
(l) If it allows the supplier to cancel an open-ended agreement without reasonable notice, except where the consumer committed a material breach.
(m) If it forces the consumer to pay even if the supplier has not performed or delivered the goods.
(n) If it allows the supplier, but not the consumer, to limit or avoid performance of the agreement.
(o) If it allows the supplier, but not the consumer, to either renew the agreement or not.
(p) If it allows the supplier an unreasonably long time to perform.
(q) If it allows the supplier to retain a payment by the consumer where the consumer fails to conclude or perform the agreement, without giving the consumer the right to be compensated in the same amount if the supplier does not perform or fails to conclude the contract.
(r) If it requires the consumer who fails to fulfil his or part of the agreement to pay damages which significantly exceeds the harm suffered by the supplier as a result of the consumer’s failure to perform.
(s) If it allows the supplier to charge an unreasonably high amount for the use of a thing or right, or for performance made, or a unreasonably high reimbursement of expenses when the agreement terminates.
(t) If it allows the supplier to transfer his or her obligations to someone else to the detriment of the consumer, without the consumer’s consent.
(u) It allows the supplier to restrict the consumer’s ability to re-sell the goods by limiting the transferability of any commercial guarantee.
(v) It provides that a consumer must be considered to have made a statement or acknowledgment to his or her disadvantage unless –
(i) a suitable period of time is granted to him or her to consider the statement or acknowledgment; and
(ii) at the commencement of the period the supplier draw the attention of the consumer to the meaning that will be attached to his or her conduct.
(w) It provides that a statement made by the supplier (which is of a particular interest to the consumer) is considered to have reached the consumer (even if it did not) unless the statement has been sent by prepaid registered post to the chosen address of the consumer.
(x) It limits or excludes the consumer’s right to take legal action or exercise any other legal remedy.
This includes terms which limit the consumer to taking their claims to arbitration (unless it is arbitration in terms of the CPA).
(y) It restricts the evidence available to a consumer or places a burden on a consumer to prove something where that burden should actually have been on the supplier.
(z) It imposes a restriction on the time within which a consumer can bring a claim.
(aa) It entitles a supplier to claim legal costs or other costs on a higher scale than usual, where the consumer is not given the equivalent right.
(bb) It provides that the law of another country will apply to the agreement where the agreement was concluded in South Africa and the consumer was residing in South Africa when the agreement was concluded.