Standard Term and Conditions of Sales
1.1 Any form of Quotation howsoever made by the Company is, unless otherwise stated, subject to alteration or withdrawal by notice, in writing, to the Purchaser until any Contract arising from it (“the Contract”) has been duly accepted in writing by both the Purchaser and the Company.
1.2 Any Quotation made, and each Contract accepted by the Company. Shall be governed only by these General Conditions of Contract and any Special Conditions (collectively called ‘Conditions’) which Conditions shall apply to a Contract to the exclusion of all other conditions save such as may be implied by law and in any conflict between the Special and General conditions, the Special Conditions shall take precedence.
No variation of these Conditions shall apply except in so far as expressly agreed to, in writing, by the Company and the Purchaser. If the Purchaser’s order contains or refers to other Conditions of Contract, then such other Conditions shall have no effect whatsoever otherwise than by the Company’s specific written agreement.
1.3 References to Contracts herein shall also cover Orders as appropriate.
2. ACCEPTANCE OF QUOTATIONS AND ORDERS
Quotations include only such goods, accessories and work as are specified therein and shall be open for acceptance for the period stated in the quotation. Where no such period is given, 30 days validity from quotation date shall apply.
No binding contract shall be deemed to have been affected by the Purchaser’s acceptance of a quotation until his order has been accepted by the Company in writing.
The Purchaser’s order shall be accompanied by sufficient information to enable the Company to proceed with the order forthwith. If such information does not accompany the order, the Company shall be entitled to return the order or vary the price and delivery quoted to the extend rendered necessary by such omission.
Any goods and/or services to be provided by the Purchaser shall be provided in due time according to the Contract or, if no time is specified, within a sufficient time to enable the work to proceed to programme.
3. ACCEPTANCE OF EQUIPMENT / SERVICES
The equipment is deemed to be accepted by the Purchaser after a period of 30 days has elapsed from the date of delivery.
4. SPECIFICATIONS AND PERFORMANCE
4.1 All descriptions, statements, drawings and other particulars, however issued by, or on behalf of, the Company are intended to provide a general indication of the goods described therein and the Company shall not be bound by any such descriptions, statements, drawings or other particulars contained in any documents issued by the Company unless expressly incorporated in the Contract.
4.2 The Purchaser warrants that equipment to be supplied by him, or a supplier nominated by him for, or in connection with the Contract, shall be sufficient and suitable for its purpose.
The Company’s products are inspected and submitted to the manufacturer’s standard tests. Additional tests, if required by the Purchaser or his customer, shall be charged as extras. If any tests are to be carried out in the presence of the Purchaser and he fails to attend after 7 days’ notice of the place, time and date, then the Company shall be entitled to carry out such tests in his absence, the Purchaser being deemed to be present.
Where any part of the contract work is to be carried out on premises occupied or controlled by the Purchaser, the Purchaser shall provide at his cost, and ensure the availability and readiness of, all means of access to the site and equipment, labour, lifting gear, temporary platforms, piping and trucking, electrical and other power, and all other additional services required for the prompt execution of the contract work. Additionally, the Purchaser shall ensure that the Company, its employees, agents and sub-contractors are provided with a safe working environment which is at all times in accordance with the provisions of the applicable legislation as amended, and are advised of any specific rules applying to the site and any equipment to be used. The Purchaser shall indemnify the Company, its employees, directors and shareholders against any liability costs loss or damage incurred by the Company due to or arising from a breach of this condition.
7. DELIVERY / COLLECTIONS
7.1 Any time stipulated for delivery shall not be of the essence of the Contract. Times quoted for dispatch or completion represent best estimates only and are not binding on the Company. The Company will however make every reasonable endeavour to meet delivery times.
7.2 The risk in goods which are the subject of any Order shall pass on delivery or, in the case of delivery by instalments, on delivery of each instalment, but the property in such goods shall not pass until the full purchase price thereof, including any interest due, value added tax, charges for packaging, storage and carriage or any other amount payable by the Purchaser hereunder, shall have been paid to the Company.
7.3 If delivery is ex-works, the Customer shall collect the goods within 7 days of receipt of notification that they are ready for dispatch and, in default, the Customer shall be charged and shall pay on demand, by way of addition to the Contract Price, such reasonable storage charges as the Company may determine.
7.4 Times for dispatch and completion shall be extended by the requisite periods if delay is caused by, or due to, any cause or event beyond the control of the Company. No damages will be paid by the Company arising from late delivery.
7.5 All repairs are the Customers liability to collect after the equipment involved is invoiced and paid for. Only Customers with a 30 Day account is allowed to pick up equipment before payment is done.
The risk in goods which are the subject of any Order shall pass on delivery or, in the case of delivery by instalments, on delivery of each instalment, but the property in such goods shall not pass until the full purchase price thereof, including any interest due, value added tax, charges for packaging, storage and carriage or any other amount payable by the Purchaser hereunder, shall have been paid to the Company.
9. EXPORT ORDERS / REPAIRS
Unless otherwise agreed, delivery shall be F.O.B. at the RSA airport or port of the Company’s choice. The responsibility of the company shall cease immediately the goods are placed in the aircraft or ship, or any other vehicle or vessel at such airport or port. The Purchaser shall obtain all necessary Import Licenses and shall indemnify the Company against any loss incurred in respect of goods shipped or landed without valid Import Licenses. Delivery is subject to any necessary Export Licenses being granted, and the Purchaser shall afford the Company every assistance in obtaining such licenses. The Company accepts no liability arising from delay or failure in the granting of such Licenses. Delivery times stated for export orders are from the time a valid export license is obtained by the Company. When goods are ordered for export from a Purchaser’s RSA address or by his RSA agent, then the Purchaser or his agent shall be responsible for obtaining the said Export Licenses.
10. LIFE AND SUITABILITY
Unless specifically agreed otherwise, no condition is made or to be implied, nor is any warranty given or to be implied, as to the life or wear of the goods supplied, or that such goods shall be suitable for any particular purpose or for use under any specific conditions, notwithstanding that such purpose or conditions be known or made known to the Company. The Company accepts no responsibility for the failure of any of its products which are subjected to testing on the Purchaser’s unproved equipment.
11. SHORTAGE OF DELIVERY, NON-DELIVERY OF GOODS AND DAMAGE
No claim of damage to, or shortage of delivery, or non-delivery of, goods shall be entertained unless, in the case of damage or shortage of delivery, a separate notice in writing is given to the carrier concerned and to the Company within three working days of the receipt of goods, followed by a complete claim in writing within seven days of receipt of the goods. In the case of non-delivery, notice in writing is given to the carrier concerned and to the Company and a complete claim in writing made within fourteen days of the date of consignment. Where goods are accepted from the carrier without being checked, the delivery book of the carrier must be signed “not examined”. In respect of damage to goods, the Company’s liability shall be limited to the replacement of repair of the goods within a reasonable time.
12. TERMS OF PAYMENT
12.1 Home Orders - Payment is due 30 days from date of invoice or as otherwise agreed to in writing by both parties.
12.2 Export Orders - Irrevocable confirmed letter of credit established in ZAR at a South African bank, all costs to be paid by Purchaser, providing for payment at sight upon presentation of shipping documents. The opening of such letter of credit shall be a condition precedent to the Company’s obligations under this Contract.
12.3 The Company shall be entitled to claim interest on overdue payments at a rate of 4 per cent per annum above the Prime Lending Rate during the period of the amount overdue.
13. VALUE ADDED TAX
Prices stated in the Quotation are exclusive of Value Added Tax, and Value Added Tax shall if applicable be added to invoices at the appropriate rate.
14.1 Prices refer only to such Equipment and Services as are specified in the Contract. They shall not be varied except as expressly provided in the Contract.
14.2 Should the Purchaser request, and the Company agree to, any variation to the Equipment, or of the Services the subject of the Contract, or to the terms and conditions subject to which the Equipment shall be supplied, or the Services shall be performed by the Company which may involve extra cost to the Company, or should the Company incur extra cost owing to suspensions of the work by the Purchaser’s instructions or lack of instructions or for any other cause for which the Company is not responsible, such extra cost may be charged by the Company and, if so charged, shall be paid for by the Purchaser.
15. DELAY AND SUSPENSION
In the event of the Purchaser’s order being delayed, or work thereon being suspended at the Purchaser’s instructions, or due to lack of instructions from him, the Purchaser shall indemnify the Company against all loss, damage, cost, penalty or expense of whatever kind and howsoever arising directly from such delay or suspension.
16. FORCE MAJEURE
16.1 The Company shall not be liable for any delay in performance hereunder due to any reason whatsoever beyond the control of the Company and also, but without thereby limiting the generality of the foregoing war, invasion, act of foreign enemy, hostilities (whether war is declared or not), embargoes, acts of government or equivalent authority, civil war, rebellion, civil strife, force majeure, strikes and/or industrial disputes. Performance of the Contract shall be deemed suspended during such delay and the time for completion shall be extended for a period corresponding to the effects of such delay.
16.2 The Company shall discuss with the Purchaser ways of completing performance of the Contract, and if the Contract becomes impossible to perform due to any of the events set out in Clause 16.1 above, The Company may terminate the Contract and in this event the Purchaser shall pay to the Company such portion of the Contract Price as is proportionate to the work done by The Company in, or towards, performance of the Contract, up to the date of such cancellation.
17.1 The Company shall not be liable under this Contract for any consequential or indirect loss or damage howsoever arising.
17.2 The Company shall not be liable to the Purchaser for any loss, damage, death or injury of any kind howsoever arising.
18. LIABILITIES UNDER WARRANTIES
A warranty is only valid when the product is properly used under normal conditions, within published ratings, and in accordance with the Operating Instructions. If a specific warranty is given, it shall form part of the Special/Conditions of Contract and applies from the time of delivery from the Company’s premises. If no specific conditions are agreed in writing, the Manufacturer’s Warranty shall apply. The Company reserves the right to repair or replace products, or parts thereof, returned under warranty. If a product returned under warranty is found upon test to perform satisfactorily to the agreed specification, then the Purchaser shall be liable for any cost incurred in investigating the alleged defect as well as the return shipping charges. The Company’s decision on all matters relating to alleged defects shall be final. Any warranty or remedy provided as previously mentioned shall be, except with respect to implied warranties as to title, in lieu of all other conditions and warranties expressed and implied including, but not limited to, any condition or warranty for fitness for particular purposes, merchantability or usefulness, and the remedy shall be the sole remedy available to the Purchaser.
19. DETERMINATION OF CONTRACT
If the Purchaser shall
(a) make default in or commit a breach of the contract or of any other of his obligations to the Company, or
(b) if any distress or execution shall be levied upon the Purchaser’s property or assets, or if the Purchaser shall make, or offer to make, any arrangement or composition with creditors, or commit any act of bankruptcy, or if any petition or receiving order in bankruptcy shall be presented or made against him, or (if the Purchaser is a limited company) any resolution or petition to wind up such company’s business (other than for the purpose of amalgamation or reconstruction) shall be appointed, the Company shall have the right forthwith to determine any contract then subsisting, and upon written notice of such determination being posted to the Purchaser’s last known address, any subsisting contract shall be deemed to have been determined without prejudice to any claim or right the Company may otherwise make or exercise.
20. LEGAL CONSTRUCTION
20.1 The construction, validity and performance of this Contract shall be governed by the laws of South Africa and any dispute arising there from shall be submitted to the jurisdiction of the South African Courts.
20.2 If any part, term or provision of this Contract, not being of a fundamental nature, be held illegal or unenforceable, the validity or enforceability of the remainder of this Contract shall not be affected.
20.3 This Contract constitutes the complete and exclusive statement of the Contract between the Purchaser and the Company with respect to the supply of goods and other matters provided for therein.
Representations or statements not contained or referred to in this Contract shall not be binding upon the Company as a condition, warranty, representation or otherwise.
20.4 The waiver or modification by either party of any term or condition of this Contract shall not void, waive or modify any other terms or conditions. The failure of either party to insist, in any one or more instances, upon the performance of any Terms of this Contract shall not be construed as a waiver or relinquishment of that party’s right to such performance or to future performance of such terms.
20.5 This Contract is personal to the Purchaser who shall not assign or part with any interest in it, or grant any right under it, without the prior written consent of the company.
20.6 Headings have been included for convenience only and shall not be used in construing any provision herein.