FORMATION OF CONTRACT
1.1 All quotations, offers and tenders are made and all orders are accepted subject to the following conditions. Except as otherwise provided in these conditions or warranties are excluded from any contract between the Seller and its customers (the “Buyer”) unless expressly accepted in writing by the Seller. Nothing in these conditions shall affect the statutory rights of any consumer.
1.2 If there is a conflict between these conditions and any other terms of the Seller’s quotation, offer, tender or acknowledgement of order, the latter conditions of sale shall prevail. Quotations may be withdrawn by the Seller by written or oral notice to the Buyer at any time prior to the Seller’s acceptance without the Seller incurring any liability.
1.3 If any statement or representation has been made to the Buyer by the Seller or its officers, employees or agents (other than in the document(s) enclosed with the Seller’s quotation or acknowledgement of order), upon which the Buyer wishes to rely it shall only be entitled to do so if the statement or representation is attached to or endorsed on the Buyer’s order and then only if the Seller subsequently confirms in writing to the Buyer that the Buyer is entitled to rely on the statement or representation.
1.4 Unless specifically agreed to the contrary all commercial terms shall be interpreted in accordance with INCOTERMS current at the time the order is accepted.
2 PRICES AND PAYMENT
2.1 Unless otherwise agreed in writing, prices for delivery in South Africa are quoted delivered in South Africa (within a 50km radius of Head Office only) exclusive of VAT and for delivery outside South Africa prices are quoted net ex-works exclusive of VAT and all other duties, fees, or taxes. Quoted prices may fluctuate and the price charged will be the Seller’s price ruling on the date of dispatch. The Buyer shall be solely responsible for obtaining all necessary licenses, permits and consents (including export or import licenses).
2.2 Unless otherwise agreed by the Seller in writing, payment shall be due and payable 30days after the end of the month of invoice (30 days from date of statement). The time for payment shall be of the essence of the contract.
2.3 The Seller shall be entitled to submit its invoice with its delivery advice note or at anytime afterwards except that where delivery has been postponed at the request of, or by the default of, the Buyer, the Seller may submit its invoice at any time after the goods are ready for delivery or would have been ready in the ordinary course but for the Buyer’s request or default. Where goods are delivered by installments the Seller may invoice each installment separately and the Buyer shall pay such invoices in accordance with these conditions.
2.4 The Purchaser hereby acknowledges that should any amount not be paid on due date, the full amount owing by the customer to the Seller shall immediately become due and payable without any notice of whatsoever nature, notwithstanding that any amount may, as at that date, not yet be due. The Purchaser shall pay interest on all overdue amounts at a compound rate of 3% per annum above the prime overdraft rate charged by the Seller bankers to the Seller. The Purchaser further agrees that in the event of its default in any respect whatsoever towards the Seller, the Seller shall be entitled to place the Purchaser on "stop supply" without any notice notwithstanding that the Purchaser may have placed an order for the supply of goods prior to the stop supply date.
2.5 In the event of the Seller instructing its attorneys to collect any amounts, all legal fees and collection charges and tracing agents' fees as between attorney and client shall be borne by the Purchaser and all payments made shall firstly be allocated towards such fees and charges thereafter to interest and finally to capital.
3 DELIVERY, RISK AND TITLE
3.1 Delivery of the goods shall be given and taken at the Seller’s premises unless the Seller has specifically agreed in writing to arrange transport for the goods in which case delivery shall occur when the goods arrive at the designated place of delivery. Time for delivery is given as accurately as possible but is not of the essence of the contract.
3.2 Risk shall pass to the Buyer (so that the Buyer is then responsible for all loss or deterioration of the goods or for any damage occurring):
3.2.1 If the Seller is responsible for delivering or arranging for delivery of the goods, at the time when the goods arrive at the place for delivery; or
3.2.2 In all other circumstances, at the time when the goods leave the premises of the Seller or in accordance with the applicable INCOTERM specified in the contract.
3.3 Title to the goods shall only pass to the Buyer upon the happening of any one of the following events:
3.3.1 The Buyer having paid to the Seller all sums (including any default interest) due from it to the Seller (a) under this contract and under all other contracts between the Seller and the Buyer including any sums due under contracts made after this contract whether or not the same are immediately payable and (b) under all contracts between the Seller and any associate or subsidiary company of the Buyer or any company under the ultimate control of the same parent company as has ultimate control of the Buyer;
3.3.2 The Seller serving on the Buyer notice in writing specifying that title in the goods has passed.
3.4 The Seller may recover goods in respect of which title has not passed to the Buyer at anytime and the Buyer irrevocably licenses the Seller, its officials, employees and agents to enter upon any premises of the Buyer, with or without vehicles, for the purpose either of satisfying itself that Condition 3.5 below is being complied with by the Buyer or of recovering any goods in respect of which title has not passed to the Buyer.
3.5 Until title to the goods has passed to the Buyer under these conditions it shall possess the goods as fiduciary agent and bailee of the Seller. If the Seller so requires, the Buyer shall store the goods separately from other goods and shall ensure that they are clearly identifiable as belonging to the Seller. During such time as the Buyer possesses the goods with the Seller’s consent, the Buyer may in the normal course of its business sell or hire the goods as principal but without committing the Seller to any liability to the person dealing with the Buyer. If the goods are processed or mixed by the Buyer with other goods so that it loses its identity then the title in such goods shall thereupon pass to the Buyer and provided further that if the Buyer sells the goods or part of it to a third party the proceeds of such sale shall be held by the Buyer for the Seller’s account until the Seller has been paid in full.
4 RETURNED OR REJECTED GOODS
4.1 Goods may not be returned without the prior consent of the Seller. Goods authorized for return must be returned within10 (ten) days of the Sellers shipping date. Returned material is subject to are stocking charge of 15% (fifteen) of the outright sales price.
4.2 Upon the return of goods pursuant to authorization Seller may as the option repair or replace the goods, refund from purchase price or issue credit.
5 GUARANTEEAND EXCLUSION OF LIABILITY
5.1 The items are sold, rented, leased or exchanged as is, where is and without warranty of fitness for a particular purpose, or merchantability, or any other warranty, guarantee, or representation of any kind. Whether express or implied, Seller shall have no liability to Purchaser, or any third person or persons for consequential damages, or for loss damage, expense directly or indirectly arising from this transaction or the use of these items or any inability to use such items either separately or in combination with other parts or equipment or supplies or from other cause, whatsoever if any warranty whatsoever is held to apply. Damaged recoverable for any breach warranty shall have applied.
5.2 It is for the Buyer to satisfy himself of the suitability of the goods for his own particular purpose. Accordingly the Seller gives no warranty as to the fitness of the goods for any particular purpose and any implied warranty or condition (statutory or otherwise) is excluded except in so far as such exclusion is prevented by law. Goods are warranted to accord with normal industrial quality. All other warranties or conditions as to quality or description (statutory or otherwise) are excluded except in so far as such exclusion is prevented by law.
5.3 In the case of goods not manufactured by the Seller:
5.3.1 The Seller gives no assurance or guarantee that the sale or use of the goods will not infringe the patent, copyright or other industrial property rights of any other person, firm or company; and
5.3.2 The obligations of the Seller relating to defects in such goods are limited to the guarantee(if any) which the Seller receives from the manufacturer or supplier of such goods.
5.4 The Seller shall not be liable in respect of claims arising by reason of death or personal injury except in so far as the death or injury is attributable to a failure by the Seller to exercise reasonable care. Further, under no circumstances whatever shall the Seller be liable for losses special to the particular circumstances of the Buyer, indirect losses, work required in connection with the removal of defective goods and the installation of repaired or substituted goods, loss of profits, damage to property or wasted expenditure.
5.5 Not withstanding the foregoing, Seller hereby assigns Purchaser any assignable warrantee approval to these terms to which Seller is entitled of any kind from Seller to Purchaser of any such warranty.
5.6 Without prejudice to Condition 5.3, where goods are supplied for the purpose of a business, the Seller’s liability, whether in respect of one claim or the aggregate of various claims (other than claims for death or personal injury to the extent that the same is caused by a failure of the seller to take reasonable care), shall not exceed the contract price of goods and the Buyer agrees to insure adequately to cover claims in excess of such amount.
6 INSOLVENCY AND FORCE MAJEURE
If the Buyer shall be deemed by the Seller to be unable to pay its debts as they fall due, the Seller shall be entitled to cancel the contract in whole or in part by giving written notice to the Buyer, without prejudice to any other right or remedy available to the Seller. All amounts invoiced by the Seller to the Buyer and not otherwise due for payment shall become immediately due. The Seller shall be under no liability for any failure to perform any of its obligations under the contract if and to the extent that the failure is caused by reason of any cause outside the control of the Seller.
7 ASSIGNMENT AND THIRD PARTY RIGHTS
The Buyer shall not be entitled to assign the benefit or burden of the Contract or of any interest in it without the prior written consent of the Seller. A person who is not a party to the Agreement shall have no rights to enforce any of these conditions.
This contact shall be subject to South African law and the exclusive jurisdiction of the South African courts.
9.1 No relaxation or indulgence granted by the Seller to the Purchaser and/or the surety/ies shall be deemed to be a waiver of any of the rights of the Seller in terms of this agreement and such relaxation or indulgence shall not be deemed to be a novation of any of the terms and conditions of this agreement.
9.2 For all purposes under this agreement including giving any notice, the payment of any amount, the services of any process and for all other purposes arising from this agreement, the Purchaser and the surety/ies hereby choose domicilium citandi et executandi at the physical address of the Purchaser stipulated on the face hereof.