|
1. OFFER:
This document does not constitute an offer by the SELLER.
1.1 By placing an order with the SELLER, that order
constitutes an acceptance by a BUYER of these terms and conditions
and enters into an agreement on the terms and conditions herein
stipulated. By placing an order with the SELLER, the Buyer waive any
terms of purchase or any other contract or document purporting to
be, or which in essence could be, a terms of purchase document that
may be in force or effect. By placing an order with the SELLER, any
document or agreement to the effect of being a terms of purchase
document a- foregoing the order is hereby cancelled as if it is
cancelled in writing, and agree both parties further as follows: The
offer shall not be capable of revocation by the BUYER after the date
of acceptance. The BUYER'S offer shall only be capable of being
accepted by a director of the SELLER; no obligation or liability on
the part of the SELLER shall exist or be deemed to exist.
1.2 All written matter and drawings supporting this
document or contained in any of the SELLER'S catalogues, price lists
or advertisements in whatsoever, form are approximate
representatives only, and are not binding in detail. Weights,
measurements, capacities and other particulars are stated as being
approximately correct and deviations therefore shall not form the
basis of any claim against the SELLER, except where specifically
agreed to in writing by a director of the SELLER.
1.3 Any sample of the SELLER shown to the BUYER is
illustrative of the general type and quality of the goods concerned
and shall not be construed as a representation that the goods
conform to the sample.
2. ORDER:
2.1 None of the terms and conditions in the order or any
other document given by the BUYER to the SELLER which are
inconsistent with the terms and conditions of this agreement shall
be of any force or effect unless agreed to in writing by a director
of the SELLER.
2.2 The price is exclusive of VAT and is calculated on the
basis of foreign exchange rates, duties, levies and other import
ruling affecting the goods or their constituent parts, as at the
date of the quotation or acceptance of the order by the SELLER, as
the case may be, and on cost at this date of every item of
expenditure involved in the goods including, without limiting the
generality of the foregoing, the cost of materials, labour,
transport and insurance of each constituent part. The price shall be
adjusted in conjunction with the auditor of the SELLER to take into
account any changes on the basis of the price which occur between
the date of the quotation or acceptance and the date of delivery of
the goods as if the changes were applicable at the date of quotation
or acceptance. For the purpose of facilitating the whole or part of
the competition of the price adjustment, the auditor shall be
entitled to use such adjustment formulas as he may in his discretion
determine. The price adjustment as certified by the auditor shall be
final and binding on the parties.
3. DELIVERY AND COMPLETION:
3.1 The SELLER shall give delivery of the goods at its
place of business, unless agreed otherwise. The BUYER shall before
the stipulated delivery date obtain all the requisite permits and
fulfil all the requirements for the importation of the goods into
his country of origin and shall furnish the SELLER with complete
written instructions concerning the insurance and transportation of
the goods and shall pay all the premiums, transportation costs and
costs incidental thereto. Should the BUYER fail to do so timely the
BUYER shall be liable to the SELLER for a daily storage charge at
the rate of R15, 00 (Fifteen Rand) per cubic meter or part thereof
occupied by the goods, calculated on the dimensions of the cube that
would be required to contain the goods wholly and delivery shall be
deemed to have been given on the date on which the goods are
rendered for delivery by the SELLER.
3.2 The delivery date shall not be of the essence of this
contract and any such date shall be construed as an estimate. The
SELLER shall use its best endeavours to comply with its obligations
within a reasonable period of any given date.
3.3 Notwithstanding any specific agreement to the contrary,
the SELLER shall be entitled to a reasonable extension of time to
comply with its obligations if delayed by vis major or by reason of
directions of the BUYER, civil commotion, local combination or
workmen, strike or lock-out, general shortage of supplies, failure
to obtain supplies and causes beyond the control of the SELLER.
Further any time limits shall be extended automatically by the
length of the period between the dates of the acceptance by the
SELLER of the Buyer's order, and all the information required by the
SELLER from the BUYER to complete the contract without interruption.
3.4 The SELLER shall have the right to affect delivery in
such installments as it may determine.
3.5 The BUYER shall have the right to inspect the goods at
the time and place of delivery before accepting them. Such right
shall be deemed waived, if not exercised before the stipulated or
deemed delivery date as the case may be. In such a case the buyer is
prohibited from raising the defence of poor or substandard quality
at a later stage.
3.6 The cost of any acceptance last performed, or
certification obtained at the request of the BUYER, shall be paid by
the BUYER on demand.
4. OWNERSHIP AND RISK:
4.1 Ownership of the goods shall not pass to the BUYER
until payment of the price agreed upon has been made in full. The
risk attached to the specific goods shall pass to the BUYER on the
conclusion of the contract, and in unascertained goods on their
appropriation by the SELLER to the contract.
4.2 For as long as the SELLER retains ownership of the
goods delivered:
4.2.1 The BUYER shall have no right to dispose of or part
with possession of goods whether by way of sale or pledge or
otherwise and in the event of the goods being interfered with any
third party the BUYER shall immediately notify the SELLER by way of
telephone, fax or e-mail. The costs incurred in any action to
prevent the interference will be paid by the BUYER on demand.
4.2.2 The BUYER shall be obliged to insure the goods for
the full price against the usual risks and to maintain the goods in
good order and condition. The SELLER is hereby authorized to affect
such insurance on the BUYER account unless and until the BUYER has
compiled with his obligation in terms of this clause and has
notified the SELLER thereof in writing, monies received under the
insurance policy shall be applied first in payment of the price to
the SELLER.
4.3 In the event of the SELLER disposing of the goods in
breach of clause 4.2.1, all the SELLER'S rights against any third
party, trailing directly or indirectly out of such disposal, are
hereby automatically coded to the SELLER in securitatem debiti;
4.4 The BUYER agrees and accepts that all goods delivered
are consumables and not capable of returning in lieu of re-funding
5. PAYMENT:
Payment of the price shall be made in full at the principal
place of business of the SELLER within 30(thirty) days of the date
of delivery of the goods or other period as agreed with the supplier
and shall not be capable of set off or any other deduction. Interest
shall be charged and payable on all overdue amounts as at the
maximum rate chargeable in terms of Usury Act 73 of 1988 for money
lending transaction of an equal amount outstanding. Or any or all
invoices which form the subject of invoices being factored by the
SELLER to any factoring house, those invoices are subject to the
ruling interest rate charged by the factoring house. In the event of
any late payment, the BUYER hereby accepts full responsibility for
such higher interest rate. Currently the applicable rate is 1,2% per
night calculated at the outstanding balance compounded daily.
6. BUYER'S CLAIMS:
Any action by the BUYER for breach of contract shall be
commenced against the SELLER within 3(three) months after the cause
of action accrued, but in any event not later than 6(six) months
after delivery or tender for delivery as the case may be, failing
which the BUYER shall be deemed to have waived its rights. The BUYER
shall have no claim whatsoever against the SELLER arising out of any
consequential or direct damages suffered by the BUYER, whatsoever
and by whomsoever caused. In relation to any of the goods in respect
of which the SELLER shall itself be dependent for the purpose of
carrying out this contract, upon any contract with any third party,
the SELLER may at any time and from time to time for the purpose of
giving effect to the determination, or variation of such other
contract, determine or vary the terms of this contract by notice in
writing in that behalf served on the BUYER.
7. LIMITED LIABILITY:
7.1 The SELLER warrants that all goods sold by it shall be
free from defects in materials, under usual and proper use. The
total liability of the SELLER under this contract, shall be limited
to replacing any defective goods or constituent parts of which the
SELLER is notified in writing, within 2(two) weeks of date of
delivery or tender for delivery as the case may be. The replacement
shall be undertaken free of charge to the BUYER except for delivery
charges. This warranty shall not be applicable if the BUYER is in
breach of any of the terms of this contract or if alterations or
treatments to the goods are carried out by the BUYER or third party
without the SELLER's consent, or if a defect is due in whole or in
part of misuse of the goods or any cause beyond the control of the
SELLER. The onus of proving that the SELLER is liable in terms of
the warranty shall rest on the BUYER. In the case of goods or
constituent parts obtained by the SELLER from third parties, the
liability of the SELLER to the BUYER shall be limited to the
liability of the third party to the SELLER, and to the extent that
the SELLER can assign its rights in respect of the goods to the
BUYER. The above warranty is given and accepted in law of all other
expressed or implied warranties. Save as otherwise herein contained,
no guarantees, representatives, warranties of undertakings of any
nature have been given to the BUYER by the SELLER, or by any other
person purporting to act on behalf of the SELLER and the BUYER
represents that none other than those contained in this contract,
have been made or replied upon.
7.2 Save as set out above, the BUYER shall not have or
acquire any other claim against the SELLER, nor shall the SELLER be
liable in contract or delict for any general or special damages
sustained by the BUYER or third party flowing directly or indirectly
from this contract whether due to acts, omissions constituting gross
negligence or otherwise of the SELLER or of its employees, agents or
invitees or any other person for whom the SELLER may be held liable.
7.3 Tyre Protection Chains (TPC - the goods) or any
replacement or part thereof reduces the risk of tyre damage, tyre
burnout and or premature wear and tear. Neither the SELLER nor the
goods, do not purport to exclude the possibility and or risk of
damage and as such makes no guarantee or warrantee in this regard.
8. ADVICE ON TECHNICAL APPLICATION:
8.1 On request of the BUYER, the SELLER shall, to the
extent that the SELLER may determine, furnish the BUYER with advice
on technical application of the goods, based on its research and
experience. All technical information supplied by the SELLER shall
be in accordance with its usual standard practice, without any
change of the system of measurement or presentation or any other
matter. But this shall not relieve the BUYER from determining for
himself independently of the advice received from the SELLER, the
suitability of the goods for the purpose and processes he requires.
8.2 In the event of there being certain national technical
standards applicable to the goods in the Buyer's country of origin,
the BUYER shall notify the SELLER of these standards simultaneously
with placing the order, and in the event of the BUYER failing to do
so timiously the SELLER shall not be liable for any loss sustained
or general or special damages suffered by the BUYER, or any third
party in consequence of the goods not complying with the standards.
The BUYER hereby indemnifies the SELLER against any such claim.
9. DOMICILIUM:
The BUYER hereby chooses domicilium citand et executandi
for all purposes in terms of this contract, the address of the BUYER
referred to in the BUYER'S order and failing this the address
referred to in clause 3.1 being the address to which the goods are
to be transported.
10. INDULGENGE:
No indulgence or extension allowed by the SELLER to the
BUYER shall operate as a waiver of any of the SELLER'S rights in
terms of this contract. No variation of this contract shall be of
any force or effect, unless reduced to in writing and signed by a
director of the SELLER.
11. CANCELLATION:
11.1 Should the BUYER fail to make payment on due date or
breach any of the other terms and conditions of this contract (all
of which are deemed material), or commit an act of insolvency, or
allow a judgment to be entered against it, or be provisionally or
finally sequestrated, then the SELLER without prejudice to and in
addition to its other legal remedies, shall be entitled without
notice to the BUYER;
11.1.1 To cancel this contract or any unfulfilled part
thereof without any liability whatsoever to take repossession of all
goods delivered and to retain all amounts paid, either as liquidated
damages or as security pending determination of its claim for
damages; or
11.1.2 To claim payment of the full amount of the contract
price or the balance thereof.
11.1.3 Pending payment, to repossess all goods delivered.
12.1 INTERPRETATION:
12.1 These terms and conditions constitute an integral part
of the contract concluded between the parties and constitute the
entire contract and supersede prior agreements (written or oral),
except as maybe recorded specifically in a written agreement between
the parties.
12.2 In this contract, unless inconsistent with the context
in which it is used, the following words shall have the under
mentioned meaning ascribed to them.
12.2.1 SELLER:
The party who has received an order from the BUYER.
12.2.2 BUYER:
The party who has requested the quote from the SELLER,
submitted an order to the SELLER, or the party to whom the SELLER
has submitted this document, or whom has received delivery of the
goods, in their personal capacity or on behalf of their employer/s,
or the entity who has been invoiced by the SELLER or whomever is
responsible for payment.
12.2.3 GOODS:
The goods sold by the SELLER to the BUYER in terms of this
contract.
13. JURISDICTION:
The BUYER agrees and consents to the SELLER at its election
instituting proceedings in connection with this contract in the
Magistrate's Court, having jurisdiction over its person,
notwithstanding that the amount of the claim may exceed the
jurisdiction of such Court. The BUYER agrees that the contract shall
in all respects be governed by, and construed in accordance with the
law in the Republic of South Africa. Other matters relating thereto
shall be determined in accordance with such law.
14. LEGAL COSTS:
In the event of the SELLER incurring legal costs in
connection with the enforcement of any of the BUYER'S obligations in
terms of this contract, the SELLER shall be entitled to recover all
legal costs (including attorney and own client costs) so incurred,
from the BUYER.
15. SETOFF
The invoice price reflected on the Seller’s invoice shall be paid by
the Buyer without any deduction and / or set off and in accordance
with the terms of payment which the parties hereto might from time
to time agree.
16. BREACH
16.1 In the event of the Buyer committing any breach of the
terms of this agreement, all of which are deemed to be material, the
Seller at its option and without prejudice to any of its rights in law shall be entitle to:
retake possession of the goods sold and delivered to the
Buyer, in respect of which ownership has not passed.
Demand that the Buyer immediately make payment to the Seller
of all amounts in respect of all goods sold and delivered by
the Seller to the Buyer notwithstanding that payment in
respect of any such goods might not then be due and payable.
16.2 In the event of the Buyer failing to make payment of
any amount on due date the full amount in respect of all goods sold and delivered
by the Seller to the Buyer, shall immediately become due, owing and payable.
17. CESSION
The
Buyer hereby irrevocably and in rem suam cedes, pledges,
assigns, transfers and makes over unto and in favour of the
Seller, all its right, title, interest, claim and demand in and to all claims of
whatsoever nature and description and howsoever arising which the Buyer may now or
at any time hereafter have against all and any person,
companies, corporations, firms, partnerships, associates, syndicates and other legal personae
whomsoever (“Buyer’s debtors”) without exception as
continuing covering security for the due payment of every sum of money which may now or at any
time hereafter be or become owing by the Buyer to the Seller from
whatsoever cause or causes arising and for the due performance of every
other obligation howsoever arising which the Buyer may be or become
bound to perform in favour of the Seller, it being acknowledged that
this cession is a cession in securitatum debiti and is not an out-and-out
cession.
Should it transpire that the Buyer entered into prior deeds of
cession or otherwise disposed of any of the right, title and interest in
and to any of the debts which will from time to time be subject to this
cession, then this cession shall operate as a cession of all the Buyer’s reversionary
rights.
18.
CREDIT
In so far as deferred payment may constitute “granting of
credit”, the credit facilities may be withdrawn by the Seller at
any time without prior notice.
19. PROOF
OF DELIVERY
A signed Delivery Notice shall constitute sufficient proof that
the goods have been delivered and received by the Buyer in good condition,
whether signed by the Buyer, an employee, an agent or represent6ative of the
Buyer. A
certificate sworn to before a Commissioner of Oaths by a
Director or Manager of the Seller shall constitute conclusive proof of
the indebtedness and the amount thereof owing by the Buyer to the Seller at
any time and shall, for all purposes, be binding on the Buyer.
20.
CHANGE OF DETAILS
The Buyer undertakes to notify the Seller in writing, any change
of details, including change of ownership, name or address. Such
change shall in no way derogate from the buyer’s liability to
the Seller.
21. SURETYSHIP
Each
director of a company, member of a closed corporation, trustee of a
trust, partner of a partnership, and or the persons requesting the
quote, placing the order or receiver of the goods, hereto on behalf
of the Buyer hereby bind himself/themselves as surety/ies and
co-principal debtor/s in solidium unto and favour of the Seller in
respect of all the obligations of the Buyer in terms hereon and
furthermore hereby agree and undertake to be bound by the terms and
conditions of this agreement mutatis mutandis.
22 DEVIDEABILITY OF CONTRACT
If any
part of this agreement is found by a court of law to be contra
bones mores or unenforceable, then only, and only such
paragraph shall be deemed to be severable from the remainder and
unenforceable whilst the remainder of the contract shall remain in
tact and enforceable. |
