|
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. 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. CONTRACTING WITH EMPLOYEES, SERVICE PROVIDERS, DIRECTORS
AND/OR EX-DIRECTORS
The Buyer acknowledges that the manufacturing and supply of tyre
protection chains are indeed a specialized field. That employees of
the Seller, service providers to the Seller and director/s of the
Seller are trained and exposed to all company trade secrets in a
very limited market. The Buyer undertakes, not to contract with any
employee, service provider or director or ex-director outside the
scope of this supply, directly or indirectly in any way or form
relating to the service and or trade of tyre protection chains (or
any other name under which it may be marketed). Should the Buyer be
made aware of this infringement and refuse to rectify the
infringement by actively cancelling contract with the ex-employee,
employee, (ex-)service provider or director or ex-director, or their
associating entities within 7 days of having been notified in any
form or shape, shall be liable to the Seller liquidated damages in
the amount of R500,000-00 (Five hundred thousand Rand), for every
such infringement. This amount is accepted as reasonable and agreed
to as the actual damages suffered by the Seller, or as punitive
measures against the infringing Buyer. The Buyer waives any defence
it may have had in law in this regard. Should the Seller finds need
to act against the buyer on this infringement, the Buyer will be
liable to the Seller all legal costs on an
attorney-own-client-scale. The Seller undertakes to uphold this
agreement towards the Buyer mutatis mutandis.
23. 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
intact and enforceable. |
