Terms & Conditions
TERMS AND CONDITIONS OF SALE
a) These terms and conditions override and supersede all other conditions and are without prejudice to any securities and/or guarantees that the Supplier holds.
b) This contract constitutes the entire contract between the parties and no representation by any person, or variations or consensual cancellations of or amendments to any of the terms and conditions here of shall be valid or binding on the Supplier unless reduced to writing and signed by an authorized representative of the Supplier.
c) To the extent that there is any conflict between these terms and conditions and a written agreement between the Supplier and the Purchaser in respect of a particular transaction, the terms of that agreement will prevail.
d) Acceptance by the Supplier of orders containing conditions shall not be construed as an acceptance subject to those conditions; the terms and conditions here of take precedence.
a) The contract price shall be paid by the Purchaser without any deduction or set-off on the agreed terms following the date appearing on the statement.
b) If more than one delivery is made, then each delivery will be invoiced and paid for separately but otherwise in accordance with (a).
c) The Supplier shall be entitled to charge interest at the maximum rate permissible, from time to time on all overdue accounts, as set forth in the “Limitation and Disclosure of Finance Charges Act No 73 of 1968”, as amended, or any other applicable legislation.
d) Should the Purchaser default in paying his account then the Supplier shall be entitled, but not compelled to forthwith demand that the whole amount outstanding by the Purchaser, from whatsoever cause arising, will immediately become due and payable notwithstanding the fact that a portion of the amount would not be owing in accordance with the agreed terms of payment.
e) The Purchaser agrees that in the event of any portion of an invoiced indebtedness being disputed, then in that event, the Purchaser will nevertheless forthwith pay the undisputed amount of such indebtedness according to the agreed terms of credit allowed to the Purchaser, failing which any discount permitted in respect of the invoiced indebtedness will be forfeited.
f) Where payment has been arranged on a promissory note / basis, the Purchaser undertakes to furnish the Supplier with such instruments / by the 14thof the month following upon that in which the goods are dispatched from the Supplier’s premises. Should the Purchaser dispute any amount due for inclusion in a bill or promissory note the Purchaser shall nevertheless be obliged to furnish the bill or promissory note in respect of the undisputed sum. The term bill or promissory note shall extend to any negotiable or non-negotiable instrument of debt or bill of exchange.
g) If the purchase price is not paid on due date and remains unpaid for 12 hours after the receipt of written notice demanding payment, or if the Purchaser ceases to carry on business, the Supplier without prejudice to any other rights which it may enjoy may cancel the sale, retain all payments made and recover possession of the goods.
h) Until the purchase price of any goods has been paid, the Purchaser shall ensure that the goods are adequately insured against the usual risks and produce conclusive proof of such insurance whenever called on to do so by the Supplier.
i) When a Made-To-Order item is ordered by the purchaser, the Supplier, may at their discretion, demand a non-refundable deposit to the value of 50% (Fifty Percent) of the total order’s invoice value in order to proceed with the irrevocable order of materials specifically put into production for the Purchaser. Should the Purchaser cancel the order for whatever reason prior to the delivery of these items, the Supplier may keep the deposit for offset against expenses incurred against the breach of the transaction by the Purchaser. The balance of the payment for the made-to-order items will need to be settled prior to delivery to the purchaser.
Unless another price has been quoted by the Supplier (which will then apply), the price of goods or services will be the Supplier’s current price ruling on the date they are delivered or rendered to the Purchaser. The Supplier may vary any quoted price by adding thereto the increased cost to it of any goods or components which are supplied to the Purchaser resulting from any adverse fluctuation in the rate of exchange between the date of the quotation and the date of supply.
a) The contract price is strictly nett and not subject to any discounts unless otherwise agreed to in writing.
b) If any discount is agreed to in writing it shall only be allowed if payment is received by the Supplier by the due date and shall only apply to the actual price of the goods themselves.
c) No discount can be given on the official rate of VAT.
a) Any time or date for delivery specified by the Supplier or the Purchaser in respect of any sale shall be approximate only.
b) Time shall not be of the essence of the contract.
c) If the Supplier cannot, for any reason whatsoever, effect delivery of any goods on the date stipulated by it or by the Purchaser the sale shall not, for that reason, alone, be cancelled by the Purchaser and the Purchaser shall be obliged to take delivery as and when the Supplier can conveniently effect delivery.
d) The Supplier undertakes to use its best endeavour to effect delivery on any date specified by it but no warranties of whatsoever nature or kind are given and the Supplier shall not be responsible for any damages of whatsoever nature, loss or profit consequential or indirect damages which the Purchaser may suffer as a result of such late delivery.
e) Should the Purchaser request the Supplier to with hold or postpone delivery and in the event of the Supplier agreeing thereto, then the Supplier shall be entitled to charge, and the Purchaser undertakes to pay, storage charges to the Supplier at the then prevailing rates charged by the Supplier for such storage.
f) The risk in and to the goods purchased shall pass to the Purchaser upon delivery, which shall be deemed to have been effected as follows:
i) In the case of deliveries by rail, upon delivery to the Railway authorities even should the cost of railage be paid or prepaid by the Supplier, it being understood that in all cases Transnet Beperk (or its subsidiaries) shall be deemed to be the Purchaser’s agents.
ii) On the loading of the goods on the Purchaser’s vehicles where delivery is taken from the Supplier by the Purchaser at the Supplier’s warehouse.
ii) In the case of deliveries by ship, upon delivery to the relevant Railway or Harbour authority, it being understood that in all cases Transnet Beperk (and its subsidiaries) shall be deemed to be the Purchaser’s agents:
iv) In the case of deliveries by road, upon tender of the goods for acceptance within normal business hours at the Purchaser’s place of business or at such other place as the Purchaser may specifically direct
g) The Supplier and/or its servants and/or agents shall not be liable for any damage or loss occasioned to the Purchaser or any third party arising in any way from the entry into the premises nominated by the Purchaser or the exiting there from of any vehicle or from the off-loading thereof, or from any other act of commission or omission of the Supplier and/or the Supplier’s employees and/or the Supplier’s agents during the course of entering, exiting or off-loading, and the Purchaser hereby indemnifies and holds the Company harmless against liability for such damage or loss.
h) In the event of the Supplier, for any reason whatsoever, not being able to effect delivery of all of the goods, the Supplier may, at its sole election, effect delivery of such goods as it may then be able so to do and the Purchaser is obliged to accept delivery of such goods and such partial delivery shall be deemed to be a sale for such lesser quantity of goods concluded in terms of these conditions.
i) In the event of any default by the Purchaser of any of the terms or conditions governing a sale, the Supplier reserves the right to suspend any further or other deliveries on outstanding orders until such default has been rectified.
j) No variation, addition to, or cancellation of any of the terms of the contract at the instance of the Purchaser shall be of any force and effect unless recorded in writing and signed by the Purchaser and accepted in writing by the Supplier.
6. OWNERSHIP AND SET-OFF
Notwithstanding the delivery of any goods to the Purchaser, ownership shall not pass until the Supplier has received payment in full of all and any indebtedness of the Purchaser to the Supplier. In the event of the Supplier or any holding or subsidiary or fellow subsidiary company of the Supplier become indebted to the Purchaser, the Supplier may set-off such indebtedness against any monies which may become owing by the Purchaser to the Supplier.
The Supplier shall be entitled at its discretion to appropriate any payments made towards the reduction to it and any interest due in respect thereof prior to appropriation.
7. LIMITATION OF SUPPLIER’S LIABILITY
a) The Supplier does not give any warranty against defects, be they patent or latent, nor does the Supplier give any warranties or guarantees of any other nature or make any representations whatsoever in respect of the goods or of their fitness for any particular purpose (whether or not that particular purpose is or could be deemed to be known to the Supplier), other than any warranty or guarantee that may have been expressly given in writing. The Supplier shall be deemed to be unaware of the particular purpose for which the goods or any product made there from is required.
b) Before dealing in any manner with the goods supplied against any order, the Purchaser must satisfy itself that the goods are suitable for the purpose for which they are to be used and / or are free from any defects of whatsoever nature, and the Purchaser hereby indemnifies the Supplier against any claim brought against the Supplier by any third party arising out of the unsuitability of the goods for any particular purpose whatsoever.
c) The Supplier shall not be liable, under any circumstances whatsoever, for the loss of profit or other special damages or any indirect or consequential loss of profit arising out of any breach by it or any of its obligations under this contract or any act of negligence or omission on the part of the Supplier and / or its employees or for any other reason, whether ejusdem generis with the foregoing or otherwise howsoever.
8. QUALITY TOLERANCES
a) The Supplier shall use its best endeavours to ensure that any goods delivered by the Supplier shall conform to its standard specifications and quality levels recognized by usage and by the regulation applicable from time to time.
b) Provided the Purchaser before in any way, converting and/or utilising and/or processing and/or selling the goods (save for the purpose of testing same), advises the Company, in writing, within seven (7) days of the date of delivery of the goods of any defect in, or deviation from the standards set in the material forming all or portion of the goods, and provided further that the Purchaser is not in breach of these conditions, the Supplier will, against return of not less than 99 % (ninety-nine per cent) of such defective material, unprocessed and unused and not tested, at the Supplier’s sole election:
i) Replace 100% (one hundred percent) of such defective material at no cost to the Purchaser
ii) Credit the Purchaser’s account with the total invoiced price of such goods
c) Notwithstanding anything herein or elsewhere contained, the Purchaser will not be entitled to make any claims for replacement of any goods if such claims be made more than seven (7) days after delivery of such goods.
9. RETURN GOODS
a) Save for the provisions of paragraph 8. Above, the Purchaser shall not be entitled to return any goods for credit without the prior written consent of the Supplier first being had and obtained. If in the exercise of its discretion the Supplier shall agree at the request of the Purchaser to accept the return of any goods for credit, which goods were correctly supplied by the Supplier and are not faulty or subject to any claim. Then the Supplier shall be entitled without the necessity of any further agreement to claim from the Purchaser a handling share of 15 % (fifteen percent) of the invoiced price of the goods returned.
b) Subject to 9.a) above, goods can only be considered for return within 30 days from date of invoice at the discretion of the supplier.
a) The Supplier shall be entitled but not obliged to institute proceedings against the Purchaser, arising out of the contract, for the full balance outstanding including current purchases in any Magistrates Court having jurisdiction over the Purchaser not withstanding that the claim or the value of the matter in dispute may exceed the jurisdiction of the Magistrates Court. Further, the Purchaser agrees to be liable for all legal costs on the attorney-and-client scale and collection charges including tracing costs, which may arise.
b) A certificate signed by any Director of the Supplier showing the amount due and owing by the Purchaser to the Supplier at any given time shall be conclusive proof of the facts therein stated for the purpose of all legal proceedings against the Purchaser for recovery of the said amount.
11. NO WAIVER
No extension of time or any other relaxation or indulgence granted by the Supplier to the Purchaser shall operate as or be deemed to be a waiver by the Supplier of any of its rights this contract or novation of any of the terms and conditions of this contract.
12. SUSPENSION OF SUPPLIER’S OBLIGATIONS
If any amount owed by the Purchaser is not paid on due date, then without prejudice to or any other right it may have, the Supplier may immediately suspend the carrying out of any of its then uncompleted obligations until the payment is made.
a) The Supplier may cancel the contract or any uncompleted part of it if the Purchaser commits a breach of any of the terms or conditions of the contract; or being a individual dies or is provisionally or finally sequestrated or surrenders or makes application to surrender his estate; or being a partnership, the partnership is terminated; or being a company, is placed under provisional or final order of liquidation or judicial management; or compromises or attempts to compromise generally with any of the Purchaser’s creditors.
b) The Supplier’s rights in terms of (a) shall not be exhaustive and shall be in addition to its common law rights.
c) No relaxation which the Supplier may have permitted on any one occasion in regard to the carrying out of the Purchaser’s obligations shall prejudice or be regarded as a waiver of the Supplier’s rights to enforce those obligations on any subsequent occasion
d) Upon the cancellation of the contract for any reason whatsoever (I) all amounts when owed by the Purchaser to the Supplier in terms of the contract shall become payable forthwith
(ii) the Supplier may retake possession of goods in respect of which ownership has not passed
e) In the event of any order from the Purchaser providing for delivery of the goods at various stages, then each delivery shall be deemed to be a separate and divisible contract and the terms and conditions herein contained shall apply to each such delivery as if the same were the subject of an independent contract. No dispute arising from any such one delivery shall affect the balance of the contract between the Supplier and the Purchaser or the rights and obligations of either the Supplier or the Purchaser arising from prior deliveries. The Supplier shall have the right to claim pro rata payment in respect of each consignment delivered to the Purchaser.
f) The Purchaser agrees that its signature of its employees or any person purporting to represent it on the official delivery note or waybill of the Supplier and / or on the delivery note of any carrier will constitute sufficient proof of delivery of goods from time to time.
g) Each paragraph in this document is severable, the one from the other, and if any paragraph is found to be defective or unenforceable for any reason by a competent court, the remaining clauses shall be of full force and effect and continue to be of full force and effect.
h) If the Purchaser is in any way in breach and the Supplier engages the services of an attorney to collect the whole or any portion of the amount owing to it by the Purchaser, the Purchaser shall pay all costs occasioned as a result, including collection charges and costs of an attorney and own client scale.
The headings in these Conditions are for convenience only and are not to be taken into account for the purpose of interpreting the Contract. Words importing any one gender include the other two genders and the singular includes the plural.
15. LAW APPLICABLE
The laws of the Republic of South Africa govern this contract.
16. CLOSE CORPORATIONS
Without detracting from the above, the following shall further be applicable to Close Corporations;
The Supplier shall be entitled but not obliged to institute any proceedings against the Close Corporation arising out of the Contract, for the full balance outstanding including current purchases in any Supreme Court having jurisdiction notwithstanding the provisions of section 7. of the Close Corporation Act, 1984 as amended, save as herein stated or as may be inconsistent with the provisions of paragraph 10. above the contents of the said paragraph shall apply as if inserted herein.
17. DOMICILIUM CITANTI ETEXECUTANDI
a) The Supplier hereby elects, as its domicilium citandi et executandi, at which it will accept service of any process or notice in terms hereof: Alternatively the address indicated on the Supplier’s first transaction of sale by it to the Purchaser in terms hereof.
b) The supplier hereby elects, as its domicilium citandi et executandi, at which it will accept service of any process or notice , its normal trading premises.