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1 SCOPE
AND APPLICATION
The
General Terms and Conditions of Sale (hereinafter referred to as
the “GTCS”) shall be applicable to all offers made or
submitted by AMITECH INDUSTRIAL SA (PTY) LTD (hereinafter
referred to as “the Supplier”) and to the acceptance by the
Supplier of any order given and received by any prospective
purchaser.
The
GTCS shall be the sole document governing the contract between the
Supplier and the purchaser.
Any
variation or modification to the provisions of the GTCS which may
have been agreed to between the Supplier and the purchaser shall
only be valid, effective and binding on the Supplier if reduced to
writing and signed by the Supplier and the purchaser.
No
agent or representative of the Supplier shall have any authority to
conclude contracts, amendments to contracts or instruments of
similar nature on behalf of, or in any way bind, the Supplier in
respect of any purchaser.
Notwithstanding
1.4 above, any contract, amendments to contracts or instruments of
similar nature entered into by an agent or representative of the
Supplier shall become valid, effective and binding on the Supplier
upon written confirmation thereof by the Supplier.
No
agent or representative of the Supplier shall be entitled to
receive any payment in respect of contracts, amendments to
contracts or in respect of instruments of any similar nature on
behalf of the Supplier without prior written authorization from the
Supplier to that effect.
“contract”
shall mean the GTCS together with any special terms and conditions
and appendices thereto (if any) in accordance with the provisions
of the GTCS.
“goods”
shall to mean the corporeal or incorporeal objects, albeit moveable
or immovable, to be supplied by the Supplier to the purchaser in
terms of the Contract of Sale.
“purchaser”
shall mean the firm or individual purchasing the Goods under the
Contract of Sale from the Supplier.
“parties”
shall mean the Supplier and the purchaser.
FORMATION
OF THE CONTRACT
2.1 All
orders and contracts of whatever nature, are subject to written
acceptance by the Supplier. Written acceptance by the Supplier,
subject to the provisions of the GTCS, in respect of an order placed
by a purchaser, shall form a binding, effective and valid contract
between the Parties.
Any
order or offer submitted by a purchaser shall not be binding on the
Supplier and the Supplier shall be entitled to revoke any offer at
any time prior the written acceptance thereof.
Notwithstanding
the provisions in 2.2 above, any offer or order submitted by the
purchaser to the Supplier shall be irrevocable upon the purchaser
for a period of 30 (thirty) days from the date the offer and/or
order is submitted to the Supplier.
The
GTCS, as amended from time to time by the Supplier, shall be
applicable to any further amendment or variation of a contract
concerning the supply of Goods by the Supplier in respect of the
purchaser.
SPECIFICATION
OF AND INFORMATION ON GOODS
All
goods supplied under the Contract shall conform to those
characteristics and specifications which are explicitly contained
and provided for in the Supplier’s publication. The purchaser hereby acknowledges receipt of the aforesaid
publication, and expressly states and confirms that it is fully
aware of the contents thereof and is bound thereby.
The
goods delivered are deemed to conform to the requirements and
specifications of the contract despite any discrepancies in weight,
colour, size, measurement or quantity.
Save
as provided in 3.1 above, all data, specifications and
information contained in brochures, catalogues, circulars,
advertisements, price lists and any other printed, published or
other materials distributed by the Supplier shall be of no purpose
and effect and shall not be deemed to form part of the GTCS or the
contract.
All
software, drawings, technical information, calculations and the
like furnished by the Supplier to the purchaser shall remain the
property of the Supplier. The Supplier shall also remain the
owner of any property rights relating to the goods. Software,
drawings, technical documents or other technical information
provided by the Supplier, shall not, without prior written
authorization of the Supplier, be used for any other purpose than
installation, commissioning, operation or maintenance of the
goods, and shall not, without the prior written authorization of
the Supplier, otherwise be used, copied, reproduced,
transmitted or communicated to a third party.
DELIVERY
TERMS
If
no trade term has been agreed to between the Parties relating to
delivery of the goods by the Supplier, then such delivery shall be
Ex Works. All risk in and to the goods shall pass to the
purchaser immediately upon the goods having been placed at the
purchaser’s disposal. Partial shipments shall be permitted
unless otherwise expressly agreed to by the parties.
All
deliveries shall, subject to any variation contained in the
contract, be subject to the Supplier’s reserved right that the
Supplier is able to deliver the goods at the time for delivery.
If the Supplier anticipates that the goods may not be delivered at
the time for delivery, it shall be obliged to notify the purchaser
thereof in writing and, if possible, set out the time when the
delivery is to be expected.
In
the event that the delay or failure to delivery is caused by war,
demands or requests of governmental authority, national defence,
civil commotion, strike, local or general boycott, labour
trouble, industrial dispute, fire, flood, accident, explosion,
failure in production or production equipment, inability to
obtain fuel, power, raw materials or shipping capacity, actions
by local or other administrative agencies, seizure, embargo,
delays or defects in deliveries by sub-contractors or by any other
circumstance beyond the reasonable control of the Supplier (“Force
Majeure”), the time for delivery shall, subject to the
provisions of 4.4 below, be extended by a period which is
reasonable having regard to all the circumstance in the case.
In
the event of the Force Majeure event referred to in 4.3 becoming
applicable , which event is beyond the control of the Party
affected, and which the Party had no reasonable way of preventing
or grounds to anticipate, the affected Party shall immediately
notify the other Party in writing of the causes and expected
duration of any such occurrence. Failure by the Supplier to supply
the Goods or a delay in the delivery of the Goods due to Force
Majeure shall not constitute a breach of contract.
The
Supplier shall be under no liability whatsoever, whether by
penalty, indemnity or otherwise, for and in respect of any delays
or failures in delivery, defects, losses or damages caused by or
resulting from circumstances or situations referred to in Clause
4.3 and 4.4 above. The provisions of Clause 4.3 and 4.4 and of this
Clause shall apply regardless of whether the reason for the delay
or failure in delivery has occurred on the date of acceptance of a
particular order by the Supplier.
The
purchaser shall forthwith examine the goods upon delivery and shall
notify the Supplier in writing of any claims with respect to
shortages in quantities of goods delivered or delivery of goods
other than as ordered or other defects or lack of conformity
concerning the delivered goods within 15 (fifteen) days of the
delivery supported by material evidence satisfactory to the
Supplier. The purchaser shall have no remedy in respect thereof if
he fails to comply with the notification requirement provided in
this Clause.
The
purchaser shall always be under the obligation to take delivery of
the Goods at the agreed time for delivery. If, for any reason
whatsoever, the purchaser fails to take delivery of the goods at
the time for delivery it shall pay the price of the respective
goods which becomes due on delivery as if delivery had taken place,
provided further that, it shall fully be liable for any damage to
the goods whatsoever.
5 PRICE
AND PAYMENT
5.1 If
no price has been agreed to between the parties, the Supplier’s
current list price at the time of the conclusion of the contract
shall be applicable. In contracts where the Purchaser has requested
or specified partial delivery of goods, the price list effective at
the time when the Supplier receives the purchaser’s request for the
respective partial delivery shall apply in respect of each partial
delivery.
Unless
otherwise agreed in writing, the price includes only the costs
which are at the Supplier’s charge according to Ex Works
delivery, and does not include Value-Added Tax (“VAT”). Any
costs, which under this Clause are for the purchaser’s account
(e.g. packing, transportation, insurance, export or import costs
and expenditures, costs of incidental services), shall not be
considered as having been included in the price. Should the
Supplier bear any costs which are for the purchaser’s account,
such sums shall forthwith be reimbursed by the purchaser to the
Supplier without the need of any specific request by the Supplier.
Save
and to the extent that the contract may provide otherwise, the
Supplier shall be entitled to adjust the prices to compensate for
increases in costs at the Supplier’s account, including increases
in such costs as labor, raw materials, processing and other factors
of significance in production, which the Supplier may incur from
the date of conclusion of the Contract to the date of delivery. The
Supplier shall notify the Purchaser in writing of the new prices.
The
time of payment of the purchase price shall be the date indicated
in the invoice issued by the Supplier. The handing over by the
purchaser and the acceptance by the Supplier of cheques, promissory
notes or instruments of similar nature shall not constitute payment
where delivery and acceptance of such instruments shall be deemed
as provision of collaterals to secure payment obligations of the
purchaser or collection by the Supplier under any cheque,
promissory note or instrument of similar nature shall be for the
purchaser’s account. Notwithstanding whatever means or mode of
payment used, payment of the purchase price shall not be deemed to
have been effected before the Supplier’s account has been fully
and irrevocably credited with immediately available funds.
In
case that the purchaser fails to pay by the stipulated date, the
Supplier shall be entitled to charge interest on the sum of the
purchase price from time when payment was due to the time of actual
payment. Unless otherwise agreed, the rate of interest shall be 4%
(four percent) above the prime lending rate of the Supplier’s
bankers as amended from time to time.
If
the parties have agreed on payment in advance, without further
indication, it will be assumed that such advance payment refers to
the full price, and that advance payment must be received by the
Supplier at least 30 (thirty) days before the agreed date for
delivery or the earliest date within the agreed delivery period. If
the advance payment has been agreed only for a part of the contract
price, the payment conditions of the remaining amount of the
contract price shall be determined in accordance with Clause 5.4
above.
In
the event that the purchaser fails to make payment of the purchase
price, in part or in whole, when due and payable in terms of the
Contract, such event shall constitute a breach of contract. If a
purchaser falls into breach then the Supplier shall be entitled to
request payment of all amounts in terms of the provisions of clause
9 hereunder. The Supplier shall further be entitled to require the
purchaser to provide additional collateral or security for the
obligations of the purchaser under the contract, suspend its
performance under the contract until the receipt of full payment
and the provision of the collateral or security (if any) and
request from the purchaser the compensation for losses and damages
suffered by it as a consequence of such default.
Prices
quoted, are inclusive of all local taxes where applicable.
6 RESERVATION
OF TITLE
Notwithstanding
delivery of the goods or any document representing title to the
goods and the passing of the risk to the purchaser as provided in
Clause 4.1, ownership of the goods shall remain with the Supplier
until the price as agreed to between the parties has been paid in
full. The purchaser shall, unless otherwise agreed to by the
Supplier in writing, ensure that the goods which are in its
possession and under its control but which remain the property of
the Supplier, are stored separately so that they may be readily
identified by the Supplier and adequately insured, at all times, by
the purchaser.
The
purchaser shall be obliged to immediately notify the Supplier in
writing of any acts or claims by its customer or other third
parties which may entail infringement of the Supplier’s property
right over the goods that are in the possession and under the
control of the purchaser. The purchaser shall ensure that any
measures necessary or required to be taken to protect the
Supplier’s property right over such goods are diligently taken
and shall bear all the costs attendant thereupon.
SCOPE
OF WARRANTY AND LIMITATION OF LIABILITY
Except
where the Supplier has provided the purchaser with an express
written warranty for specific goods, the Supplier warrants only
that the goods shall, to the extent explicitly stated and
undertaken, conform to the characteristics and specification
mentioned in the publication referred to in Clause 3.1 above.
Where
the purchaser has examined the goods before or on the date of
conclusion of the contract, the purchaser shall be deemed to have
given full regard to the condition of the examined goods and have
approved and purchased the goods “voetstoots”. In such case,
the Supplier shall be indemnified of any of its warranty
obligations in terms of the contract.
The
purchaser is, in terms of the GTCS, obligated to examine the goods
immediately upon delivery by the Supplier and notify the Supplier
of any claims (if any), as provided and stipulated in Clause 4.6
above. Subject to the provisions of clause 7.2 above, any warranty
provided by the Supplier is limited to a period of 6 (six) months
from date of delivery and, the purchaser shall have no remedy for
any defect or lack of conformity if he fails to notify the Supplier
thereof within the 6 (six) month period which commences from the
date of delivery of the Goods. Without prejudice to the foregoing
provisions, no action in respect of defective goods or a lack of
conformity of the goods may be instituted by the Purchaser, whether
before judicial or arbitral tribunals, after 6 (six months) from
the date of delivery of the goods.
In
the event of preparation and submission of any calculation,
statement or recommendation or provision of any assistance by the
Supplier or his representatives to the purchaser or to his
representatives or customers concerning the use, installation,
operation, maintenance and otherwise utilization of the goods, as
requested by the purchaser or required in terms of the contract or
rendered otherwise, any such calculation, statement, recommendation
or assistance shall have been prepared and submitted or rendered
solely on the basis of the data and information provided and
furnished by the purchaser or by its duly authorized agent,
representative or customer, as the case may be. The Supplier shall
be under no obligation to investigate, control or verify the
correctness and reliability of any data or information provided by
the purchaser or its duly authorized agent, representative or
customer. Except and to the extent of willful misconduct or gross
negligence of the Supplier, the Supplier does not assume nor shall
it assume any responsibility and liability in respect of services
to be performed subject to the provisions of this Clause.
The
Supplier provides no warranty, and shall not take any
responsibility and liability, for goods not manufactured by it.
Any such goods shall carry the warranty of the manufacturer
thereof.
Where
the goods shall, subject to the terms and conditions set forth
herein, be other than as warranted or otherwise defective, and
provided that the Purchaser has duly complied with the
notification requirements in the GTCS, the Supplier shall, at its
sole discretion, either (i) replace the goods without charge to the
purchaser (cost of delivery excluded); or (ii) repair the goods
without charge to the purchaser (cost of delivery excluded); or
(iii) reimburse the purchaser for the price paid for such goods :
Provided that any of the foregoing options shall be the sole and
exclusive remedy afforded to the purchaser.
Unless
specifically agreed by the parties in writing, the purchaser shall
not be entitled to claim liquidated damages for delays in delivery
of any goods. Where the purchaser is, subject to the foregoing
provision, entitled to claim liquidated damages, the Supplier’s
total aggregate liability for such delays shall not exceed 5% (five
percent) of the price of the delayed goods. Liquidated damages
under this Clause are the only remedies available to the purchaser
in case of delay on part of the Supplier.
Without
prejudice to the terms, conditions and limitations set out in
clauses 7.1 - 7.8 inclusive above or elsewhere in the contract,
the Supplier’s total aggregate liability for any and all losses
and damages to the purchaser resulting from any cause whatsoever,
including but not limited to the Supplier’s delay in delivery or
negligence or supply of damaged or defective goods, irrespective of
whether such damages or defects are discoverable or latent, shall
in no event exceed the price of the goods in respect of which
damages and losses are claimed. In no event shall the Supplier be
liable for incidental, indirect or consequential damages such as
loss of production, loss of opportunity, loss of profit, loss of
revenues and other indirect losses or damages.
8 DAMAGE
CAUSED BY THE GOODS
The
Supplier shall not be liable for any damages caused to third
parties or property which may arise from the use or installation or
utilization of the delivered goods by the purchaser. The Supplier
shall also not be liable for any damage to goods or products
manufactured by the Purchaser. If the Supplier incurs any liability
towards any third party for such damages to third parties or the
property, the purchaser shall indemnify, defend and hold the
Supplier harmless in respect thereof.
9 BREACH
9.1 Should
the purchaser breach or fail to comply with any term or condition of
the GTCS and Contract which in law justifies termination of this
agreement, then the Supplier shall be entitled to cancel this
agreement (either as an alternative to a claim for specific
performance or upon the abandonment of such a claim), provided the
Supplier has first given the purchaser 21 (twenty one) days written
notice to rectify such breach and the defaulting Party has failed to
rectify such breach within the stipulated period.
9.2 Written
notice of any such cancellation shall be given to the purchaser and
such cancellation shall take effect on the giving of such notice.
9.3 The
exercise by the Supplier of any right conferred by the foregoing
provisions of this clause shall, subject to such provisions, be
without prejudice to any claims of such Party hereunder then accrued
or to any other right or remedy of such Party.
9.4 The
parties choose domicilium
citandi et executandi for
all purposes of the giving of any notice, the payment of any sum, the
serving of any process and for any other purpose arising from the
GTCS and the Contract at the registered addresses of the Supplier and
the purchaser as evidenced by CIPRO.
10 TERMINATION
10.1 In
the event of termination of the contract by the Supplier, the
purchaser shall be obliged at its own cost to return all goods
supplied to it up to and including the time of termination.
10.2 In
the event of the purchaser failing to return the goods as referred to
in 10.1 above, then the Supplier shall be entitled to collect the
goods from the purchaser and the purchaser shall remain liable for
the payments of all costs and expenses incurred as a consequence of
such termination.
10.3 Unless
otherwise expressly and specifically agreed in writing between the
parties, the purchaser shall not be entitled to terminate, in whole
or part, the contract for its convenience, and shall remain obliged
to pay the purchase price in full irrespective of any termination
instituted by it.
11 LIABILITY
AND INDEMNITY
11.1 The
purchaser shall indemnify the Supplier, its employees,
representatives and subcontractors against claims in connection with
any installation of goods at the premises of the purchaser and/or its
customer as a result of:
(a) the
death of or personal injury to the Supplier's employees,
representatives or subcontractors;
(b) the
loss of or damage to property of the Supplier, the Supplier's
employees, representatives or subcontractors.
12 LAW
The
GTCS and contract shall be subject to and interpreted in accordance
with the Laws of Republic of South Africa. Any dispute which may
arise in connection with the GTCS and Contract, that cannot be
settled through negotiation between the parties shall be concluded in
terms of the provisions of clause 9 above.
13 SUB-CONTRACTS
The Supplier may
sub-contract the supply of any services relating to the installation
of the goods on behalf of the purchaser. In such sub-contracts the
Supplier will act as a principal but may if so requested by the
purchaser, act as its agents.
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