Standard Terms And Conditions of Sale Agreement
Corporate Services CC (the Supplier) accepts orders and supplies goods or services (collectively referred to as Products) to the Purchaser subject to these standard terms and conditions of sales. These terms and conditions supersede any terms and conditions specified by the Purchaser, which includes but not limited to any terms or conditions made in an order for Products, and shall be applicable for all existing debts between the parties. If the Supplier enters into a transaction on the basis of these Conditions, the Purchaser consents to the applicability of them in the Contract. Products supplied to the Purchaser by communication, whether orally or written, or through conduct capable of being construed to the Supplier as an agreement, shall be deemed irrevocable acceptance by the Supplier to these Conditions.
1.STANDARD TERMS AND CONDITIONS OF SALE
- The words set out hereunder shall have the following meanings assigned to them:
1.1 “Products” means any product as described in the Supplier’s website and/or other Products supplied by the Supplier to the Purchaser from time to time, which includes the manufacture and/or assembly thereof by the Supplier, all material or components incorporated therein, and any services rendered or work performed by the Supplier to or for the benefit of the Purchaser;
1.2 “the CPA” means the Consumer Protection Act, 68 of 2008, as amended;
1.3 “the NCA” means the National Credit Act, 34 of 2005, as amended.
1.4 “Intellectual Property Rights” means any rights in inventions, patents, registered designs, design rights, know-how, trademarks or service marks, copyright and all other intellectual or industrial property rights whether or not capable of registration;
1.5 “Supplier” means Corporate Services CC with registration number: 1989/008953/23,
1.6 “Purchaser” means the Purchaser whose order for the Products is accepted by the Supplier;
1.7 “Contract” means the contract for the purchase and sale of the Products subject to these Conditions;
1.8 “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made;
1.9 “Conditions” means the terms and conditions contained in this document.
1.10 “Certificate of Analysis” means an authenticated document, which has been issued by the Supplier or other corporate entity, that certifies the quality and purity of a product to meet its product specifications.
1.11 “Certificate of Compliance” means an authenticated document issued by the Supplier or other corporate entity, certifying that the product has been manufactured according to the product specification and/or the Fertilizers, Farm Feeds, Seeds and Remedies Act 36 of 1947, or in accordance with other regulatory requirements.
1.12 “Product Specification” means a technical authenticated information document relating to a product manufactured, supplied, or developed by the Supplier or other corporate entity, including technical or performance information, product composition, method or direction of use, operating requirements, application, warnings or precautions and/or custom premixes signed off by the Purchaser in terms of Act 36 of 1947.
1.2. In these Conditions:
1.2.1. headings shall not affect interpretation;
1.2.2. any reference to a statutory provision includes a reference to any modification or re-enactment of the provision from time to time in force; and
1.2.3. references to “in writing” includes facsimile transmission and electronic communication and “written” shall be construed accordingly.
2.BASIS OF SALE
2.1 The Supplier shall sell and the Purchaser shall buy the Products subject to these Conditions, which shall novate, cancel and supersede any other terms and which govern the Contract to the exclusion of any terms and conditions which the Purchaser purports to apply or which are implied by trade, custom or course of dealing.
2.2 No terms or conditions endorsed upon, delivered with or contained in the Purchaser’s order or other document will form part of the Contract simply as a result of such document being delivered to the Supplier or referred to in the Contract.
2.3 Any variation to these Conditions is of no effect unless agreed in writing by an authorised representative of the Supplier.
2.4 The Supplier’s employees or agents are not authorised to make any representation concerning the Products unless confirmed by the Supplier in writing, and the Purchaser acknowledges that it does not rely on, and waives any claim for breach of, any such unconfirmed representation (unless such representation is made fraudulently).
2.5 Any advice or recommendation given by the Supplier or its employees or agents to the Purchaser as to the storage, application or use of the Products which is not confirmed in writing by the Supplier is followed or acted upon entirely at the Purchaser’s own risk.
2.6 The Supplier shall not be liable for any damages arising from the misuse, abuse or neglect of products under any circumstances whatsoever.
3.QUOTATIONS, ORDERS AND SPECIFICATIONS
3.1 A quotation by the Supplier is not an offer. Any quotations made by the Supplier in whatever form are not binding to the Supplier, and merely constitute an invitation to the Purchaser to place an order. Quotations are valid for 7 days only unless otherwise agreed in writing by the Supplier and are subject to withdrawal or revision at any time before acceptance of the Purchaser’s order by the Supplier.
3.2 Each order for Products by the Purchaser is an offer by the Purchaser to purchase the Products subject to these Conditions.
3.3 The Purchaser must ensure that the terms of any order (including any Product Specification, or Certificate of Analysis) are complete and accurate and that it gives to the Supplier any necessary information relating to the Products within a sufficient time to enable the Supplier duly to perform the Contract.
3.4 All Intellectual Property Rights in the Products including without limitation any product specification, formulation produced or supplied shall be the exclusive property of the Supplier or other companies that have Intellectual Property Rights vested in the Products on whose behalf Corporate Services manufacturers, distributes or markets the Products.
3.5 The Purchaser shall indemnify the Supplier against all liability incurred by the Supplier as a result of:
(a)the Products infringing any Intellectual Property Rights or any statutory provision;
(b) any impracticability, inefficiency, lack of safety or defect in the Products where any of these is due wholly or partly to faults or omissions in any such information, formulations or instructions; and
3.5.1 all work (including formulations) and any idea, invention or improvement made by or on behalf of the Supplier pursuant to the Purchaser’s commission and all Intellectual Property Rights therein belong to the Supplier; and
3.5.2 the Supplier shall not be liable to the Purchaser in respect of any loss, damage or claim incurred by or made against the Purchaser if any Products infringe any Intellectual Property Rights.
3.6 Orders by the Purchaser for the Products shall be made in writing to such address as may be nominated by the Supplier from time to time.
3.7 Orders shall constitute irrevocable offers to purchase the Products in question at the usual prices of the Supplier and shall be capable of acceptance by the Supplier by the delivery of the Products or by the written acceptance or confirmation of the order.
3.8 The Purchaser shall provide the Supplier with an order number when placing any order with the Supplier.
3.9 The Purchaser hereby confirms and is deemed to have read and accepted the Conditions and to have renounced his general terms and conditions, if any upon placing an order.
4.CANCELLATION AND DELAY
4.1 Orders accepted by the Supplier may not be varied or cancelled by the Purchaser, except with the written consent of the Supplier, and on terms that the Purchaser shall indemnify the Supplier against all loss (including loss of profit), costs, (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.
4.2 If the Purchaser extends or delays the Contract or fails to take delivery of any Products at the agreed time or (if no time is agreed) within a reasonable time then the Purchaser shall indemnify the Supplier against all loss (including loss of profit), costs (including the cost of storage and all labour and materials used), damages, charges or expense incurred by the Supplier as a result of such extension, delay or failure.
4.3 The Supplier reserves the right to defer the date of delivery or performance, to cancel the Contract or reduce the volume of Products ordered without liability to the Purchaser if the Supplier is prevented from or delayed in carrying on its business by any cause beyond the Supplier’s reasonable control.
4.4 The Supplier will not be liable to the Purchaser or be in breach of contract by reason of delay or failure to perform any of the Supplier’s obligations if the delay or failure was due to any cause beyond the Supplier’s reasonable control.
4.5 Without limiting the generality of a foregoing, the Supplier reserves the right to cancel and withhold the Purchaser’s order where the Purchaser is placed under business rescue, liquidated, sequestrated, makes any attempt of compromise with its creditors, has judgement recorded against its name and/or breaches any of the terms and conditions contained herein.
4.6 The Purchaser shall not be entitled to deny the validity of any order placed or the authority of the person who placed such an order, despite the fact that such an order may have been given or signed by a person not authorised by the Purchaser to do so.
4.7 If the execution of any order placed by the Purchaser is delayed by the Purchaser or if the Supplier agrees to cancel the order at the Purchaser’s request, the Supplier shall, without prejudice and addition to any other rights which it may have, be entitled to claim from the Purchaser and/or loss suffered and/or damages and/or general damages incurred by the Supplier on behalf of the Purchaser.
5.1 The price of the Products is the price quoted by the Supplier to the Purchaser.
5.2 The price may be exclusive or inclusive of VAT, and shall be indicated by the Supplier to the Purchaser.
5.3 Unless otherwise agreed in writing the Supplier reserves the right to increase the price of the Products before delivery to affect any increase in the cost to the Supplier for any reason whatsoever such as, and without limitation to, any exchange fluctuation, currency regulation, alteration of duties, bona fide errors, significant increase in the cost of labour, material or other costs of manufacture, any change in delivery dates, quantities or specifications for the Products which is requested by the Purchaser, or any delay caused by any instructions of the Purchaser or failure of the Purchaser to give the Supplier adequate information or instructions or for any other reason, and the Purchaser shall be obligated to pay Supplier the rectified full amount.
5.4 The Supplier shall notify the Purchaser in writing of any increase in the quoted price for the Products not later than 14 days prior to the delivery date for the Products.
5.5 The cost of plastic pallets used in the delivery of the Products where applicable will be charged to the Purchaser in addition to the price of the Products.
5.6 When prices are expressed in South African currency for imported Products, these are based on the rate of exchange at the date of quotation. Any variation in such rate before payment is received by the Supplier shall be for the Purchaser’s account or benefit.
5.7 All quotations are subject to availability of input Products or services and subject to correction of good faith errors by the Supplier, and the prices quoted are subject to any increase in the cost price, including currency fluctuations, to the Supplier before acceptance of the order.
5.8 In the event of the Purchaser disputing the amount of the cost increase in Clause 5.7 above, the said amount may be certified by an independent auditor and such certificate shall be final and binding on the Purchaser.
5.9 Supplier price lists shall be considered merely as a guide to the Purchaser and the Supplier has the right, from time to time, for any reason and without notice to the Purchaser, to change the prices of its Products without reflecting such changes on any price lists.
5.10 All prices are net unless otherwise stated.
5.11 The price of the Products shall be the usual price current at the time of the despatch of the Products.
6.1 Unless otherwise specified in writing by the Supplier to the Purchaser, payment is to be made by the Purchaser within 30 (thirty) days from date of the Supplier’s statement, unless otherwise agreed to in writing.
6.2 Payments shall be affected by the Purchaser in full, without any deductions or set‐off whatsoever. The Purchaser shall be entitled to a discount if offered in writing by a duly authorised representative of the Supplier to the Purchaser.
6.3 In all cases where the Purchaser uses a postal, banking, electronic or similar such service to effect payment, such services shall be deemed to be the agent of the Purchaser.
6.4 Should any amount not be paid by the Purchaser on due date, the Purchaser shall be deemed to be placed in mora and then the whole amount in respect of all purchases by the Purchaser shall become due, owing and payable, irrespective of the dates when the Products were purchased. The Supplier reserves the right to charge interest to the Purchaser at its own discretion in respect of amounts unpaid as at the due date, at the compound rate of 2% above the prime overdraft lending rate of the Supplier’s Bank or as determined by the National Credit Act on all overdue amounts from due date, until date of payment, calculated and payable monthly in advance and should the said interest not be paid in full as aforesaid, such interest shall be added to the principal sum, and the total shall form the principal debt which shall then bear interest in the manner as set out above.
6.5 If the Purchaser should fail to object to any item appearing on the Supplier’s statement of account / tax invoice, by notifying the Financial Manager/ Bookkeeper of the Supplier within fourteen (14) days of date of the dispatch of the statement, tax invoice(s), the Supplier’s account / tax invoice shall be deemed to be in order.
6.6 The Purchaser shall not be entitled to claim set off or deduction in respect of any payment due by the Purchaser to the Supplier for Products supplied.
6.7 The Supplier may appropriate all payments made by the Purchaser to such accounts as it will in its sole and absolute discretion determine.
6.8 Copies of invoices, statement of accounts and any other relevant documents (including any computer printouts) shall, upon representation by or on behalf of the Supplier be regarded as being what they purport to be, unless the contrary is shown.
6.9 The Supplier shall have the right to suspend deliveries and to exercise its rights in terms of Clause if any amount due by the Purchaser is immediately unpaid.
6.10 The Purchaser undertakes to keep a comprehensive set of books at all material times from which it will be able to ascertain its liability to the Supplier without the need for any debatement.
6.11 Payment of the price for Products is due on the payment date specified on the invoice and to the terms agreed with the Supplier. The Supplier will invoice the Purchaser for the Products on dispatch from the Supplier’s premises.
6.12 Time of payment is of the essence, and the Purchaser has no right for payment to be withhold regardless of any reason whatsoever and hereby consents that any extension of time given for payment shall be valid only if reduced to writing and signed by the Purchaser and duly authorized representative of the Supplier.
6.13 For the purposes of these Conditions, payment is received when the Supplier receives it in cleared funds.
6.14 Despite any provision allowing credit, payment is due and payable to the Supplier immediately upon cancellation or termination of the Contract.
6.15 If the Purchaser fails to make any payment on the due date then the whole price of all Products bought or agreed to be bought by the Purchaser shall be immediately due and payable without demand and the Supplier may:
6.15.1 cancel the Contract or suspend deliveries or performance to the Purchaser; and/or
6.15.2 appropriate any payment made by the Purchaser to such of the Products (or the Products supplied under any other contract between the Purchaser and the Supplier) as the Supplier thinks fit.
6.16 The Purchaser cedes and assigns unto and in favour of the Supplier all its rights, and interest in and to all debts which are now or which may in the future, become owing to it by any third party or parties as security for the payment by it of all amounts which are now or may from time to time in the future, become owing by it to the Supplier from any cause of indebtedness however arising. The Purchaser agrees that on request by the Supplier, it shall be obliged to hand over to the Supplier all books of accounts, contracts, invoices and documents, and the like, which it may require for the purpose of ascertaining the amounts due to it and for the purposes of the recovery of payment.
6.17 If payment is transferred by cheque through the post or by electronic funds transfer the risk thereof rests with the Purchaser.
6.18 The Customer is not entitled to set off any amounts due to the Customer by the Supplier against it’s indebtedness to the Supplier.
6.19 Outstanding accounts are subject to default listing on a national credit bureau database.
6.20 The Supplier reserves the right to provide a national credit bureau with updated personal information.
7.1 The Purchaser understands that the Supplier’s decision to grant credit facilities to the Purchaser is at the sole discretion of the Supplier.
7.2 The Supplier reserves the right to withdraw or suspend any credit facilities at any time without prior notice and the nature and extent of such facilities shall at all times be in the Supplier’s sole discretion.
7.3 Despite the fact that the Supplier may grant the Purchaser a credit limit or a credit facility up to a certain amount, the Supplier reserves the right to increase this amount at its sole discretion. The credit limit shall not be deemed to be the limit of a Purchaser’s indebtedness to the Supplier, from time to time.
8.1 In the event that the Supplier transports the Products to the Purchaser, delivery and passing of the risk in the Products shall be deemed to have taken place when the Products are offloaded at the Purchaser’s premises. The signature of any employee of the Purchaser on a Supplier delivery note or invoice shall be prima facie proof of the proper delivery of the Products.
8.2 In all cases where delivery to the Purchaser occurs by carrier, the carrier shall be the Purchaser’s agent, and delivery to such carrier by the Supplier shall be deemed to be delivery to the Purchaser. The signature of any employee of the carrier shall be prima facie proof of proper delivery to the Purchaser.
8.3 The Supplier reserves the right to hold the Purchaser liable for payment of all fees, charges, expenses and the like due to the said carrier in respect of the transport of the Products to the Purchaser.
8.4 Should the Supplier at the Purchaser’s request, agree to engage a carrier to transport Products to the Purchaser, such carrier shall be the Purchaser’s agent and the Supplier shall engage the carrier on such terms and conditions as it deems fit and the Purchaser indemnifies the Supplier against all demands and claims which may be made against it by the carrier so engaged and all liability which the Supplier may incur to the carrier arising out of the transportation of the Products.
8.5 Delivery of the Products to any delivery address provided by the Purchaser shall constitute proper delivery of the Products, despite the fact that such address may not be the address or premises of the Purchaser.
8.6 Whilst every effort will be made to despatch Products as advised, the Supplier does not guarantee despatch on any specific date and shall not be liable for any damages for failure to effect delivery / despatch timeously for any reason beyond the Supplier’s reasonable control, including but not limited to its inability to: secure transport, labour, power, materials, equipment or supplies, war, civil disturbance, riot, state of emergency, strike, lockout or other labour disputes, fire, flood, drought, legislative prohibition or an act of God. The Purchaser shall not be entitled to cancel any order by reason of such delay.
8.7 In the event that the Supplier makes delivery to the Purchaser in instalments, each instalment shall be deemed to be the subject of a separate contract and non-delivery or delay in delivery of any instalment shall not affect the balance of the contract or entitle the Purchaser to cancel the contract.
8.8 It is agreed that at the time of delivery of the Products to the Purchaser, the Purchaser will inspect and examine the Products.
8.9 No claim for shortage of Products will be entertained by Supplier unless such shortage has been noted by the Purchaser on the Supplier’s copy of the delivery note and only if the Supplier has been notified in writing by the Purchaser within 24 hours after receipt of such Products.
8.10 If the Purchaser fails to take delivery of the Products ordered on the delivery date as determined by the Supplier in terms of the order and/or order acceptance, or in any way other way delay the delivery of Products ordered then:
8.10.1 The risk in the Products shall pass to the Purchaser on the aforementioned delivery date and the Purchaser shall be liable to pay the Supplier the reasonable costs of any storage, insurance and/or handling of the Products, until the Purchaser takes delivery. The Purchaser shall be barred from lodging any claim in respect of discrepancies between Products charged and Products delivered, unless the Purchaser has specified on the delivery note, upon delivery, the nature of the discrepancy;
8.11 If any defect in the products, or the components of the products, relates to alterations contrary to the instructions or after leaving the control of the Supplier, the Supplier will not be liable for those defects, including in respect of any possible liability in terms of the implied warranty of quality contained in the CPA.
8.12 The Supplier will make all reasonable efforts to ensure the delivery of the Products ordered by the Purchaser. However, in instances, where the Supplier does not have stock of the Products (other than specialised ordered Products, i.e. Products that the Supplier was required, to procure, create or alter specifically, to satisfy the Purchaser’s requirements);
8.13 To the extent that the CPA applies to any sale and the Supplier is unable to deliver the Products for any reason other than the shortage of stock, the Supplier will notify the Purchaser immediately, where after the Purchaser will be entitled to cancel the sale relating to those Products at any time after receiving this notice in which event the Supplier will refund any payment which the Purchaser has already made within 30 days of the date of this notice.
9.1 Payment shall be made in the quoted currency defined in the ‘commercial contract’ or such currency as is agreed in writing by the Supplier. Payment of the price shall be due 30 days from the date of the Supplier’s statement except as otherwise agreed in writing. The Supplier shall invoice the Products on dispatch from the Supplier’s premises.
9.2 The Purchaser and Supplier will agree on relevant INCO and payments terms and execute accordingly.
9.3 The Purchaser shall be responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination and for the payment of any duties on the Products.
9.4 Unless otherwise agreed in writing between the Purchaser and the Supplier, the Products shall be delivered Ex Works or FOB at the option of the Supplier (as those terms are defined in Incoterms) and the Supplier shall be under no obligation to give any notice.
9.5 The Purchaser is responsible for arranging for testing and inspection of the Products upon receipt. The Supplier shall have no liability for any claim in respect of any defect in the Products which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
10.OWNERSHIP AND RISK
10.1 Notwithstanding that all risk in and to all Products sold by the Supplier shall pass on delivery, ownership in all Products sold and delivered shall remain vested in the Supplier until the full purchase price has been paid and in the event of a breach of these terms and conditions by the Purchaser, or if the Purchaser is sequestrated or placed under liquidation or judicial management or commits any act of insolvency or enters into any compromise with its creditors or fails to satisfy a judgment granted against it within 7 (seven) days of the date of judgment or changes the structure of its ownership, the Supplier shall be entitled to take possession of the Products without prejudice to any further rights vested in the Supplier, and is hereby irrevocably authorised to enter upon the Purchaser’s premises to take possession of such Products without a Court order.
10.2 In the event of the Purchaser suffering any civil judgement being taken or entered against it or committing an act of insolvency in terms of the Insolvency Act 24 of 1936, as amended from time to time or being placed under business rescue proceedings, sequestration, liquidation or judicial management, whether provisional or final, or entering into a compromise with its creditors, or dying, the Supplier shall, without prejudice to any other remedies that it has available to it, be entitled to summarily cancel the supply of any products to the Purchaser which have not been paid for and/or claim specific performance of all the Purchaser’s obligations whether or not such obligations have fallen due for performance, in all events without prejudice to the Supplier’s right to claim damages.
10.3 In the event of the Purchaser obstructing the Supplier in the process of removing its Products from the Purchaser, necessitating the obtaining of a Court order, the Supplier shall be entitled to obtain an Award of costs against the Purchaser on a punitive scale.
10.4 Furthermore, the Purchaser shall have no claim against the Supplier for damages caused due to loss of profits or otherwise occasioned by the removal of Products from the Purchaser’s premises as aforesaid, notwithstanding that such removal was affected without Court order.
10.5 In the event of non-payment of any amounts due, owing and payable to the Supplier not being paid or breach of any of these terms by the Purchaser, the Products in the possession of the Purchaser bearing the Supplier name, trademarks and labels shall be deemed to be those for which payment has not yet been made and may be repossessed by the Supplier.
10.6 The Purchaser shall fully insure the Products purchased from the Supplier against loss or damage, or damages arising from such loss, in favour of the Supplier, until the full purchase price has been paid by the Purchaser for such Products. Pending payment to the Supplier for Products purchased, all benefits in terms of the insurance policy relating to such Products are ceded to the Supplier.
10.7 It shall not be necessary for the Supplier to prove either to the Purchaser or the Purchaser’s liquidator or trustee which Products in the possession of the Supplier have actually been paid for and which have not been paid for.
10.8 The Supplier shall be entitled to identify its Products merely by way of packaging and/or other distinguishing marks. The Supplier shall not be obliged to identify its Products by way of serial numbers or any other form of intricate identification.
10.9 Specifically, the Supplier shall be entitled to remove all Products of whatsoever nature owned by it from the Purchaser’s premises notwithstanding that certain of such Products removed may have been paid for. The rationale for permitting the Supplier to act in this manner is due to the fact that the Purchaser’s account is in debit and after a reconciliation thereof, should it emerge that, with the recovery of all Products on the premises of the Supplier, the said Supplier is due a credit, such credit shall be passed.
10.10 The Purchaser is not entitled to sell or dispose of any products unpaid for without the prior written consent of the Supplier.
10.11The Purchaser shall not permit the products to become encumbered in any manner prior to the full payment thereof and shall advise third parties of the rights of the Supplier in the products.
11.1 Regardless of the place of execution or performance under these terms and conditions or domicile of the Purchaser, these terms and conditions and all modifications and amendments hereof, shall be governed by and decided upon and construed under and in accordance with the laws of the Republic of South Africa, including the United Nations Convention on Contracts for the International Sale of Goods (1980), and also the ICC eTerms 2004 are binding onto the Purchaser, within the applicable scope of the Conditions set out in this agreement
11.2 The parties agree, notwithstanding the amount in dispute, to submit to the jurisdiction of the Magistrate’s Court and shall be entitled to institute action out of such Court. A certificate issued and signed by any Managing Member or Manager of the Supplier, whose authority need not be proved, in respect of any indebtedness of the Purchaser to the Supplier or in respect of any other fact, including the fact that such Products were sold and delivered, shall be prima facie evidence of the Purchaser’s indebtedness to the Supplier and prima facie evidence of such other fact and prima facie evidence of the delivery of the Products.
11.3 The Purchaser’s physical address shall be recognised as the Purchaser’s domicilium citandi et executandi (domicilium) for all purposes in terms of this agreement, whether in respect of the serving of any court process, notices, the payment of any amount or communications of whatever nature.
11.4 The Purchaser shall pay all legal costs, including attorney/own client costs, tracing agent’s fees and collection charges which the Supplier may incur in taking any steps pursuant to any breach or enforcement of these terms and conditions by the Purchaser.
11.5 In addition to any other specific exclusions of liability contained herein and unless otherwise expressly stated herein, the parties agree that the Purchaser shall have no claim against the Supplier for any loss or damage, of any nature, occasioned by any defect in any Products supplied, or any failure to provide adequate instructions in respect of any hazards that might arise from the use of incorrect use of the Products save to the extent that such loss or damage is contemplated in section 61 of the CPA, and provided that nothing in these terms and conditions must be construed as in any way limiting the rights of the Supplier to raise such defences as may be available to it at common law or in terms of any statute.
11.6 Any printout of computer evidence presented by the parties shall be construed admissible evidence and the parties shall not object to the admissibility of such evidence purely on grounds that such evidence is computer evidence or that the requirements of the Computer Evidence Act have not been met.
12.QUALITY OF THE PRODUCTS
12.1 The Supplier warrants to the Purchaser that the Products will conform to the Supplier’s Product Specification for the Products provided by the Supplier to the Purchaser.
12.2 The Products will be manufactured in accordance with the regulatory requirements relating to the Products in the country of manufacture. In the event that the requirements of the regulatory authorities in the place in which they are used, at any time differ from the requirements in the country of manufacture, with the result that it becomes impossible to procure or maintain the regulatory approval of any Products, such Products may be withdrawn from this Contract, or, by agreement between the parties, this Agreement shall be terminated, with neither party having any claim against the other.
12.3 Unless the Certificate of Compliance is issued by the Supplier for product manufactured by the Supplier, the Purchaser warrants to test a sample of the Products immediately after delivery of the Products to satisfy itself that the Products are of a satisfactory quality and acceptable to the Purchaser taking into account the use for which the Products are to be put.
12.4 The Purchaser shall examine the Products delivered to it pursuant to the Contract against the Product Specification or Certificate of Analysis for each delivery of the Products. The Purchaser shall notify the Supplier of any failure of the Products to meet the Product Specification, prior to use by the Purchaser of the Products and in any case within fourteen (14) days of receipt of the relevant Products. In the absence of any such notification, the Products shall be deemed to have been accepted by the Purchaser as complete and in a satisfactory condition and in all respects in accordance with the Product Specification.
12.5 If the Purchaser does not notify claims in accordance with condition 12.4 then: 12.5.1 the Purchaser shall not be entitled to reject the Products; and
12.5.1 the Supplier shall have no liability for such defect or failure; and
12.6 In the event the Purchaser has a valid claim which has been notified to the Supplier pursuant to condition 12.4, the Supplier shall be entitled to replace the Products (or the part or element in question) free of charge or, at its option, refund to the Purchaser the price of the Products (or a proportionate part of the price), but the Supplier shall have no further liability to the Purchaser.
13.LIMITATION OF LIABILITY
13.1 The following sets out the entire liability of the Supplier (including any liability for the acts or omissions of its employees, agents or subcontractors) to the Purchaser in respect of any breach of these Conditions and any representation, statement or act or omission (including negligence) arising under or in connection with the Contract.
13.2 All warranties, conditions or other terms implied by statute, common law, trade usage or otherwise are excluded to the fullest extent permitted by law but this exclusion does not apply to any implied condition that the Supplier has or will have the right to sell the Products when the property is to pass.
13.3 Nothing in these Conditions excludes or limits the Supplier’s liability for death or personal injury caused by the Supplier’s negligence or for fraudulent misrepresentation.
13.4 the Supplier shall not be liable to the Purchaser for any loss of profit, loss of production, financial loss, depletion of goodwill or any indirect loss, damage, costs or expenses whatsoever which arise out of or in connection with the Contract; and
13.5 Subject to condition 13.4, the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance or lack of performance of this Contract shall be limited to the Contract price.
13.6 The Purchaser shall not use the Products in any way not in compliance with the Products’ Specifications. The Purchaser shall not make any representation or give any warranty in respect of the Products other than those authorized in writing by the Supplier from time to time. The Supplier shall not be liable for any unauthorized warranty or representation or to any non-compliance by the Purchaser with the Specifications MSDS’ provided to it by the Supplier.
13.7 The Purchaser will be fully liable and will indemnify keep and hold the Supplier harmless against any and all claims, losses or damages incurred by Supplier due to Purchaser ‘s non-compliance with the Specifications or with any other document or in case of any misrepresentation or false warranty
14.1 The Supplier may from time to time enter into invoicing financing arrangements with third parties in relation to the debt presented by the sale of any Products to the Purchaser. Accordingly, any information held by the Supplier relating to the Purchaser may be passed to any such third parties for debt collection purposes, including applying such information to credit reference agencies and making the relevant searches with them. The Purchaser hereby consents to the use of such information for this purpose.
Products sold by the Supplier are not returnable save at the election of the Supplier. Should the Supplier in its absolute discretion elects to accept the return of any Products, the following shall apply: –
15.1 All Products returned must be complete, clean, saleable, undamaged and in their original packaging.
15.2 The value of credit for Products returned will be calculated at the invoice value when the Products were purchased, less a 10% handling charge.
15.3 The Credit Control Department must be notified within seven (7) days of delivery of the Products of the relevant invoice of original purchase before any claim will be considered.
15.4 All Products are to be returned at the Purchaser’s expense and the risk in the Products remains with the Purchaser until the Products are received by the Supplier.
15.5 The Purchaser may return any Products delivered to the Purchaser by the Supplier within (21) twenty one days from the date of the delivery of the Products, (unless the Purchaser is a consumer who is not excluded from the CPA by virtue of section 5(2)(b) of the CPA, in which event the Products have to be returned within 6 months from the delivery date) without penalty or expense, if the Products fail to conform to their specifications or are defective due to faulty workmanship, or otherwise fail to satisfy the requirements and standards of CPA (if applicable). In these circumstances, the Supplier shall at the Supplier’s election, either repair or replace these Products or refund the Purchaser’s price paid by the Purchaser for the Products.
15.6 If the Purchaser wishes to return any of the Products purchased by the Purchaser from the Supplier in circumstances where the Products conform to their specifications and/or are not defective in any manner whatsoever, then the Supplier shall not be obliged to accept the return of any such Products.
15.7 Any refund given by the Supplier to the Purchaser shall be strictly subject to the condition that the Purchaser shall utilise the refund as a credit to purchase Products from the Supplier to the value of the credit passed in its favour.
15.8 All returned Products must contain the original Supplier’s invoice number.
16.WARRANTIES AND INDEMNITY
16.1 The Purchaser indemnifies Supplier in respect of consequences arising from any infringement of any patent or other rights occasioned by the execution of any order in pursuance of the addresses specific requirements or from loss thereof arising.
16.2 In the event of an order being cancelled in terms hereof by the Purchaser, the Supplier shall be entitled to such loss of profits as is determined by its auditors whose certificate of such loss of profit shall be final and binding on all parties.
16.3 Warranty on the Products is limited to the supplier’s warranty. All other warranties, either express or implied, including any warranty that the Products are fit for a particular purpose are expressly excluded.
16.4 The Supplier disclaims all liability to the Purchaser in connection with the Supplier’s performance or the Purchaser’s use of the Products supplied and in no event will the Supplier be liable to the Purchaser for special, indirect or consequential damages, including but not limited to, loss of profits.
16.5 Any liability of the Supplier for breach of contract will not exceed, in the aggregate of damages, costs, fees and expenses capable of being awarded to the Purchaser, the price paid by the Purchaser for the defective Products or services supplied.
16.6 The Supplier gives no warranty, express or implied, nor any representation that the Products sold by the Supplier are suitable for the purposes for which they have been ordered.
16.7 Any advice or opinion given by the Supplier’s employees is for the Purchaser’s benefit only and the Supplier accepts no responsibility for any damages that the Purchaser may incur as a result of the Purchaser relying upon such advice.
16.8 The Supplier’s sole obligations and responsibilities to the Purchaser in relation to the Products shall be in terms of the warranties as set out in clause 16.1 above, and furthermore, insofar as the relevant transaction is subject to the provisions of section 61 of the CPA, to indemnify the Supplier against and to hold the Supplier harmless from any harm arising from the death or personal injury suffered by the Purchaser, and from the loss of or physical damage to property belonging to the Purchaser, caused by the Products supplied by the Supplier, subject to the limitations and/or exclusions and/or effects of sub-sections 61(4) and 61(6) of the CPA.
17.DUTIES UNDER THE CPA
In the event that the Purchaser will not be the end user of the Products and will on-supply the Products to third party users, the following shall apply:
17.1 The Purchaser is familiar with the provisions of the CPA insofar as the supply of Products or services to “consumers” as defined in the CPA, is concerned, and the Purchaser hereby agrees to comply with all the provisions of the CPA insofar as they relate to such “consumers”.
17.2 The Purchaser hereby undertakes with specific reference to sections 49 and 58 of the CPA, to provide “consumers” with all such notices as may be required in terms of the aforesaid sections 49 and 58, and to provide same in the manner and format prescribed by the CPA.
17.3 The Purchaser hereby indemnifies and agrees to hold the Supplier harmless from any claims, losses or liability made against, suffered by or established by and third-party end user against the supplier, based upon or founded in the failure by the Purchaser to comply with the provisions of the aforesaid sections 49 and 58.
The Supplier will not be liable for failure to fulfil its obligation if such failure is due to war, civil disturbance, riots, acts of terrorism, fire, storm, tempest, industrial, disputes, breakdown of plant, transport or equipment, act of God or to any event or circumstances, beyond the reasonable control of the Supplier.
19.1 The Supplier reserves the right, in its sole discretion, to vary or amend these terms and conditions from time to time and any such amended or varied terms and conditions shall be binding on the Purchaser from the time that the Purchaser is notified thereof. Any subsequent dealings shall be on the Supplier’s amended terms and conditions.
19.2 This contract represents the entire agreement between the Supplier and the Purchaser and shall govern all future contractual relationships between the Supplier and the Purchaser and shall also be applicable to all debts which the Purchaser may owe.
19.3 This document contains the terms and conditions on which the Supplier sells the Products to Purchasers who are consumers for the purposes of the CPA. Any Purchaser of the Supplier who is not a consumer for the purposes of the CPA is not entitled to the benefits of these terms and conditions and any Products supplied by the Supplier to such a person shall be supplied on the basis of the Supplier’s standard terms and conditions, copies of which are available from the Supplier on request.
19.4 The provisions of this clause 11 shall not detract from, and shall be subject to, the Purchaser’s rights in terms of section 69 of the CPA (of applicable) to enforce any rights through the mechanisms created by the CPA.
19.5 No amendment and/or alteration and/or deletion and/or addition and/or cancellation of these terms and conditions, whether consensual or unilateral or bilateral shall be of any force and effect unless reduced to writing and signed by a Managing Member of the Supplier. No agreement, whether consensual or unilateral, purporting to obligate the Supplier to sign a written agreement to amend, alter, vary, delete, add or cancel these terms and conditions shall be of any force and effect unless reduced to writing and signed by a Managing Member of the Supplier.
19.6 No relaxation or indulgence which the Supplier may give at any time in regard to the carrying out of the Purchaser’s obligations in terms of any contract shall prejudice, or be deemed to be a waiver of, any of the Supplier’s rights in terms of any contract.
19.7 The Purchaser shall not be entitled to cede its rights nor assign its obligations in terms of these Terms and Conditions.
19.8 The Supplier shall at any time in its sole discretion be entitled to cede all or any of its rights in terms of this application for credit facilities including all terms and conditions to any third party without prior notice to the Purchaser.
19.9 The Purchaser undertakes to notify the Supplier within a period of 7 (seven) days of any change of address.
19.10 The headings in this document are included for convenience and are not to be taken into account for the purpose of interpreting this agreement.
19.11 Each of the terms herein shall be a separate and divisible term and if any such term becomes unenforceable for any reason whatsoever, then that term shall be severable and shall not affect the validity of the other terms. Hence, the invalidity of any part of this agreement shall not affect the validity of any other part.
19.12 No indulgence, leniency or extension of time which any party may grant or show to the other party, shall constitute a waiver or novation of such provision or term, nor operate as an estoppel against any Party in respect of its rights under this Contract nor shall it in any way prejudice such Party or preclude such Party from exercising any of its rights in the future and furthermore shall not be deemed to be a waiver of any subsequent breach.
19.13 The rule of construction that the contract will be interpreted against or to the disadvantage of the party responsible for the drafting or preparation of the contract (i.e. the contra proferentem rule), will not apply.