- Terms and Conditions
This Agreement was last modified on 18 February 2016.
delivery) of all further documents, as may be required by law or as may be desirable or necessary to implement or give effect to this agreement and the transactions contemplated therein.
STANDARD TERMS AND CONDITIONS OF SALE
- Application of These Terms
These terms and conditions:
1.1 represents the entire Contract between the Parties.
1.2 will govern all future contractual relationships between the Parties whereby the Customer purchased Goods or Services from the Company.
1.3 is final and binding and is not subject to any suspensive or resolutive conditions.
1.4 expressly excludes any conflicting conditions stipulated by the Customer.
1.5 supersedes all previous conditions without prejudice to any securities or guarantees held by the Company.
- Definition and Interpretations
2.1 Definitions
In these terms and conditions:
2.1.1 “The Company” shall mean JJ Harnessing Pty Limited t/a Industrial Tools and Consumables with registration number 2013/210735/07;
2.1.2 “The Customer” shall mean the natural or juristic person who purchases the Good or Services;
2.1.3 “The Contract” shall mean any contract or agreement between the Company and the Customer for the sale and purchase of the Goods, incorporating these conditions including any estimates, specifications or acceptance of orders;
2.1.4 “Goods and Services” shall mean the goods and services as set out in the invoice or quotation;
2.1.5 “Law” shall mean the common law and any applicable constitution, statute, by-law, proclamation, regulation, rule, notice, treaty, directive, code of practice, charter, judgment or order having force of law in South Africa, and any interpretation of any of them by any court or forum of law;
2.1.6 “Party or Parties” shall mean the Company or the Customer, or both of them, as the context may require;
2.2 Interpretation
2.2.1 References to a “person” shall include an individual, firm, company, corporation, juristic person, and any trust, organization, association or partnership, whether or not having separate legal personality;
2.2.2 The headings of clauses, sub-clauses and schedules are included for convenience only and shall not affect the interpretation of this Contract;
2.2.3 Words importing the singular number shall include the plural and vice versa, and words importing either gender or the neuter shall include both genders and the neuter;
2.2.4 The number of days indicated to commit an act or indicated for any other purpose, is calculated by excluding the first day and including the last day.
3. Prices and Quotations
3.1 The Company’s listed prices are subject to alteration at any time without prior notice.
3.2 All prices quotes by the Company are subject to exchange rates, duties, metals surcharge, freight, and transport costs, and clearing agent’s charges ruling at the times. Any subsequent changes will be for the Customer’s account, unless quoted as “fixed”.
3.3 The Company takes great care in basing prices on the correct customs tariff, however, should customs charge or levy a different tariff to be used by the Company, the difference will be for the Customer’s account.
3.4 Should overseas supplier’s increase their prices, the Company shall be entitled to pass on these increases to the Customer.
3.5 All quotes will remain valid for a period of ________ days from the date of the quote.
3.6 All orders and variations to orders are subject to these terms and conditions. Such orders and variations must be reduced to writing and in the case of a variation order must be signed by both parties.
4. PAYMENT TERMS
4.1 Payment is due within 30 (THIRTY) days of the date of statement, invoice or quotation;
4.2 A deposit of 50% of the total value of the quotation is payable upon acceptance of the quotation;
4.3 Payment is accepted via cash, credit card, debit order or electronic funds transfer, where applicable, proof of payment is to be sent to the Company before collection or delivery is made.
4.4 Where delivery of the Goods or Services is to be made in installments, then the Company shall be entitled to withhold delivery of any undelivered installments until the money due in respect of any delivered installments has been paid in full.
4.5 All fees payable to the Company in terms hereof shall be made free of exchange and or set-off and may not be withheld for any reason whatsoever.
4.6 Should the Customer fail to make payment of any fees due to the Company in terms hereof, on the due date, the outstanding amount will attract interest at a rate of 2% per month, calculated from the due date thereof until date of final payment.
4.7 In the event that the Customer fails to make payment of any amount due to the Company on the due date thereof, for any reason whatsoever, the Company reserves the right to immediately cease the rendering of supply of Goods and Services to the Customer until such time as all arrear amounts are paid in full.
4.7 In the event that the Customer cancels the Contract for any reason there shall be a cancellation penalty levied which penalty shall take into account the length of notice of cancellation before delivery and the reasonable potential to find alternative customers for the order.
4.8 It is specifically recorded that any certificate or statement issued by the Company and/or any of its authorized representatives evidencing the amount due by the Company during any specified month shall be prima facie proof thereof.
5. CUSTOMER OBLIGATIONS
5. It is the sole responsibility of the Customer to determine that the Goods or Services ordered are suitable for the purposes intended.
5.2 The Customer hereby confirms that the Goods or Services on the invoice issued duly represents the Goods of Services ordered by the Customer at the prices agreed to.
5.3 Any delivery note signed by the Customer or a third party shall be prima facie proof that delivery was made to the Customer and are in accordance with the quality and quantity reflected thereon.
6. RETENTION OF OWNERSHIP OR TITLE
6.1 The risk of the goods shall pass to the Customer on collection or delivery;
6.2 Title to and ownership in the goods shall not pass to the Customer until payment of all monies due and owing to the Company is received as cleared funds;
6.3 In the event that payment is not received by the Company for an order or combination of orders in accordance with its terms and conditions, the Customer will, on demand by the Company produce the Goods forthwith to be returned to the Company;
6.4 The Customer hereby authorises the Company, its servants and agents, to enter the premises owned, leased or otherwise occupied by the Customer for the purpose of taking possession of the Goods in accordance with these terms and conditions, and authorises the Company by its servants or agents to use all reasonable force to obtain such possession.
6.5 The Customer hereby waives any right it might have for spoliation against the Company in the event that the Company takes possession of any goods.
7. CARRIAGE COSTS
7.1 Unless otherwise specified prices quoted are free of delivery charges in and round Cape Town or within a ___ km radius of the Company.
7.2 All other delivery or transportation costs by rail, road or air are for the Customer’s account.
8. DELIVERY
8.1 Delivery times are estimated and confirmed as accurately as possible by the supplier of the Customer, and the Company will make its best efforts to adhere to such estimated times.
8.2 The period specified for delivery on the Company’s quotation:
8.2.1 Is exclusive of any period occupied in making, altering or adapting tools o in any experimental work connected with the same.
8.2.2 Shall commence from final settlement of details and specifications, and not from the date of order or quotation.
9. Return of Goods
9.1 Goods may only be returned for credit if authorised by the Company.
9.2 Should the Company consider accepting back the Goods for credit, while not obliged to do so, the Company must be notified by the Customer within 7 (SEVEN) days of invoice date.
9.3 The Company reserves the right to charge a 10% handling charge on the goods returned for credit.
9.4 No claims in respect of defective or damaged Goods, latent or patent, shall be recognised by the Company unless such defect was lodged within 7 (SEVEN) days after collection or delivery and same has been done in writing.
9.5 The Company’s liability in all cases in terms of Clause 9.4 above will be limited to replacement of defective goods and in the event that the Company cannot replace same then a credit note will be issued in the same amount as reflected on the original invoice.
10. VARIANCES
10.1 All Goods will be made within manufacturing limited and tolerances, which are reasonable in the trade, but if special accuracy is required, the Customer must state maximum and minimum limits.
10.2 A variation of 10% of the required quantity may be delivered.
10.3 Materials specially made to the Customer requirements will be delivered according to manufactures standards and may be subject to 10% variation dictated by technical manufacturing considerations.
10.4 A 10% variation applies to special manufactures.
11. WARRANTIES AND LIMITED LIABILITY
11.1 The Customer agrees that neither the Company nor any of its employees or agents will be liable for any negligent or innocent misrepresentations made to the Customer.
11.2 The risk of damage to or destruction of Goods is passed to the Customer on delivery or collection of the Goods by the Customer or the Customers representative.
11.3 All guarantees are immediately null and void should any of the Goods be tampered with or should seals on the goods be broken by anyone other than the Company or should the Goods be operated outside the manufacturer’s specification.
11.4 Under no circumstances will the Company be liable for any damages arising from the misuse or abuse of the Goods.
11.5 The Company will not be liable for any consequential loss or indirect damages or loss of profit or for any delictual liability of any nature whatsoever.
11.6 The Customer hereby absolves the Company, its employees, owners and Affiliates (whether jointly or individually) and holds them harmless from any liability, losses, claims and/or damages (including, but not limited to claims, expenses, sanctions, pure economic loss, direct and/or indirect damages, penalties fines, taxes, diminution of goodwill, loss of contracts, legal costs on an attorney-and-own-client scale, and any other prejudicial consequences) from any cause whatsoever or based on any ground of liability whatsoever (including strict liability) associated with and/or arising directly or indirectly from the implementation of this Agreement and/or the provision of the Goods or Services, and regardless of whether it arises as a result of a breach of contract on the Company’s part; or is due to the negligent, grossly negligent or reckless act or omission of the Company; or is due to any of the aforesaid conduct by the Company’s employee(s), agent(s) and/or any other person(s) for whose conduct the Company may be held vicariously liable; or is due to any intentional or illegal act or omission on the part of the Company or any person for whose conduct it may be held vicariously liable.
12.FORCE MAJEURE
12.1 The Company shall not be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control, including but not limited to fires, load shedding strikes (of its own or other’s employees ), insurrection or riots, embargoes, requirements or regulations of any civil or military authority (an “event of force majeure”).
12.2 If a default due to an event of force majeure continues for more than 30 (THIRTY) days, either party shall be entitled to terminate this Agreement immediately with written notice to the other. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an event of force majeure.
13. BREACH
13.1 If the Customer:
13.1.1 Breaches any material term of this Agreement and fails to remedy such breach within 14 (FOURTEEN) days after receipt of a written notice from the Company;
13.1.2 commits any act of insolvency;
13.1.3 Endeavours to compromise generally with its creditors or does or causes anything to be done which may prejudice the Company’s rights hereunder or at all;
13.1.4 Allows any judgment against it to remain unsettled for more than 10 (TEN) days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end; or
13.1.5 is liquidated or sequestrated, whether provisionally or finally or commences business rescue proceedings, The Company may, without prejudice to any other right which it may have against the Customer, cancel this agreement.
13.2 The Company shall be entitled to recover all legal costs incurred by it, including Attorney and Client scale costs, as it is obliged to pay to its attorneys, from the Customer.
13.3 In the event that the Company institutes legal action against the Customer as a result of this Agreement, the party instituting the legal action shall have the right, but shall not be obliged, to institute legal action in any Magistrates court having jurisdiction irrespective of the quantum of such claim and/or action.
14. MISCELLANEOUS
14.1 The Customer shall not assign, cede, delegate, transfer or otherwise dispose of any right or obligation under this Agreement to any other person.
14.2 No provision of this Agreement (including, without limitation, the provisions of this clause may be amended, substituted or otherwise varied, and no provision may be added to or incorporated in this agreement, except by an agreement in writing signed by the duly authorized representatives of the parties.
14.3Any relaxation, indulgence or delay (collectively referred to as “Indulgence”) by the Company in exercising, or any failure by the Company to exercise, any right under this agreement shall not be construed as a waiver of that right and shall not affect the ability of the Company subsequently to exercise that right or to pursue any remedy, nor shall any Indulgence constitute a waiver of any other right (whether against the Customer or any other person).
14.4 The waiver of any right under this Agreement shall be binding on the waiving party only to the extent, that the waiver has been reduced to writing and signed by the duly authorized representative(s) of the waiving party.
14.5 This Agreement supersedes all prior agreements, representations, communications, negotiations and understandings between the parties concerning the subject matter of this Agreement.
14.6 Whenever possible, each provision of this Agreement shall be interpreted in a manner which makes it effect and valid under applicable law, but if any provision of this agreement is held to be illegal, invalid or unenforceable under the applicable law, that illegality, invalidity or unenforceability shall not affect the other provisions of this Agreement, all of which shall remain in full force.
14.7 This Agreement may be executed in any number of identical counterparts, all of which when taken together shall constitute one agreement. Any single counterpart or a set of counterparts taken together which, in either case, are executed by the parties shall constitute a full original of this agreement for all purposes.
14.8 All notices and any other communications whatsoever (including, without limitation, any approval, consent, demand, query or request) by either party in terms of this Agreement or relating to it shall be given in writing, and shall be sent by registered post, telefax, email or delivered by hand to the Parties at their relevant addresses as set out below:
14.8.1 If to the Company:
Physical Address:
Telefax:
E-mail Address:
If to the Customer:
Physical Address:
Telefax
E-mail Address:
14.9 Either party may, by written notice to the other party, change any of the addresses at which the designated person for whose attention those notices or other communications are to be given.
14.10 Any notice or other communication given by any party to the other party:
14.10.1 is sent by registered post to the addressee at its specified address shall be rebuttably presumed to have been received by the other party on the 7th (SEVENTH) day after the date of posting; or
14.10.2 is delivered by hand during the normal business hours of the addressee at its specified address shall be rebuttably presumed to have been received by the addressee at the time of delivery; or
14.10.3 is transmitted by electronic mail or telefax to the addressee at the addressee’s specified electronic mail address shall be rebuttably presumed to have received by the addressee on the date of transmission as reflected on the sender’s electronic mail records.
14.11 The parties choose as their physical address in clause 13.8 as their respective domicilia citandi et executandi at which all documents relating to any legal proceedings to which they are a party may be served. If those addresses are changed to other addresses which are not physical address in the Republic of South Africa, then the original addresses shall remain the domicilium citandi et executandi of the parties until they nominate a new physical address within the Republic of South Africa in writing, to be its new domicilium citandi et executandi.
13.12. The parties agrees to perform, or procure the performance, of all further things, and execute and deliver (or procure the execution and delivery) of all further documents, as may be required by law or as may be desirable or necessary to implement or give effect to this agreement and the transactions contemplated therein