GENERAL
All goods supplied by the seller shall be supplied subject to these terms and conditions only. These terms and conditions shall take precedence over any terms and conditions which may be contained in the customer’s form or other customer documentation, and may only be altered with the express prior written agreement of the seller.
Any conflicting statements or special terms contained in any acceptance order or other documentation issued by the customer shall not be effective, unless such conflicting statement or special terms have been expressly agreed to in writing by the seller.
These terms and conditions will be applicable to all orders placed with the seller from date of signature. The said orders specifically refers to this agreement.
SALE OF GOODS : ORDERS
The customer shall purchase goods from the seller by completing an order form (attached hereto as Annexure “A”) specifying the quantities and particulars of the goods required and the address to which the goods must be delivered. No order for any goods shall be binding on the seller unless and until the seller has accepted and signed such order in writing and the applicable payment, as per Annexure A, has been effected. The seller shall be entitled in its sole discretion to decline any order placed. Each order accepted by the seller shall be and constitute a separate contract.
PRICES
The prices payable by the customer to the seller for the goods shall be the ruling prices stipulated in writing by the seller at the time the order for the goods is placed by the customer in terms of clause as stipulated in the order form.
The seller agrees to deliver the goods to the customer to the address stipulated in the customer’s order. The risk on the goods shall pass to the customer after the goods have been off-loaded onto the premises of the customer.
TERMS OF PAYMENT
Unless otherwise agreed in writing by the seller, the purchase price for the goods together with the costs of delivery and installation of the goods, shall be paid by the customer to the seller into a bank account to be nominated by the seller to the customer in writing from time to time. Payment of the purchase price for the goods shall be made as stipulated in the order form on the date as indicated, without set-off or deduction, and free of exchange. Should the customer be unable to take delivery of the goods, payment shall nevertheless fall due. The terms of payment set out above, shall apply equally to price variation claims.
The seller shall be entitled to charge interest at two percentage points above the ruling prime overdraft rate quoted by a recognized South African Commercial Bank in respect of any period during which payments are overdue.
DELIVERY AND INSTALLATION
The goods shall be delivered to the premises of the customer. The delivery of the goods shall be deemed to have been effected when the goods are off loaded at the customer’s premises after which the goods shall be installed by the seller. All risk in and to the goods shall pass the customer. The customer shall be obliged to accept the delivery of the goods at the date as indicated by the seller either verbally or in writing.
Should the customer fail to accept delivery on such date, the risk of loss or damage to the goods together with all and any expenses pursuant thereto, including but not limited to insurance, storage and further delivery charges shall be borne by the customer and paid to the seller by the customer on request. Where there is a shortage in any goods delivered to the customer or where the goods so delivered are delivered in a damaged condition or after installation, the customer shall give written notice to the seller of such shortage or damage on the day of delivery to the customer’s premises.
If the customer’s premises is not ready for the installation of the goods at the agreed time of the delivery, the seller shall add extra charges to the customer for the installation of the goods at a later date.
Should the customer fail to give such notice, the customer shall have no claim in respect of any alleged shortages or damage and the goods shall be deemed to have been delivered in a complete and undamaged state.
The seller shall endeavor to deliver the goods as indicated in the order form, but in no instance can the seller accept liability for any loss or damage arising from the late delivery of the goods and time shall not be of the essence of the contract. No liability shall attach to the seller as a result of the failure to deliver I such failure is due to circumstances beyond the seller’s control.
It is recorded that delivery dates shall be regarded as indicative only and whereas the seller will do everything possible to keep to such dates, the seller cannot be held responsible for any failure to do so. Notwithstanding anything to the contrary in these terms and conditions, but always subject to the provisions of clauses the seller’s liability in respect of any failure by it to deliver the goods, or the deliver the goods timeously, shall be limited to an amount equal to the amount of the purchase price of such goods, and, in any event, the seller shall not be liable for any consequential loss, loss of profit, special damages or any indirect loss of the customer.
VARIATIONS
The seller shall not be obliged to accept or act upon any changes, modifications or additions to original customer instructions, if such changes, modifications or alternations were given subsequent to the seller’s acceptance of the customer’s order. No variations of these terms and conditions hereto shall be of any force or effect unless reduced to writing and signed by both the seller and the customer.
LIABILITY
The seller shall not be liable to the customer for any damages including, but not limited to, consequential loss or loss of profits arising from the performance or non-performance by the seller of its obligations in terms of these terms and conditions. This exclusion of liability shall relate to claims for breach of contract as well as for alleged negligence on the part of the seller.
The customer further indemnifies the seller against any claims that may be made against the seller by any third party for any damages including, but not limited to, consequential loss or loss of profits arising from the performance or non-performance by the seller of its obligations in terms of these terms and conditions or in connection with the use of the goods, whether such claims are in respect of damage to property, consequential loss, personal injury or death. The customer agrees that the seller shall not incur any liability under the Occupational Health & Safety Act No. 85 of 1993 (specifically Section 10 of the Act).
The seller shall not be liable for any damage to or subsequent malfunctioning of goods as a result of work done on the goods or services rendered in connection with such goods by any unauthorized third party.
WARRANTY
The customer’s claims against the seller for breach of warranty are restricted to the terms set forth in any warranty form furnished to the customer with the goods sold, which is a period of 2 (two) years, as furnished by the manufacturer of the goods. The said warranty is given in lieu of any liability at common-law, and any other warranties or representations concerning the goods sold, whether express or implied by law, are excluded.
Any warranty given by the seller from time to time shall not apply if the customer fails to use the goods in the manner recommended by the seller or if the goods are used for any purpose other than that for which they are intended, or if the goods are modified or repaired by an unauthorized person, or are damaged by the customer in any way.
BENEFIT, RISK AND OWNERSHIP
Notwithstanding delivery of the goods to the customer, the seller shall retain ownership of the goods until whole of the purchase price, together with interest charged in terms of clause above (if any) shall have been paid in full. All other benefits and risks in and to the goods shall pass to the customer upon delivery and/or installation having been affected.
BREACH
In the event of the customer committing any breach of these terms and conditions including, but not limited to, the failure to make payment of the purchase price as agreed, the seller shall be entitled forthwith to claim repossession of the goods, for which purpose the customer hereby irrevocably authorises the seller, through its duly authorized representative/s, to enter upon the premises where the goods are kept, to take repossession of the goods. The exercise of this right shall not preclude the seller from its right to claim damages from the customer occasioned by its breach. The seller shall, in the alternative, be entitled to enforce the provisions of these terms and conditions and claim payment of the full amount due by the customer, any instalments of the price falling due in future to become due and payable immediately. In such event the seller shall be entitled to charge interest on overdue amounts as provided in clause above. Should the seller take legal action against the customer in the event of the customer’s breach, the customer shall be liable for all legal fees incurred by the seller in the recovery of any amounts owing, including costs on the attorney and own client scale and collection commission. If the customer breached these terms and conditions and the seller elects not to cancel the agreement of sale, the seller shall be entitled to suspend performance of any of its obligations until the customer has complied with its obligations.
INDULGENCE
Any relaxation, leniency or indulgence which the seller may extend to the customer shall not in any way constitute a waiver of seller’s rights in terms hereof.
ARBITRATION
Any dispute arising out of or in connection with a sale to which these terms and conditions relate shall be finally settled under the Rules of Arbitration of an approved South African institution, by an arbitrator appointed in accordance with the said Rules by the Chairman of the Bar Council, seated in Johannesburg, South Africa.
This clause does not prevent the seller to initiate legal action in a Court of Law, if the customer is in breach of the agreement by non-payment of amounts due in terms of the agreement.
HEADINGS
The headings to the clauses in these conditions are for reference purposes only and shall not affect their interpretation.
SUSPENSION OR CANCELLATION OF DELIVERY
The seller reserves the right to suspend, delay or cancel the delivery of some or all of the goods or to require advance payment for them if; The customer is insolvent or is unable to pay its debts, or seeks to effect any compromise with any of its creditors or compound any of its debts; or The customer is placed under an order of sequestration, judicial management or liquidation, whether such order be provisional or final; or The customer is the subject of any resolution passed to enable it to be wound-up or dissolved; or Any judgement is given against it in any court of law and, if appealable, is not appealed against within the period allowed for the lodging of such an appeal or, if not subject to an appeal; remains unsatisfied for a period of 10 (ten) days; or The customer is in breach of any of its obligations to the seller.
Any suspension, delay or cancellation as a result of any of the aforegoing events shall not affect any other right which the seller may have against the customer based on these terms and conditions of sale or otherwise.
INABILITY TO SUPPLY OR DELIVER
If the seller cannot deliver, cannot deliver timeously, some or all of the goods for any reason beyond its control, including but not limited to lack of instruction from the customer, stock shortage, industrial dispute or break-down, production delays, government action, state of war, riot, or civil disturbance, natural disasters or act of God, the seller may, in its discretion, cancel the whole or any part of the agreement of sale forthwith. In the event of such cancellation the seller shall not be liable for any loss whatsoever (including any consequential loss of profits, special damages or any indirect loss) thereby caused.
INSTALLATION
The seller shall install the goods at the premises, indicated by the customer, at no charge, if the premises are fit and ready for the installation of the goods. If the premises are not ready for the installation of the goods, the following shall apply:
The customer shall be liable for installation costs of the goods, which installation shall be effected at a later stage.
The provision of adequate and lockable storage on or near the installation site for the goods to be supplied in such a way that the goods are protected against theft and any damage or deterioration; any item lost or damaged during the storage period shall be repaired or replaced at the customer’s cost.
The timely execution and completion of the preparatory works at customer’s sole expense and risk, in conformity with the requirements, which the seller shall indicate to the customer in due time; the site preparation shall be in compliance with all safety, electrical and building codes relevant to the equipment and its installation. Sufficiency of such plans and specifications, specifically including, but not limited to the accuracy of the dimensions described therein, shall be the sole responsibility of the customer. The installation site shall be made available to the seller without obstacles in due time to enable the seller to start the installation work at the scheduled date; the seller’s installation personnel shall not be called upon to do the installation of the goods until all preparatory works have been satisfactorily completed.
The availability of the goods to be delivered in due time and in proper condition at the installation site. The timely provision free of charge of the permits, licenses, rights of way and other necessary permits of the pertinent authorities required for or in connection with the installation and putting into operation of the goods to be delivered.
The timely provision of all visa, entry, exit, residence, work or any other permits necessary for the seller’s personnel and for the import and export of tools, equipment and material necessary for the installation works and subsequent testing of the goods.
In case any or all of the above provisions are not properly or not timely complied with, or the seller has to interrupt the seller’s installation works and subsequent testing for reasons not attributable to the seller, the period of completion shall be extended accordingly and any and all additional costs resulting from such extensions shall be for the customer’s account. The seller neither assumes liability nor offers any warranty for the fitness or adequacy of the premises or the utilities available at the premises in which the goods are to be installed, used or stored.
ACCEPTANCE OF GOODS
Any partial non-fulfilment of the seller’s obligations solely attributable to the seller entitles the customer to withhold payment only to a corresponding, reasonable amount. The taking into operations use of any of the goods installed shall also constitute acceptance of the goods concerned. Minor defects or deviations not affecting the operational use of the goods installed shall be stated in the acceptance certificate, but shall not entitle the customer to obstruct or suspend acceptance of the goods or the installation. The seller undertakes to remedy such defects as soon as possible but subject to the provisions of this clause.
GOVERNING LAW
These terms and conditions shall be governed by all interpreted in accordance with the laws of the Republic of South Africa.
FORCE MAJEURE
KCSA will not be liable for any failure or delay because of circumstances beyond its reasonable control, including but not limited to any of natural disasters or acts of God; labour disputes or stoppages; war; government acts or orders; epidemics, pandemics, quarantines or outbreak of communicable disease; national or regional emergencies; changes in laws or regulations or any other cause, whether similar in kind to the foregoing or otherwise.
CONSENT TO JURISDICTION
For the purpose of any legal proceedings the customer hereby consents to the jurisdiction of any Magistrate’s Court having jurisdiction over the parties. This notwithstanding it shall not preclude the seller from instituting action out of any division of the High Court of South Africa having jurisdiction.
ACCEPTANCE OF ORDERS
Acceptance by the seller of the customer’s orders shall only be binding if in writing and signed by the customer.
The seller reserves the right to employ sub-contractors in respect of a portion or all of the services to be rendered or goods to be supplied to the customer. Once acceptance of a customer’s order has been delivered to the customer, a binding contract on the items, subject to the conditions contained herein, will have been entered into by and between the seller and the customer, which contact shall not without the consent of the seller be capable of variation and/or cancellation. A certificate by a director of the seller shall, ipso facto, be proof of the amount of ancillary charges incurred and shall be sufficient to discharge the burden of proof for the purposes of pleading, and no further evidence relating thereto need to be adducted at any trial at which a document is rendered as evidence. No counter offer in respect of any of the terms of the quotation shall be accepted and any acceptance of a quotation attached to or delivered with a counter offer shall, in itself, be determined to form part of such counter offer and shall accordingly not be valid or binding upon the seller.
ADDITIONAL TERMS APPLICABLE TO EXPORT SALES PRICE
Are inclusive of delivery and installation charges, subject to the terms and provisions of the installation clause of this agreement.
