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General Conditions

Conditions of Sale and Delivery OF KLINGSPOR ABRASIVES SA (PTY) LTD

IN THIS AGREEMENT THERE ARE CERTAIN CLAUSES OF SIMILAR FONT TO THIS TEXT, WHICH CONTAINS PROVISIONS THAT MAY HAVE THE EFFECT OF (I) LIMITING THE RISK OR LIABILITY OF THE COMPANY OR OF ANY OTHER PERSON AND/OR (II) MAY CONSTITUTE AN ASSUMPTION OF RISK OR LIABILITY BY YOU AND/OR (III) MAY IMPOSE AN OBLIGATION ON YOU TO INDEMNIFY THE COMPANY OR ANY OTHER PERSON FOR ANY CAUSE AND/OR (IV) MAY BE AN ACKNOWLEDGEMENT OF ANY FACT BY YOU. THESE PROVISIONS ARE VERY IMPORTANT AND YOU MUST ENSURE THAT YOU READ THEM CAREFULLY AND THAT YOU UNDERSTAND THEM CLEARLY.

 

1. GENERAL

1.1 All contracts are exclusively subject to the COMPANY’S terms and conditions of delivery and sale and the COMPANY rejects any terms and conditions of the CUSTOMER to the contrary or deviating from the COMPANY’S terms and conditions unless it has expressly consented to their validity in writing.

1.2 The terms and conditions set out herein cancel all previously issued terms and conditions.

1.3 These terms and conditions, as re-issued or revised by the COMPANY from time to time, apply to all orders placed with the COMPANY and such orders are subject to acceptance by the COMPANY and shall be deemed to be made subject to these terms and conditions.

1.4 No qualification or condition contained in any order form, acknowledgement of order or otherwise, shall form part of the contract of sale or override these terms, unless expressly agreed to in writing by the Managing Director of the COMPANY. No employee or agent of the COMPANY shall have the authority or the ability to change these terms in any manner whatsoever, save for the Managing Director of the COMPANY.

1.5 Price lists issued by the COMPANY from time to time, are for information purposes only and do not constitute offers for sale.

1.6 The COMPANY reserves the right to refuse an order and acceptance on the part of the COMPANY shall only be deemed to have occurred on delivery of the GOODS.

1.7  Save insofar as may be otherwise specifically agreed upon in writing to the contrary by the COMPANY, orders are accepted only at prices and transport tariffs on that date of dispatch.

1.8 Due to variables such as quantity, size, packaging, marketing etc., invoiced prices may differ marginally from advertised prices.


2. APPLICATION OF THE CUNSUMER PROTECTION ACT

2.1 If the CPA is applicable to this AGREEMENT, the provisions of the CPA shall be applied and take precedence where they contradict any provision of this AGREEMENT.

2.2 Whether the CPA applies to this AGREEMENT depends on whether certain values of the Customer’s business (the “Threshold Values”) are above or below the threshold.

2.3 The Threshold Values are the CUSTOMER'S asset value or annual turnover. If either of these values exceed R2 000 000.00 (Two Million Rand) on the date that the Parties agree that the COMPANY will sell the GOODS, the CPA will not apply to this AGREEMENT.

2.4 The values measured and the threshold itself will be amended from time to time, in which case the Parties agree that the new measurements shall apply to this AGREEMENT from the date of such amendment.

2.5 The COMPANY’S duties in terms of this AGREEMENT may vary depending on whether the CPA applies to it, and the COMPANY shall act upon the information given by the CUSTOMER in the credit application form. Consequently:

2.5.1 The CUSTOMER warrants that any statement made to the COMPANY in respect of its Threshold Value is accurate.

2.5.2 If the CUSTOMER claims that all the Threshold Values are below R2 000 000.00 (Two Million Rand), or otherwise that the CPA applies to this AGREEMENT, the COMPANY may at its instance require the CUSTOMER to provide it with financial statements as proof thereof.

2.5.3 If the CUSTOMER misstates the Threshold Values and as a consequence the COMPANY believes that this AGREEMENT is subject to the CPA when it is not, then the COMPANY may retroactively apply any provisions of this AGREEMENT that were not applied as a result of this belief.

2.6 The CUSTOMER shall be liable for any costs or damage sustained by the COMPANY resulting from such misstatement.
 

3. INTERPRETATIONS AND DEFINITIONS

3.1 In this AGREEMENT unless the context otherwise requires:-

3.1.1 The singular shall import and include the plural and vice versa;

3.1.2 Words indicating one gender shall import and include other genders;

3.1.3  Words indicating natural persons shall import and include artificial persons;

3.1.4  The headnotes to this AGREEMENT are used for the sake of convenience only and shall not govern the interpretation of the clauses to which they relate;

3.1.5 Where any number of days is prescribed in this AGREEMENT, they shall be calculated exclusive of the first day and inclusive of the last day unless the last day falls on a Saturday, Sunday or public holiday. In such day the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday;

3.1.6 If any doubt or conflict arises where figures are referred to in numerals and in words, the words shall prevail;

3.1.7 Should there be any conflict or inconsistency between this AGREEMENT and other agreement/s concluded between the Parties, then terms and conditions of this AGREEMENT shall prevail;

3.1.8 If any provision in a definition contained in this AGREEMENT is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it only appears in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the AGREEMENT;

3.1.9 The rights and obligations of any Party arising from this AGREEMENT, shall devolve upon and be binding upon its successors-in-title.

3.2 Unless such meaning is inconsistent with the context, the following terms shall, throughout this AGREEMENT, have the meanings respectively ascribed to them, namely:

3.2.1 “AGREEMENT” shall mean these terms and conditions of sale and delivery and annexures, if any, attached hereto;

3.2.2 “COMPANY” shall mean Klingspor Abrasives SA (Pty) Ltd, with Registration Number: 1998/022423/07, a company duly registered and incorporated in accordance with the laws of the Republic of South Africa, with registered address situated at 2 Spartan Road, Spartan, Johannesburg, South Africa;

3.2.3 “CONTRACT PRICE” shall mean the price of the GOODS as set out in the invoice;

3.2.4 “the CPA” shall mean the Consumer Protection Act, 86 of 2008, as amended.

3.2.5 “CUSTOMER” shall mean the person or legal entity with whom an AGREEMENT is entered into for the sale of the GOODS;

3.2.6 “DELIVERY NOTE” shall mean a note on which is reflected at least the invoice number, delivery instruction note number, net and gross weights and number of bags/packages/cartons or other containers in which the GOODS are supplied. All INVOICES shall be accompanied by a tax invoice complying with the Value Added Tax Act (as amended);

3.2.7 “GOODS” shall mean the GOODS as described more specifically in the invoice;

3.2.8 “INVOICE” shall mean the invoice document of the COMPANY whereon an invoice number, full particulars of the CUSTOMER, CONTRACT PRICE and the date of order of the GOODS by the CUSTOMER shall appear.
 

4. PRICES

4.1 Unless otherwise agreed upon in writing, the CONTRACT PRICE shall, inter alia, be deemed to include charges for landing costs, packing and storage.

4.2 In the event that the order value exceeds the value for free transportation, currently R2 500.00 (Two Thousand Five Hundred Rand), the costs of the transport shall be paid by the COMPANY.

4.3 In the event that the order value falls below the value for free transportation, currently R2 500.00 (Two Thousand Five Hundred Rand), the order will not be delivered to the CUSTOMER and will be held back by the COMPANY, pending additional orders from the CUSTOMER until such time as the cumulative order value exceeds the value for free transportation, currently R2 500.00 (Two Thousand Five Hundred Rand).

4.4 Notwithstanding clause 4.3 above, in the event that the order value falls below the value for free transportation, currently R2 500.00 (Two Thousand Five Hundred Rand), and the CUSTOMER requires immediate delivery of the GOODS, the costs of the transport shall be paid by the CUSTOMER.

4.5 The COMPANY reserves its right to add a reasonable charge for storage on any items which have not been collected or could not be delivered within 14 (Fourteen) days of the date on which they were available for delivery or collection, as the case may be, and in the event that this is as a result of the CUSTOMER’S conduct.

4.6 All orders are accepted subject to a ‘minimum carriage free order value’.  In this regard, the transport costs shall be borne by the CUSTOMER.

4.7 Any orders accepted below the ‘minimum order value’ shall attract an administration charge in addition to the transport charge referred to in clause 4.4 above.

4.8 ‘Minimum carriage free order values’ and ‘minimum order values’ are subject to alteration without notice.

4.9 Samples and specimen products are only delivered against payment by the CUSTOMER, unless the Parties have otherwise agreed upon in writing.

4.10 The COMPANY shall retain the title to and copyrights in all offer documents; these may not be made available to third parties without the COMPANY’S express written consent.

4.11 The CONTRACT PRICE shall specifically exclude Value Added Tax (VAT) and any other taxes that may be levied in respect of the GOODS. The COMPANY reserves its rights to effect price increases from time to time without notification to the CUSTOMER. The onus shall be on the CUSTOMER to remain informed of the prices of the COMPANY. No COMPANY employee, official, agent or nominee shall have the authority to effect or authorise any discounting of the CONTRACT PRICE of the GOODS save the Managing Director of the COMPANY.

4.12 The price quoted for GOODS may be increased by the COMPANY in the event that the COMPANY incurs any increase in the cost of labour, materials and transport between the date of accepting an order placed by the CUSTOMER and the date of delivery of the GOODS concerned.

4.13 Notwithstanding the stated price on the INVOICE, the CONTRACT PRICE shall, at all material times, be subject to any increase of duties, levies, taxes, transport, storage and packing costs and the COMPANY shall endeavour, where reasonably possible, to inform the CUSTOMER in advance of any anticipated increases of the aforestated.

4.14 Due to the nature of the COMPANY’S manufacturing process, the COMPANY and the CUSTOMER, shall agree (where applicable) upon an allowance in respect of a reasonable variation in the quantity of GOODS supplied in respect of each order.


5. PAYMENT

5.1 Unless otherwise agreed upon between the Parties, payment shall be made in full without any deduction or set off in respect of GOODS sold. Payment shall be made by the CUSTOMER within 30 (Thirty) days from the date of statement.

5.2 Notwithstanding the aforementioned, the COMPANY reserves the right to demand payment from the CUSTOMER prior to any delivery taking place.

5.3 The COMPANY reserves the right to extend credit facilities to CUSTOMERS, from time to time, without any obligation to do so notwithstanding having extended such facilities in the past to any CUSTOMER.

5.3.1 Where the COMPANY has agreed to supply GOODS on credit, payment in full shall be due within 30 (Thirty) days from date of the first monthly statement rendered by the COMPANY.

5.3.2 The monthly accounts of the COMPANY are closed on the 25th day of each month. Payment must be credited to the banking accounts of the COMPANY by the 25th day of the following month.

5.4 Credit facilities shall only be afforded to CUSTOMERS after completion of the necessary documents required by the COMPANY and the CUSTOMER having provided the COMPANY with the required guarantees/suretyships.

5.5 The COMPANY reserves its right to, at any time and after having provided the CUSTOMER with reasonable notice, and reasonable notice to be deemed to be 30 (Thirty) days, advise that credit facilities to a CUSTOMER by the COMPANY shall be terminated, and the COMPANY shall be under no obligation whatsoever to provide any reasons for such termination.

5.6 It is specifically agreed upon and recorded that at all material times, it shall be the sole prerogative of the COMPANY to decide to which CUSTOMERS it would be willing to extend credit facilities, it specifically being understood by CUSTOMERS that any differentiation shall not be deemed to be discriminatory but shall be deemed to form part of the COMPANY’S internal credit risk limitation policy.

5.7 The COMPANY shall be entitled to refuse the sale of GOODS to any CUSTOMER in the event of overdue accounts owing by the CUSTOMER to the COMPANY, or in the event that a CUSTOMER is not able to obtain/provide satisfactory guarantees/suretyships.

5.8 It is specifically recorded and agreed that any late payments by a CUSTOMER shall constitute an automatic breach of any credit facility agreement entered into between the COMPANY and the CUSTOMER and provided to the CUSTOMER by the COMPANY and accordingly, the COMPANY reserves the right at any time to refuse any further sale of GOODS to the CUSTOMER and/or demand a cash on delivery basis, until all outstanding accounts including any accrued interest on such outstanding accounts have been settled in full by such CUSTOMER.

5.9 IT IS SPECIFICALLY RECORDED AND AGREED THAT THE CUSTOMER WAIVES ALL CLAIMS AGAINST THE COMPANY FOR ANY DAMAGES OR LOSSES THAT IT MAY SUFFER AS A RESULT OF THE REFUSAL OF THE COMPANY TO SELL GOODS TO THE CUSTOMER IN THE EVENT OF AN OVERDUE ACCOUNT, OR IN CONNECTION WITH ANY OTHER DISPUTE WHATSOEVER ARISING OUT OF PAYMENT FOR GOODS.


6. INTEREST

It is specifically recorded and agreed that interest on overdue accounts shall be at the rate as per the Prescribed Rate of Interest Act 55 of 1975, as amended.
 

7. DELIVERY

7.1 Time of delivery shall not be of the essence in this AGREEMENT.

7.2 WHILST EVERY EFFORT SHALL BE MADE TO DISPATCH AND DELIVER THE GOODS AS ADVISED, THE COMPANY DOES NOT GUARANTEE DISPATCH AND/OR DELIVERY ON ANY SPECIFIC DATE AND SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING CONSEQUENTIAL DAMAGES THAT MAY BE SUFFERED BY THE CUSTOMER, AS A RESULT OF ANY DELAYS IN THE DELIVERY OF THE GOODS THAT MAY OCCUR, SAVE TO THE EXTENT THAT THE COMPANY MAY BE LIABLE FOR ANY LOSSES IN TERMS OF SECTION 47 OF THE CPA.

7.3 The CUSTOMER shall not be entitled to cancel any order by reason of such delay.

7.4 Should the COMPANY be prevented from the performance of any of its obligations as a result of Force Majeure, or any cause whatsoever beyond the control of the COMPANY, the COMPANY shall be entitled, at its option, to cancel the AGREEMENT or to suspend performance of its obligations there under and SHALL NOT BE LIABLE WHATSOEVER FOR ANY LOSS OR DAMAGE, CONSEQUENTIAL OR OTHERWISE, RESULTING FROM SUCH INABILITY TO PERFORM ITS OBLIGATIONS, CANCELLATION OR SUSPENSION.

7.5 Unless otherwise agreed upon in writing, delivery and passing of the risk in the GOODS shall be deemed to have taken place when:

7.5.1 the GOODS are offloaded by the COMPANY, or its duly appointed delivery agent, at the CUSTOMER’S premises; or

 

8. THE GOODS ARE COLLECTED BY THE CUSTOMER FROM THE PREMISES OF THE COMPANY RESERVATION OF OWNERSHIP

8.1 The COMPANY shall reserve ownership of GOODS delivered, until receipt of all payments due in terms of this AGREEMENT. Further, the COMPANY reserves ownership of GOODS until the CUSTOMER has affected any payments in full.

8.2 In the event that the CUSTOMER defaults in payment, it shall deliver the GOODS to the COMPANY upon receipt of notice by the CUSTOMER from the COMPANY, without any undue delay.

8.3 The COMPANY may elect, without detracting from other remedies which may be available to it, to continue with the AGREEMENT or to cancel it and cancel the sale of any further GOODS to the CUSTOMER and to rely on the provisions of this clause to repossess those GOODS sold and delivered by the COMPANY to the CUSTOMER or to claim specific performance of all the CUSTOMER’S obligations whether or not such obligations would otherwise have fallen due for performance, in either event, without prejudice to the COMPANY’S rights to claim damages.

8.4 The COMPANY’S request for repossession and repossession itself shall not be construed as rescission of the contract. After repossession of the delivered items, the COMPANY shall be authorised to realise the same. The realisation proceeds shall be set off against the CUSTOMER’S liabilities – less appropriate realisation costs. The COMPANY may also realise the repossessed, reserved GOODS by selling them by private contract.

8.5 The CUSTOMER undertakes to handle the GOODS with care; in particular, it is obliged to insure them adequately at the reinstatement value against damage caused by fire, water, and theft at its expense.

8.6 In the event of attachments, attempted attachments, or other intervention by third parties, the CUSTOMER shall inform the COMPANY, in writing, without delay. The CUSTOMER shall be liable to the COMPANY for the judicial and extra-judicial costs of any necessary action pursuant to third-party action in respect of acts of execution. GOODS belonging to the COMPANY shall be clearly marked as property of the COMPANY.

8.7 The CUSTOMER is entitled to resell the GOODS in the ordinary course of business. In exchange, it herewith assigns to the COMPANY all claims against its customers or third parties in the amount of the total invoice (including value added tax) which, to its benefit, accrue from the resale, irrespective of whether the delivered item was resold without any processing or after processing. The COMPANY accept this assignment of the CUSTOMER to the COMPANY.

8.8 The CUSTOMER shall remain authorised to collect these claims, even after the assignment. However, the COMPANY shall be authorised to collect the claim itself, if the CUSTOMER no longer performs its obligations to pay from the collected proceeds, or there has been a suspension of payments. In this event, the COMPANY may demand that the CUSTOMER discloses to the COMPANY the assigned claims and their debtors, furnishes all the information required to collect the claims, delivers the pertinent documents and notifies the debtor (third party) of the assignment.

8.9 In processing or transforming the GOODS, the CUSTOMER shall invariably be acting for the COMPANY and on its behalf. If the GOODS are processed with other items not belonging to the COMPANY, the COMPANY shall acquire joint title to the new thing in the same proportion as the value of the delivered item bears to the other processed items at the time of the processing. In all other cases, the new thing having resulted from the processing shall be governed by the same provision as GOODS. The reservation of title shall remain effective even if individual claims of the COMPANY or all of the COMPANY’S claims are included in a current account and a balance is struck or the balance is confirmed.


9. RETURN OF GOODS

9.1 A PRECONDITION OF THE WARRANTY RIGHTS (CLAIMS BASED ON DEFECTS) OF THE CUSTOMER, IN TERMS OF THE AGREEMENT, IS THAT A CUSTOMER WHO IS A MERCHANT INSPECTS THE GOODS UPON RECEIPT WITHOUT UNDUE DELAY AND GIVES WRITTEN NOTICE OF ANY VISIBLE DEFECTS (SPECIFYING THE DEFECT) WITHOUT UNDUE DELAY, AFTER THE INSPECTION. THIS SHALL ALSO APPLY TO WRONG DELIVERIES OR ITEMS IN INSUFFICIENT QUANTITIES BEING DELIVERED. NOTIFICATION MUST BE GIVEN WITHIN A PERIOD OF 7 (SEVEN) DAYS. FOR NON-MERCHANTS (I.E. CONSUMER AS DEFINED IN THE CPA) NOTIFICATION MUST BE GIVEN WITHIN A PERIOD OF 14 (FOURTEEN) DAYS.

9.2 SHOULD THERE BE AN ALLEGATION THAT ANY GOODS ARE UNSAFE, OR DEFECTIVE THE COMPANY SHALL NOT BE LIABLE FOR ANY HARM CAUSED WHERE SUCH ALLEGED UNSAFE GOODS CHARACTERISTIC, FAILURE, DEFECT OR HAZARD DID NOT EXIST IN THE GOODS AT THE TIME AT WHICH THEY WERE SUPPLIED TO THE CUSTOMER BY THE COMPANY. THEREFORE IF NO SUCH NOTIFICATION IS RECEIVED IN TERMS OF CLAUSE 9.1 ABOVE, IT SHALL BE REGARDED AS SUFFICIENT (PRIMA FACIE) PROOF THAT NO DEFECTS WERE PRESENT AT THE TIME OF DELIVERY AND THAT THE GOODS WERE DELIVERED IN ACCORDANCE WITH THIS AGREEMENT.

9.3 In the event that the COMPANY receives notification in terms of clause 9.1 above and it is satisfied that the GOODS are defective or does not conform to specifications, then the COMPANY shall, at the COMPANY’S election, replace such quantity of GOODS with an equal quantity of GOODS or refund the applicable portion of the purchase price to the CUSTOMER against return of the defective portion of the GOODS (the return to be made at the CUSTOMER’S risk and expense).

9.4 The CUSTOMER may not however return to the COMPANY any GOODS for any reason whatsoever unless:-

9.4.1 the Parties have agreed in writing to such return and to the conditions of such return;

9.4.2 the GOODS are being returned in accordance with the provisions of clauses 9.2 and 9.3 above;

9.4.3 the GOODS were intended to satisfy a particular purpose communicated to the COMPANY, prior to the PURCHASE thereof, and have been found not to satisfy the purpose for which they were intended, within 7 (Seven) business days of delivery and the COMPANY has been notified of this in writing within that time period;

9.4.4 the CUSTOMER is exercising its right to cool-off in terms of section 16 of the CPA.

9.5 Notwithstanding the aforementioned:

9.5.1 The CUSTOMER shall accept slight imperfections in colour and appearance.

9.5.2 The decision by the COMPANY in respect of any alleged defect shall be final, conclusive and binding upon the Parties.

9.5.3 The replacement costs of any returned GOODS shall under no circumstances exceed the cost of replacement of the GOODS and/or the price paid by the CUSTOMER of the GOODS.

9.5.4 GOODS sold to the CUSTOMER in accordance with the CUSTOMER’S specifications shall not be returnable/and/or replaced.

9.6 It is specifically recorded and agreed that in the event of the GOODS being returned by the CUSTOMER, the COMPANY shall be entitled to invoice the CUSTOMER WITH A “RE-STOCKING CHARGE” at 15% (Fifteen Percent plus VAT) of the value of the GOODS. Same shall be invoiced to the CUSTOMER upon receipt of the GOODS by the COMPANY.


10. REPRESENTATIONS AND WARRANTIES

10.1 The COMPANY makes no warranty of any kind, express or implied, including without limitation, any warranty of merchantability, or non-infringement. The COMPANY specifically makes no warranties as to any services or as to compliance with laws, regulations, standards and/or conventions including any related to the environment or to the packaging, labelling and/or transport of hazardous GOODS. No warranty shall apply to shipping damage, damage caused by improper installation, GOODS that have been modified or altered in any manner, damage caused by corrosion, abrasion, or severe temperatures or moisture, or GOODS that have been subjected to improper maintenance, abuse, misuse, abnormal usage, or accident.

10.2 THE CUSTOMER WARRANTS THAT IT SHALL FULLY COMPLY WITH ALL LABEL DIRECTIONS FOR THE HANDLING, STORAGE, POSSESSION OR USE OF THE GOODS SOLD HEREUNDER AND THE CUSTOMER AGREES THAT IT SHALL INDEMNIFY AND HOLD THE COMPANY HARMLESS FROM ALL CLAIMS (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) OF PERSONAL INJURY OR PROPERTY DAMAGE, RESULTING FROM ANY NEGLIGENCE, RECKLESSNESS OR WILLFUL/GROSS MISCONDUCT ON THE PART OF THE CUSTOMER.

10.3  Specifications, illustrations and the like remain the property of the COMPANY and may only be used for the purpose specified in this AGREEMENT and must be returned upon the request of the COMPANY. The design method of construction and content of all literature packaging and all other goods remains the property of the COMPANY and the sale of any goods shall not give to the CUSTOMER any implied licence to do any act which would otherwise constitute a breach/novation of the COMPANY’S industrial/intellectual property rights.

10.4  WHILST THE COMPANY SHALL TAKE ALL REASONABLE STEPS TO ENSURE THAT THE GOODS TO BE SOLD AND DELIVERED TO THE CUSTOMER, IN TERMS HEREOF ARE MANUFACTURED IN ACCORDANCE WITH THE CUSTOMER’S SPECIFICATIONS, THE COMPANY DOES NOT WARRANT THAT THE SAID GOODS WILL BE FIT FOR THE SPECIFIC PURPOSE FOR WHICH THE CUSTOMER INTENDS TO USE THE SAID GOODS, AND THE CUSTOMER ACCORDINGLY ABSOLVES THE COMPANY FROM ANY LIABILITY WHATSOEVER (HOWSOEVER ARISING) AS A RESULT OF THE SAID GOODS NOT BEING FIT FOR THE PURPOSE FOR WHICH THE CUSTOMER INTENDS TO USE THE SAID GOODS, UNLESS THE CUSTOMER HAS SPECIFICALLY INFORMED THE COMPANY, IN WRITING, OF THE PARTICULAR PURPOSE FOR WHICH THE CUSTOMER WISHES TO ACQUIRE ANY GOODS OR THE USE TO WHICH THE CUSTOMER INTENDS TO APPLY THOSE GOODS AND THE COMPANY AGREES TO SUPPLY SUCH GOODS.

10.5 NO LIABILITY FOR DAMAGES RESULTING FROM UNSUITABLE OR IMPROPER USE, IMPROPER ASSEMBLY AND IMPROPER COMMISSIONING OR HANDLING BY THE CUSTOMER OR BY THIRD PARTIES, OR ANY OTHER DISREGARD OF INSTALLATION AND OPERATING INSTRUCTIONS OR OF GENERALLY ACCEPTED TECHNICAL RULES AND NORMAL OPERATIONAL WEAR AND TEAR, SHALL ATTACH TO THE COMPANY.


11. LIMITATION OF LIABILITY

11.1 IN NO EVENT SHALL THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING PUNITIVE DAMAGES OR ATTORNEYS’ FEES, WHETHER FORESEEABLE OR UNFORESEEABLE. THIS INCLUDES CLAIMS OF THE CUSTOMER OR ITS CLIENTS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF BUSINESS, GOODWILL, PROFITS, LOSS OF MONEY OR USE OF GOODS OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, IN DELICT OR OTHERWISE IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, EXCEPT IN THE EVENT OF PERSONAL INJURY OR PROPERTY DAMAGE WHERE AND ONLY TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. TO THE EXTENT THE CUSTOMER INCORPORATES OR CAUSES OTHERS TO INCORPORATE THE GOODS IN ITS OWN GOODS OR THE GOODS OF ANY THIRD PARTY, THE COMPANY SHALL NOT BE LIABLE FOR THIRD PARTY CLAIMS FOR INFRINGEMENT OF LETTERS PATENT, REGISTERED DESIGN, TRADEMARK OR COPYRIGHT RESULTING FROM SUCH INCORPORATION AND BASED UPON THE USE OF THE GOODS OR THE MANUFACTURE, USE, SALE OR OFFER FOR SALE OF ANY GOODS CONTAINING SUCH GOODS, EXCEPT AS SUCH LIABILITY FOR THIRD PARTY CLAIMS FOR INFRINGEMENT IS EXPRESSLY REQUIRED BY APPLICABLE LAW AND NOT WAIVABLE BY THE CUSTOMER THE CUSTOMER ASSUMES RESPONSIBILITY FOR ALL PERSONAL INJURY AND PROPERTY DAMAGE RESULTING FROM HANDLING, POSSESSION, USE, RESALE OR DISPOSAL OF THE GOODS.

11.2 ANY ACTION BY THE CUSTOMER FOR BREACH OF THIS AGREEMENT BY THE COMPANY OR ANY OTHER CAUSES OF ACTION OF THE CUSTOMER EXPRESSLY ALLOWED UNDER THIS AGREEMENT MUST BE COMMENCED WITHIN 1 (ONE) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED, FAILING WHICH NO CLAIM SHALL BE ACKNOWLEDGED BY THE COMPANY.


12. BREACH

12.1 In the event that the CUSTOMER:

12.1.1 Breaches any condition contained in these conditions and failing to pay any amount due and payable on due date, and having failed to rectify such breach or outstanding payment within 10 (Ten) days of having been requested to do so in writing by the COMPANY;

12.1.2 Suffering any civil judgment to be taken or entered against it, causing a notice of surrender of its estate to be published in terms of the Insolvency Act of 1936 (as amended);

12.1.3 The CUSTOMER dying or ceasing to exist;

12.1.4  The CUSTOMER’S estate being placed under an order of provisional or final winding up, business rescue, as the case may be, then, and in that event, the COMPANY shall, without retracting from other remedies which may be available to it, be entitled to cancel this AGREEMENT and cancel the sale of any GOODS to the CUSTOMER without notice to the CUSTOMER and to rely on the provisions of this clause to repossess those GOODS sold and delivered by the COMPANY to the CUSTOMER or to claim specific performance of all the CUSTOMER’S obligations whether or not such obligations would otherwise have fallen due for performance, in either event, without prejudice to the COMPANY’S rights to claim damages.


13. PRESCRIPTION

THE CUSTOMER HEREBY EXPRESSLY WAIVES ITS RIGHT TO CLAIM PRESCRIPTION UNDER THE RELEVANT PROVISIONS OF THE PRESCRIPTION ACT NO. 68 OF 1969, AS AMENDED FROM TIME TO TIME.


14. INDEMNITY

14.1 The CUSTOMER agrees to indemnify, hold harmless and defend the COMPANY and the COMPANY’S directors, officers, employee’s and agents, and the directors, officers, employees and agents of any the COMPANY parent, subsidiary or related company (the “COMPANY Indemnities”) from and against any and all claims, suits, losses, damages, costs, fees and expenses arising out of the death or injury to person or damage to property resulting from the sale, marketing or use of the GOODS by the CUSTOMER, except that such claims, suits, losses, damages, costs, fees or expenses arise or result from any grossly negligent or wrongful act or omission of the COMPANY.


15. JURISDICTION

15.1 The Parties do hereby consent that the Magistrate’s Court shall have jurisdiction to determine any action or proceedings which may arise under or in connection with this AGREEMENT.

15.2 This AGREEMENT, as well as the relationship between the COMPANY and the CUSTOMER is governed by the Law of the Republic of South Africa.

 

16. LEGAL ACTION

16.1All debt collection charges incurred by the COMPANY, including the costs of collection agencies, including collection commission shall solely be borne by the CUSTOMER.

16.2 In the event of the COMPANY instructing attorneys in regard to any breach of the CUSTOMER, of the conditions of this AGREEMENT, then the CUSTOMER shall pay all the costs on the scale between Attorney and Client, including any costs incidental to such action instituted against the CUSTOMER.


17. CERTIFICATE OF INDEBTENESS

A certificate under the hand of the Managing Director of the COMPANY as to the existence and the amount of the CUSTOMER’S indebtedness to the COMPANY, as well as the amount of interest accrued thereon, and as to any other fact, matter or thing relating to the CUSTOMER’S indebtedness to the COMPANY, shall be accepted as sufficient (prima facie) proof of the contents and correctness thereof and of the amount of the CUSTOMER’S indebtedness for the purpose of provisional sentence or summary judgement or any other proceedings against the CUSTOMER in any competent Court and shall be valid and constitute a liquid document for such purposes. Furthermore, it shall not be necessary to prove the appointment of the person signing such a certificate and it shall be deemed to be sufficient particularly for the purpose of any action or any other proceeding instituted by the COMPANY against the CUSTOMER.


18. NOTICE AND DOMICILIA

18.1 Any notices to be given to the Parties in terms of this AGREEMENT shall be in writing and delivered by hand during ordinary business hours or posted by pre-paid registered post to the addresses mentioned hereunder, which addresses the Parties choose as their domicilium citandi et executandi for all purposes arising out of this AGREEMENT.

18.2 The COMPANY: 2 Spartan Road, Spartan, Johannesburg, South Africa.

18.3 The CUSTOMER: The delivery address as reflected on the face of the latest delivery note issued to the CUSTOMER, or such other address within the Republic of South Africa as either Party may choose by written notice to the other.
 

19. NO VARIATION

19.1 This AGREEMENT constitutes the entire agreement between the Parties and no representation by either of the Parties or their agents, whether made prior or subsequent to the signing of this AGREEMENT, shall be binding on the Parties unless done in writing and signed by both Parties hereto.

19.2 No variation, alteration or consensual cancellation of this AGREEMENT, or any of the terms thereof, shall be of any force or effect, unless done in writing and signed by the Parties hereto.

19.3 No waiver or abandonment by either Party of any of its rights in terms of this AGREEMENT shall be binding on that Party, unless such waiver or abandonment is in writing and signed by the waiving Party.

19.4 No indulgence, extension of time, relaxation or latitude which any Party may show, grant or allow to another shall constitute a waiver by a Party of any such Party’s rights and such Party shall not hereby be prejudiced or estopped from exercising any of its rights against any Party, which may have arisen in the past or which might arise in the future. Unless the context indicates otherwise, the rights and obligations of any Party arising from this AGREEMENT shall devolve upon and bind its successors-in-title.

19.5 The Parties agree that they will do all things and sign all documents necessary to give effect to the terms of this AGREEMENT and to all transactions deriving there from.