Terms and Conditions
The following provisions are drawn to the attention of the Purchaser (as defined below) if the Consumer Protection Act 68 of 2008 (“the CPA”) applies to any transaction concluded pursuant to these Conditions of Sale (as defined below):
In these terms and conditions of sale (“these Conditions of Sale”), unless the context otherwise requires, the words, expressions and phrases set out below, have the meanings hereunto ascribed to them:
- “The Seller” – 4ward – Automation CC (Registration No.: 2010/053092/23);
- “The Purchaser” – The party referred to on the Quotation (as defined below);
- “The goods” – The goods described on the Quotation or the Invoice (to the extent that the goods reflected on the Invoice (as defined below) differs from those reflected on the Quotation);
- “The price” – The price/s reflected on the Quotation or the Invoice (to the extent that the price reflected on the Invoice differs from the price reflected on the Quotation).
2. BINDING AGREEMENT
- These Conditions of Sale together with any terms and conditions recorded in the Quotation (as defined below) and/or in the invoice provided by the Seller to the Purchaser (“the Invoice”), constitute the entire agreement in relation to any transaction between the parties for the supply by the Seller of goods to the Purchaser (“the Agreement”), who record that no representations or warranties other than those contained herein and thereon, have induced them to conclude such Agreement. In the event of any conflict between these Conditions of Sale and any terms and conditions contained in the Quotation and/or in the Invoice (as the case may be), then the provisions of these Conditions of Sale shall prevail.
- No amendment, variation or consensual termination of these Conditions of Sale shall be binding on the parties, unless reduced to writing and signed by the parties hereto (or their duly authorised representatives, as the case may be).
- No relaxation or indulgence granted to the Purchaser by the Seller shall constitute a waiver of any of the Seller’s rights or a notation of this contract or any part thereof and shall not prevent the Seller from exercising any rights in terms hereof or at law.
A quotation from the Seller to the Purchaser (“the Quotation”) constitutes an offer by the Seller to provide the goods referred to therein to the Purchaser which may be accepted for a period of 30 (Thirty) days by way of the Purchaser returning the signed Quotation to the Seller.
- All prices are quoted nett, unless otherwise specified.
- The price payable for the goods shall be the amount reflected in the Quotation together with (to the extent same is not reflected in the Quotation):
- any delivery fees, if same is not included in the price; and
- other additional costs or delivery charges occasioned by the order; and
- any amount contemplated in clauses 4.3 and/or 5 below.
- Prices are ex stock Johannesburg. The cost of any other form of delivery will be an additional charge, unless prior arrangements have been made in writing.
- Should the Seller receive notification at any time after the Quotation has been dispatched to the Purchaser, from any person manufacturing the goods, of any increase in the cost price payable by the Seller in respect of such goods or should there be any change in the amount of the Value Added Tax payable or any changes to amounts imposed by the Directorate of Customs and Excise on goods still to be imported, then the price payable for the goods shall be deemed to be increased by the same percentage as the percentage increase to the price of, or amounts imposed in respect of, such goods as aforesaid; provided that if the CPA applies to the transaction, the Purchaser must have agreed to such increased costs, whether verbally or in writing. In the event of any dispute between the parties as to the quantum of any increased costs, a certificate issued by the accounting officer of the Seller shall be final and binding on the parties.
- Prices quoted are for duty paid goods in the Sellers stores, at the time of quoting.
- If the CPA applies to any transaction with the Purchaser, the Seller shall supply the Purchaser with itemised breakdown of the amounts referred to in clause 4.2 above, which will be detailed in the Quotation or the Invoice, as the case may be.
5. Rate of Exchange
The validity of prices quoted in the Quotation, is subject to the rate of exchange between the South African Rand and the currency/ies of the country/ies of origin of goods quoted, as at the date of the Quotation, being maintained (to the extent applicable). If there is any change in the rate of exchange prior to delivery of the goods to the Purchaser, then the Seller may recover from the Purchaser any additional costs incurred by it in respect of the purchase of such goods pursuant to the change in the rate of exchange and the Seller’s right to adjust the price of the goods to take into account such change to the rate of exchange, is accordingly reserved.
All drawings, specifications, illustrations, diagrams, price lists, catalogues, brochures, dimensions and the like, furnished by the Seller to the Purchaser and any representations made in regard thereto are not guaranteed, are merely an estimate, are furnished by the Seller to the Purchaser for information purposes only and shall not form part of the Quotation, nor the order, nor shall they bind the Seller in any manner whatsoever, unless otherwise agreed to in writing.
- Unless otherwise agreed to in writing, all payments in respect of goods sold to the Purchaser shall be effected, without deduction or set-off, and in cleared funds, against delivery of the goods. Payment terms will only be granted against credit approval being obtained. In the event of credit terms being granted, the terms of credit shall prevail over these Conditions of Sale, where applicable.
- Without prejudice to any other rights of the Seller, any payment not made on due date for payment thereof will bear interest at an interest rate of 2% (two percent) per month, payable and calculated monthly in advance.
- The Seller shall be entitled to appropriate amounts received from the Purchaser to the reduction of such indebtedness of the Purchaser to the Seller, as the Seller may in its discretion decide; provided that if the CPA applies to the transaction concluded pursuant to these Conditions of Sale, then the Seller shall exercise its discretion as aforesaid reasonably.
- PARTIAL PERFORMANCE
If the Purchaser fails to make any payment timeously or on due date or fails to comply with any provisions hereof, or if the Seller considers the amount outstanding (whether due or not), has reached the limit to which it is prepared to allow the Purchaser credit, the Seller reserves the right to suspend or reduce further deliveries or to cancel the agreement without notice in respect of any undelivered portion of the goods or uncompleted portion of work, as the case may be. Each delivery or part delivery of any order shall be and be deemed to be a separate and divisible contract, notwithstanding anything to the contrary herein contained or implied. No failure on the Seller’s part to make any delivery shall entitle the Purchaser to reject late delivery of the balance of the order. Pro rata payments as specified above shall become due on each delivery or part delivery in terms of the provisions hereof.
Whilst the Seller shall make every reasonable effort to effect delivery of the goods timeously on the delivery date quoted to the Purchaser, any such deliver date is merely an estimate and does not constitute an agreement that the goods will be delivered at a specific date and time. Time will not be deemed to be of the essence in regard to any order. The Seller shall not, to the maximum extent permitted in law, be liable for any direct or indirect loss of profit or for any damages of whatsoever nature which may be sustained by the Purchaser in consequence of any late deliveries, delay in delivery, failure to deliver or incorrect or defective delivery, whether due to the fault or negligence of the Seller or any of its representatives or due to any cause whatsoever.
9. risk and ownership
- Risk and benefit in the goods will pass to the Purchaser on delivery of the goods to the Purchaser by the Seller. The aforegoing is subject to any provision in the CPA that provides for a particular party to bear the risk in the goods at any particular time, to the extent that the CPA applies to the transaction in question with the customer.
- Ownership in respect of any goods, whether supplied or installed, sold by the Seller to the Purchaser from time to time, is reserved to the Seller until such time as payment of all amounts due owing and payable by the Purchaser to the Seller pursuant to these Conditions of Sale, have been paid to the Seller in full. The Purchaser shall inform the landlord of the premises at which the goods are delivered and which remain the property of the Seller in terms hereof are stored, of the Seller’s rights therein and shall inform the Seller of the name and address of such landlord from time to time (to the extent applicable).
10. INSTALLATION AND COMMISSIONING
The cost of installing and/or commissioning goods will normally be specified separately from the price quoted for the goods. When a fixed price is quoted for installing and/or commissioning goods, it implies that:
- a 15 amp power socket will be provided by the Purchaser at each position;
- The site and the necessary facilities (ducting power etc) will be available and accessible;
- The goods will be on site and not in the store to which it may have been delivered;
- When necessary the assistance of electricians, plumbers, fitters, welders, riggers or any other tradesmen will be provided by the Purchaser, at the Purchaser’s cost. (The assistance required will be specified);
- Material or samples will be available to enable the goods to be commissioned and tested, and a responsible person will be present formally, to accept the goods;
- The work shall be done during normal working hours. If the work has to done outside normal working hours, an additional charge will be made based on the difference between overtime and standard rates; and
- Any delay resulting from non-compliance with clauses 10.1 to 10.6 above or for any other reason beyond the control of the Seller’s installing or commissioning personnel, will be charged at the prevailing standard rates in addition to the prices quoted.
Notwithstanding any clause or statement dealing with deliveries, guarantees or service, the acceptance of goods supplied under these conditions of sale indemnifies the Seller and its employees from any responsibility for any loss or damage which may result from any defect or failure of the equipment or of the system, for any reason whatsoever, while in service.
- Except where otherwise specified or original suppliers guarantee applies, the goods are guaranteed for 12 (twelve) months from date of invoice against any defect attributable to faulty workmanship or materials. Fair wear and tear and rough treatment of product being excluded.
- This guarantee does not cover normal servicing of the goods. Thermionic tubes, lamps, television picture tubes, television camera tubes and LCD panels (liquid crystal display panels) are covered by the manufacturers guarantee and are governed by use.
- This guarantee only covers the goods supplied when it is used correctly under the recommended operating conditions and for the application for which it is intended.
- This guarantee only covers the cost of repairing faulty goods and does not include the cost of travel and subsistence by the Seller, when the goods cannot be returned to the Seller’s Service Division.
- The onus is on the Purchaser to return faulty equipment to the Seller’s offices for repairs.
- In the event of any service being carried out by persons or agencies not authorised by the Seller during the guarantee period, the guarantee becomes null and void with immediate effect.
- The guarantee is not transferable and applies to the original Purchaser of the goods only.
13. CANCELLATION OF ORDERS
Orders are final and may not be cancelled, subject to the provisions of this clause 13 and the provisions of section 17 of the CPA, to the extent that the CPA is applicable to the transaction entered into between the Purchaser and the Seller pursuant to the Conditions of Sale. Where however, cancellation of an order is permitted in writing by the Seller in its discretion and the CPA is not applicable to the transaction entered into between the Purchaser and the Seller pursuant to the Conditions of Sale, the Purchaser shall be liable for a minimum cancellation fee of 10% (ten percent) of the face value of the order, plus an additional handling fee, which fee will include any cost of shipping/transporting the goods back to the factory in the country of origin.
Should the Purchaser breach any of the conditions hereof, or fail to pay any amount payable in terms hereof on due date, or commit any act of insolvency or attempt to compromise with any of its’ creditors, or have made any incorrect or untrue statement in connection herewith or in connection with any proposal for an insurance policy for the goods or do or cause to be done anything which may prejudice the Seller under this agreement or to allow a judgement against it to remain unsatisfied for 7 (seven) days or be subject to a provisional or final order of liquidation or judicial management or, in the case of a Purchaser being a natural person, his estate being provisionally or finally sequestrated, surrendered, or should the goods be seized under a legal process issued against the Purchaser, the Seller shall have the right, without prejudice to any other right which it may have against the Purchaser, to:
- Terminate the sale;
- Repossess the goods;
- Claim all arrears owing at date of termination and
- Claim any damages suffered.
15. GOODS RETURNED
The Seller shall not be obliged to accept return of goods for credit, but should it elect to do so a minimum of 10% (ten percent) handling and restocking charge will be deducted before the Purchaser’s account is credited. Goods may only be returned for credit with prior authorisation by obtaining a confirmation number. All goods so returned shall be delivered or consigned, carriage to be paid to the Seller by the Purchaser.
Claims concerning shortages/faulty goods etc, must be reported within 3 (three) days of receipt of goods and confirmed within 7 (seven) days in writing.
All spare parts purchased and supplied by the Service Division of the Seller are sold without return privileges, except for items that are returned for warranty service consideration, damaged in transit or shipped in error by the Seller.
16. MAGISTRATE’S COURT
- For the purposes of all or any proceedings herein, the Purchaser hereby consents in terms of Section 45 of the Magistrate’s Court Act of 1944, as amended or any comparable legislation, to the jurisdiction of a Magistrate’s Court having jurisdiction in respect of any action arising between the Seller and the Purchaser.
- The parties consent to the non-exclusive jurisdiction of the High Court of South Africa, Cape of Good Hope Provincial Division.
- Should the Seller refer any claim against the Purchaser to its attorneys, the Purchaser shall be liable for all legal charges incurred by the Seller on an attorney and client basis, including tracing fees and shall further forthwith be liable for 10% (ten percent) collection charges on any amount claimed (not withstanding that such collection commission are only due upon payment of any amount to the Seller or his attorney).
The parties hereby choose as their domicilia citandi et executandi the addresses set out on the Invoice and agree that all notices and processes arising out of or in connection with these Conditions of Sale may be served on them at that addres
18. GOVERNING LAWS
These Conditions of Sale shall be governed and construed in accordance with the laws of the Republic of South Africa.
- Each sentence, paragraph, term, clause and provision of these Conditions of Sale and any portion thereof shall be considered severable and if, for any reason, any such sentence, paragraph, term, clause or provision is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation(including, without limitation, the CPA and the regulations thereto) or in terms of a final, binding judgment issued by any court, it shall to that extent be deemed not to form part hereof and shall not impair the operation of, or have any effect upon such other sentence, paragraph, term, clause or provision hereof as may otherwise remain valid or intelligible, which shall continue to be given full force and effect and bind the parties hereto.
- All amounts provided for in terms hereof shall be exclusive of VAT. All or any VAT arising from the supply of any goods and/or services (as defined in the Value-Added Tax Act No 89 of 1991 or any statutory reenactment or modification thereof) by the Seller to the Purchaser in terms of a transaction shall become due for payment and shall be paid by the Purchaser together with the amount in respect of which such VAT has been levied.
- No term or condition of these Conditions of Sale is intended to breach any peremptory provisions of the CPA and any regulations thereto (“Prohibited Provision”). Any breach of any such Prohibited Provision shall be governed by the provisions of clause 19.1 mutatis mutandis.
- If any provision of these Conditions of Sale is found by any Court to be unfair as contemplated in Regulation 44 to the CPA, then that provision will apply to the maximum extent permitted under the CPA and will further be governed by the provisions of clause 19.1 mutatis mutandis.