1.1 “We”, “us” and “our” shall mean the company, and the company will herein interchangeably also be referred to as (the “Company”);
1.2 These General Terms and Conditions of Sale and Delivery of Products and Services Agreement (“General Terms and Conditions“) constitutes the General Terms and Conditions of Sale and Delivery of Products and Services Agreement (the “Agreement”) referred to in our Commercial Invoice, and shall constitute the general terms and conditions upon which we will render our products and/or services to all our customers.
1.3 The parties have entered into an agreement regarding customer’s purchase of products, services or products in connection with services from the Company, when one party’s offer is accepted by the other party, without reservations or alterations. Customer’s receipt of products or services constitutes acceptance in fact. The offer, the acceptance, the General Terms and Conditions (irrespective of reference or not), and any other documents explicitly accepted by the Company, constitute the specific supply agreement (the “Specific Supply Agreement”) between the parties for customer’s purchase of products or services.
1.4 Customer must ensure that the Company’s acceptance corresponds with customer’s offer. If customer fails to notify the Company of any non- correspondence without undue delay, the Company’ acceptance will be binding upon customer.
2. INFORMATION BY THE COMPANY
2.1 Customer is encouraged to seek any necessary technical advice from third-party. Except for specific information about a product, the Company is not liable for information given to customer (or any third party acting on customer’s behalf) before, on or after the Specific Supply Agreement has entered into force, unless the parties have entered into a written agreement including the Company’ advice and separate payment for any such advice.
2.2 If the parties enter into an agreement based on advice from the Company, then the Company’ advice is given only within the Company’ field of operation, to the Company’ best knowledge at the time the advice was given and solely based on the information provided by customer to the Company.
PRODUCT SPECIFIC REGULATION
3. THE COMPANY INSPECTION
3.1 All products are subject to inspection and standard testing before dispatch from the Company. The Company may supply a test certificate on customer’s demand and at a charge requested by the Company. The test certificate is intended to establish the fact that products are manufactured following the Company’ specifications, unless the products are disapproved by the test.
4. DELIVERY OF THE PRODUCTS AND TIME OF DELIVERY
4.1 The Company shall deliver all products at the place and time agreed in writing, provided that customer has ensured that all technical details and formalities concerning the execution of the Specific Supply Agreement are available to the Company.
4.2 If products are not delivered on the agreed delivery date, customer may terminate for cause, by written notification, the part of the Specific Supply Agreement concerning products in delay.
4.3 If customer does not take delivery (fully or partly) on the date agreed, customer shall pay as if delivery had been made, and the Company is entitled to damages from customer for any loss suffered due to non-delivery including additional transportation and storage costs. The Company may alternatively terminate the Specific Supply Agreement (or part thereof) and claim damages from customer for any loss suffered caused by non-delivery, including any additional transportation costs.
4.4 The Company may deliver the products by instalments in any sequence.
5. RISK AND TITLE
5.1 The Company’ term of delivery of products shall be in accordance with the terms of, and at the place of delivery, as specified in the Specific Supply Agreement.
5.2 For products delivered in connection with service, the risk of loss of or damage to the products will pass to customer on completion of the services. However, if the products are delivered together with the services, but so that the products are temporarily placed at customer’s/end-user’s site until installation (without the Company being present at the site), the risk of the products passes to customer when the Company delivers the products to the site.
5.3 Ownership of the products will not pass to customer until the Company has received payment in full. If customer does not pay, the Company is entitled to take back the products at the sole cost of customer. Such retention of ownership does not affect the passing of risk.
6.1 Immediately upon delivery of products (not delivered and installed in connection with service), customer shall examine the products for any visible defects, or shortage, and ensure that the delivered products comply with the order confirmation. If customer does not make such examination and notify the Company accordingly (if relevant) without delay, customer shall forfeit its right to claim any defects in the delivered products, which customer could have discovered during such examination.
SERVICE SPECIFIC REGULATION
7. DELIVERY OF SERVICES AND TIME OF DELIVERY
7.1 The Company shall perform the services professionally and skilfully.
7.2 The Company shall perform the services at the agreed place and time, provided that all technical details and formalities concerning the execution of the Specific Supply Agreement are available to the Company.
7.3 The Company shall perform the services during normal working hours according to the Company’ policy at the time of performance and delivery (weekends and national holidays are outside normal working hours). The parties may agree that the Company shall perform work outside normal working hours; the Company will invoice for such hours at the Company’ applicable rates.
7.4 If the Company has not performed and delivered the services on the agreed delivery date, customer is entitled to terminate for cause, by written notification, the part of the Specific Supply Agreement in delay.
7.5 Clause 4.3 shall apply if customer does not take delivery of the services or part thereof as agreed.
7.6 The Company shall use reasonable endeavours to observe all customer’s health and safety rules and regulations, and any other reasonable security requirements that apply at customer’s premises, which customer has communicated to the Company. the Company shall not be liable for any breach of its obligations under the Specific Supply Agreement, to the extent that such breach is due to the Company’ observation of customer’s health and safety regulations, unless the Company had received a written copy of such regulations before entering into the Specific Supply Agreement.
7.7 Unless otherwise agreed, the Company will perform the services by one person. In due time before the Company’ performance of the services, customer shall inform the Company if the performance of services will require more than one person. If customer fails to do so, the Company may invoice all accrued costs to customer, also without completion of the services.
7.8 The Company shall be entitled to sub-contract any of its obligations without the consent of customer. The Company is liable for any acts or omissions of its sub-suppliers.
8. CUSTOMER’S OBLIGATIONS
8.1 customer shall (at its sole cost) and where relevant ensure that its customers’ and end-users’:
- co-operate with the Company in all matters relating to the delivery of the services;
- provide to the Company and its representatives access to customer’s premises and other facilities as reasonably required for the delivery of the services;
- provide adequate resources as per the Company’s reasonable requirements;
- provide to the Company with such documents, information, tools and materials required by the Company for the proper provision of the services and ensure that it is accurate in all material respects;
- prepare and maintain the relevant premises for the supply of the services, including identifying, monitoring, removing and disposing of any hazardous materials following all applicable laws, before and during the performance of the services;
- inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at customer’s premises;
- obtain and maintain all necessary permits, authorisations, licences, approvals, and consents and comply with all relevant legislation enabling the Company to – (i) deliver the services at customer’s
9. PRICE, PAYMENT TERMS AND INVOICING
9.1 The price for the products and services is as stated by the Company in the Specific Supply Agreement.
9.2 Customer shall pay the Company as stated in the order confirmation and/or the commercial invoice.
9.3 Upon receipt of an Invoice from the Company, the Customer must pay 60% deposit upfront into the bank account of the Company. The balance of 40% must either be paid in to the trust account of VDT Attorneys Inc. (“VDT”), as specified in the attached escrow agreement (“Escrow Agreement”), or alternatively be secured by a bank guarantee issued by a duly registered and authorised financial institution.
9.4 In the event that the customer elects not to pay balance of 40% into the trust account of VDT, or not to secure the balance through the issue of a bank guarantee, or is unable to do so, the balance must be paid on delivery (“COD”), provided that the Company will not offload or deliver the Products if payment is not received in full and reflects in the bank account of the Company;
9.5 If the Customer elects to pay the 40% balance into VDT’s Trust account, such monies will be invested in an interest bearing account to the benefit of the Company;
9.6 If the parties have agreed that the Company will deliver products at the agreed place of delivery and that services are performed within the same agreed country. If customer request delivery at another place, then the Company may adjust prices and charge for additional costs and expenses incurred as a result of any changed place of delivery.
9.7 Customer shall comply with all requirements in applicable law in relation to tax and/or VAT and cooperate with the Company in all tax/VAT matters to the extent needed.
10.1 The Company warrants to deliver the products and services in accordance with the Specific Supply Agreement. A product is defective only if it is not delivered in accordance with the Specific Supply Agreement due to faulty material, design or manufacturing on the part of the Company or a third party acting on the Company’ behalf.
10.2 Without altering the general nature of Clause 10.1,
damage is not covered by the warranty if due to (including); ordinary wear and tear; use of the products for applications for which they are not intended; installation or use of the products in an environment not suitable for the products in question; modifications, alterations or repair of the products or services undertaken by customer or a third party (not acting on the Company’ behalf); failure to follow the Company’ instructions, e.g. in its installation-, operation-, maintenance- or service manual; installation, commissioning, operation (e.g. use of any the Company product outside its specifications) or; use of faulty or inadequate ancillary equipment in combination with the products or services; accidental or intentional damage or misuse of the products or services by customer or third party (not acting on the Company’ behalf); and customer’s or its own product’s non-compliance with applicable law and regulation. In addition, the warranty does not cover that a product is fit for a particular purpose or will be able to meet its specifications in the actual application.
10.3 For the warranty to apply, customer must notify the Company of a defect without undue delay after customer becomes or reasonably should have become aware of the defect, and (i) for products, customer must in every respect notify the Company no later than the date specified in the Specific Supply Agreement from the date of delivery of the product, and if no such date is agreed in the Specific Supply Agreement, then within 24hours from the delivery of he products (ii) for services, customer must notify the Company no later than 24hours from the performance of the services (the “Warranty Notification Period”).
REMEDY OF DEFECTS
10.4 Subject to the terms of the Agreement, and any applicable legislation, the Company shall remedy defective (parts of a) product or services covered by the warranty, and furthermore, the Company decides whether the Company remedies by repair or replacement (in whole or part) of the defective (part of the) product or services. The Company remedies defects as soon as possible within normal working hours.
10.5 The Company shall cover its costs for repair or replacement of defective products and services. However, unless otherwise specified in terms of the Specific Supply Agreement, and subject to any applicable legislation: –
- For a defective (part of a) product and those delivered in connection with services, all costs related to the transport of the product from the place of delivery or from customer’s (or end- user’s) site to the Company’ workshop shall be at the customer’s All costs related to the transport of the product from the Company’ workshop back to either (at the Company’ discretion) i) the place of delivery, ii) customer’s (or end-user’s) site or iii) the closest the Company service partner, shall be at the Company’ account.
- If it shows that a product subject to repair or replacement did not suffer from a defect, customer shall cover all expenses related hereto, including transportation costs. The Company may charge an amount calculated based on the Company’ pricelist to cover any expenses related to such service. If the Company sends Customer an offer for repair and Customer does not react to the Company’ offer within 30 days, the Company may i) at Customer’s expense return the Product to Customer dismantled, freight forward and uninsured or ii) dispose or sell the Product, provided that the Company prior hereto has sent written notice with a deadline of minimum 30 days for the Customer to respond and with information on the Company’ intensions to dispose or sell the Product. The Company may charge storage costs. Subject to applicable law, the Company reserves all rights to and in the Product until the Customer has settled all claims.
10.6 The Company may refuse – and will not be liable, in contract, delict/tort (including negligence), breach of statutory duty or otherwise – to remedy defects, if the Company considers that such remedy may cause harm to the environment or injury to people.
10.7 The remedy of repair or replacement is the only remedy available to customer for defective products or services. Subject to the Company’ obligations as regards product liability (clause 11), the Company has no other or further liability to customer whether for breach of agreement, negligence or otherwise in respect of any defect in a product or service.
11. PRODUCT LIABILITY
11.1 The Company assumes liability for personal injury (including death or injury) and damage to real and personal property, caused by defective products to the extent set out in applicable mandatory law on product liability. the Company’ liability for damage to real and personal property (not being consumer property) caused by a defective product is subject to the limitations in Clause 12, however, so that the Company’ total liability as described Clause 12.2 for damage to real and personal property is limited to a maximum amount as may be specified in the Specific Supply Agreement, in the absence of which shall be limited to the maximum amount, subject to any applicable legislation (per claim and in the annual aggregate), the amount set out in Clause
11.2 If a party is held liable for damages allocated to the other party in Clause 11.1, then the other party shall indemnify the first party for any amount paid inconsistently with the allocation in Clause 11.1.
12. LIMITATION OF LIABILITY
12.1 To the extent permitted by applicable law, neither party is liable (in contract, tort (including negligence), breach of statutory duty or otherwise) for loss of production, loss of turnover, loss of profit, loss of business opportunity, loss of data, loss of savings, loss of goodwill, loss relating to unauthorised access to data or systems, loss as a result of business interruption, or any other indirect or consequential losses of any kind whatsoever arising under, relating to or in connection with the Agreement / Specific Supply Agreement or a breach hereof. The Company is not liable for any liquidated damages, penalties and similar contractual liabilities levied against the customer by a third party.
12.2 To the extent permitted by applicable law, the
Company’ total liability (including in regard to payment of liquidated damages (if any) and third- party claims) towards customer in respect of all losses whether in contract, delict/tort (including negligence), breach of statutory duty or otherwise arising under or in connection with:
- the Agreement or a Specific Supply Agreement, will not exceed an amount equal to 25% of the total amount paid or payable by customer under the Agreement or the Specific Supply Agreement (excl. taxes and VAT) on which the claim is
12.3 The limitations set out in Clause 12.1 and 12.2 do not apply if an act or failure to act of a party causes personal injury; or if a party intentionally or in gross negligence causes the other party to suffer a loss.
12.4 The parties agree that the price for the products and services reflects the balance of the parties’ rights and obligations under the Agreement, including also the limitations in Clause 12.
12.5 If customer bases a claim on losses deriving from more than one agreement or from one or more agreements in combination with the Company’s delivery of products or other services, then the Company’s total liability (if any) will be allocated to the different supplies based on each such supplies’ contribution to the claimed losses. Each allocated part of the total liability will be determined in accordance with the legal basis applicable between the parties for the said part of the total losses, including any agreed limitation of liability.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 Customer shall use the products in a manner that does not infringe third party rights.
13.2 Nothing in the Agreement or otherwise transfers or assigns any intellectual property rights, in or arising out of or in connection with the products or services and in any manuals or documentation given by the Company to customer.
14.1 With respect to any Proceeding brought by someone other than customer against the Company and that arises out of or in connection with the Agreement, the corporation or customer’s purchase or use of the products and/or purchase of services, customer shall indemnify the Company against all Losses arising out of that Proceeding, except to the extent that the Company negligently or intentionally caused those Losses. “Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or another proceeding. “Losses” mean any litigation expenses (including any reasonable out-of-pocket expense incurred in defending a proceeding or in any related investigation or negotiation) and any loss (including any amount awarded in, or paid in settlement of, any Proceeding).
15. DRAWINGS AND DESCRIPTIONS
15.1 Any information of weight, dimensions, capacity, price, technical and other data given in catalogues, leaflets, circular letters, advertisements, pictures and pricelists is approximate only and is not binding on the Company, unless verified with the Company before entering into the Agreement.
15.2 All drawings and descriptions supplied by the Company remain the property of the Company and may not be copied, reproduced, passed on to or in any other way communicated to a third party without permission from the Company. Customer receives the ownership of drawings and descriptions necessary for the proper installation, starting, operation and maintenance of the products. Upon the Company’ demand, customer shall treat these data confidentially.
16.1 The Company shall have the right to make any changes to the products and services, which are necessary to comply with applicable law or safety requirement, or which do not significantly affect the nature or quality of the products and services negatively. If the Company requests other changes, customer shall not unreasonably withhold or delay consent to such requests.
17.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, prices, inventions, processes, initiatives and any other information concerning the disclosing party’s business, its products and services which are of a confidential nature (confidential information) and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors (representatives). The receiving party shall not use confidential information of the disclosing party for purposes other than the performance of its obligations under the Agreement, including (except as permitted by applicable law) not to reverse engineer the products and any software in the products. The receiving party may only disclose confidential information to those of its representatives who need to know to discharge the receiving party’s obligations and rights under the Agreement and shall ensure that such representatives comply with the obligations set out in this Clause 17 as though they were a party to these terms.
17.2 The obligations under this Clause 17 apply from the execution of the Agreement and – subject to applicable law – for a period of 5 years after the Agreement expires or is terminated.
18. FORCE MAJEURE
18.1 Neither party will be in breach of the Agreement / Specific Supply Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from a hindrance beyond its reasonable control (“Force Majeure”). In the event of a Force Majeure, the parties agree to suspend the affected party’s obligations until the Force Majeure situation ceases to exist.
18.2 Either party may terminate the Specific Supply Agreement with immediate effect upon notice to the other party if the period of Force Majeure continues for a period of 3 consecutive months. In case of termination due to such circumstances, neither party shall be liable to the other for such termination. However, such termination will not affect any pre-existing liabilities or claims or any other provisions of the Specific Supply Agreement.
19.1 Neither party can terminate or cancel a Specific Supply Agreements unilaterally. Termination of the Agreement will not terminate any Specific Supply Agreement entered into before or during the termination period. Those provisions in the Agreement which, by nature, are to continue during the term of a Specific Supply Agreement applies to all Specific Supply Agreements.
19.2 If a party materially breaches its obligations under a Specific Supply Agreement, the other party may with no effect on its other rights and remedies, terminate the Specific Supply Agreement for cause with immediate effect, if either such material breach is incapable of remedy; if the defaulting party to the Specific Supply Agreement has failed to remedy within 30 days after receiving notice requiring it to do so; or if – for material breaches that due to their nature are incapable of remedying within the 30 days period – such remedy has not been initiated within 30 days after receiving notice requiring it to do so. The above-mentioned does not affect any other termination rights given under the Agreement.
20. PERSONAL DATA
21.1 The Agreement may not be transferred or assigned in whole or in part by operation of law or otherwise by customer, without the prior written consent from the Company. Without prior notice, the Company may assign rights and obligations under the Agreement, including the General Terms and Conditions, to any company within the Company group, if applicable.
21.2 Capitalised words and phrases not otherwise defined in these General Terms and Conditions have the same meaning in all parts of this Agreement unless the context dictates otherwise.
21.3 The Company may at any time without being liable correct typographical, clerical or other errors or omissions in sales material, quotations, price lists, order confirmations, invoices or other documents or information issued by the Company.
22. EXPORT CONTROL AND SANCTIONED PARTIES
22.1 Any delivery covered by the Agreement may be subject to export control and trade sanction rules.
22.2 It is a condition for the Company’ delivery of products and services to customer that customer complies with all applicable export control and trade sanction rules, including having relevant compliance procedures and controls.
22.3 If due to export control and trade sanction rules, the Company considers that it is or will be prohibited, hindered, restricted or significantly adversely affected in complying with its obligations under the Agreement, the Company may cancel or postpone the delivery of the products or services. In such cases, the Company will not be liable for any direct or indirect claim or loss.
22.4 To enable authorities or the Company to conduct checks on customer’s compliance with the export control and trade sanction rules, or in support of the Company’ applications to the appropriate authorities in connection with the export and/or sale of the products and/or services under the Agreement, customer shall – upon reasonable request from the Company – promptly provide to the Company all information on the particular end- user, the parties involved in the delivery, the particular destination(-s) and the particular intended use of the products and/or services.
23. LAW AND VENUE
23.1 The Agreement and Specific Supply Agreements, and any dispute or claim arising out of or in connection with it or its formation (including non- contractual disputes or claims) is governed by and constructed in accordance with the laws of the Republic of South Africa, unless clearly stated otherwise in terms of a Specific Supply Agreement, purchase order or quotation or otherwise.
23.2 The parties agree that the Magistrate Court has jurisdiction to settle any dispute or claim (including non-contractual) that arises out of, or in connection with, the Agreement or its formation or any Specific Supply Agreement, provided that nothing in this agreement will refrain a party to approach any other forum or court for relief or urgent relief.