CONDITIONS OF SALE
OF
TERRAMIN (PTY) LIMITED
Terramin (Pty) Limited
1983/009964/07
965 Duncan Street, Brooklyn, Pretoria, South Africa
INDEX
1.
DEFINITIONS ................................................................................................................ 2
2.
CONCLUSION OF CONTRACT OF SALE .................................................................... 2
3.
VARIATION TERMS ...................................................................................................... 3
5.
PRICE AND PRICE INCREASES .................................................................................. 3
6.
PAYMENT...................................................................................................................... 5
7.
DELIVERY ..................................................................................................................... 5
8.
SUSPENSION OF DELIVERIES .................................................................................... 6
9.
PASSING OF OWNERSHIP .......................................................................................... 6
10. PASSING OF RISK........................................................................................................ 6
11. FORCE MAJEURE ........................................................................................................ 7
12. NOTIFICATION OF DELIVERY ..................................................................................... 7
13. VARIATION ................................................................................................................... 8
14. LAW AND ARBITRATION ............................................................................................. 8
15. LIMITATION OF LIABILITY ........................................................................................... 8
16. ACKNOWLEDGMENT IN RESPECT OF MATERIALS AND GOODS .......................... 9
17. BREACH ...................................................................................................................... 10
18. LEGAL CHARGES ...................................................................................................... 11
19. CHOSEN ADDRESS AND NOTICES .......................................................................... 11
20 AUTHORITY TO SIGN ................................................................................................. 12
21 NON-WAIVER .............................................................................................................. 12
22 SEVERABILITY ........................................................................................................... 12
23 ASSIGNMENT, CESSION AND DELEGATION ........................................................... 12
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TERRAMIN (PTY) LIMITED
CONDITIONS OF SALE
1. DEFINITIONS
In this agreement –
1.1
“The / this Agreement” shall mean theses Conditions of Sale as set out in this
document together with all schedules and addendums hereto as well as all
amendments affected in terms of clause 3.
1.2
“The Company” shall mean Terramin (Pty) Limited, a Company duly registered
according to the Company laws of the Republic of South Africa and carrying on
business at 965 Duncan Street, Brooklyn, Pretoria, South Africa.
1.3
“The Parties” means the Company and the Purchaser or any one of them as the
contents may indicate;
1.4
“The Purchaser” shall mean the person or entity entering into this agreement and
who / which is more fully described in the Purchase Order Schedule.
1.5
“Products” shall mean the Company’s manufactured products supplied to the
Purchaser as specified Purchase Order Schedule.
1.6
“Delivery address” shall mean the physical address specified in writing in the
Purchaser order schedule by the Purchaser at which the Purchaser shall accept
delivery of the Products.
1.7
“The Purchase Order Schedule” shall mean the Purchase order schedule
annexed hereto in which the identity and description of the Purchaser, the
Products purchased, the agreed price and delivery address is fully set out.
1.8
“The Company’s bank account” shall mean; Terramin (Pty) Ltd, Nedbank
Business Pretoria, Account Number 1497039274, Branch Code 149745.
2. CONCLUSION OF CONTRACT OF SALE
2.1
These Conditions of Sale, shall govern all agreements entered into by the Company
and Purchaser for the supply of the Products. Any order given by the Purchaser to
Company shall constitute an agreement to be bound by these Conditions of Sale.
2.2
In the event that, in the sole discretion of the Company, a facsimile or electronic
version of this Agreement is to be signed, there shall be no contract of any force
and effect prior to signature of such facsimile or electronic copy by both the
Purchaser and the Company.
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2.3
This Agreement incorporates the entire agreement between the Company and the
Purchaser and no alteration, cancellation or variation thereof shall be of any force or
effect unless it is reduced to writing and signed by both parties who hereby
acknowledge that no representations or warranties, whether express or implied,
have been made by either of them nor are there any understandings or the terms of
this agreement other than those set out herein.
2.4
No delivery of the Products will be made by the Company to the Purchaser in terms
of this Agreement prior to receipt by the Company of such signed copy and
acceptance of the agreement by the Company.
3. VARIATION TERMS
3.1
No variation of or addition to this Agreement will be of any force or effect unless
reduced to writing and signed by or on behalf of the Parties.
3.2
Where the Purchaser’s purchase order or any other correspondence between the
Company and the Purchaser contains terms and conditions that are at variance with
or in addition to the provisions of this Agreement, such contrary and/or additional
terms and conditions are hereby expressly rejected and shall be of no force and
effect unless specifically accepted in writing by the Company.
3.3
For the avoidance of doubt, in the event of a conflict between this agreement and
the Purchaser’s purchase order terms and conditions or any other correspondence
between the Company and the Purchaser containing terms and conditions, the
terms and conditions of this agreement shall, to the extent of the conflict, override
and supersede those terms and conditions contained in the purchase order from the
Purchaser.
4. SCOPE OF AGREEMENT
The Company’s obligations in terms of this Agreement will be to manufacture and/or
produce and/or supply the Products in accordance with such designs, instructions,
itemised details, plans, drawings, programs and specifications (“the specifications”) as
form part of the Agreement, and in particular the Company will not be responsible for the
adequacy of or the costs occasioned by inadequacy of any such specifications, and/or
foundations or supporting such other work as may have been provided, prepared or
certified by or on behalf of the Purchaser.
5. PRICE AND PRICE INCREASES
5.1
Unless otherwise specifically in writing in each particular instance:-
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5.1.1
5.1.2
the purchase price of the Products shall be paid by the Purchaser for the
Products shall be set out in the Purchase Order Schedule, and is based on
the costs of materials, transport, labour, exchange rates, import duties,
ruling at the date of Purchase Order Schedule and any variations in such
costs or rates occurring between the date of Purchase Order Schedule and
the date of completion of the Products, shall be for the account of the
Purchaser and shall be determined by the Company;
the Purchaser shall pay to the Company a deposit in the amount as
determined by the Company in its Purchase Order Schedule and the
Company shall be entitled to delay the delivery of the Products until such
deposit has been paid. The Company shall be entitled to allocate such
deposit towards payment of the purchase price or part thereof and the
Company shall be entitled to retain the deposit paid to it by the Purchaser
in the event of the Purchaser being in breach of the provisions of this
Agreement, as a pre-estimate of the damages suffered by the Company;
5.1.3 if the Product or any part thereof are to be imported, the purchase will be
based on the exchange rate, freight, insurance premiums, lighterage,
landing charges, port dues, custom duties, railage at the date of the
Purchase Order Schedule, or as specifically agreed to in writing by the
parties. Should these rates have varied by more than 3% between the
date of the Purchase Order Schedule and the date upon which the charges
are incurred, the purchase shall be varied by the amount of the increase or
decrease in such charges;
5.2
The purchase price of the Products shall be that stated by the Company in the
Purchase Order Schedule which forms part of this agreement at the time of the
conclusion of this Agreement unless varied in accordance with clause 5.4
hereunder.
5.3
In the event that the Purchaser fails to take delivery of the Products within 45 (forty
five) days of the date of delivery stipulated in the Purchase Order Schedule, the
Company shall be entitled if there is any increase in the cost of such the Products,
by written notice to the Purchaser to increase the price of the Products, provided
such increase is not greater than 10% of the original price stipulated in the
Purchase Order Schedule. The increased price shall be binding upon the
Purchaser.
5.4
In the event that the increase in the cost of such the Products as contemplated in
clause 5.3 above is greater than 10% of the original price of the Products as
stipulated in the Purchase Order Schedule, the Company shall at its election be
entitled to raise the price of the Products by amending the Purchase Order
Schedule in accordance with such increase, alternatively to cancel this
Agreement.
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6. PAYMENT
6.1
In respect of each Purchase Order Schedule signed by both the Company and the
Purchaser, the purchase price shall be payable by the Purchaser to the Company
by electronic funds transfer or direct deposit into the Company’s nominated bank
account in cleared funds, free of exchange, deduction and set off, upon
presentation of a tax invoice by the Company to the Purchaser, unless otherwise
specifically agreed in writing by the Parties.
6.2
Where payment is effected by cheque and where the post is used, the risk of loss
arising from the use of the cheque or the use of the post, shall vest with the
Purchaser and the acceptance thereof by the Company shall be without prejudice
to the Company’s rights.
6.3
If the price of the Products is not paid prior to or on delivery, or in the event of an
agreed deferred payment within 30 (thirty) days of date of issue of the Company’s
tax invoice to the Purchaser, the Company shall be entitled to charge interest on
the purchase price outstanding compounded monthly in arrear on the daily
balance outstanding at the maximum rate for incidental credit agreements in terms
of the National Credit Act No. 34 of 2005.
6.4
Where VAT or any other form of taxation is payable in respect of the sale of the
Products, the total amount of any such taxation will be payable by the Purchaser
and shall be recoverably from the Purchaser by the Company.
7. DELIVERY
7.1
Delivery shall take place on the dates and times as expressly agreed and
stipulated in writing in the Purchase Order Schedule.
7.2
The Company reserves the right to deliver the Products in whatever quantities and
on however many separate occasions as it in its discretion may decide (unless
otherwise agreed), provided that delivery is effected timeously in terms of this
Agreement.
7.3
The Company or its transporter / couriers’ delivery note signed or countersigned
by the Purchaser or any authorised representative/agent or employee of the
Purchaser or any person purporting to act as a representative/agent or employee
of the Purchaser, shall for all purposes be deemed to be accurate in all respects
and binding on the Purchaser.
7.4
Insofar as the delivery of the Products are concerned, and whilst every endeavour
will be made to deliver timeously, it is specifically agreed that in the event of any
delay in delivery of the Products by the Company to the Purchaser caused by an
impediment as defined in clause 11 below , then and in that event:
7.4.1
The Purchaser shall not be entitled to cancel the contract.
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7.4.2
The Purchaser shall have no claim for damages against the Company.
7.5
Any claims for non-delivery or for shortages or damage upon receipt of the
Products must be made in writing by the Purchaser, on delivery of the Products,
failing which the Company shall have no liability in respect such claims.
7.6
The Purchaser warrants that its representative or employee who signs for and
acknowledges receipt of the Products, which are delivered to the Purchaser is duly
authorised to do so.
7.7
Should the Purchaser fail or refuse to take delivery of the Products in accordance
with the delivery program, as set out in the Purchase Order Schedule, or if no
delivery program is specified, when delivery is tendered by the Company, the
Purchaser shall be liable for all such costs as may be incurred by the Company in
consequence thereof.
8. SUSPENSION OF DELIVERIES
8.1
If any amount due and payable by the Purchaser to the Company is in arrear, the
Company shall have the right to suspend any further purchases (including
delivery) under any purchase order contract then in force between the parties until
such outstanding amount has been paid in full.
8.2
Notwithstanding anything to the contrary herein contained, the Company shall
have the right to suspend any delivery to the Purchaser under this Agreement or
any other agreement at any time if the Purchasers is in breach of the terms of this
Agreement.
9. PASSING OF OWNERSHIP
9.1
Ownership of the Products shall be retained by the Company notwithstanding
delivery of the Products to the Purchaser, and shall not pass to the Purchaser until
the full purchase price of the Products has been paid.
9.2
In the event that the Purchaser is not the owner of the premises where the
Products purchased will be kept, the Purchaser is to obtain a signed letter from the
landlord to confirm that the Products supplied by the Company that are on the
landlord’s premises at any point in time, shall never form part of the landlord’s tacit
hypothec.
10. PASSING OF RISK
Risk in the Products shall pass to the Purchaser on delivery of the Products to either the
Purchaser’s address, as stipulated in the Purchase Order Schedule or to the Purchaser’s
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nominated transporter. In the event that there is a dispute regarding the issue of whether
delivery has taken place to the Purchaser’s nominated physical address or to the
Purchaser’s nominated transporter, the Purchaser order schedule and the delivery note
shall be deemed to be proof of delivery.
11. FORCE MAJEURE
11.1
Neither of the Parties shall be liable for a failure to perform any of its obligations
insofar as it proves that the failure was due to an impediment beyond its control; or
that it could not reasonably be expected to have taken the impediment and its
effects upon the Party’s ability to perform into account, at the time of the
conclusion of this Agreement; or that it could not reasonably have avoided or
overcome the impediment or at least its effects. An impediment, as aforesaid,
may result from events such as the following, this enumeration, not being
exhaustive: war, whether declared or not, civil war, civil violence, riots and
revolutions, acts of sabotage; natural disasters, destruction by lightning;
explosions, fires, destruction of machines, of factories and of any kind of
installations; electricity supply failures and interruptions, labour strikes and lockouts of all kinds, go-slows, occupation of factories and premises.
11.2
In the event that the Purchaser has paid for the Products and the Company
has failed to deliver the Products as a result of an impediment referred to in
clause 11.1 above, the Company shall refund to the Purchaser the amount paid
within 30 (thirty) days of the impediment.
12. NOTIFICATION OF DELIVERY
12.1 The physical address for delivery shall be that specified in the Purchase Order
Schedule.
12.2 The Company shall notify the Purchaser by facsimile or email of the Company’s
intention to dispatch the Products to the Purchaser’s nominated physical address for
delivery.
12.3 The Purchaser shall ensure that at the nominated physical address for delivery, it
has representatives who are duly authorised to accept delivery on the Purchaser’s
behalf.
12.4 In the event that the Company, having notified the Purchaser of delivery, delivers
the Products to the Purchaser’s nominated physical address and is unable to obtain
the signature of a duly authorised representative of the Purchaser to acknowledge
receipt of the Products, the Company shall withhold delivery and all costs in respect
of the withholding of delivery shall be for the Purchaser’s account.
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13. VARIATION
13.1 The Company shall manufacture and supply the Products strictly in accordance with
the provisions of this Agreement. Should the Purchaser require variations to the
Products, or to any quantities thereof, or should the Company be hindered, delayed
or prevented from performing in terms of the Agreement or be exposed to extra
costs by the Purchaser owing to extensions or to omissions from the order,
deviations from the specifications, late, defective or non-receipt of information or
free issue materials, or by any act, default or omission on part of the Purchaser,
then the Company shall be entitled to an appropriate variation to the rates or to the
purchase price of the Products or to the delivery program, or to any other obligation
of the Company, provided that no such variation shall be valid, without the written
consent of the Company.
13.2
Any additional costs incurred by the Company due to suspension of Products as a
result of the Purchaser’s instructions or by reason of the Purchasers lack of
instructions or incorrect instructions, variation or interruptions, delays, overtime or
unusual hours for which the Company is not liable in respect thereof, shall be
added to the purchase price of the Products and shall be paid for by the Purchaser
upon demand.
14. LAW AND ARBITRATION
This Agreement shall be governed by and construed and interpreted in accordance with
the laws of the Republic of South Africa and the Parties hereby irrevocably and
unconditionally consent to the non-exclusive jurisdiction of the North Gauteng High Court
- Pretoria Republic of South Africa in regard to all matters arising from this Agreement.
15. LIMITATION OF LIABILITY
The Company’s liability in respect of any the Products sold by it to the Purchaser shall be
limited to that provided for hereunder:
15.1
The Company undertakes that the Products will conform to such specifications
and in respect of each order as has been specifically accepted by the Company in
writing in the Purchase Order Schedule and in the event of the Products proving
not to be in accordance with such specification, (hereinafter referred to as “the
defective Products”, the Company shall, if requested to do so in writing within the
time period referred to in clause 7.5 above and at the Company’s sole and
absolute option repair or replace such defective Products to the Purchaser, by
supplying the repaired or replacement Products to the initial place of delivery, or at
the further option of the Company, to credit the Purchaser with the invoiced value
of the Products in question.
15.2
Notwithstanding anything to the contrary contained in this Agreement, the
Company shall have no liability whatsoever in respect of the Products or in respect
8
or any defective Products, whether latent or patent, not notified to the Company in
writing within the time period referred to in clause 7.5 above. In the event of the
Purchaser invoking the provisions of this clause 15, then the Purchaser shall be
obliged to furnish the Company with a copy of the Purchase Order Schedule and
invoice received from the Company.
15.3
The Company shall not be liable hereunder for any damages, loss of profit, loss of
use, loss of production, loss of contracts, loss of custom, loss of goodwill, or any
special whether direct or consequential, arising out of the use of the Products sold
by the Company to the Purchaser, other than as contemplated in section 61 of the
Consumer Protection Act No. 68 of 2008, if applicable.
15.4
Notwithstanding anything to the contrary contained in this Agreement, the
Company shall not be liable in terms of this Agreement or in delict or by operation
of statute or otherwise in the event that the Purchaser:15.4.1 fails to install the Product according to the installation instructions
accompanying the Product or the installation DVD which the Company has
supplied to the Purchaser;
15.4.2 fails to service the Products in accordance with service provisions for such
Product, as may be issued in writing by the Company to the Purchaser,
from time to time;
15.4.3 makes any modification to the Products without obtaining the prior written
consent of the Company;
15.4.4 deactivates any of the systems installed on the Products without obtaining
the prior written consent of the Company;
15.4.5 has repairs and maintenance performed to the Products by any person,
company or entity, which is not approved in writing by the Company;
15.4.6 uses the Products in such manner or form which is contrary to the design
specifications for such Product or the written instructions issued by the
Company.
16. ACKNOWLEDGMENT IN RESPECT OF MATERIALS AND GOODS
16.1
The Purchaser acknowledges that it has satisfied itself in respect of the quality of
the Products as well as the South African standard which has been met by the
Company under SANS 1287-1:2007 Government Notice no. 1373 of 8 November
2002 in respect of ventilation brattices and ducting, Part 1 flexible ducting. A copy
of SANS 1287-1:2007 ISBN978-0-626-19466-6 shall be made available by the
Company to the Purchaser at the Purchaser’s request.
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16.2
At the time that the Products were supplied to the Purchaser, the Products were
safe and fully functional and free from defect or hazard.
17. BREACH
17.1
Should either Party (“the Defaulting Party”) commit a breach of any of the
provisions hereof, then the other Party (“the Aggrieved Party”) shall be entitled to
require the Defaulting Party to remedy the breach within a period of 14 (fourteen)
days from receipt of the written notice to do so.
17.2
If the Defaulting Party fails to remedy the breach within the period specified in
such notice, the Aggrieved Party shall be entitled to claim immediate
payment and/or performance by the Defaulting Party of all the Defaulting Party’s
obligations, whether or not the due date for payment and/or performance shall
have arisen, in either event, without prejudice to the Aggrieved Party’s rights to
claim damages. The aforegoing is without prejudice to such other rights as the
Aggrieved Party may have at law.
17.3
The Company may terminate this Agreement at any time by giving to the
Purchaser notice of such termination if:17.3.1 the Purchaser has committed an act of insolvency. as defined in section 8
of the Insolvency Act 24 of 1936 (as amended);
17.3.2 if the Purchaser, or any of its sub-contractors, agents, employees or
servants gives or offers to give any person any bribe, gift, gratuity or
commission, as an inducement or reward (i) for doing or forbearing to do
any action in relation to this Agreement or any Purchase Order Schedule or
any other Agreement with the Company; or (ii) for showing or forbearing to
show in favour or disfavour to any person in relation to the Purchase Order
Schedule or this Agreement or to any other agreement with the Company;
or (iii) commit any act of dishonesty, fraud or theft in relation to the
Purchase Order Schedule and/or this Agreement and/or any Products
delivered pursuant to this Agreement (hereinafter:- (i); (ii) and (iii) shall
collectively be referred to as “dishonesty”), then the Company shall be
entitled to cancel this Agreement and/or any Purchase Order Schedule
outstanding under this Agreement upon written notice to the Purchaser
without prejudice to any of the rights which the Company may have in
terms of this Agreement or at law. Should the Company choose not to
cancel this Agreement and/or any Purchase Order Schedule outstanding
under this Agreement, then the Company shall be entitled to claim all
losses, costs and damages which the Company may suffer as a result of
the dishonesty of the Purchaser. The Company shall not be obliged to pay
or compensate the Purchaser for any work in progress or goods to be
supplied under any Purchase Order Schedule cancelled in accordance with
the provisions of this Clause 17.3.2.
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17.3.3 Any termination pursuant to the proceeding provisions of this Clause 17,
shall be without prejudice to any claim which any Party may have in
respect of any prior breach of the terms and conditions of this Agreement
by the other Party.
17.3.4 The Company shall be entitled to remove from the Purchaser’s premises
any the Products that the Purchaser has defaulted in making payment of
the purchase price, in which event the Purchaser shall have no claim
whatsoever either for damages or otherwise against the Company. The
Purchaser hereby agrees that it will be responsible for all costs incurred for
the removal of the Products by the Company should the Purchaser default
in making payment.
18. LEGAL CHARGES
In the event of the Company instructing its attorneys to recover money or the Products
from the Purchaser, the Purchaser shall be liable for and shall pay the Company’s legal
costs on the attorney and client scale, including any collection commission, counsel’s fees
and tracing agent’s fees.
19. CHOSEN ADDRESS AND NOTICES
19.1
Each Party chooses as its address for citation, service of legal processes,
execution or any other purpose connected with this Agreement, its address as set
out below, which it shall be entitled to vary on notice provided that such address
shall remain within the Republic of South Africa and any change shall only become
effective upon receipt of a written notice in writing of such change.
19.2
The Parties chooses as its addresses as set out below:19.2.1 The Company:- 965 Duncan Street, Brooklyn, Pretoria, South Africa; and
19.2.2 Purchaser at the address set out in the Purchase Order Schedule;
19.3
All communication shall be in English and any notice to a party:
19.3.2 sent by prepaid registered post in a correctly addressed envelope to it at an
chosen address to which post is delivered, shall be deemed to have been
received on the seventh business day after posting (unless the contrary is
proved);
19.3.3 delivered by a responsible person during ordinary business hours at the
chosen physical address and shall be deemed to have been received on
the day of delivery; or
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19.3.4 sent via telefax or e-mail sent to the telefax number or e-mail address
specified above will be deemed to have been received within twelve hours
following transmission.
19.4. Notwithstanding anything to the contrary herein contained, a written
notification or communication actually received by a party from the other party
shall be an adequate written notice or communication to it, notwithstanding that it
was not sent to or delivered at its chosen address.
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AUTHORITY TO SIGN
The person signing this agreement on behalf of the Purchaser warrants that he is duly
authorised to represent the Purchaser and to sign this agreement and in so doing hereby
binds the Purchaser to this agreement.
21
NON-WAIVER
No relaxation or indulgence which the Company may show to the Purchaser shall in any
way prejudice its rights hereunder or be deemed to be a waiver of its rights in terms of this
agreement. No waiver on the part of either Party to this Agreement of any rights arising
from a breach of any provision of this Agreement will constitute a waiver of rights in
respect of any subsequent breach of the same or any other provision.
22
SEVERABILITY
Each clause and sub-clause in this agreement are severable from each other. In the
event of one or more clauses, sub-clauses of this agreement being found to be unlawful
or in any other way being void or voidable and unenforceable, these clauses shall be
severable from the remainder of the agreement and shall not in any way affect the
remainder of the agreement and in particular the validity and enforceability of the
remainder of the agreement.
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ASSIGNMENT, CESSION AND DELEGATION
Neither of the Parties shall be entitled to assign, cede, delegate or transfer any rights,
obligations, share or interest acquired in terms of this Agreement, in whole or in part, to
any other party or person without the prior written consent of the other, which consent
shall not unreasonably be withheld or delayed.
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SIGNED AT
THIS
DAY OF
20__
AS WITNESSES:
_________________________
For and on behalf of: Terramin (Pty) Limited
_________________________
_________________________
(Duly Authorised)
SIGNED AT
THIS
DAY OF
20__
AS WITNESSES:
_________________________
For and on behalf of: The Purchaser
_________________________
_________________________
(Duly Authorised)
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