Standard Terms & Conditions of Sale
of
KOPEX WARATAH (PTY) LTD
1
This contract is entered into and the goods sold in terms hereof are supplied subject to the
following terms and conditions:
a.
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6.
7.
"Special Conditions" means any terms and stipulations not contained in this document and
concluded between the parties in writing from time to time but shall not include any previous
verbal or written undertaking unless repeated herein.
b. "Seller" means the company supplying the goods, being Kopex Waratah (Pty) Ltd.
c. "Purchaser" means the company or person placing an order with the Seller for the supply of
goods. The Purchaser’s name shall appear on relevant delivery notes, invoices and other
documents.
d. In these conditions, unless inconsistent with, or otherwise indicated by, the context,
"Delivery" shall have its ordinary meaning in accordance with the form of delivery as
specified in any order.
e. "Goods" shall mean all goods ordered by the Purchaser from the Seller.
The Seller hereby sells to the Purchaser the goods detailed under the terms and conditions as
stated here in, as modified or supplemented by any Special Condition. Where the Purchaser’s
own conditions of purchase conflict with this document the provisions hereof shall prevail.
All quotations given by the Seller shall be valid for a period of 30 consecutive days and shall be
based on exchange rates and delivery charges at the date of quotation. Any increase in those
rates, charges or costs which become effective prior to the delivery date shall be paid by the
Purchaser on written notice from the Seller.
All prices quoted by the Seller shall exclude any Sales Taxes, Value Added Taxes, Levies or
other charges by Government, regional or local authority.
The full contract price plus cost of packing and delivery, unless specifically stated as being
included, will be payable free of exchange or any other deduction at the Seller’s premises to the
Seller by the Purchaser. Unless otherwise stated, the price quoted in South African Currency and
based as at the date thereof on the cost ruling with regard to wage rates, cost of materials, freight,
applicable insurance, coastal and landing charges, customs, dock and import duties, cartage and
railage, rates of exchange and all other similar encumbrances but, if after the date of this
document, there is any increase in respect of the cost to the Seller of any of those items in this
clause then such increase shall be for the Purchaser’s account. The Purchaser may not cede or
assign its rights or delegate its obligations in terms of this agreement without the prior written
approval of the Seller.
All terms of payment are payment on delivery (COD) unless prior credit arrangements have been
made. If so, all payments shall be made by the Purchaser to the Seller within 30 days after the
Seller has invoiced the Purchaser, or within the period allowed in this document, or Special
Condition. No deductions will be allowed unless they are stated in this document. Payments must
be made without any amounts set-off. Any overdue amounts will be subject to interest at the rate
of 2 Percentage points above the prime rate of interest charged by the.
Seller’s main bankers from time to time on overdraft facilities. The Seller also reserves the right to
suspend deliveries or insist on cash with order or cash on delivery terms where the Purchaser has
not complied with any of his obligations of any kind in favour of the Seller or any of its holding,
subsidiary and fellow subsidiary companies.
In the event of any
a. partial delivery made by the Seller or its Agents;
b. delivery before a fixed due date:
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the Purchaser shall make payment as stated in Clauses 5 and 6. No goods may be returned to
the Seller for any reason without the Seller’s prior written consent.
If within 24 hours after arrival of the goods at the Purchaser’s or his nominee’s premises, no
claims are received from the Purchaser regarding the quantity of goods delivered by the Seller,
the quantities will be deemed to be correct.
If the Purchaser does not accept delivery of the order the Seller shall suspend or delay delivery of
goods, the Seller reserves the right:
a. to refuse to comply with such non-acceptance request;
b. to comply herewith and, in any event, to claim additional costs and/or damages sustained as
a result of such non acceptance or request, from the Purchaser.
The Purchaser’s request should nevertheless be in writing.
The minimum order value is R1000-00. For order values less than R1000-00 a delivery charge
will be enforced.
The Seller’s obligations shall be limited to the supply of replacement goods or parts or the repair,
free of charge at the Seller’s discretion of any goods found to be faulty during any applicable
warranty period due to faulty design, material or workmanship, provided such faulty goods are
returned by the Purchaser to the Seller at his premises at the Purchasers cost within the
applicable warranty period (or such shorter period as may be applicable) provided that in the case
of goods not manufactured by the Seller, the Seller’s liability under this clause shall in no
circumstances extend beyond any corresponding liability of the manufacturer or supplier of such
goods, to the Seller.
The Sellers warranty is for a period of 12 months after the delivery of goods unless specifically
otherwise stated in any special conditions. The Seller shall not be responsible for damage to
goods caused by inadequate storage, tampering or negligence by any persons or abnormal use
thereof. Other than any specific warranties given by the Seller in terms hereof, the Seller gives no
other warranties whether expressed or implied in respect of the goods sold hereunder. The Seller
shall under no circumstances be liable for any direct or indirect damages or losses of what ever
nature and howsoever occurring, including but not limited to consequential damages or loss of
profits. Goods returned under the terms of this clause and found not to be defective will be
returned to the Purchaser at the Purchaser’s expense and subject to a charge of 10% of the
invoice value to cover testing by the Seller.
Any goods left with seller for a period of 6 months without an order or prior arrangement will be
sold for scrap. Any monies recovered from this sale will be claimed by the Seller.
The Seller reserves the right to make any reasonable change to the design or form of any goods
ordered by the Purchaser during the execution of the contract provided the stated performance,
quality and specification of the goods remains unaffected.
The Seller will make every endeavor to fulfill its obligations. However, unless specifically accepted
by the Seller, the Seller shall not be responsible for, and the Purchaser may not claim from the
Seller, any penalties loss, expense or damage whether consequential or otherwise and
howsoever occurring including but not limited to late deliveries, negligence, or for any other
reason.
Notwithstanding anything else contained herein, the Seller shall not be held liable for damages
resulting from events over which it has no control. Such events shall include, but are not to be
limited to, Acts of God or Government, wars, strikes, lockouts, civil commotion, embargoes,
sanctions, epidemics, crude oil and associated by-products shortages or delays/damages or loss
during transmit.
In the event of cancellation by the Purchaser of the contract or order the purchaser will be
required to refund the seller at cost + 10%.
If the Purchaser is placed under liquidation or sequestration whether provisional or final, or under
judicial management or any application for the same is made against the Purchaser, or the
Purchaser makes or attempts to make any compromise with its creditors or commits any act of
insolvency, the Seller may forthwith and without notice to the Purchaser terminate any agreement
for the sale of goods to the Purchaser, or, if a sale has been concluded and the order executed by
the Seller in part but not in full, the Seller may terminate the agreement in respect of the sale of
the undelivered portion of the goods.
If the Purchaser advises the Seller of the application to which its wishes to put the goods, the
Seller shall design the goods in order to meet the normal operating requirements of the
Purchaser.
20. The onus shall be on the Purchaser to ensure that goods purchased are suitable for the
Purchaser’s purposes. The Purchaser shall have no claim for the return of goods or refund of the
purchase price where the design specifications or stated applications of the goods purchased are
not compatible with the Purchaser’s application requirements.
21. The Seller’s and its Associated Companies goods are wherever practicable submitted to strict
inspection and standard tests before dispatch, but if further tests are required by the Purchaser,
then all costs incurred shall be for the Purchaser’s account unless specifically provided in this
document or in any Special Conditions.
22. All descriptive illustrations, shipping specifications, drawings, dimensions or weights submitted
are given in good faith and being approximate only shall not form part of this agreement unless
specifically confirmed in the Special Conditions.
23. The parties agree to the jurisdiction of the nearest available Magistrate Court to adjudicate upon
any disputes between them arising out of this contract and where the only issue is the payment of
the agreed contract price or portion thereof. Any other disputes shall be referred to arbitration in
terms of the provisions of the arbitration laws then in force in the Republic of South Africa.
24. In the event of the Seller manufacturing or supplying goods to a Purchaser’s specification and/or
drawings or executing work in accordance with the Purchaser’s instructions or those of its
advisors or representatives, the Seller shall not be responsible for the operational efficiency or
quality for the goods so supplied or the required performance of work so carried out or suitability
of the goods for any purpose.
25. Any amendment made by the Purchaser shall be construed as a counter-offer and shall not be
binding on the Seller unless specifically accepted in writing.
26. No agreement of variance herewith shall be effective unless reduced to writing and signed by
both the Seller and the Purchaser.
27. No warranties, representations or undertakings of whatever nature have been made or given by
or on behalf of the Seller otherwise then stated herein, or in any Special Conditions.
28. Notwithstanding any of the provisions contained herein, risk in goods sold by the Seller to the
Purchaser shall pass on delivery.
29. No indulgence, leniency or extension of time which either party may show or grant to the other
shall in any way prejudice that party or preclude that party from exercising any of its rights in the
future.
30. Notwithstanding any other provision of the contract whereby goods have been made available by
the Seller to the Purchaser:
a. the ownership in all goods sold, delivered or in any other way made available to the
Purchaser by the Seller shall remain vested in the Seller until the Purchaser has made full
payment of the purchase price for such goods (although risk in the goods will pass on
delivery to the Purchaser unless otherwise recorded in writing);
b. the Seller shall have the right at any time to give notice of its continued ownership in the
goods to every possessor and every landlord of premises in or on which goods are stored or
may be placed, whether for sale, repair, assembly or otherwise.
c. Without prejudice to any of its rights in terms of law, the Seller reserves the right to
repossess goods in the event of the Purchaser failing to make any payments on due date or
at all.
31. The parties choose as their respective domicilium citandi et executandi, the addresses that
appear on the front of the order/invoice.
32. Consequential losses: Under no circumstances and irrespective of how it is caused, shall the
seller be held liable for any indirect or consequential damages sustained.