STANDARD CONDITIONS OF SALE
(which apply to the invoice on the face hereof)
1. PolyComp (Pty) limited (“The Seller”) hereby sells to the purchaser, the goods described on the seller’s invoice on the terms and conditions as stated herein. Where the purchaser’s own conditions of purchase conflict with this agreement the provisions hereof shall prevail.
2. In these conditions “the goods” means the goods indicated on any form of the seller’s price lists, quotations, orders or invoices.
3.1 The date for the delivery of the goods shall be as and when the goods become available for delivery; unless a specific date for delivery is accepted by the seller in writing.
3.2 The Purchaser may not bring any claim of whatsoever nature against the seller as a result of a delay/s in delivery, howsoever arising, save in so far as the seller has agreed thereto in writing. Whilst every effort will be made to desptach the goods as advised. The purchaser shall not be entitled to cancel any order by reason of such delay and time of delivery shall not be a material term of this agreement. The Seller shall not be liable to accept return of any goods sold.
3.3 All goods sold in terms hereof will remain the exclusive properly of the Seller until the purchase price is paid in full by the Purchaser. The risk in the goods shall pass to the purchaser upon delivery. The Purchaser shall not dispose of the Goods, until such time as the Purchaser has paid the Seller in full for such goods. Whilst ownership remains vested in the Seller, the Purchaser undertakes to do all that is necessary to ensure that the goods remain unencumbered and, inter alia, do not become the subject matter of any lien, hypothec, pledge or other encumbrance or judicial attachment from whatsoever cause arising.
3.4 The Seller shall not be liable to accept return of any goods sold.
No cancellation of orders shall be accepted without prior written acceptance, signed by the Seller’s director.
If the Purchaser wishes to cancel his order, after it was placed and provided that the Seller accepts the cancellation, the following will apply:
- If the unit was not manufactured, a handling fee of 20% of the order will be charged.
- If the unit has already been manufactured, 50% of the order value will be charged.
- In the case of software development that was done, 80% of the value will be charged.
Once the goods have been collected from the Seller’s premises, the Purchaser will be liable for insurance and will indemnify the Seller of any claim as a result of damage or loss during transportation or delivery, whether delivery was arrange by the Purchaser himself or by the Seller, on the Purchaser’s behalf. The Purchaser will insure the goods during transportation.
6.1 50% deposit is required on the overall purchaser price, on ordering of goods (+VAT) and is due and payable on placing the order. The balance is payable before delivery/collection, unless other arrangements have been made and approved by the Seller’s director in writing.
6.2 Unless otherwise stated, all prices shall exclude any sales taxes, value added taxes, levies or other charges by Government, regional or local authority, all costs of freight and transport, applicable insurance, coastal and landing charges, customs, dock and import duties, cartage and rail age, rates of exchange and all other similar encumbrances.
6.3 All amounts payable by the Purchaser to the Seller, together with the costs of packaging and delivery, unless specifically stated as being included, will be payable by the Purchaser to the Seller free of exchange, set-off or any other deductions at the Seller’s premises.
6.4 In the event of any overdue or unpaid amount being handed to the attorneys for collection, the Purchaser agrees that it will be liable for all costs incurred in the collection of the aforesaid unpaid amount on the scale as between attorney and own client including collection charges, and tracing fees.
7. LATE/OVERDUE PAYMENTS
The seller will charge interest at a range of prime (rates ruling in South Africa) +2% on all overdue accounts owed, and will suspend any further deliveries of additional orders or render any services to the purchaser while his account is overdue.
8. OWNERSHIP AND RISK
Notwithstanding that all risk in and to all goods sold by the Seller to the Purchaser shall pass on delivery, ownership in all goods sold and delivered shall remain vested in the Seller until the full purchase price has been paid. In the event of a breach of contract by the Purchaser or if the Purchaser is sequestrated or placed under liquidation or judicial management or commits any act of insolvency or enters in to any compromise with its creditors or fails to satisfy a judgment granted against it within 7 days of the date of judgment or changes the structure of its ownership, the Seller shall be entitled to take possession of the goods without prejudice to any further rights vested in the Seller and the Seller is hereby irrevocably authorized to enter upon the Purchaser’s premises to take delivery of such goods without a count order. In such event the Purchaser shall have no claims whatsoever against the Seller including without limitation any claims for consequential loss arising therefrom.
The Purchaser shall fully insure the goods purchased from the Seller against loss or damage, until the full purchase price has been paid by the Purchaser for such goods. Pending payment to the Seller for the goods purchased, all benefits in terms of the insurance policy relating to the insurance of such goods are ceded to the Seller.
9. WARRANTIES AND INDEMNITY
The seller warrants the fitness of the goods in accordance with the standard specifications applicable to the goods, and subject to the condition of sale, for a period of 12 months after the delivery of the goods unless otherwise agreed to in writing. The Seller shall not be responsible for damage to the goods caused by inadequate storage, tampering or negligence by any persons or abnormal use thereof. The Seller’s obligations shall be limited to the supply of replacement goods or parts of 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 the Seller’s premises at the Purchaser’s cost within the applicable warranty period (or such shorter period as may be applicable).
Subject to 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, and 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.
No warranty, guarantee, or representations whether express or implied has been made by the Seller or any of its employees in respect of the fitness of the goods for any particular purpose whether or not that purpose is known to the Seller and no representation of whatsoever nature which may be made by the Seller or any of its employees shall be binding unless reduced to writing and signed by the duly authorized official of the Seller.
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 transit.
Any liability of the Seller for breach of contract will not exceed in the aggregate of damages, costs, fees and expenses capable of being awarded to the Purchaser, the total price paid or due to be paid by the Purchaser for the services rendered or goods supplied.
The Purchaser shall have no claim for any injury, loss or damage of any kind, suffered by the Purchaser and/or any other person by reason of the Seller failing to carry out its obligations in terms of this agreement and or by reason of any defect in the goods supplied by the Seller to the Purchaser.
Insofar as any of the Seller’s obligations under the contract are carried out by any of its employees, sub-contractors, or subsidiaries, the provisions contained in this paragraph are stipulated for their benefit as well as for the Seller and each of them shall be exempted accordingly.
The Purchaser indemnifies and holds the Seller (including its employees, sub-contractors, or subsidiaries) harmless against all claims of whatsoever nature that may be brought or threatened against the Seller or its employees of any third party arising from or in connection with any breach of the aforementioned warranties by the Purchaser.
The Purchaser indemnifies the Seller against all claims that may be made against the Seller arising from any purported infringement of any patent, trade mark or copyright in respect of the goods.
This agreement shall be governed by the laws of the Republic of South Africa.
The Seller shall, at its option and notwithstanding that the amount of its claim exceeds the jurisdiction of the Magistrate’s Court, be entitled to institute action out of such Court.
Notwithstanding clause 7 above, the Seller may, at its sole and absolute discretion, elect to refer any dispute to arbitration to be finally resolved in accordance with the expedited rules of the Arbitration Foundation of South Africa (AFSA) by an arbitrator appointed by the Foundation.
Without prejudice to any other rights which the Seller may have in terms of this contract or at law, the Seller shall be entitled to cancel this agreement or any part thereof without notice if:
- The Purchaser commits any breach of any of the terms and conditions of this agreement, all of which are deemed material; or
- Being an individual, the Purchaser is provisionally or finally sequestrated or surrenders his/her estate;
- Being a partnership, the partnership is terminated;
- Being a company or close corporation, such entity is placed under provisional or final order of liquidation or judicial management;
- Any judgment is granted against the Purchaser;
- Any interdict is granted against the whole or any portion of the Purchaser’s assets;
- The Purchaser makes or attempts to make any composition or arrangement with its creditors;
- The Purchaser advertises its intention to sell or dispose of its assets or any portion thereof save in the ordinary course of business;
- The Purchaser ceases to carry on business;
- The Purchaser furnishes the Seller with any information, returns, budgets or accounts which are incorrect or misleading.
The signatory hereof for the Purchaser, when acting in a representative capacity warrants that he/she has the authority to bind his/her principal to this agreement and furthermore binds himself/herself as surety and co-principal debtor in solidum under renunciation of the benefits of division and excussion for all amounts owing hereunder by the purchaser to the Seller.
No extension of time or waiver or relaxation of any of the provisions or terms of this agreement shall operate as an estoppel against the Seller in respect of its rights under this agreement, or shall it operate so as to preclude the Seller thereafter from exercising its rights strictly in accordance with this agreement.
The parties choose as their respective domicilium citandi et executandi, for all purposes the addresses that appear on the front of the order/invoice.
The Purchaser shall not cede its rights nor assign its obligations.
The Seller shall at any time in its sole discretion be entitled to cede all or any of its rights in terms of these conditions of sale including all terms and conditions to any third party without prior notice to the Purchaser.
This agreement constitutes the whole agreement between the parties in regard to the subject matter thereof and no warranties or representations of any nature whatever other then set out in this agreement have been given ay any of the parties. No agreement of variance hereof shall be effective unless reduced to writing and signed by both the Seller and the Purchaser.
Each of the terms herein, shall be a separate and divisible term and if any such terms becomes unenforceable for any reason whatsoever, then that term shall be severable and shall not affect the validity of the other terms.