STANDARD TERMS AND CONDITIONS
1.1. In these terms and conditions:
1.1.1. “customer” – shall mean the person whose name appears on the Dealer and Credit application which is annexed hereto next to the caption “Registered / Trading name of business”, or if no such application is annexed hereto, or no name appears thereon, or in any other circumstances, any person or persons at whose request or on whose behalf the supplier undertakes to supply any goods, do any business, or provide any advice or service;
1.1.2. “quotation” – quotation, tender, price list or other offer to contract
1.1.3. “signatory” – shall mean the individual who signs this agreement and the annexed Dealer application on behalf of the customer;
1.1.4. “supplier” – Mechatronics Engineering CC Trading (the supplier)
1.1.5. “goods” means the goods, materials and services as indicated on any company forms, price lists, quotations, orders or invoices;
1.1.6. “business day” – any day other than a Saturday or Sunday or a proclaimed public holiday in the Republic of South Africa;
1.2. The headings in THE SUPPLIER’s Terms and/or any agreement entered into by the supplier are for convenience only and shall not be deemed part of the supplier’s Terms and/or any agreement entered into by the supplier nor shall they be taken into consideration in the interpretation or construction thereof.
1.3. Unless the context clearly indicates a contrary intention:
1.3.1. an expression which denotes:
18.104.22.168. any gender includes the other genders;
22.214.171.124. a natural person includes an artificial person and vice versa
126.96.36.199. the singular includes the plural and vice versa.
1.4. The rule of construction that an agreement shall be interpreted against the party responsible for the drafting or preparation of an agreement shall not apply.
2. PRICES AND QUOTATIONS
2.1. Any quotation given is not an offer by the supplier to sell or repair or service the goods but constitutes an invitation by the supplier to the customer to do business with the supplier.
2.2. The price of the goods sold or services rendered shall be the usual price as set out in the supplier’s price list at the time of the sale of the goods.
2.3. The supplier has the right to change the prices of the goods from time to time without prior notice to the customer.
2.4. All quotes remain valid for 7 (seven) days from the date of the quote, or until the date of issue of a new price, whichever occurs first. The validity of any price quoted is subject to availability.
2.5. Any quote may be changed at any time in the event of any increase in the cost price of the goods, including: currency fluctuations, freight charges, insurance, railage, costs of labour & materials & other charges ruling at the date of the quotation. Price increases will only be effected if the goods have not yet been dispatched to the customer.
2.6. A quotation may be revoked at any time by the supplier.
2.7. Unless otherwise expressly stated, prices are exclusive of value added tax, which shall be for the account of the customer.
2.8. The purchase price does not include charges for off-loading of the goods at the customer’s premises. The customer shall provide at its cost the necessary labour, equipment or facilities required for all loading of the goods.
3.1. The customer hereby confirms that the goods and services on the tax invoice issued duly represent the goods and services ordered by the customer at the prices agreed to by the customer and where performance/delivery has already taken place that the services and goods were inspected and that the customer is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects.
3.2. SD Group shall only be bound upon acceptance of quotations.
3.2.1. The supplier will accept all written and verbal orders. All such orders and any variations to orders will be binding subject to these standard terms and conditions and may not be varied or cancelled without prior written consent from the supplier.
3.2.2. The supplier will not be responsible for any errors or misunderstandings occasioned by the customer’s failure to make the order in writing. The supplier may require the customer to confirm verbal orders in writing before acceptance of such orders by the supplier.
3.3. Orders shall constitute irrevocable offers to purchase the goods in question at the usual prices of the supplier as at the date when the customer places the order of the goods, subject to clause 2.4 above, and shall be capable of acceptance by the supplier by the delivery of the goods, written acceptance or confirmation of the order.
4.1. The customer shall pay the amount on the tax invoice:
4.1.1. at the supplier’s head office or at such other place as the supplier may direct from time to time;
4.1.2. in cash, immediately, barring credit-approved customers, in which event payment is due within the terms as specified in the customer’s credit agreement;
4.1.3. in South African currency without deduction or set-off and free of any exchange;
4.2. Where the customer uses a postal service or courier service to effect payment or to deliver or return goods, such services shall be deemed to be the agent of the customer. If the Customer uses Internet banking or effects electronic transfer of monies, the bank shall be deemed to be the agent of the Customer.
4.3. The customer has no right to withhold payment or make setoffs or deductions from any payment due by it for any reason whatsoever. No extension of payment of any nature will be granted unless reduced to writing and signed by the customer and a duly authorised representative of the supplier.
4.4. The supplier shall have the right to suspend deliveries and to exercise its rights in terms of clause 5 if any amount due by the customer is unpaid.
4.5. If any amount owed is not settled in full on the due date or on demand, the supplier is entitled to, without prejudice to any of its rights;
4.5.1. immediately institute action against the customer and/or,
4.5.2. cancel the sale and take possession of any goods delivered to the customer, including goods sold or disposed of by the customer which have not been paid for in full, and claim damages.
4.6. Should any amount not be paid by the customer on due date, the full outstanding amount in respect of all purchases by the customer shall become due and payable, and the customer shall be liable to pay interest in respect of amounts unpaid at the compound rate of a 5% (five per cent) above the prime overdraft rate of Standard Bank Limited on all overdue amounts from due date until date of payment, calculated and payable monthly in advance.
5. CREDIT FACILITIES
5.1. The supplier’s decision to grant credit facilities to the customer and the nature and extent thereof is at the sole discretion of the supplier.
5.2. The supplier reserves the right to withdraw, increase or decrease any credit facilities at any time without prior notice.
5.3. In the event that credit/account facilities are granted that it will be on the basis of and subject to the terms and conditions set out on this application form.
5.4. Whether or not the information made available by the customer in this document is true and correct, it shall nevertheless be deemed to be true and correct.
5.5. In the event of any information made available in this document proving to be inaccurate or incorrect, no further credit facilities will be allowed and the supplier will forthwith and without further reference to the customer be entitled to institute recovery proceedings for any and all sums then owing by the customer to the supplier.
5.6. the supplier may:
5.6.1. Perform a credit search on the customer’s records with one or more registered Credit Bureaus when assessing the customer’s application form.
5.6.2. Monitor the customers payment behaviour by researching his/her record at one or more of the registered Credit Bureaus.
5.6.3. Use new information and data obtained from other Credit Bureaus in respect of the customers future applications.
5.6.4. Record the existence of the customers account with Credit Bureaus.
5.6.5. Record and transmit details of how the customer has performed, and how the account is conducted by the customer in meeting his/her obligations on the account.
5.7. The supplier undertakes to give the customer 28 days written notice prior to the forwarding of the details to the Credit Bureaus.
6. DEED OF SURETYSHIP
6.1. I, by my signature hereto (which appears below) do, in addition to the above, hereby bind myself in my private and individual capacity as surety for and co-principal debtor in solidum with the customer in favour of the supplier for the due performance of any obligation of the customer and for the payment to the supplier by the customer of any amounts which may at any time become owing to the supplier by the customer from whatsoever cause arising and including, but without limiting the generality of the aforegoing, any claims for damages and actions against the customer. This suretyship shall be a continuing covering guarantee/surety which may only be cancelled, in writing, by the supplier and then only, provided that all sums then owing by the applicant (whether due or not) to the supplier have been paid in full.
6.2. I furthermore record that if more than one person has appended his signature hereto, there shall come into existence a separate distinct and independent contract of suretyship/guarantee which is brought into existence by each signatory hereto. If for any reason this suretyship/guarantee is not binding (for whatever reason) on any one signatory then the obligations of the remaining signatories shall nevertheless be and remain of full force and effect.
7.1. Any delivery note (copy or original) signed by the customer and/or its authorised representative and/or its nominated agent and held by the supplier, shall be prima facie proof that delivery was made to the customer.
7.2. In the event of the customer or supplier choosing to engage its own third party to transport the goods, the customer indemnifies the supplier against any claims of any nature whatsoever that may arise from such an agreement. The customer shall reimburse the supplier for any costs incurred in arranging special delivery, including but not restricted to, the costs of necessary disbursements and insurance. Any documentation purporting to evidence the said extra costs will be deemed to be prima facie proof thereof.
7.3. The supplier does not guarantee that the goods will be dispatched or delivered on any particular date and time. Any failure for whatsoever reason on the part of the supplier to deliver the goods in accordance with the dates requested by the customer, shall not constitute a reason to withhold, defer or set off, either in whole or in part the purchase price or give rise to a claim for damages, nor may the customer cancel any order by reason of such reasonable delay.
7.4. The customer shall accept delivery whenever it is tendered and shall not be entitled to resile from the agreement, nor to withhold or defer any payment, nor to a reduction in price, nor to any other right or remedy against the supplier, its servants, agents or any other persons for whom it is liable in law (in whose favour this constitutes a stipulatio alteri) whether for losses, costs, damages, expenses, interest or otherwise (eiusdem generis) on account of delays in effecting delivery, partial delivery or non-delivery, whether occasioned by any negligent (including grossly negligent) act or omission on the part of the supplier, its servants, agents or any other persons for whom it is liable in law, or not.
7.5. The supplier shall have the right to deliver any portion of the goods sold, or make provision for delivery of all the goods sold, and to invoice the customer therefore and the customer shall accept such goods when tendered.
7.6. If the goods are to be delivered by road, the customer shall be obliged to procure that the delivery destination shall be easily accessible to road transport vehicles. The customer shall be responsible for off-loading the goods at the delivery destination. If the goods are to be delivered by rail, the customer shall be responsible for collection of the goods at the railhead.
7.7. Short deliveries or goods damaged in transport must be reported to the supplier in writing furnishing full details within 3 business days of receipt. The customer shall be obliged to inspect all goods upon delivery and shall endorse the delivery note as to any missing or damaged goods. No claims for missing or damaged goods shall be valid unless the delivery note has been endorsed as aforesaid. The customer shall bear the onus of proving that upon delivery any goods are missing or damaged or that the customers order was in any way not complied with.
7.8. If delivery of any particular order is to be effected in consignments, the supplier shall not be obliged to deliver any part of the order until the purchase to deliver any part of the order until the purchase price which is due in respect of the part of the order which has already been delivered has been paid.
7.9. The supplier reserves the right to charge delivery fees or charges, as and when necessary.
7.10. If the supplier is unable to deliver the goods to the customer due to any act or omission on the part of the customer, it shall be entitled to charge the customer for the storage of the goods.
8. OWNERSHIP AND RISK
8.1. All risk in and to all goods sold by the supplier to the customer shall pass to the customer on delivery thereof or on collection thereof by the customer from the supplier.
8.2. On delivery or collection the customer will be deemed to have accepted the goods ordered by it, which goods will be deemed to be in proper working order and free of all defects.
9.1. Ownership in all goods sold and delivered shall remain vested in the supplier until the full purchase price (including interest if any) has been paid, and in the event of a breach of these terms and conditions by the customer, or if the customer is sequestrated or placed under liquidation or judicial management or commits any act of insolvency or enters into any compromise with its creditors or fails to satisfy a judgement granted against it within 7 (seven) days of the date of judgement or changes the structure of its ownership, the supplier shall be entitled to take possession of the goods without prejudice to any further rights vested in the supplier, and is hereby irrevocably authorised to enter upon the customer’s premises to take possession of such goods without a Court order.
9.2. The supplier reserves the right to inform the owner/landlord of the premises in which the goods are or at any time may be, of the provisions of this clause. The customer shall be obliged to advise the supplier of the name and address of the landlord of any such premises and shall promptly advise the supplier of any change in the name and/or the address of any landlord or of any new landlord.
9.3. Goods in the possession of the customer bearing the supplier’s or the supplier’s brands’ names, trademarks, labels and/or serial numbers are deemed to be those for which payment has not yet been made, and should any breach of these terms occur, may be re- possessed by the supplier in terms of paragraph 9.1 above. The customer shall fully insure the goods purchased from the supplier against loss or damage until the customer has paid the full purchase price for such goods. Pending payment to the supplier for goods purchased, all benefits in terms of the insurance policy relating to the insurance of such goods, shall be ceded to the supplier.
9.4. The customer shall take all such steps as may be necessary to notify interested third parties that ownership of the relevant goods has not passed from the supplier to the customer. In particular the customer shall inform the owner/landlord of the premises in which the goods are or at any time may be, of the provisions of this clause. The customer shall produce written proof of such notices to the supplier on demand.
10. BREACH OF CONTRACT
10.1. In the event of a breach by the customer, should the customer fail to remedy such breach within 48 (forty eight) hours after receipt of notice to that effect from the supplier, or should the customer repeatedly breach this agreement in such manner that the customer’s conduct is inconsistent with the intention or ability of the customer to carry out the terms of the agreement, or if the customer is sequestrated or placed under liquidation or enters into judicial management or any act of insolvency or enters into a compromise with its creditors or fails to satisfy a judgement granted against it within 7 (seven) days of the date of judgement or changes the structure of its ownership, the supplier shall be entitled without prejudice to its rights in law or in terms of this agreement to:
10.1.1. Take possession of the goods and is hereby irrevocably authorised to enter upon the customer’s premises to take delivery of such goods without Court order.
10.1.2. Treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the agreement and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of its obligations hereunder as well as under any other contract with the customer until the customer has remedied the breach; and / or cancel this agreement.
10.1.3. Claim damages.
11. LEGAL PROCEEDINGS
11.1. These terms and conditions and any agreement entered into by the supplier and all modifications and amendments thereof, shall be governed and construed under and in accordance with the laws of the Republic of South Africa.
11.2. The supplier shall, at its option and notwithstanding that the amount of its claim or the nature of the relief sought exceeds the jurisdiction of the Magistrate’s Court be entitled to institute action out of such court.
11.3. A certificate issued and signed by any director, member or manager of the supplier, whose authority need not be proved, in respect of any indebtedness of the customer to the supplier or in respect of any other fact, including but without limiting the generality of the aforegoing, the fact that such goods were sold and delivered, shall be prima facie proof of the customer’s indebtedness to the supplier and prima facie proof of delivery of the goods in terms of this contract.
11.4. Any print out of computer evidence tendered by the supplier shall be admissible evidence and the customer shall not be entitled to object to the admissibility of such evidence purely on the grounds that such evidence is computer evidence or hearsay evidence or that such evidence or document is not original.
11.5. The customer’s address in the Dealer application form shall be recognised as the customer’s domicilium for all purposes in terms of this contract whether in respect of the serving of any court process, notices that payment of any amount or communications of whatever nature.
11.6. In the event of the customer breaching any of its obligations and/or failing to timeously make payment of any amount to the supplier, the customer agrees to pay, and shall be liable to pay, all legal costs incurred by the supplier in enforcing its rights in terms of these terms and conditions on the attorney/own customer scale including collection charges, tracing agent’s fees, expert’s fees and airfares.
11.7. The customer agrees that neither the supplier nor any of its employees will be liable for any negligent or innocent misrepresentations made to the customer, nor shall the customer be entitled to resile from these terms and conditions on those grounds.
12. RETURNED GOODS
12.1. Whilst the supplier is under no obligation to accept the return of goods, the customer may apply to the supplier for permission to return goods and if written permission is given, such goods must be returned to the offices of the supplier at the Customer’s own cost.
12.2. All goods must be returned within 5 (five) Business Days of receipt of the supplier’s written permission to return the goods and must be clean, saleable, unopened, unused and undamaged and in their original packaging;
12.3. The customer may return any defective goods to the premises of the supplier or its nominee at the customer’s own cost. The supplier undertakes to replace such goods with items of the same or similar specification or with the equivalent amount credited to the customer’s account.
12.4. No refunds will be considered in respect of return of defective goods.
12.5. The supplier reserves the right to offset the value of any goods accepted for return against any amounts due by the customer.
12.6. In the event of a cancellation of an order by the customer or goods accepted for return my the supplier, the supplier reserves the right to charge a handling fee of up to 15% (fifteen percent) on the value of the order cancelled or goods returned.
12.7. Any defective goods which are replaced by agreement shall become the supplier’s property.
13. WARRANTIES AND INDEMNITY
13.1. Goods may be guaranteed under the manufacturer’s product specific warranties only, and all other guarantees and warranties including common law guarantees and warranties in relation to goods and services are hereby specifically excluded by the supplier.
13.2. All warranties are immediately null and void should any equipment be tampered with or should the “seals” on the equipment be broken by anyone other than the supplier or its appointed nominee, or should the goods be operated outside the manufacturer’s specifications.
13.3. To be valid, warranty claims must:
13.3.1. Be supported by the original tax invoice
13.3.2. Have goods in their original packaging and must be accompanied by all accessories and manuals must be intact. All items must be returned in “as new” condition.
13.3.3. Be goods that have been operated or maintained in accordance with the supplier’s instruction, or under normal use, and the goods shall have been properly installed.
13.3.4. The goods must have had no repairs or modifications made by persons other than the supplier, unless such repairs or modifications are made with the prior written consent of the supplier;
13.4. No warranties whether express or implied shall apply, other than those provided in this contract. The supplier specifically disclaims the implied warranty of merchantability and fitness for a particular purpose. No representation or warranty, including but not limited to statements of capacity, suitability for use or performance made by employees of the supplier shall be considered to be a warranty by the supplier. Any such statements made shall not give rise to any liability or whatsoever nature on the part of the supplier, its employees, subcontractors or subsidiaries. The supplier will not be liable to the customer for any loss, damage or expense of any nature, whether direct, special, indirect or consequential, including but not limited to loss or profits arising out of the supplier’s performance or customers’ use of the goods or services rendered.
13.5. The customer indemnifies and holds the supplier (including its employees, subcontractors or subsidiaries) harmless against all claims of whatsoever nature that may be brought or threatened against the supplier by any third party arising from or in connection with:
13.5.1. Any defect, latent or otherwise in any goods supplied and/or services rendered by the supplier.
13.5.2. any damage arising from any misuse of the goods
13.5.3. any claims arising out of, or in connection with unsuitability of goods;
13.5.4. any loss or damage of any description suffered by a third party including the customer arising from any cause whatsoever in connection with any agreement or goods or the use thereof, whether such loss or damage results from breach of contract (whether fundamental or otherwise), delict, negligence or any other cause and whether the agreement is cancelled or not.
13.6. any liability of the supplier under the supplier’s Standard Terms and Conditions shall only be in respect of defects in the goods existing before delivery to the customer;
13.7. The supplier’s liability in respect of the goods and the supply thereof shall at the supplier’s election,
13.7.1. not exceed the cost of the goods supplied in response to a specific order.
13.7.2. be limited to replacing the defective goods provisions;
14. DISCLOSURE OF PERSONAL INFORMATION
14.1. The customer understands that the personal information given in the Dealer Application form may be used by the supplier for the purposes of assessing credit worthiness.
14.2. the supplier has the customer’s consent at all times to contact and request information from any persons, credit bureau or businesses including those mentioned in the Dealer Application form and to obtain any information relevant to the customer’s credit assessment, including but not limited to information regarding the amounts purchased from suppliers per month, length of time customer has dealt with each supplier, type of goods purchased and manner and time of payment.
14.3. The customer agrees and understands that information given in confidence to the supplier by a third party about the customer will not be disclosed to the customer.
14.4. The customer hereby consents to and authorises the supplier at all times to furnish credit information concerning the customer’s dealing with the supplier to a credit bureau and to any third party seeking a trade reference regarding the customer in his dealings with the supplier.
15.1. The customer shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this agreement to any third party.
16. FORCE MAJEURE
16.1. Any transaction is subject to cancellation by the supplier due to force majeure from any cause beyond the control of the supplier, including, without restricting the generality of the aforegoing, inability to secure labour, power, materials or supplies, or by reason of an act of G-d, war, civil disturbances, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
17.1. Each paragraph or clause in this agreement is severable the one from the other and if any paragraph or clause is found by any competent court to be defective or unenforceable for any reason whatever, the remaining paragraphs or clauses shall be of full force and effect and continue to be of full force and effect.
18.1. The supplier reserves the right in its sole discretion to vary or amend these terms and conditions from time to time and any such amended or varied terms and conditions shall be binding on the customer from the time that the amended or varied terms are published by the supplier.
18.2. This contract represents the entire agreement between the supplier and the customer and shall govern all future contractual relationships between the supplier and the customer.
18.3. No amendment and/or alteration and/or variation and/or deletion and/or addition and/or cancellation of these terms and conditions, whether consensual or unilateral or bilateral shall be of any force and effect unless reduced to writing and signed by a member of the supplier. No agreement, whether consensual or unilateral or bilateral, purporting or obligate the supplier to sign a written agreement to amend, alter, vary, delete, add or cancel these terms and conditions shall be of any force and effect unless reduced to writing and signed by a member of the supplier.
18.4. No relaxation or indulgence with the supplier may grant the customer shall prejudice or be deemed to be a waiver of any the supplier’ rights in terms of these terms and conditions.
18.5. The customer shall not cede its rights nor assign its obligations under these terms and conditions.
18.6. The supplier shall at any time in its sole discretion be entitled to cede all or any of its rights in terms of this terms and conditions to any third party without prior notice to the customer.
18.7. The customer undertakes to notify the supplier within 7 (seven) days of any change of address or change in member, director, shareholder, address or the information as set out in the Dealer and Credit Application.
18.8. The headings in this document are included for convenience and are not to be taken into account for the purpose of interpreting this contract.
18.9. Each of the terms herein shall be a separate and divisible term and if any such term becomes unenforceable for any reason whatsoever, then that term shall be severable and shall not affect the validity of the other terms.
18.10. The customer undertakes to inform the supplier in writing at least 14 (fourteen) days prior to the intended selling or alienating of the whole of or any part of the customer business and failure to do so will constitute a material breach of this contract entitling the supplier to cancel the contract without further notice to the customer.