Terms & Conditions

INTRODUCTION

  1. APPLICATION
    • “We”, “us” and “our” shall mean the company, and the company will herein interchangeably also be referred to as (the “Company”);
    • 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 Website User Agreement and our Privacy Policy, and shall constitute the general terms and conditions upon which we will render our products and/or services to all our customers.
    • 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.
    • Customer must ensure that the Company’ 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
    • 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.
    • 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                                         

  1. THE COMPANY’ INSPECTION
    • 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.

  2. DELIVERY OF THE PRODUCTS AND TIME OF DELIVERY
    • 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.
    • If products are not delivered 90 days after the agreed delivery date, customer may terminate for cause, by written notification, the part of the Specific Supply Agreement concerning products in delay.
    • 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.
    • The Company may deliver the products by instalments in any sequence.

  3. RISK AND TITLE
    • 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.
    • 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.
    • 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.

  4. EXAMINATION
    • 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

  1. DELIVERY OF SERVICES AND TIME OF DELIVERY
    • The Company shall perform the services professionally and skilfully.
    • 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.
    • 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.
    • If the Company has not performed and delivered the services 90 days after the agreed delivery date, customer is entitled to terminate for cause, by written notification, the part of the Specific Supply Agreement in delay.
    • Clause 3 shall apply if customer does not take delivery of the services or part thereof as agreed.
    • 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.
    • 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.
    • 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.

  2. CUSTOMER’S OBLIGATIONS
    • 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;
  • inform the Company, or its representatives, on each visit about any unsatisfactory running or irregular performance of the product on which the Company is performing services;
  • provide to the Company with such documents, information, tools and materials required by the Company for the proper provision of the services (“In-Put Materials”) and ensure that the In-Put Material is accurate in all material respects;
  • ensure that all In-Put Materials are in good working order and suitable for the purposes for which they are used in relation to the services;
  • 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 premises and – (ii) to use the In-Put Materials;
  • warrant that customer is the rightful owner of any equipment or system to be serviced; and
  • to the extent that it may interfere with the performance of the services, not provide or grant access to any equipment or system to be serviced to any third party for examination or disassembly.

GENERAL REGULATION  

  1. PRICE, PAYMENT TERMS AND INVOICING
    • The price for the products and services is as stated by the Company in the Specific Supply Agreement.
    • The Company will invoice customer upon delivery. Customer shall pay the Company as stated in the order confirmation and/or the invoice or in the absence hereof within [30] days from the date of the invoice.
    • If the parties as part of the Agreement have agreed on prices applicable for customer’s purchases under the Agreement, the parties have entered into such price agreement under the assumption that the Company throughout the term of the Agreement will deliver products at the same agreed one 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.
    • Any amount payable by customer is exclusive of amounts in respect of value added tax, sales tax or other excise duties chargeable. Customer shall pay any of the aforementioned at the same time as payment is due for related products or services.
    • 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. .
    • If customer does not pay on the due date, the Company may, with no effect on any other right or remedy that the Company may have under applicable law, claim payment for reminders, collection charges and interest. Interest is fixed at [2] % per month (or the highest interest rate under applicable law). Interest will accrue daily from the due date until actual payment of the overdue amount. The Company may also (i) make further supply subject to guaranteed payment and suspend other deliveries until customer has provided the guarantee required by the Company; or (ii) suspend the provision of further deliveries until customer has paid the overdue amounts in full.
    • If customer does not pay overdue invoices (despite one reminder) or in the event of termination of a Specific Supply Agreement, then all payments payable to the Company, become due for immediate payment.
    • If Customer pays an invoice so that the Company receives the full amount earlier than on the due date, Customer could be eligible to a discount under the Company’ early payment procedure, if applicable. The Company will provide further information about early payment procedure upon request, if applicable.

  2. WARRANTY

THE WARRANTY

  • 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.
  • Without altering the general nature of Clause 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 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 maintenance not in accordance with the Company installation-, operation-, maintenance- or service manual or with good industry practice; use of faulty or inadequate ancillary equipment in combination with the products or services; the application of spare parts of poor quality (excluding the application of any the Company original spare parts); 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.

WARRANTY PERIOD

  • For the warranty to apply, customer must notify the Company of a defect without undue delay after customer becomes or 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 (ii) for services, customer must notify the Company no later than 24hours from the performance of the services (the “Warranty Notification Period”). If the Company installs and/or commissions the product, then the Warranty Notification Period for that product, will be not less than the time specified in the Specific Supply Agreement from the date of installation and/or commissioning based on the appropriate handover documentation.
  • In case of remedy of defects, the Warranty Notification Period related to the product and services as such remains the same after remedy, however if (part of) a product is repaired or replaced, the Warranty Notification Period concerning such repaired/replaced (parts of the) product the date specified in the Specific Supply Agreement from the date of repair or replacement, provided this period does not expire before the expiry of the initial Warranty Notification Period for the product.

Notwithstanding the above, the Warranty Notification Period for a repaired or replaced (part of a) product will not exceed the Warranty Notification Period for the first delivered product.

REMEDY OF DEFECTS

  • 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.
  • Place of remedial works is as follows:
  • For products and products delivered in connection with services, customer must return the defective product to the Company’s workshop for repair or replacement, unless the Company decides that the remedial works will take place at the place of delivery or the site of the end-user.
  • For products physically incapable of being returned by the customer, the Company will inspect and conduct repairs or replacements of the defective product at the site of installation, subject to clause 9.
  • For services, the Company inspects and repairs or replaces the defective services at the site of installation of the end-user.
    • 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 account. 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.
  • For a defective (part of a) product which is physically incapable of being returned by the customer, and which is installed on a location of the end – user, all cost in relation to the transport of the (parts of the) product, travelling and travelling time of the Company’ personnel to and from the site of the end – user shall be for the account of the Company, subject to sub-clause (e)
  • Customer covers any expenses for dismounting and mounting.
  • Customer covers the Company’ expenses related to waiting time caused by customer.
  • 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.
    • Unless requested by the Company, the product may not be disassembled prior to remedy. Any failure to comply herewith will render the warranty void.
    • 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.
    • 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.

  1. PRODUCT LIABILITY
    • 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 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 12.2. Customer assumes all product liability, which is not allocated to the Company in this Clause 11.1.
    • If a party is held liable for damages allocated to the other party in Clause 1, then the other party shall indemnify the first party for any amount paid inconsistently with the allocation in Clause 11.1.

  2. LIMITATION OF LIABILITY
    • 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.
    • 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 30% 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 based.
    • The limitations set out in Clause 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.
    • 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.
    • 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.

  1. INTELLECTUAL PROPERTY RIGHTS
    • Customer shall use the products in a manner that does not infringe third party rights.
    • 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.

  2. INDEMNIFICATION
    • 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).

  3. DRAWINGS AND DESCRIPTIONS
    • 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.
    • 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.

  4. CHANGES
    • 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.

  5. CONFIDENTIALITY
    • 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.
    • 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.

  6. FORCE MAJEURE
    • 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.
    • 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.

  7. TERMINATION
    • The Agreement enters into force on the Effective Date or if the parties have not agreed on an effective date, then on the date of the latest signature on the form of agreement.
    • Either party may, without effect to its other rights or remedies, at any time terminate the Agreement (or parts thereof) for convenience by giving the other party 3 months’ prior written notice at the end of a month. Neither party can terminate or cancel a Specific Supply Agreements unilaterally. The Agreement applies in the termination period. 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.
    • 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.
    • If a party materially breaches its obligations under the Agreement – or of one or more Specific Supply Agreements, if such breach is considered material breach of the entire Agreement – the other party may, with no effect on its other rights and remedies, terminate the Agreement for cause with immediate effect, if either such material breach is incapable of remedy; if the defaulting party to the Agreement has failed to remedy within 14 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 14 days period – such remedy has not been initiated within 14 days after receiving notice requiring it to do so. If a party terminates the Agreement for cause, any Specific Supply Agreement will automatically be terminated, unless the non-breaching party decides otherwise. The above-mentioned does not affect any other termination rights given under the Agreement.
    • Termination of the Agreement or a Specific Supply Agreement (regardless of the cause) will not affect those provisions of the Agreement which, by nature or necessity, provide that they operate after any expiration.

  8. PERSONAL DATA
    • The Company processes personal data following applicable data protection laws. To learn more visit the Company’ website where the Company Privacy Policy is available.

  9. MISCELLANEOUS
    • 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.
    • The products must bear the Company nameplate, including the Company’ trademarks. A party does not have the right to use the other party’s trade names, trademarks, logos or other signs or identification symbols unless the prior written consent of the other party.
    • 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.
    • A quotation by the Company is valid for a period of 30 days from the date of issuance unless the Company has specified otherwise in the quotation. The Company reserves the right to alter quotations before the expiry of the validity period if customer has not placed a purchase order.
    • 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.

  10. EXPORT CONTROL AND SANCTIONED PARTIES
    • Any delivery covered by the Agreement may be subject to export control and trade sanction rules.
    • 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.
    • 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.
    • 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.

  11. LAW AND VENUE
    • 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.

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.