PFERD SOUTH AFRICA (PTY) LIMITED TERMS AND CONDITIONS OF SALE
1. DEFINITIONS
1.1 "Application" means the application for opening an account with the Company, to which the Terms and Conditions of Opening an Account are attached.
1.2 "Business Day" means any day of the week other than a Saturday, Sunday or statutory public holiday in the Republic of South Africa.
1.3 "the Company" means PFERD South Africa (Pty) Ltd and its respective branches.
1.4 "the Customer" means any person or entity that contracts with the Company for the purchase of goods or delivery of services.
1.5 "the goods" means the goods indicated on any company forms, documents, price lists, quotations, delivery notes, orders and invoices.
1.6 "the Parties" means collectively, the Company and the Customer, and "Party" means either of them as the context may indicate.
1.7 “Payment and settlement” means the transfer into, and clearance of funds, in the Company’s nominated bank account.
1.8 “Terms and Conditions of Opening an Account” means the terms and conditions for the Application of a Payment Term Facility as a separate application.
1.9 “Terms and Conditions of Sale” means these terms and conditions for the sale of any goods or the provision of any services by the Company to the Customer.
1.10 “Services” means any ancillary services provided by the Company, indicated on any quotation, delivery note, order or invoice.
2. INTRODUCTION
2.1 These Terms and Conditions of Sale shall apply to any sale of any goods or provision of any services by the Company, regardless as to the person of the offeror.
3. QUOTATIONS AND PRICING
3.1 All quotes will remain valid for a period of 30 days from the date of the quote.
3.2 The price of goods will be the price of the goods as at the date on which they are delivered to the Purchaser, as set out in the Company’s official price list for the time being.
3.3 The prices of the goods as set out in the official price list for the time being do not include transportation costs, delivery costs or VAT, which will be charged and invoiced additionally with the goods sold.
3.4 The Company has the right, without notice to the Customer, to change the prices of its goods and services from time to time.
3.5 The Company price lists shall be considered merely as a guide to the Customer and will have no legal or binding force.
3.6 Trade discounts are allowed at the sole discretion of the Company.
4. ORDERS AND DELIVERIES
4.1 Orders by the Customer for the Company's goods or services shall be made in writing to such address, electronically or otherwise, as may be nominated by the Company from time to time.
4.2 The Customer shall provide the Company with a valid written order number and a delivery address, when placing any order with the Company, unless the delivery address is the Customer's principal address indicated on page 2 of the Application which shall be deemed to be the case if no other address is provided.
4.3 Oral orders may similarly be accepted by the Company, but the Company will not be responsible for any errors or misunderstandings occasioned by the Customer's failure to confirm orders in writing and the Customer shall bear the risk of any losses arising directly or indirectly from the Customer's failure to confirm orders in writing.
4.4 The Company is not obliged to accept any orders. If the Company agrees to accept any orders, such orders will be processed in accordance with the Company’s normal business practices. Any orders submitted by a Customer shall be deemed to be irrevocable after 5 (five) days. The Customer may request a formal written order confirmation from the Company.
4.5 Any delivery note (copy or original) signed by the Customer shall be proof of delivery of the goods purchased, with the exception in 4.8 hereunder or unless written notice of a claim is received by the Company within ten (10) days after receipt of the goods by the Customer. The Customer agrees that the signature of any agent, contractor, sub-contractor or employee of the Customer on the Company’s official delivery note, invoice or waybill of the delivery note, will constitute proof of delivery of the goods purchased.
4.6 Unless the Company and the Customer agree otherwise, delivery of the goods shall take place at the Company's premises and the risk in and to the goods shall pass to the Customer upon delivery at the Company’s premises subject to the examination set out in 4.9 hereunder.
4.7 The Customer shall be allowed (on request) an opportunity to examine the goods at the Company’s premises for the purpose of ascertaining whether the goods correspond in all material aspects with the characteristics and specifications of the goods. If the Company instructs a carrier and pays for such carrier’s costs on the Customer's request, this shall not in any way prejudice the Company or be construed as the Company appointing the carrier as agent of the Company, or as varying or waiving any of these Terms and Conditions of Sale. The Company may appoint a carrier on such terms and conditions as it deems fit. In any event, if the Customer requests delivery, that delivery shall be for the account of the Customer, unless otherwise agreed in writing.
4.8 If the Company is requested to deliver the goods to the Customer, the Customer must arrange signing of the delivery note and off-loading of the goods at its exclusive risk. The risk in and to the goods shall pass to the Customer at the time of arrival of the goods at the Customer’s premises, but in any event before off-loading. Any assistance that employees of the Company may render with off-loading shall be at the sole risk of the Customer, who shall be solely responsible for any and all damage of whatever nature caused as a result of such assistance. If the Customer choose to collect the goods from the Company's premises using its own or its agent's transport, such collection shall be entirely at the Customer's risk, and the Customer shall be responsible for all damage of whatsoever nature caused as a result of or during collection or thereafter.
4.9 The Company shall endeavour to deliver the goods on the dates that the Customer specifies, but shall not in any way be liable for any damages which the Customer may suffer as a result of any delay in the delivery of the goods. The Customer shall not be entitled to cancel any order by reason of such delay and the Company's right to recover all monies owing to it shall not be affected by any delay in the delivery of the goods.
4.10 If the Customer fails to take delivery of the goods ordered, or in any way delays the delivery of the goods ordered, then the risk in the goods shall pass as at the time the goods were ready for delivery to the Customer and the Customer shall be liable to pay the Company the reasonable costs of storing, insuring and handling the goods until delivery takes place upon demand by the Customer.
4.11 Vis Major, Act of God or casus fortuitous, which shall (without limiting the generality of the foregoing) be deemed to include strikes, industrial action, breakdown of machinery, failure of usual sources of supply of materials, war, riot, civil commotion, insurrection, civil disobedience, act of government, provincial or local authority, or legislation preventing the effective execution or performance of any part of this contract on the terms and conditions prescribed therein, or other contingencies of whatsoever nature and howsoever arising, beyond the reasonable control of the Company, shall entitle either Party to within 30 (thirty) days after the occurrence of such contingency, cancel the Agreement, as a whole, or any remaining part thereof, if such Vis Major persists.
4.12 Notwithstanding any other provision in these Terms and Conditions of Sale to the contrary, the Company’s obligations to produce and deliver the goods in accordance with these Terms and Conditions of Sale will in all cases be subject to the following preconditions;
(i) the availability to the Company of any materials and supplies required for the manufacturing of the goods; and
(ii) the timeous receipt of any orders (including all drawings and specifications) required by the Company from the Customer for the manufacture of the goods.
5. OWNERSHIP
5.1 Notwithstanding passing of all risk in and to all goods sold by the Company to the Customer on delivery, ownership in all goods sold and delivered shall remain vested in the Company until the full purchase price has been paid by the Customer for such goods and in the event of a breach of these Terms and Conditions of Sale by the Customer or if the Customer is sequestrated or placed under (provisional) liquidation or judicial management or commits any act of insolvency as contemplated in the Insolvency Act 24 of 1936 or enters into any compromise with its creditors or fails to satisfy a judgement granted against it within 7 days of the date on which any of it was required to satisfy a final judgement. The Company shall without prejudice to any further rights vested in it, be entitled to request any competent court for an urgent order to take possession of such goods and remove them from the premises where they are found. Notwithstanding this, subject to any applicable laws, the Company and/or its duly appointed agents shall at all business hours be entitled to enter the premises where the goods are located and inspect the goods.
5.2 The Customer shall fully insure the goods purchased from the Company against loss or damage (to a maximum amount equal to the Customer's outstanding obligations in terms of these Terms and Conditions of Sale), until the full purchase price has been paid by the Customer for such goods. Pending payment to the Company for goods purchased, the Customer shall be obliged, upon written request by the Company to let the Company have a copy of any relevant insured benefit or insurance policy and to inform the insurance company accordingly.
5.3 Should the Company take possession of any goods which have not been paid for, the Customer shall be entitled to a credit in respect of the goods so returned, being the price at which the goods were invoiced or the value thereof as at the time of return as determined by an independent appraiser of the Company’s choice, whatever the lower.
6. GOODS RETURNED
6.1 Goods returned, which are defective or unused, will only be received back at the sole discretion of the Company, subject to applicable law, provided goods are returned in the same condition as originally supplied. Expired, soiled or damaged goods will be deemed to have been sold to the Customer and will not be accepted back for credit.
6.2 Where machinery is supplied the Customer is limited to the factory guarantee that may exist in respect of such machinery. It is the responsibility of the Customer to return such machinery to the premises of the Company.
6.3 The amount to be credited to the customer for goods returned will be calculated in terms of the Company’s Goods Return Policy at the invoice value when the goods were purchased minus a 10% handling fee, provided the Company accepts the return. Should the reason for return be due to incorrect delivery or processing by the Company, the Customer will not be charged such handling fee. The relevant invoice and delivery note must be submitted before any claim will be considered
6.4 All goods are to be returned at the Customer's expense and the risk in the goods remains with the Customer until the Company receives and accepts the goods at the Company’s premises.
7. WARRANTIES AND GUARANTEES
7.1 All goods supplied will be to the Company's stated specification. All specifications, illustrations, drawings, diagrams, price lists, dimensions, performance figures, advertisements, brochures and other technical data furnished by the Company in respect of the goods, and whether in writing or not, are furnished only on the basis that they will not form part of these Terms and Conditions of Sale or be relied upon by the Customer for any purpose, unless and to the extent that they are expressly warranted or guaranteed in writing by the Company and are, as such, expressly stated by the Company to form part of these Terms and Conditions of Sale.
7.2 To the extent permitted by law, under no circumstances will the Company be liable for (i) damage arising from misuse or abuse of the goods and (ii) any loss of profit or any damage, direct or indirect or consequential damage sustained by the Customer.
7.3 The Company's liability to the Customer for any damages, sustained by the Customer from any cause whatever, including any damages arising out of the Company's negligence or that of its servants, agents or subcontractors, shall in any event and under all circumstances be limited to the replacement of defective goods after inspection and approval thereof by the Company.
7.4 All warranties and guarantees cease to exist if goods aren’t handled as prescribed by the Company. The Customer undertakes to only use the goods according to the Company’s instruction manual and to ensure that all its employees follow the instructions set out in the instruction manual and safety regulations.
7.5 Subject to any express warranty or guarantee by the Company in writing, and which is intended to form part of these Terms and Conditions of Sale, the Company does not give any warranty or guarantee, or make any representations whatsoever in respect of the goods or the fitness of the goods or any part thereof used for any alternative application or purpose, whether or not that purpose is known to the Company;
7.6 If any goods or any part of them are to be supplied in accordance with any pre-defined written specification, measurements, or other instructions furnished by the Customer, the Customer shall not have any claim of any nature whatsoever against the Company for any discrepancy or defect in those specifications, measurements or other instructions; and if the goods in question are not suitable for the purpose for which they are required whether those purposes were known to the Company, or not.
7.7 The Company shall not be held liable for any losses arising in connection with the Company's performance or the Customer's use of the goods supplied and in no event will the Company be liable to the Customer for delictual, special, indirect or consequential damages including, but not limited to, loss of profits.
7.8 To the extent permitted by law, the Company will not incur any liability of whatsoever nature to the Customer or any third party for the accuracy and/or efficiency of the designs or specifications of the goods, either in respect of new or repeat orders placed by the Customer.
7.9 The Customer hereby indemnifies the Company for any claims of third parties, arising out of the supply of the goods by the Customer to the third party from any cause whatsoever and however arising.
8. SEVERABILITY
8.1 All provisions and the various clauses and sub-clauses of these Terms and Conditions are notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision, clause or sub-clause of these Terms and Conditions, which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatsoever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions, clauses and sub-clauses of these Terms and Conditions shall remain in full force and effect. The Parties declare that it is their intention that these Terms and Conditions would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.
9. DOMICILIUM
9.1 The Customer's domicilium as given on page 2 of Terms and Conditions of Opening an Account, is hereby chosen by the Customer as the Customer's domicllium citandi et executandi (“domicillium”) for all purposes in terms of these Terms and Conditions, whether in respect of the serving of any legal process, notices, or communications of whatever nature.
10. INCORPORATION BY REFERENCE
The provisions of clauses 8 (Dispute Resolution) and 9 (General) of the Terms and Conditions of Opening an Account shall apply mutatis mutandis to these Terms and Conditions of Sale, and shall be deemed to be incorporated into these Terms and Conditions of Sale by reference thereto.