Standard Terms and Conditions of Sale

ABC Hansen Africa (Pty) Ltd and ABC Africa Group Standard Terms and Conditions of Sale

1.The Customer agrees that (a) this Agreement represents the entire Agreement between the Customer and ABC Hansen Africa(Pty)Ltd and associated companies (hereinafter called ABC Hansen) and should be read with the “General Terms and Conditions of Trade Specifically Related to Contract Work” that shall also apply under relevant circumstances, that no alterations or additions to this Agreement may be effected unless agreed to by both parties, reduced to writing and signed by the Customer and a duly authorised representative of ABC Hansen Africa, (b) this Agreement will govern all future contractual relationships between the parties; (c) this Agreement is applicable to all existing debts between the parties; (d) this Agreement is final and binding and is not subject to any suspensive or dissolutive conditions; (e) any conflicting conditions stipulated by the Customer are expressly excluded; (f) these terms supersede all previous conditions without prejudice to any securities or guarantees held by ABC Hansen Africa and (g) these terms apply to all servants and subcontractors of ABC Hansen. 2. This Agreement only becomes final and binding on receipt of the acceptance by ABC Hansen at its business address in 216 Propshaft Road Samcor Park x1,Pretoria. 3. The signatory hereby binds himself / herself in his / her personal capacity as Director (in the case of a company), Member (in the case of close corporations) or Owner or Partner as co-debtor jointly and severally for the full amount due to ABC Hansen and agrees that these Standard Conditions will apply mutatis mutandis to him / her. 4. The Customer acknowledges that it does not rely on any representations made by ABC Hansen in regard to the goods and services or any of its qualities leading up to this Agreement other than those contained in this Agreement. All specifications, price lists, performance figures, advertisements, brochures and other technical data furnished by ABC Hansen Africa in respect of the goods or services orally or in writing will not form part of the Agreement in any way unless agreed to in writing by ABC Hansen Africa. 5.1 The Customer agrees that neither ABC Hansen nor any of its employees will be liable for any negligent or innocent misrepresentations made to the Customer. 5.2 It is the sole responsibility of the Customer to determine that the goods or services ordered are suitable for the purposes of intended use. If goods are returned for any reason whatsoever, a 15% handling fee may be charged by ABC Hansen entirely at its own discretion plus delivery or collection charges. 5.3 The Customer agrees to pay all costs resulting from any acts or omission of the Customer including suspension of work, modification of requirements, failure or delay in giving particular requisite to enable work to proceed on schedule or requirements that work be completed earlier than agreed. 5.4 ABC Hansen reserves the right at its sole discretion to provide alternative products to those ordered by the Customer should said equipment manufacture be superseded, replaced or terminated. 6.1 All quotes will remain valid for a period of 14 days from the date of the quote unless otherwise indicated. 6.2 All quotes are subject to the availability of the goods or services and subject to correction of bona fide errors by ABC Hansen ; and the prices quoted are subject to any increases in the cost price, including currency fluctuations, of ABC Hansen before acceptance of the order. 6.3 The amount of the increase shall be certified by any independent auditor and such certificate shall be final and binding on the Customer. 6.4 The Customer hereby confirms that the goods or services on the Tax Invoice issued duly represent the goods or services ordered by the Customer at the prices agreed to by the Customer and, where delivery / performance has already taken place, that the goods or services 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. 6.5 Notwithstanding the provisions of section 1 above, all orders or variations to orders, whether oral or in writing, shall be binding and subject to these standard conditions of agreement and may not be cancelled. 6.6 ABC Hansen shall be entitled in its sole discretion to split the delivery / performance of the goods or services ordered in the quantities and on the dates it decides. 6.7 ABC Hansen shall be entitled to invoice each delivery / performance actually made separately. 6.8 Any delivery note or waybill (copy or original) signed by the Customer or a third party engaged to transport the goods and held by ABC Hansen Africa shall be conclusive proof that delivery was made to the Customer. 6.9 The risk of damage to, destruction or theft of goods shall pass to the Customer on conclusion of the agreement of sale after any installation has been completed if applicable. ABC Hansen shall provide site insurance until the installation of sold equipment has been completed in substance. 6.10 Delivery, installation and performance times given are merely estimates and are not binding on ABC Hansen . 6.11 If ABC Hansen agrees to engage a third party to transport the goods, ABC Hansen is hereby authorised to engage a third party on the Customer's behalf and on the terms deemed fit by ABC Hansen 6.12 The Customer indemnifies ABC Hansen against any claims that may arise from such agreement in clause 6.11 against ABC Hansen. If ABC Hansen does arrange the transport, it will also arrange insurance on said shipment. 6.13 Repair times and repair costs given are merely estimates and are not binding on ABC Hansen 6.14 Any item handed in for repair may be sold by ABC Hansen to defray the cost of such repairs if the item remains uncollected within 30 days of the repairs being completed. 6.15 All goods taken on a consignment basis by the Customer are deemed sold if not returned within 60 days of issue in a perfect condition, in the original packaging 6.16 The Customer acknowledges all copyrights and shall not duplicate copyrighted material and that each attempt shall immediately render the full prevailing price payable to ABC Hansen Africa. 6.17 The Customer shall indemnify ABC Hansen against any claims, costs and expenses arising out of the infringement of copyright, patent, trade mark or design. 7.1 New equipment is guaranteed according to the Manufacturer's product specific warranties only and consumables are sold voetstoots with no guarantee against latent defects and all other guarantees including common law guarantees are hereby specifically excluded. Services carry no guarantee. 7.2 Liability under Clause 7.1 is restricted to the cost of repair or replacement of faulty goods or services or granting of a credit at the sole discretion of ABC Hansen . 7.3 No claim under this Agreement shall arise unless the Customer has, within 2 days of the alleged breach or defect occurring, given ABC Hansen 30 days written notice by prepaid registered post to rectify any defect or breach of Agreement. 7.4 To be valid, claims must be supported by the original Tax Invoice. 7.5 All guarantees are immediately null and void should any goods be tampered with or should the seals on goods be broken by anyone other than ABC Hansen or should the goods be operated or stored outside the Manufacturer's specifications. 7.6 Any item delivered to ABC Hansen shall serve as a pledge in favour of ABC Hansen for present and past debts and ABC Hansen shall be entitled to retain or realise such pledges as it deems expedient at the value as determined in 15.1. The sworn or realised value of pledged goods will be offset against the Customer’s debts and any remaining balance will be paid to the Customer. 8.1 Under no circumstances shall ABC Hansen be liable for any consequential damages or for any delictual liability of any nature whatsoever. 8.2 Under no circumstances shall ABC Hansen be liable for any damage arising from any misuse or abuse of the goods. 9. Delivery of the goods to the Customer shall take place at the place of business of ABC Hansen . 10.1 The Customer agrees that the amount contained in a Tax Invoice issued by ABC Hansen shall be due unconditionally (a) cash on order; or (b) if the Customer is a Credit Approved Customer, within 7 days from the 25th day of the month in which a Tax Invoice has been issued by ABC Hansen . 10.2 The Customer agrees to pay the amount on the Tax Invoice at the offices of ABC Hansen 10.3 The risk of payment by cheque through the post rests with the Customer.                11.1 The Customer has no right to withhold payment for any reason whatsoever and agrees that no extension of payment of any nature shall be extended to the Customer and any such extension will not be applicable or enforceable unless agreed to by ABC Hansen, reduced to writing and signed by the Customer and a duly authorised representative of ABC Hansen . 11.2 The Customer is not entitled to set off any amount due to the Customer by ABC Hansen Africa against this debt. 11.3 All discounts shall be forfeited if payment in full is not made on the due date. 12.1 The Customer agrees that the amount due and payable to ABC Hansen may be determined and proven by a certificate issued and signed by any independent auditor. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer. 12.2 Any printout of computer evidence tendered by any party shall be admissible evidence and no party shall object to the admissibility of such evidence purely on grounds that such evidence is computer evidence or that the requirements of the Computer Evidence Act have not been met. 13.1 The Customer agrees that interest shall be payable on any moneys due to ABC Hansen at the maximum legal interest rate prescribed in terms of the National Credit Act, from the date it falls due. In the case of late payment interest shall be calculated from the date of order
13.2 The Customer expressly agrees that no debt owed to ABC Hansen by the Customer shall become prescribed before the passing of a period of ten years from the date the debt falls due. 14.1 The Customer agrees that if an account is not settled in full (a) against order; or (b) within the period agreed in clause 10.1 above in the case of a Credit Approved Customer; ABC Hansen is: (i) entitled to immediately institute action against the Customer at the sole expense of the Customer; or (ii) to cancel the agreement and take possession of any goods delivered to the Customer and claim damages. These remedies are without prejudice to any other right ABC Hansen may be entitled to in terms of this agreement or in law. 14.2 A Credit Approved Customer will forthwith lose this approval when payment is not made according to the conditions of 10.1(b). 15.1 In the event of cancellation, the Customer shall be liable to pay (a) the difference between the selling price and the value of the goods at the time of repossession and (b) all other costs incurred in the repossession of the goods. The value of repossessed or retained pledged goods shall be deemed to be the value placed on them by any sworn valuator after such repossession, and such valuation shall be conclusive proof of the value. If the goods are not recovered for any reason whatsoever, the value shall be deemed to be nil. 15.2 The Customer irrevocably authorises ABC Hansen to enter its premises to repossess any goods delivered and indemnifies ABC Hansen completely against any damage whatsoever relating to the removal of repossessed goods. 15.3 In the event of cancellation ABC Hansen is entitled not to produce any unmade balance of a contract and to recover any loss sustained thereby from the Customer. 16.1 All goods supplied by ABC Hansen remain the property of ABC Hansen until such goods have been fully paid for whether such goods are attached to other property or not. 16.2 The Customer is not entitled to sell or dispose of any goods unpaid for without the prior written consent of ABC Hansen . 16.3 If any goods supplied to the Customer are of a generic nature and have become the property of the customer by operation of law (confusio or commixtio) the Customer shall be obliged on notice of cancellation of the agreement to retransfer the same quantity of goods in ownership to ABC Hansen . 16.4 The Customer agrees to accept any quantity that does not exceed or fall short of the quantity ordered by more than 5% by weight as good and complete performance and may request ABC Hansen to pay only the pro rata contract price for the actual quantity dispatched which request will not be unreasonably withheld. 17.1 In the event that ABC Hansen takes any legal steps, of whatsoever nature, against the Customer, for the enforcement of any of the terms and / or conditions of this Agreement, or for the enforcement of any of ABC Hansen’s rights (including without limitation claims) in terms hereof, the Customer shall be liable for and be obliged to pay to ABC Hansen,  all legal expenses incurred by ABC Hansen, on the attorney-and-own client scale, . The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that ABC Hansen may demand. 17.2 The Customer shall pay three thousand Rand into court or furnish sufficient security in lieu of costs in any action instituted by or against the Customer. 17.3 The Customer agrees that ABC Hansen will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate's Courts or in terms of Rule 47 of the Law of the Supreme Court 59 of 1959. 18. The Customer agrees that no indulgence whatsoever by ABC Hansen will affect the terms of this agreement or any of the rights of ABC Hansen and such indulgence shall not constitute a waiver by ABC Hansen Africa in respect of any of its rights herein. Under no circumstances will ABC Hansen Africa be stopped from exercising any of its rights in terms of this Agreement. 19. The parties agree and consent to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Division, Pretoria, situated in Pretoria, Gauteng Province, Republic of South Africa, for the resolution of any and all disputes by and between the parties relating hereto.  Despite the aforesaid, the parties shall be entitled to institute proceedings in a competent Court having jurisdiction. 20.1 Any document shall be deemed duly presented to the Customer within (i) 3 days of prepaid registered mail to any of the Customer's business or postal addresses or to the personal address of any director, member or owner of the Customer; or (ii) within 24 hours of being faxed to any of the Customer's fax numbers or any director, member's or owner's fax numbers; (iii) on being delivered by hand to the Customer or any director, member or owner of the Customer; (iv) within 48 hours if sent by overnight courier; or (v) within 24 hours of being telexed to the Customer's telex number. 20.2 The Customer chooses domicilium citandi et executandi at the business address or the physical addresses of any Director (in the case of a company), Member (in the case of close corporations) or of the Owner(s) or Partner(s). 20.3 The Customer undertakes to inform ABC Hansen in writing within 7 days of any change of Director, Member, Shareholder, Owner or Partner or address or 14 days prior to selling or alienating the Customer’s business and failure to do so will constitute a material breach of this agreement. 20.4 The Customer hereby consents to the storage and use by ABC Hansen of the personal information that it has provided to ABC Hansen Africa for establishing its credit rating and to ABC Hansen disclosing such information to credit control companies, banks and other institutions involved in rating credit. The Customer agrees that ABC Hansen Africa will not be held liable for the bona fide disclosure of any of this information to such a third party and that no further specific consent need to be obtained for the transfer of such information to a specific third party. 21. The Customer agrees to the Standard Rates of ABC Hansen for any goods or services rendered, which rates may be obtained on request. 22. The invalidity of any part of this Agreement shall not affect the validity of any other part. 23. Any order is subject to cancellation by ABC Hansen due to force majeure or inability to deliver from any cause beyond the control of ABC Hansen, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, or by reason of an act of God, war, theft, hi-jacking, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation. 24. Any order is subject to cancellation if the Customer breaches any term of this Agreement or makes any attempt of compromise, liquidation, sequestration, termination or judgement is recorded against the Customer or any of its principals. 25. The Customer agrees that ABC Hansen will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in clause 23 or 24 occur. 26. Where products are to be manufactured to the specification of the Purchaser, such orders are accepted by ABC Hansen subject to the implied assurance by the Purchaser that no patent or trade mark or registered design will be infringed in the manufacture of the products and upon the condition that the Purchaser shall indemnify ABC Hansen for all expenses and/or loss incurred by or claims brought against ABC Hansen in consequence of any such infringement. Goods manufactured by ABC Hansen to Purchasers, drawings and specifications are manufactured at the sole risk of the Purchaser. No responsibility is taken for efficiency, safety, workability or suitability of such products. If the execution of the contract is delayed in any way or cancelled through the fault of the Purchaser, the Purchaser shall be liable for any expenses costs, losses, injuries or damages incurred or suffered by ABC Hansen. A cancellation fee of a maximum 20% may be imposed without substantiation of costs, losses or damages. 27. The parties agree that this Agreement and its interpretation is subject to the laws of the Republic of South Africa, which shall inter alia apply to any and all disputes by and between the parties relating hereto. 28. ABC Hansen retains the right to increase the contract price due to unforeseen increases in costs of steel in accordance with the SEIFSA index of steel cost. This clause shall not be called for if the increase is below 5% during the period between order and delivery and the Purchaser shall pay such increased cost on demand. The final selling price shall increase by 1% for every 2% increase in the index. 29. No equipment shall be delivered until fully paid for. 30. No installation on site shall commence until all equipment delivered is fully paid for. If not fully paid for as required, installation may be postponed to any time when the installation crew is available again in the sole discretion of ABC Hansen.