Standard Terms and Conditions of Sale
Essentra Components (Pty) Ltd
Applicants applying for credit facilities must attach the following source documents:
- The Supplier/Close Corporation - CIPC Registration Docs
- Copies of ID of all Directors/Members/Sole Proprietors/Partners/Trustees
- VAT Registration Docs
- Bank Confirmation Letter (not older than 3 months) or Cancelled Cheque
- Letter of Authority – Authorised persons whose signatures may bind the applicant in any transaction with Essentra Components (Pty) Ltd
- Completed and signed credit application form
- Quotes and Orders
- Descriptions, Samples and Literature
- Risk and Ownership in the Products
- Limitation of Liability
- Export Terms
- ADMISSIBILITY OF DATA MESSAGES
1.1 The terms and conditions set out below (as amended from time to time) by the Supplier by notice on the Supplier’s Website, (the Terms and “Conditions”) shall form part of every contract between the Supplier and the Customer for the sale and purchase of Products or Tooling.
1.2 These Terms and Conditions shall apply to any dealings between the Supplier Essentra Components (Pty) Ltd (“The Supplier”) a duly registered entity with registration number: 2003/022203/07 and the Customer to the express exclusion of any other terms and conditions including, but not limited to terms and conditions which the Customer purports to apply under any purchase order, confirmation of order, acknowledgement of delivery, Specifications or any such other documents or by endorsement upon such documents whether or not issued by Supplier.
1.3 No addition to, or modification of, any provision of these terms and conditions, or any representation, advice or recommendation relating to the Products given by any representative of the Supplier, shall be binding upon the parties unless made in writing and signed by an authorised representative of each of the parties with the intention of modifying or supplementing these terms and conditions being clearly expressed.
1.4 In these terms and conditions: headings are for convenience only and shall not affect their interpretation. References to a “person” include any individual, company, corporation, firm, partnership, association, organisation, institution, trust or agency, whether or not having a separate legal personality; words in the singular shall include the plural and vice versa as the context admits or requires; any reference to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as it is from time to time amended, consolidated, modified, extended, re-enacted or replaced; and the word “including” shall, unless the context otherwise requires, mean “including without limitation”.
2.1 In these terms and conditions: “Customer” means the person, whether legal or juristic, purchasing the Products from the Supplier;
2.2 “Customer’s Tooling” means any die, mould, pattern, tool or other equipment, which is the property of the Customer and/or which was made, purchased or received by the Supplier from or at the direction of the Customer;
2.3 “Claim” means a claim arising out of or in connection with the supply of any Products or Tooling to the Customer or as a result of breach of these terms and conditions or of any duty of any nature whatsoever by the Supplier or pursuant to any use made by the Customer or resale by the Customer of any Products (or of any product incorporating any of the Products) or of any Tooling or as a result of any representation, statement, act or omission including negligence arising under or in connection with these terms and conditions or the Contract;
2.4 “Claim Limit” means, in respect of any calendar year, the greater of:
2.4.1 the aggregate amount payable to the Supplier by the Customer for goods of the type that are the subject of a Claim and which are purchased by the Customer from the Supplier in that year (the “Relevant Goods”);
2.4.2 in the first three months of that year, the aggregate amount payable by the Supplier to the Customer for the Relevant Goods purchased in the previous year; or
2.4.3 where no Relevant Goods were purchased in the previous year or the Claim does not relate to the purchase of goods, to an aggregate sum of (a) where the relevant Goods are exclusively Standard Products, R 50,000; or (b) where the Relevant Goods include Custom Products or Tooling, R 100,000;
2.5 “Contract” means the agreement between the Supplier and the Customer for the sale and purchase of any of the Supplier’s Products and/or Tooling;
2.5 “Custom Products” means any goods, other than Standard Products, supplied or to be supplied by the Supplier and which have been customised to the Customer’s requirements at the Customer’s request;
2.6 “Group of companies” means any subsidiary and any holding company of the Supplier and any subsidiary of any such holding company in each case from time to time (the terms ‘subsidiary’ and ‘holding company’ shall have the meanings given to them by section 1 read with sections 2(2) and 3(1) (a) of the Companies Act 71 of 2008 as amended);
2.7 “Intellectual Property Rights” means all intellectual property rights including any patent (including supplementation protection certificates) utility model, rights in invention, copyright, rights in the nature of copyright, database rights, moral right, design right, registered and unregistered designs, registered and unregistered trademark, trade names and get-up, goodwill, know-how and confidential information (whether or not all or any of the same are registered and including all applications and rights to apply therefore) and anything analogous to any of the foregoing in any part of the world;
2.8 “Losses” means all losses, claims, liabilities, costs, charges, expenses and damages of any kind irrespective of whether they were reasonably foreseeable or avoidable;
2.9 “Order Acceptance” means a written acceptance of an order issued by an authorised signatory of the Supplier in accordance with paragraph 3.2;
2.10 “Products” means any Standard Products and/or any Custom Products or any part thereof; “Sample” means, in relation to a sale by sample, the sample provided by the Supplier, subject to any tolerances or other variations reflected in any specifications or guidance notes supplied by the Supplier in relation to the sample, which an authorised signatory of the Supplier confirms is applicable to the Contract in the Order Acceptance;
2.11 “Supplier” means Essentra Components (Pty) Ltd (Registration No: 2003/022203/07) whose registered office is at Unit 2, Corner Suni and Tsessebe Streets, Sage Corporate Park, South Randjesfontein, Midrand, South Africa and its successors and assigns;
2.12 “Supplier’s Catalogue” means the Supplier’s product catalogue, as published by the Supplier from time to time including any catalogue on the Supplier’s Website;
2.13 “Supplier’s Tooling” means any dies, moulds, patterns, tools or other equipment other than Customer’s Tooling used or to be used in connection with the manufacture of the Custom Products;
2.14 “Supplier’s Website” means www. essentracomponents.co.za and/ or any other website associated therewith from time to time;
2.15 “Specifications” means;
2.15.1 in respect of Standard Products, the specifications for the relevant Standard Product as set out in the latest publication of the Supplier’s Catalogue at the time such Standard Product is ordered;
2.15.2 in respect of Custom Products, the specifications for the relevant Custom Products which an authorised signatory of the Supplier has confirmed are the final specifications for such Custom Products; and
2.15.3 in the absence of any such specifications, the specifications that the Supplier may, acting reasonably, determine to be appropriate from time to time;
2.16 “Standard Products” means any goods which are offered for sale by product number in the Supplier’s Catalogue as updated from time to time; and
2.17 “Tooling” means Supplier’s Tooling and Customer’s Tooling.
2.18 For these purposes, a “Data Message” means any information generated, sent received or stored by electronic means and includes, withoutlimitation electronic mail and Records and a “Record” means any information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
3.1 Quotes are valid for 30 days from the date of the quote, unless otherwise specified by the Supplier, but are not binding until an order is accepted by the Supplier in accordance with paragraph 3.2.
3.2 Each order for Products made by the Customer from the Supplier shall be deemed to be an offer by the Customer to purchase the Products specified in the order on the terms and conditions set out herein. An order is not binding on the Supplier until it is accepted by the Supplier by issuing the Order Acceptance or by the Supplier either commencing manufacture of the Products or any related Tooling or samples, apportioning the Products to the Customer’s order or dispatching the Products to the Customer.
3.3 Once accepted, an order may only be cancelled, varied or suspended by the Customer with the express prior written agreement of the Supplier.
3.4 The quantity and type of Products ordered shall be as set out in the order form or, if different, on the Order Acceptance.
4.1 All drawings, specifications and advertising issued by the Supplier and any descriptions, details or illustrations contained in any Supplier’s Catalogue are issued or published for the sole purpose of giving an approximate idea of the Products described in them and will not be relied on by the Customer or form part of the Contract except as provided in paragraph 5.1 and paragraph 11.
4.2 Any typographical, clerical or other error or omission in any Supplier’s Catalogue, quote, price list, acceptance of offer, Order Acceptance, label, packaging, invoice or other document or information issued by the Supplier may be corrected by the Supplier, without liability to the Customer, at any time either by correcting any such matter in public or by publishing the correction on the Supplier’s Website or by notifying the Customer in writing and such correction shall be binding upon the Customer forthwith.
4.3 Except as otherwise required by law, the Contract shall not be a sale by sample, even if samples have been provided.
5.1 The Customer will ensure that it undertakes adequate tests to ensure that where the Product meets the Specifications or, if applicable, conforms to the Sample, in all material respects, it is of satisfactory quality and fit for the purpose for which it is sold and purchased The Customer expressly acknowledges that, irrespective of any guidance provided to it by the Supplier, it is not relying on the Supplier’s skill and judgement in determining whether the Products will be fit for all its purposes.
5.2 If the Customer wishes to rely on the Supplier’s skill and judgement in relation to a Custom Product being fit for a particular purpose, then prior to placing an order the Customer must expressly advise the Supplier in writing of the particular purpose and that it wishes to rely on the Supplier’s confirmation rather than conducting its own testing. The Supplier shall advise the Customer of any additional charges which would apply if such confirmation is given. The Customer shall only be entitled to rely on the Custom Product being fit for that particular purpose if the Customer has provided all the information which the Supplier would need to undertake the requisite testing and an authorised signatory of the Supplier has expressly confirmed in the Order Acceptance that the Custom Product can fulfil that particular purpose.
5.3 The Supplier shall be entitled to make any changes to any Specifications which do not materially affect the quality or performance of the Products.
5.4 In respect of any Specifications supplied to the Supplier by or on behalf of the Customer or variations to Specifications made at the request of the Customer and any Tooling either derived from any such Specifications or supplied by or on behalf of the Customer, the Customer warrants, represents and undertakes that such Specifications and/or Tooling:
5.4.1 fully and accurately reflect the Customer’s requirements for the Products to be made pursuant to such Specifications or using such Tooling;
5.4.2 are complete and fit for the purpose of the Supplier producing and/or supplying (if agreed) Products complying with such Specifications;
5.4.3 will result in Products which are fit for the Customer’s purpose; 5.4.4 do not infringe the Intellectual Property Rights of any third parties and the Supplier, its Group and agents are entitled to use any Intellectual Property Rights comprised in such Specifications or in any product or process described in the Specifications for the purposes of manufacturing the Products; and
5.4.5 comply with all applicable laws and regulations.
5.5 Except as otherwise expressly provided in the Contract or agreed in writing between the Supplier and the Customer, the Supplier shall own all of the Intellectual Property Rights created by the Supplier, its Group or agents in the course of the performance of the Contract or otherwise in connection with the manufacture of the Products or the Tooling.
6.1 If the Supplier agrees to supply Custom Products and it notifies the Customer that it requires the Customer’s Tooling to do so, then the Customer shall either supply the Customer’s Tooling capable of producing the Custom Products or, if agreed between the parties, the Supplier shall manufacture the Customer’s Tooling or obtain it on the Customer’s behalf at a price agreed between the parties and subject to having received payment in accordance with clause 6.2.
6.2 Following acceptance of the Customer’s first order for the Custom Products to be manufactured using the relevant Customer’s Tooling and subject to receipt of the Supplier’s invoice for such Customer’s Tooling, the Customer shall:
6.2.1 forthwith pay fifty percent (50%) of the whole price of such Customer’s Tooling and shall pay the remaining fifty percent (50%) of such price upon the Supplier sending to the Customer, samples produced using such Customer’s Tooling; or
6.2.2 if requested by the Supplier, forthwith pay the whole price of such Customer’s Tooling.
6.3 Title to any Customer’s Tooling made or purchased by the Supplier shall remain with the Supplier until the Supplier has received the full price due in respect of such Customer’s Tooling in cash or cleared funds whereupon title shall pass to the Customer. Until title to the Customer’s Tooling passes to the Customer, the terms of paragraphs 10.3 and 10.4 shall apply to the Customer’s Tooling as they apply to the Products. Upon transfer of title to the Customer’s Tooling back to the Customer, the Customer shall be entitled to license the Intellectual Property Rights comprised in the Customer’s Tooling to the extent necessary to use the Customer’s Tooling to make the relevant Custom Products.
6.4 Risk of loss or damage to the Customer’s Tooling supplied to, or purchased on the Customer’s behalf by, the Supplier shall remain with the Customer. Risk of loss or damage to the Customer’s Tooling made by the Supplier shall pass to the Customer upon completion of its manufacture. The Customer shall ensure that the Customer’s Tooling is appropriately and adequately insured with a reputable insurer for so long as it remains at the Supplier’s premises and will bear the costs of any necessary repairs or replacement.
6.5 The Supplier shall notify the Customer of any loss or damage to the Customer’s Tooling whilst in the Supplier’s possession. The Supplier, its Group or agents shall assume no liability to the Customer in respect of any loss or damage to the Customer’s Tooling whilst such Customer’s Tooling is in the Supplier’s possession.
6.6 The Supplier shall store the Customer’s Tooling free of charge for a period of 2 years from the date of the last delivery of Products made using the Customer’s Tooling. On expiry of this period, the Supplier may use for its own purposes or continue to store, return or destroy the Customer’s Tooling, the cost of which shall be payable by the Customer.
6.7 Where the Customer has indicated that it wishes to purchase a minimum quantity of Custom Products and is aware that the Supplier will invest or has invested in the manufacture of the Supplier’s Tooling in respect of those Custom Products and the Customer orders or takes delivery of a smaller quantity of such Custom Products than the minimum it previously indicated, the Supplier may invoice the Customer, pro rata to the quantity of such Custom Products ordered, for the cost of its investment in such Supplier’s Tooling and for its reasonable administration and handling charges.
6.8 The Intellectual Property Rights in and title to any Supplier’s Tooling shall remain at all times with the Supplier except as otherwise expressly agreed in writing. If the Customer purchases the Supplier’s Tooling, title and risk in the Supplier’s Tooling shall pass to the Customer upon payment in full by the Customer of an amount notified by the Supplier in writing. The Customer acknowledges that any Supplier’s Tooling which it purchases will have been used by the Supplier and that the Customer shall be entitled on reasonable notice to inspect it prior to purchasing it and shall be deemed to have satisfied itself that it is of satisfactory quality and fit for its purposes. Upon title and risk in any Supplier’s Tooling passing to the Customer it shall thereafter be
6.9 If the Supplier is required to redesign, repair or replace or otherwise incur any expenditure in relation to any Tooling for use in producing Custom Products, the Customer shall promptly reimburse the Supplier for all such costs incurred by the Supplier, including any tooling and re-tooling costs, except to the extent such costs were caused by the Supplier’s negligence or willful abuse.
6.10 The Supplier shall be entitled to utilise the Tooling for any purpose at its discretion including for the purpose of manufacturing the Custom Products.
7.1 Subject to paragraph 7.2, the price of the Products or the Tooling shall be the price specified in the applicable quote or, in the absence of an applicable quote, the price set out in the Supplier’s price list in force at the time the order is accepted (the “Price”). The Price is inclusive of standard packaging in accordance with the Supplier’s current practice. The Price reflects the limitations on liability set out in these terms and conditions but, if requested by the Customer, the Supplier will advise the Customer of the additional costs which would apply if the Supplier agrees to any variations to such limitations on liability.
7.2 The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the Price to reflect any increase in the cost to the Supplier of supplying any Products or Tooling which is due to:
7.2.1 any factor beyond the reasonable control of the Supplier;
7.2.2 any increase in the cost of labour or materials including any storage costs if the Products are not collected or delivered in accordance with the Contract;
7.2.3 any variation requested by the Customer to delivery dates, quantities, Specifications or the scope of the Supplier’s instructions;
7.2.4 any delay or additional work or materials caused by any instructions, neglect or default of the Customer; or
7.2.5 any failure by the Customer to procure the supply to the Supplier of adequate and timely information, instructions, specifications or, if applicable, Tooling.
7.3 The Price is exclusive of any applicable value added tax or other taxes or duties and of all costs and charges in relation to non-standard packaging, loading, unloading, carriage and insurance or similar costs, which (if any) shall be paid in addition by the Customer at the time it is due to pay for the Products or the Tooling. Where carriage or other costs to be borne by the Customer are initially paid by the Supplier, the Supplier shall be entitled to render an invoice forthwith in respect of such costs.
8.1 The Supplier shall at its discretion be entitled to invoice the Customer in advance for payment of the whole or part of the Price or any other amounts payable by the Customer.
8.2 The Supplier shall be entitled to:
8.2.1 offer and withdraw credit accounts at any time;
8.2.2 request references and make credit reference searches in relation to the Customer.
8.3 Subject to paragraph 8.1, payment of any Supplier’s invoice is due (without deduction, discount, abatement or set-off) within 30 days of the date of the invoice, notwithstanding that delivery may not have taken place or that ownership in the Products or the Tooling has not passed to Customer. Unless otherwise expressly agreed by the Supplier, payment shall be made in the same currency as the Price. The time of payment of sums due from the Customer shall be of the essence of these terms and conditions. No payment will be deemed received until received by the Supplier in cash or cleared funds. Interest will be payable on overdue amounts at the maximum rate provided for within the National Credit Act (Act 34 of 2005) compounded per month. Interest will be payable by the Customer to the Supplier on demand.
8.4 If any sums are not paid on or before the due date for payment, interest will accrue on the unpaid amount until payment is made in full. The parties agree that the provisions of this paragraph provide a substantial contractual remedy for the late payment of sums due in respect of these terms and conditions.
8.5 If the Customer fails to make any payment when due, pursuant to these terms and conditions and/or pursuant to any other contract between the Customer and the Supplier, the Supplier, without prejudice to any other right or remedy available to it, shall be entitled to:
8.5.1 terminate the Contract or any other contract between the Customer and the Supplier;
8.5.2 deduct outstanding sums from any sums owed by the Supplier to the Customer under the Contract or otherwise;
8.5.3 require the Customer to pay any costs of storage of the Products and any Tooling;
8.5.4 suspend any further deliveries to the Customer under the Contract or any other contract until paid;
8.5.5 treat the Contract as repudiated and terminated;
8.5.6 resell any Products not yet delivered to the Customer; and/or
8.5.7 retain any sums paid as deposit for the Products.
9.1 Unless otherwise agreed in writing, Products will be sent to the Customer by a carrier service chosen by the Supplier, acting reasonably. Delivery of the Products to the Customer shall be effected by the Supplier delivering them to the carrier or by collection by the carrier. Thereafter, transport of such Products shall be subject to the carrier’s conditions which the Supplier shall notify the Customer of, if so requested. The Supplier may deliver early.
9.2 Where it is agreed in writing that the Products shall be delivered by a method other than that referred to in paragraph 9.1 then delivery shall be effected:
9.2.1 where the Products are to be collected by the Customer from the Supplier’s premises, by the Supplier notifying the Customer that the Products are ready for collection;
9.2.2 where the Products are delivered by the Supplier, by the Supplier delivering the Products to the address nominated by the Customer for delivery; or
9.2.3 where the Products are to be transported by a third party, by collection by or delivery to that third party of the Products.
9.3 Any periods of time or dates quoted for delivery of the Products are approximate only. Time for delivery shall not be of the essence. The Supplier shall not be liable for any delay in delivery of the Products. The Supplier may deliver up to 10 per cent more or 10 per cent less than the quantity of Products specified in the order and the Customer shall accept such variation in quantity and shall pay the Price as adjusted to reflect such variation in quantity.
9.4 In the event where the Supplier has received payment from the Customer on the basis of a pro-forma invoice, the Supplier shall take all reasonable steps to supply the Products subject to availability. In the event of a short delivery, arising from this provision, the Supplier shall endeavor to procure the goods within a reasonable time, or deliver to the Customer with the Customer’s consent (which consent may not be unreasonably withheld), other goods that are of the same standard and quality.
9.5 The Supplier shall not be responsible for any Losses incurred or suffered by the Customer as a result of a failure to deliver the Products or for short delivery unless the Customer has informed the Supplier in writing within ten working days from the estimated date of delivery in relation to a failure to deliver, or the actual date of delivery in relation to a short delivery. In any event, subject always to paragraph 12, where for any reason the Supplier is so liable, the Supplier’s liability shall be limited to:
9.5.1 the amount by which the price in the cheapest available market of similar goods to replace those not delivered exceeds the Price of the Product not delivered; or
9.5.2 if there is no such market, an amount equal to the Price applicable to the Products not delivered.
9.6 Where the Products are to be delivered in instalments, each delivery shall constitute a separate obligation and neither any failure by the Supplier to deliver nor any claim in respect of any one or more instalments by the Customer shall entitle the Customer to treat the Contract as a whole as repudiated.
9.7 Where the Customer fails to take delivery of the Products or fails to give the Supplier adequate delivery instructions in advance of the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Supplier’s neglect or default) then the Products shall be deemed to have been delivered at the time stated for delivery and, without prejudice to any other right or remedy available to the Supplier, the Supplier may:
9.7.1 store the Products until actual delivery and charge the Customer for the reasonable costs of storage, including insurance, if applicable but without any obligation on the Supplier to procure insurance; or
9.7.2 where the Customer has failed to take delivery of the Products on or before the fifth working day following the intended day for delivery, sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) shall account to the Customer for the excess over the Price or invoice the Customer for any shortfall below the Price.
9.8 If, upon delivery of the Products, the Customer discovers that it has incorrectly ordered those Products, the Supplier’s standard handling charge from time to time will be payable by the Customer if the Supplier agrees (at its sole discretion) to accept return of those Products.
10.1 Products supplied by the Supplier shall be at the Customer’s risk immediately on and after delivery and the Customer should arrange appropriate insurance from that point.
10.2 Title (legal and beneficial) in all Products supplied or sold by the Supplier shall be retained by the Supplier until :
10.2.1 the Supplier has received in either cash or cleared funds all sums due in respect of the Products and on any account whatsoever from the Customer to the Supplier; or
10.2.2 the Products have been used or incorporated into other products and paid for in full by the Customer either in cash or cleared funds), whichever is the earlier.
10.3 Until such time as the ownership in the Products passes to the Customer, the Customer must:
10.3.1 hold such Products (on a fiduciary basis for and on behalf of the Supplier) and act in good faith to protect the Supplier’s interests in the Products;
10.3.2 store such Products (at no cost to the Supplier) separately from all other goods of the Customer in such a way that such Products remain identifiable as property of the Supplier and shall not mix them with any other goods;
10.3.3 not pledge or allow any lien, charge, or other interest to arise over the Products or their documents of title;
10.3.4 not destroy or deface any identifying marks on such Products or relevant packaging and maintain such Products in satisfactory condition; and
10.3.5 keep such Products insured on the Supplier’s behalf and in the event of any claim hold the proceeds of such insurance on trust for the Supplier.
10.4 The Supplier shall be entitled at any time to require the Customer to deliver any Products to the Supplier prior to ownership in the Products passing to the Customer. The Customer grants the Supplier and its agents an irrevocable consent at any time to enter any premises where such Products are stored to inspect or, if the Customer has failed to deliver possession when requested by the Supplier, to repossess such Products.
11.1 Subject to the remaining provisions of these terms and conditions, the Supplier warrants that on delivery all Products and Customer’s Tooling will be of satisfactory quality. The Customer expressly agrees that a Product will be deemed to be of satisfactory quality and fit for its purpose if
11.1.1 in relation to a sale by sample, the Product complies with the Sample in all material respects; or
11.1.2 in all other cases, the Product complies with its Specifications in all material respects.
11.2 The warranties contained in paragraph 11.1 shall not apply unless:
11.2.1 in respect of defects that are apparent on inspection of the Products or Tooling, the Customer notifies the Supplier, in writing, setting out in reasonable detail the nature of the breach of warranty within fourteen days after the delivery of the Products; or
11.2.2 in relation to defects that are not apparent on inspection of the Products or Tooling, the Customer notifies the Supplier in writing setting out in reasonable detail the nature of the breach of warranty within 14 days after the defect became apparent or ought to have become apparent to the Customer, and in any event within 12 months of the date of delivery of the Products; and
11.2.3 after receiving such notice of the defect, the Supplier is given reasonable opportunity to inspect the Products or Tooling and, at the Supplier’s request (acting reasonably), the Products or Tooling are returned to the Supplier’s place of business for the purposes of such inspection; and
11.1.4 the total price for the Products has been paid by the Customer.
11.3 The Supplier shall not be liable for any breach of any of the warranties in paragraph 11.1 if:
11.3.1 the Product conforms to its Specifications, or if applicable, the Sample, in all material respects;
11.3.2 the breach was caused directly or indirectly by the Customer’s breach of paragraph 5.3 or by the Customer’s Tooling, except to the extent caused by the Supplier’s negligent actions or omissions in respect of the manufacture or use of the Customer’s Tooling;
11.3.3 the breach was caused directly or indirectly by the acts or omissions of any persons not expressly authorised by the Supplier, including repairs, additions or changes made to the Products by or on behalf of the Customer;
11.3.4 the breach was caused directly or indirectly by parts, materials or equipment incorporated into a Product but not manufactured by the Supplier, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as was given by the manufacturer to the Supplier and which is capable of being assigned to the Customer (at the Customer’s cost);
11.3.5 The Customer makes further use of or resells the Products after giving notice of a defect or fails to comply with the Supplier’s reasonable instructions in relation to a product hold or recall; or
11.3.6 the breach was caused directly or indirectly by environmental conditions or use or storage or handling of the Products outside the parameters of its Specifications or instructions supplied by the Supplier or by any matter specifically excluded by the Supplier by notice in writing including carelessness, mishandling, operating errors, vandalism or unforeseen events.
11.4 Subject to paragraphs 11.2 and 11.3 and, where Products or parts thereof returned to the Supplier are found, in the reasonable opinion of the Supplier, not to conform with the warranty contained in paragraph 11.1 or any other warranties, quality standards or conditions implied by law, the Supplier shall at its own discretion discharge any liability in full by, repairing or replacing the whole or part of all or any of the Products or refunding the Price of the non-conforming Products. Any Products which have been so replaced shall be owned by the Supplier.
11.5 Subject to the provisions of paragraph 12, the warranties contained in condition shall be the sole extent of the Supplier’s liability arising out of or in connection with the Products.
11.6 The Customer shall comply with all reasonable instructions of the Supplier in relation to any product hold or product recall campaign organised in respect of the Products or any other corrective action reasonably taken by or on behalf of the Supplier in respect of the Products after delivery to Customer.
12.1 Without prejudice to paragraphs 12.2 and 12.5 the Supplier’s aggregate liability (including any liability for the acts or omissions of its employees agents, sub-contractors or other members of its Group) to the Customer for all Claims whether arising in contract, delict (including negligence or breach of a statutory duty), misrepresentation, restitution or otherwise shall be limited as follows:
12.1.1 The Supplier’s aggregate liability for a Claim in relation to any single item of Product shall be limited to the Price payable to the Supplier by the Customer for that item;
12.1.2 The Supplier’s aggregate liability for a Claim in relation to any item of Tooling shall be limited to the depreciated value of such item or its replacement price, whichever is the lower; and
12.1.3 The Supplier’s aggregate liability to the Customer for all Claims arising in each calendar year shall be limited to the Claim Limit.
12.2 The Supplier shall not be liable to the Customer or any other party for any;
12.2.1 indirect Losses;
12.2.2 economic loss;
12.2.3 loss of profits or anticipated profits;
12.2.4 loss of expected future business;
12.2.5 damage to reputation or goodwill; nor
12.2.6 any claim for consequential compensation whatsoever (however caused), which arises in connection with the supply of Products or Tooling or related services by the Supplier, in each case whether direct or indirect or consequential and, whether such losses are suffered by the Customer or by any other party.
12.3 Where a Court adjudicates that the exclusion of liability in respect of any category of damage as stated in paragraph 12.2 is for any reason unenforceable, the Supplier’s liability in respect of such category of damage under the Relevant claim shall be limited to the Claim Limit.
12.4 Subject to paragraph 12.5 unless otherwise expressly provided in these terms and conditions all implied warranties, terms and conditions are excluded from the Contract to the fullest extent permitted by law and the Supplier will not be liable to the Customer for any loss of any kind whatsoever which arises out of the breach of implied warranties, terms or conditions, or breach of any duty of any kind imposed on the Supplier by operation of law.
12.5 Nothing in these terms and conditions shall exclude or limit the Supplier’s liability in respect of any claim (other than by the Customer for re- imbursement of sums paid to a third party) in respect of liability for defective products under the Consumer Protection Act 68 of 2008 or in respect of any liability which arises under any safety regulation made under the Consumer Protection Act of 2008 or for fraudulent misrepresentation or for any other liability to the extent that it may not be so excluded or limited by law.
12.6 If the Customer becomes aware that any third party has made or appears likely to make any claim in respect of the Products (including, without limitation, as to defects in them or rights infringed by them) it shall:
12.6.1 promptly notify the Supplier of such claim or circumstance; 12.6.2 promptly provide such assistance to the Supplier and take such action as the Supplier may request to avoid, dispute, defend, mitigate, resist, appeal or compromise such claim or circumstance including but not limited to allowing the Supplier to take full control of any proceedings or negotiations in connection with the claim; and 12.6.3 not settle or compromise, make any admissions, nor agree any matter in the conduct of any dispute, without the prior written approval of the Supplier.
12.7 Without prejudice to any other provision of these terms and conditions, the Supplier will not be in breach of the terms of the Contract for any delay in performing, or failure to perform, its obligations under the Contract if that failure or delay was due to any cause or circumstance beyond the Supplier’s reasonable control, which shall, without limiting the generality of the term, be deemed to include war or other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, accident, break down or damage to machinery or equipment, fire, flood, acts of God, strike, lock-out or other industrial disputes (whether or not involving employees of the Supplier) or shortage of materials at the market rates existing when the agreement is made, legislative or administrative interference or was due to any failure, neglect or delay on the part of the Customer or its agents or representatives.
12.8 The Supplier reserves the right to defer the date of delivery or to terminate the Contract or reduce the volume of the Products ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to an event referred to in paragraph12.7 occurring, provided that where the event in question continues for a continuous period in excess of 30 days either party shall be entitled to give notice in writing to the other to terminate the Contract with no liability due to or by either party.
12.9 The Customer acknowledges that the limitations of liability set out in these Terms and Conditions are reasonable and reflect the commercial intentions of the parties in the context of the anticipated earnings of the Supplier under the Contract and any other contracts and the ability of the Customer to protect itself through insurance. The Supplier may be willing to vary the limitations on liability in relation to specific Products if requested by the Customer subject to the Customer bearing the additional costs as notified by the Supplier. For the avoidance of doubt, any payment made by the Supplier to the Customer in any calendar year in respect of any Claim made by the Customer pursuant to any contract or otherwise shall operate to reduce the amount of the Claim Limit, and the limit of liability, which is available for further Claims in that calendar year.
13.1 Without affecting any other rights and remedies it may have, the Supplier may terminate the Contract forthwith if:
13.1.1 the Customer breaches any terms of any contract with the Supplier;
13.1.2 the Customer makes any composition or voluntary arrangement with its creditors or any step, application, order, proceeding or appointment is made or taken by or in respect of the Customer (including, without limitation, the making of an application or the giving of any notice) by the Customer or any other person for a sequestration (distress), execution, winding up, dissolution, or to appoint an administrator for the Customer or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction);
13.1.3 an encumbrance takes possession, or a receiver or curator (administrative or otherwise) is appointed, of any of the property or assets of the Customer; or the Customer ceases, or threatens to cease, to carry on business; or
13.1.4 the Supplier reasonably apprehends that any of the events mentioned in paragraphs 13.1.2 and 13.1.3 is about to occur.
13.2 The Customer may, on 30 days written notice, terminate:
13.2.1 the Contract within 30 days of receiving notice from the Supplier pursuant to paragraphs 7.2.1 or 7.2.2 that the Price of the Products which are the subject of the Contract is increasing by more than 10% of the original Price specified in applicable to the Products at the time the Contract is concluded; or
13.2.2 that part of the Contract relating to Custom Products if it does not wish (acting reasonably) to accept the changes to the Specifications of the Custom Products notified by the Supplier pursuant to paragraph 5.3.
13.3 Where the Supplier terminates the Contract in accordance with paragraphs 8.5 or 13.1 then, without prejudice to any other right or remedy available to the Supplier:
13.3.1 the Supplier shall be entitled to terminate any other contract or suspend any further deliveries under the Contract or any other contract;
13.3.2 where the Products have been delivered, but not paid for, subject to paragraph 10, the Customer’s right to possession shall terminate and the Supplier may dispose or use any of the Products as it wishes; an
13.3.3 the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13.4 Termination of the Contract, for whatever reason, shall not affect any of its provisions which are intended to continue to have effect after it has come to an end, including paragraphs 6, 10, 11, 12, 13, 14, 15 and 16.
14.1 Without prejudice to the Supplier’s other rights and remedies, the Customer shall indemnify and keep indemnified the Supplier, its Group and their employees and agents on demand in full against any Losses incurred or suffered as a result of:
14.1.1 cancellation, variation or suspension of an order by the Customer pursuant to paragraph 3.3;
14.1.2 any claim brought by any third party in respect of Losses, injury or damage caused directly or indirectly by the Custom Products or Customer’s Tooling or by any Products which, following delivery, have been subjected to any use other than the authorised use for such Products (being the use for which such Products are commonly supplied or a use expressly authorised, or modified or repaired in any way by a person other than the Supplier or any event has occurred (including any act or omission) which would result in paragraph11.1 ceasing to apply to those Products;
14.1.3 the use of Specifications or Tooling supplied by or on behalf of the Customer or modified at the request of the Customer;
14.1.4 any breach of paragraph 5.3 and any claims by any third party in relation to any infringement or alleged infringement of any of its Intellectual Property Rights as a result of the use, possession or supply of any Custom Product or any Specifications and/or Tooling supplied by or on behalf of or modified at the request of the Customer; and
14.1.5 any termination pursuant to paragraphs 8.5 or 13.1.
15.1 Where the Products are supplied for export from South Africa the provisions of this paragraph 15 shall (subject to any special terms agreed in writing between the Customer and the Supplier) apply and shall prevail to the extent of any conflict with any other terms and conditions set out in these Terms and Conditions.
15.2 The Customer shall be responsible for complying with any legislation or regulations applying to the Products in the country of destination governing the export of the Products or any product incorporating the Products from South Africa the (including, if necessary, satisfying Customs and Excise that value added tax is not payable on the Price) and the importation of the Products into the country of destination and for the payment of any applicable import or export duties or taxes thereon. The Customer shall be responsible for notifying the Supplier of any obligations which the Supplier is obliged to comply with pursuant to any such legislation or regulations and for bearing or reimbursing to the Supplier any associated costs.
16.1 Principle. The parties agree that they may conclude binding agreements by means of Data Messages. The parties hereby agree that: - 16.1.1 A requirement in these Terms that a notice, Order or document be in writing shall be satisfied if the document or information is –
126.96.36.199 in the form of a Data Message, and
188.8.131.52 accessible in a manner usable for subsequent reference (including without limitation, a hard copy printout of the information concerned).
16.1.2 Data or Data Messages shall not be denied legal effect, validity or enforceability solely on the grounds that same are wholly and partly in electronic form;
16.1.3 Data shall not be denied legal effect, validity or enforceability solely on the grounds that it is not contained in the Data Message purporting to give rise to such legal effect, but is merely referred to in such Data Message;
16.1.4 No data shall be deemed to be incorporated into a Data Message unless such data is:
184.108.40.206 referred to in a way in which a reasonable person would have noticed the reference and incorporation of such data; and
220.127.116.11 such data is made accessible to the other party in a form in which it may be read, stored and retrieved by the other party on request.
17.1 The Supplier may perform any of its obligations or exercise any of its rights hereunder by itself or through its subcontractors or agents or any member of its Group. Any act or omission of any such subcontractor or agent or member of its Group shall be deemed to be the act or omission of the Supplier and shall be subject to the exclusions or limitations on liability set out in these Terms and Conditions. The Customer shall not transfer, assign or sub-contract any of its rights or obligations under the Contract without the Supplier’s prior written consent and in any event shall remain responsible for the performance of the Contract by any transferee, assign or sub-contractor.
17.2 Any notice shall be in writing and either hand delivered or transmitted by registered post or fax, addressed to the other party at: in the case of the Supplier, The General Manager South Africa; Unit 2, Corner Suni and Tsessebe Streets, Sage Corporate Park South, Randjesfontein, Midrand, South Africa, Fax +27 11 314 8759. In the case of the Customer: to the Customers chosen domicilium address or its registered address or such other address as may at the relevant time have been notified to the Supplier. Hand delivered notices shall take effect immediately upon delivery, postal notices, (five) working days after posting and, if sent by fax, at the date and time on the sender’s transmission acknowledgement slip.
17.3 No waiver and/ or indulgence by the Supplier of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. Failure by the Supplier to enforce any term of the Contract shall not be deemed as a waiver of the Supplier’s rights.
17.4 If any provision of these terms and conditions and any Contract pursuant thereto is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected thereby.
17.5 These terms and conditions constitute the entire agreement and understanding of the parties and supersedes all prior agreements, understandings or arrangements (both oral and written) in respect of the Products (save that neither party seeks to exclude liability for fraudulent pre-contractual misrepresentation upon which the other party can be shown to have relied).
17.6 In the event of a conflict between these terms and conditions and any subsequent terms and conditions and/or contract as may be amended by the Supplier from time to time, the latest version will prevail.
17.7 Regardless of where the offer and the acceptance take place, these terms and conditions and/or any other Contract pursuant thereto shall be governed by the laws of the Republic of South Africa. Any dispute arising therefrom shall be referred to the jurisdiction of the relevant Magistrates Court save that the Supplier shall reserve the right to bring proceedings against the Customer in any court having jurisdiction over such proceedings.
17.8 Save in respect of the rights, indemnities or warranties expressly stated to be given in favour of the Group, or the Supplier’s agents, all of which shall accrue directly for their benefit, the parties to the Contract do not intend that any term of the Contract will be enforceable under the by any person that is not a party to it. No such person shall have any rights relating to any extension, waiver and/or amendment to the Contract including but not limited to, any rights to approve any extension, waiver and/or amendment to the Contract.