GENERAL TERMS AND CONDITIONS OF SALE
1. DEFINITIONS
1.1 “SELLER”
FIREQUIP CC
1.2 “PURCHASER”
The party who places an order on the SELLER which is accepted by the SELLER in terms of clause 2.
1.3 “EQUIPMENT”
The materials and/or products constituting automatic fire protection equipment ordered by the PURCHASER.
1.4 “CONTRACT”
The General Terms and Conditions of Sale, the SELLER’s quotation and the terms and conditions set out in the SELLER’s Supplier’s Agreement Document and only those other Terms and Conditions as may be specifically agreed in writing between the parties.
2. ACCEPTANCE OF ORDER
2.1. The PURCHASER’s order shall constitute an offer and a contract shall only come into existence when the SELLER accepts the PURCHASER’s order by performing in response to the order. Unless otherwise specifically agreed in writing, and other Terms and Conditions including those forming part of the PURCHASER’s order shall not form part of the contract between the SELLER and the PURCHASER and shall be of no force or effect.
The contract shall be governed by these Terms and Conditions of Sale and the SELLER’s Supplier’s Agreement Document (a copy of this is available on request). In the event of a conflict between those general Terms and Conditions of Sale and the conditions of the SELLER’s Supplier’s Agreement Document, the General Terms and Conditions set out herein shall prevail.
3. SCOPE OF CONTRACT
Subject to the provisions of Clause 4 below, the SELLER’s obligations in terms of the contract will be to supply equipment in accordance with such designs, instructions, itemised details, plans, drawings and specifications (“the SPECIFICATIONS”) as form part of the contract. The SELLER shall not be responsible for the adequacy of or for any costs occasioned by the inadequacy of any such specifications.
4. LIABILITY
4.1. LIABILITY FOR DEFECTS
The SELLER undertakes that the equipment, if manufactured by it, will conform to such specifications set out in the order. In the event of the equipment proving not to be in accordance with such specification , the SELLER shall, if requested to do so in writing within reasonable time of discovery of such failure to conform, to such specification (hereinafter referred to as “DEFECTS”), but in any event not after 6 (SIX) months have elapsed from the date of delivery of such defective equipment to the PURCHASER, as its option, repair or replace the defective portions/components of the equipment, by suppling the required or replaced portions/components of the equipment to the initial place of delivery at the PURCHASER’s cost, or at the further option of the SELLER, to credit the PURCHASER with the invoiced value of the defective portions/components of the equipment in question, provided that the defective equipment is returned to the SELLER by the PURCHASER at the PURCHASER’s cost. Notwithstanding anything to the contrary anywhere contained, the SELLER shall have the liability in respect of any defect in the equipment, whether latent or patent, not notified to the SELLER in writing before the end of the aforesaid 6 (SIX) month period.
4.2. In respect of equipment supplied by the SUPPLIER but not manufactured by it, the SELLER gives no greater warranty and accepts no greater liability than that given or accepted by the enforceable against the Supplier/Manufacturer thereof.
4.3. Notwithstanding anything to the contrary anywhere contained, the liability of the SELLER howsoever arising out of the contract or in delict by the operation of statute shall not extend beyond the obligations specifically assumed in terms on this Clause 4 and the SELLER:
4.3.1 gives no other warranties, expressed or implied, in respect of (without limitations) design, workmanship, materials, fitness for purpose, merchantability or product liability not set out herein;
4.3.2 gives no warranties in respect of equipment used other than for the intended purpose, or for defects arising through fair wear and tear or neglect;
4.3.3 shall in no event be liable for the PURCHASER’s loss of profits, loss of use, loss of production, loss of contracts, loss of custom or goodwill, or for any special, indirect or consequential damages howsoever arising.
4.4 LIABILITY FOR DELAY
The seller shall accept no liability in the event that the equipment is not supplied in accordance with the dates quoted for delivery as such dates are only approximate dates reckoned from the date of receipt of the official order or written instruction from the PURCHASER. In particular, the SELLER accepts no liability for the PURCHASER’s loss of profits, loss of use, loss of production, loss of contracts, loss of custom or goodwill, or for any special, indirect or consequential damages arising out of the delays in delivery of the equipment.
5. DELIVERY
5.1 Unless otherwise stipulated in the contract, delivery shall be “ex the SELLER’s works”.
5.2 The risk in and to the equipment will pass to the PURCHASER on delivery and claims for non-delivery or for shortages or damage on receipt of the equipment shall be for the PURCHASER’s account.
5.3 Should the PURCHASER fail or refuse to take delivery of the equipment when delivery is tendered by the SELLER, the PURCHASER shall be liable for such costs as may be incurred by the SELLER in consequence thereof.
6. CONTRACT PRICE
6.1 The contract price to be paid by the PURCHASER for the equipment shall be the quoted price. However, in the event of any variation, inter alia, in the rate of exchange, freight costs, insurance premiums, customs duties and surcharges ect. the contract price shall be varied and such variation shall be for the account of the PURCHASER.
6.2 The contract price shall be paid in cash, free of exchange, deductions or set off, within 30(THIRTY) days of date of SELLER’s statement. Notwithstanding delivery of the equipment to the PURCHASER or to any third party, it is specifically agreed that it is the intention of the parties that the equipment shall not accede to any other property, whether moveable or immoveable, and that as far as any other goods or equipment are concerned the equipment shall, for the purpose of accession be deemed to be the principle items, and that ownership of the equipment and any items accessory thereto shall at all times remain vested in the SELLER, and shall not pass to the PURCHASER unless the full contract price has been paid. In the event of non-payment, the PURCHASER hereby irrevocably authorizes the SELLER or its duly autorised agents to repossess the equipment wheresoever it may be found, and further, as its option, to detach or unfix by itself, its agents or servants, the equipment from anything to which it may be attached or in which it is installed or annexed without being responsible for any damage that may be caused thereby and, may for such purpose, by itself, its servants or agents, enter upon any land or building, vehicle or vessel or other place upon which the equipment is reasonable thought to be situated.
6.3 Payments delayed after the due date for payment shall be subject to the interest charges, compounded monthly, with effect from the date of delivery to date of payment at the prime bank rate as charged by the Standard Bank of South Africa Limited.
6.4 In the event that it is necessary for the SELLER to instruct an agent or attorney to recover the purchase price for equipment sold and delivered, the PURCHASER shall be liable for all the SELLER’s costs, expenses and legal fees incurred, on any attorney and client scale.
7. VARIATIONS AND RETURNS
7.1 The SELLER shall supply the equipment in accordance with the contract.
Should the PURCHASER require variations to the equipment or to the quantities thereof, or should the SELLER be hindered, delayed or prevented from supplying in terms of the contract or be exposed to extra costs owing to extensions to or omissions from the order, deviations from the specification, late, defective or non-receipt of information or by any other act, default or omission on the part of the PURCHASER, the SELLER shall be entitled to an appropriate variation to the contract or by any other obligation of the SELLER.
7.2 An order accepted by the SELLER may be cancelled by the PURCHASER provided that the SELLER’s written consent is obtained. Returns, if accepted by the SELLER at its sole discretion, shall be credited subject to a deduction of a minimum of 15% as a handling charge, subject to the equipment being within in its specified shelf life and in a marketable condition and provided further that the PURCHASER shall be liable for all costs of delivery to the SELLER’s designated premises.
8. FORCE MAJEURE
Neither party shall be liable to the other for inability to perform or delayed performance in terms of the contract should the inability arise from any cause beyond the reasonable control of such party, the existence or happening of which cause has been drawn to the attention of the party within a reasonable time of the occurrence of such cause. For the purposes of this cause the term “force majeure” shall, without limiting the generality of the foregoing, be deemed to include strikes, lockouts, labour disputes, accidents, plant and machinery breakdown, fire, explosions, theft, act of local or national government or delay on the party of the SELLER’s Suppliers or any other cause beyond the reasonable control of the party effected.
9. BREACH
Should either party be in breach of any material obligation imposed in terms of the contract and fail to remedy such breach or take positive steps towards remedying such breach within 14(Fourteen) days of written notice of such breach from the other party, then the non-defaulting party shall be entitled to cancel the contract without prejudice to such other rights such non defaulting party may have in terms of this agreement or at law.
10. FURTHER CONTRACTS
These General Terms and Conditions (as they may be amended from time to time by the SELLER) shall also apply to any future, oral or written contract for the supply of equipment by the SELLER to the PURCHASER save to the extent that such conditions are in any future contract specifically varied or excluded or are inconsistent with what is expressly agreed in any such future contract.
11. GENERAL
11.1 Although every effort will be made to the PURCHASER on the correct use of the equipment supplied, the responsibility lies with the PURCHASER to ascertain the accepted application and acceptance for the installation of the equipment in accordance with the approvals of the local authority having jurisdiction at the time. The SELLER has no obligation to accept the return of equipment incorrectly purchased and cannot be held liable for replacement costs thereof. In addition, the PURCHASER shall remain liable for payment for equipment erroneously ordered.
11.2 Acceptance of orders by the SELLER shall be subject to the PURCHASER’s credit worthiness having been established by an independent third party, alternatively, acceptance for credit worthiness having been accepted by a recognized credit guarantee organization.
11.3 The PURCHASER chooses as its domicilium citandi et executandi for any purpose under this contract the physical address to which the equipment is delivered.
11.4 The PURCHASE undertakes that it shall not re-sell the equipment to any third party for installation y the third party without written consent of the SELLER, provided that if the third party is sub-contracted to the PURCHASER to install the equipment, such consent shall not be required.