Essentra Components South Africa ESSENTRA COMPONENTS (PTY) LIMITED SOUTH AFRICA
Terms and Conditions of Sale
1.1 The terms and conditions set out below (as amended from time to time) by the Seller by notice on the Seller’s Website, (the Terms and “Conditions”) shall form part of every contract between the Seller and the Buyer for the sale and purchase of Products or Tooling.
1.2 These Terms and Conditions shall apply to any dealings between the Seller and the Buyer to the express exclusion of any other terms and conditions including, but not limited to terms and conditions which the Buyer 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 Seller.
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 Seller, 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.
2.1 In these terms and conditions: “Buyer” means the person, whether legal or juristic, purchasing the Products from the Seller; “Buyer’s Tooling” means any die, mould, pattern, tool or other equipment, which is the property of the Buyer and/or which was made, purchased or received by the Seller from or at the direction of the Buyer; “Claim” means a claim arising out of or in connection with the supply of any Products or Tooling to the Buyer or as a result of breach of these terms and conditions or of any duty of any nature whatsoever by the Seller or pursuant to any use made by the Buyer or resale by the Buyer 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; “Claim Limit” means, in respect of any calendar year, the greater of: 2.1.1 the aggregate amount payable to the Seller by the Buyer for goods of the type that are the subject of a Claim and which are purchased by the Buyer from the Seller in that year (the “Relevant Goods”); 2.1.2 in the first three months of that year, the aggregate amount payable by the Seller to the Buyer for the Relevant Goods purchased in the previous year; or 2.1.3 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; “Contract” means the agreement between the Seller and the Buyer for the sale and purchase of any of the Seller’s Products and/or Tooling; “Custom Products” means any goods, other than Standard Products, supplied or to be supplied by the Seller and which have been customised to the Buyer’s requirements at the Buyer’s request; “Group of companies” means any subsidiary and any holding company of the Seller 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); “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; “Losses” means all losses, claims, liabilities, costs, charges, expenses and damages of any kind irrespective of whether they were reasonably foreseeable or avoidable; “Order Acceptance” means a written acceptance of an order issued by an authorised signatory of the Seller in accordance with paragraph 3.2; “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 Seller, subject to any tolerances or other variations reflected in any specifications or guidance notes supplied by the Seller in relation to the sample, which an authorised signatory of the Seller confirms is applicable to the Contract in the Order Acceptance; “Seller” 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 Randjiesfontein, Midrand, South Africa and its successors and assigns; “Seller’s Catalogue” means the Seller’s product catalogue, as published by the Seller from time to time including any catalogue on the Seller’s Website; “Seller’s Tooling” means any dies, moulds, patterns, tools or other equipment other than Buyer’s Tooling used or to be used in connection with the manufacture of the Custom Products; “Seller’s Website” meanswww. essentracomponents.co.za and/ or any other website associated therewith from time to time; “Specifications” means; 2.1.4 in respect of Standard Products, the specifications for the relevant Standard Product as set out in the latest publication of the Seller’s Catalogue at the time such Standard Product is ordered; 2.1.5 in respect of Custom Products, the specifications for the relevant Custom Products which an authorised signatory of the Seller has confirmed are the final specifications for such Custom Products; and 2.1.6 in the absence of any such specifications, the specifications that the Seller may, acting reasonably, determine to be appropriate from time to time; “Standard Products” means any goods which are offered for sale by product number in the Seller’s Catalogue as updated from time to time; and “Tooling” means Seller’s Tooling and Buyer’s Tooling.
2.2 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”.
3. Quotes and Orders
3.1 Quotes are valid for 30 days from the date of the quote, unless otherwise specified by the Seller, but are not binding until an order is accepted by the Seller in accordance with paragraph 3.2.
3.2 Each order for Products made by the Buyer from the Seller shall be deemed to be an offer by the Buyer to purchase the Products specified in the order on the terms and conditions set out herein. An order is not binding on the Seller until it is accepted by the Seller by issuing the Order Acceptance or by the Seller either commencing manufacture of the Products or any related Tooling or samples, apportioning the Products to the Buyer’s order or dispatching the Products to the Buyer.
3.3 Once accepted, an order may only be cancelled, varied or suspended by the Buyer with the express prior written agreement of the Seller.
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. Descriptions, Samples and Literature
4.1 All drawings, specifications and advertising issued by the Seller and any descriptions, details or illustrations contained in any Seller’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 Buyer 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 Seller’s Catalogue, quote, price list, acceptance of offer, Order Acceptance, label, packaging, invoice or other document or information issued by the Seller may be corrected by the Seller, without liability to the Buyer, at any time either by correcting any such matter in public or by publishing the correction on the Seller’s Website or by notifying the Buyer in writing and such correction shall be binding upon the Buyer 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 Buyer 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 Buyer expressly acknowledges that, irrespective of any guidance provided to it by the Seller, it is not relying on the Seller’s skill and judgement in determining whether the Products will be fit for all its purposes.
5.2 If the Buyer wishes to rely on the Seller’s skill and judgement in relation to a Custom Product being fit for a particular purpose then prior to placing an order the Buyer must expressly advise the Seller in writing of the particular purpose and that it wishes to rely on the Seller’s confirmation rather than conducting its own testing. The Seller shall advise the Buyer of any additional charges which would apply if such confirmation is given. The Buyer shall only be entitled to rely on the Custom Product being fit for that particular purpose if the Buyer has provided all the information which the Seller would need to undertake the requisite testing and an authorised signatory of the Seller has expressly confirmed in the Order Acceptance that the Custom Product can fulfil that particular purpose.
5.3 The Seller 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 Seller by or on behalf of the Buyer or variations to Specifications made at the request of the Buyer and any Tooling either derived from any such Specifications or supplied by or on behalf of the Buyer, the Buyer warrants, represents and undertakes that such Specifications and/or Tooling: 5.4.1 fully and accurately reflect the Buyer’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 Seller producing and/or supplying (if agreed) Products complying with such Specifications; 5.4.3 will result in Products which are fit for the Buyer’s purpose; 5.4.4 do not infringe the Intellectual Property Rights of any third parties and the Seller, 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 Seller and the Buyer, the Seller shall own all of the Intellectual Property Rights created by the Seller, 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 Seller agrees to supply Custom Products and it notifies the Buyer that it requires the Buyer’s Tooling to do so, then the Buyer shall either supply the Buyer’s Tooling capable of producing the Custom Products or, if agreed between the parties, the Seller shall manufacture the Buyer’s Tooling or obtain it on the Buyer’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 Buyer’s first order for the Custom Products to be manufactured using the relevant Buyer’s Tooling and subject to receipt of the Seller’s invoice for such Buyer’s Tooling, the Buyer shall: 6.2.1 forthwith pay fifty percent (50%) of the whole price of such Buyer’s Tooling and shall pay the remaining fifty percent (50%) of such price upon the Seller sending to the Buyer, samples produced using such Buyer’s Tooling; or 6.2.2 if requested by the Seller, forthwith pay the whole price of such Buyer’s Tooling.
6.3 Title to any Buyer’s Tooling made or purchased by the Seller shall remain with the Seller until the Seller has received the full price due in respect of such Buyer’s Tooling in cash or cleared funds whereupon title shall pass to the Buyer. Until title to the Buyer’s Tooling passes to the Buyer, the terms of paragraphs 10.3 and 10.4 shall apply to the Buyer’s Tooling as they apply to the Products. Upon transfer of title to the Buyer’s Tooling back to the Buyer, the Buyer shall be entitled to licence the Intellectual Property Rights comprised in the Buyer’s Tooling to the extent necessary to use the Buyer’s Tooling to make the relevant Custom Products.
6.4 Risk of loss or damage to the Buyer’s Tooling supplied to, or purchased on the Buyer’s behalf by, the Seller shall remain with the Buyer. Risk of loss or damage to the Buyer’s Tooling made by the Seller shall pass to the Buyer upon completion of its manufacture. The Buyer shall ensure that the Buyer’s Tooling is appropriately and adequately insured with a reputable insurer for so long as it remains at the Seller’s premises and will bear the costs of any necessary repairs or replacement.
6.5 The Seller shall notify the Buyer of any loss or damage to the Buyer’s Tooling whilst in the Seller’s possession. The Seller, its Group or agents shall assume no liability to the Buyer in respect of any loss or damage to the Buyer’s Tooling whilst such Buyer’s Tooling is in the Seller’s possession.
6.6 The Seller shall store the Buyer’s Tooling free of charge for a period of 2 years from the date of the last delivery of Products made using the Buyer’s Tooling. On expiry of this period, the Seller may use for its own purposes or continue to store, return or destroy the Buyer’s Tooling, the cost of which shall be payable by the Buyer.
6.7 Where the Buyer has indicated that it wishes to purchase a minimum quantity of Custom Products and is aware that the Seller will invest or has invested in the manufacture of the Seller’s Tooling in respect of those Custom Products and the Buyer orders or takes delivery of a smaller quantity of such Custom Products than the minimum it previously indicated, the Seller may invoice the Buyer, pro rata to the quantity of such Custom Products ordered, for the cost of its investment in such Seller’s Tooling and for its reasonable administration and handling charges.
6.8 The Intellectual Property Rights in and title to any Seller’s Tooling shall remain at all times with the Seller except as otherwise expressly agreed in writing. If the Buyer purchases the Seller’s Tooling, title and risk in the Seller’s Tooling shall pass to the Buyer upon payment in full by the Buyer of an amount notified by the Seller in writing. The Buyer acknowledges that any Seller’s Tooling which it purchases will have been used by the Seller and that the Buyer 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 Seller’s Tooling passing to the Buyer it shall thereafter be treated as Buyer’s Tooling for the purposes of these Terms and Conditions.
6.9 If the Seller is required to redesign, repair or replace or otherwise incur any expenditure in relation to any Tooling for use in producing Custom Products, the Buyer shall promptly reimburse the Seller for all such costs incurred by the Seller, including any tooling and re-tooling costs, except to the extent such costs were caused by the Seller’s negligence or wilful abuse.
6.10 The Seller 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 Seller’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 Seller’s current practice. The Price reflects the limitations on liability set out in these terms and conditions but, if requested by the Buyer, the Seller will advise the Buyer of the additional costs which would apply if the Seller agrees to any variations to such limitations on liability.
7.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the Price to reflect any increase in the cost to the Seller of supplying any Products or Tooling which is due to: 7.2.1 any factor beyond the reasonable control of the Seller; 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 Buyer to delivery dates, quantities, Specifications or the scope of the Seller’s instructions; 7.2.4 any delay or additional work or materials caused by any instructions, neglect or default of the Buyer; or 7.2.5 any failure by the Buyer to procure the supply to the Seller 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 Buyer at the time it is due to pay for the Products or the Tooling. Where carriage or other costs to be borne by the Buyer are initially paid by the Seller, the Seller shall be entitled to render an invoice forthwith in respect of such costs.
8.1 The Seller shall at its discretion be entitled to invoice the Buyer in advance for payment of the whole or part of the Price or any other amounts payable by the Buyer.
8.2 The Seller 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 Buyer.
8.3 Subject to paragraph 8.1, payment of any Seller’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 Buyer. Unless otherwise expressly agreed by the Seller, payment shall be made in the same currency as the Price. The time of payment of sums due from the Buyer shall be of the essence of these terms and conditions. No payment will be deemed received until received by the Seller in cash or cleared funds. Interest will be payable on overdue amounts at the rate of 3 percent per annum above the prime rate of the South African Reserve Bank as adjusted from time to time.
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 Buyer fails to make any payment when due, pursuant to these terms and conditions and/or pursuant to any other contract between the Buyer and the Seller, the Seller, 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 Buyer and the Seller; 8.5.2 deduct outstanding sums from any sums owed by the Seller to the Buyer under the Contract or otherwise; 8.5.3 require the Buyer to pay any costs of storage of the Products and any Tooling; 8.5.4 suspend any further deliveries to the Buyer 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 Buyer; 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 Buyer by a carrier service chosen by the Seller, acting reasonably. Delivery of the Products to the Buyer shall be effected by the Seller 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 Seller shall notify the Buyer of, if so requested. The Seller 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 Buyer from the Seller’s premises, by the Seller notifying the Buyer that the Products are ready for collection; 9.2.2 where the Products are delivered by the Seller, by the Seller delivering the Products to the address nominated by the Buyer 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 Seller shall not be liable for any delay in delivery of the Products. The Seller may deliver up to 10 per cent more or 10 per cent less than the quantity of Products specified in the order and the Buyer 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 Seller has received payment from the Buyer on the basis of a pro-forma invoice, the Seller shall take all reasonable steps to supply the Products subject to availability. In the event of a short delivery, arising from this provision, the Seller shall endeavour to procure the goods within a reasonable time, or deliver to the Buyer with the Buyer’s consent (which consent may not be unreasonably withheld), other goods that are of the same standard and quality.
9.5 The Seller shall not be responsible for any Losses incurred or suffered by the Buyer as a result of a failure to deliver the Products or for short delivery unless the Buyer has informed the Seller 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 Seller is so liable, the Seller’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 Seller to deliver nor any claim in respect of any one or more instalments by the Buyer shall entitle the Buyer to treat the Contract as a whole as repudiated.
9.7 Where the Buyer fails to take delivery of the Products or fails to give the Seller adequate delivery instructions in advance of the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’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 Seller, the Seller may: 9.7.1 store the Products until actual delivery and charge the Buyer for the reasonable costs of storage, including insurance, if applicable but without any obligation on the Seller to procure insurance; or 9.7.2 where the Buyer 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 Buyer for the excess over the Price or invoice the Buyer for any shortfall below the Price.
9.8 If, upon delivery of the Products, the Buyer discovers that it has incorrectly ordered those Products, the Seller’s standard handling charge from time to time will be payable by the Buyer if the Seller agrees (at its sole discretion) to accept return of those Products.
10. Risk and Ownership in the Products
10.1 Products supplied by the Seller shall be at the Buyer’s risk immediately on and after delivery and the Buyer should arrange appropriate insurance from that point.
10.2 Title (legal and beneficial) in all Products supplied or sold by the Seller shall be retained by the Seller until : 10.2.1 the Seller has received in either cash or cleared funds all sums due in respect of the Products and on any account whatsoever from the Buyer to the Seller; or 10.2.2 the Products have been used or incorporated into other products, and paid for in full by the Buyer either in cash or cleared funds), whichever is the earlier.
10.3 Until such time as the ownership in the Products passes to the Buyer, the Buyer must: 10.3.1 hold such Products (on a fiduciary basis for and on behalf of the Seller) and act in good faith to protect the Seller’s interests in the Products; 10.3.2 store such Products (at no cost to the Seller) separately from all other goods of the Buyer in such a way that such Products remain identifiable as property of the Seller 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 Seller’s behalf and in the event of any claim hold the proceeds of such insurance on trust for the Seller.
10.4 The Seller shall be entitled at any time to require the Buyer to deliver any Products to the Seller prior to ownership in the Products passing to the Buyer. The Buyer grants the Seller and its agents an irrevocable consent at any time to enter any premises where such Products are stored to inspect or, if the Buyer has failed to deliver possession when requested by the Seller, to repossess such Products.
11.1 Subject to the remaining provisions of these terms and conditions, the Seller warrants that on delivery all Products and Buyer’s Tooling will be of satisfactory quality. The Buyer 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 Buyer notifies the Seller, 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 Buyer notifies the Seller 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 Buyer, 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 Seller is given reasonable opportunity to inspect the Products or Tooling and, at the Seller’s request (acting reasonably), the Products or Tooling are returned to the Seller’s place of business for the purposes of such inspection; and 11.2.4 the total price for the Products has been paid by the Buyer.
11.3 The Seller 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 Buyer’s breach of paragraph 5.3 or by the Buyer’s Tooling, except to the extent caused by the Seller’s negligent actions or omissions in respect of the manufacture or use of the Buyer’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 Seller, including repairs, additions or changes made to the Products by or on behalf of the Buyer; 11.3.4 the breach was caused directly or indirectly by parts, materials or equipment incorporated into a Product but not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as was given by the manufacturer to the Seller and which is capable of being assigned to the Buyer (at the Buyer’s cost); 11.3.5 The Buyer makes further use of or resells the Products after giving notice of a defect or fails to comply with the Seller’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 Seller or by any matter specifically excluded by the Seller 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 Seller are found, in the reasonable opinion of the Seller, not to conform with the warranty contained in paragraph 11.1 or any other warranties, quality standards or conditions implied by law, the Seller 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 Seller.
11.5 Subject to the provisions of paragraph 12, the warranties contained in condition shall be the sole extent of the Seller’s liability arising out of or in connection with the Products.
11.6 The Buyer shall comply with all reasonable instructions of the Seller 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 Seller in respect of the Products after delivery to Buyer.
12. Limitation of Liability
12.1 Without prejudice to paragraphs 12.2 and 12.5 the Seller’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 Buyer 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 Seller’s aggregate liability for a Claim in relation to any single item of Product shall be limited to the Price payable to the Seller by the Buyer for that item; 12.1.2 The Seller’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 Seller’s aggregate liability to the Buyer for all Claims arising in each calendar year shall be limited to the Claim Limit.
12.2 The Seller shall not be liable to the Buyer 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 Seller, in each case whether direct or indirect or consequential and, whether such losses are suffered by the Buyer 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 Seller’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 Seller will not be liable to the Buyer 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 Seller by operation of law.
12.5 Nothing in these terms and conditions shall exclude or limit the Seller’s liability in respect of any claim (other than by the Buyer 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 Buyer 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 Seller of such claim or circumstance; 12.6.2 promptly provide such assistance to the Seller and take such action as the Seller may request to avoid, dispute, defend, mitigate, resist, appeal or compromise such claim or circumstance including but not limited to allowing the Seller 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 Seller.
12.7 Without prejudice to any other provision of these terms and conditions, the Seller 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 Seller’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 Seller) 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 Buyer or its agents or representatives.
12.8 The Seller reserves the right to defer the date of delivery or to terminate the Contract or reduce the volume of the Products ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to an event referred to in paragraph 12.7 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 Buyer 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 Seller under the Contract and any other contracts and the ability of the Buyer to protect itself through insurance. The Seller may be willing to vary the limitations on liability in relation to specific Products if requested by the Buyer subject to the Buyer bearing the additional costs as notified by the Seller. For the avoidance of doubt, any payment made by the Seller to the Buyer in any calendar year in respect of any Claim made by the Buyer 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 Seller may terminate the Contract forthwith if: 13.1.1 the Buyer breaches any terms of any contract with the Seller; 13.1.2 the Buyer 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 Buyer (including, without limitation, the making of an application or the giving of any notice) by the Buyer or any other person for a sequestration (distress), execution, winding up, dissolution, or to appoint an administrator for the Buyer 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 Buyer; or the Buyer ceases, or threatens to cease, to carry on business; or 13.1.4 the Seller reasonably apprehends that any of the events mentioned in paragraphs 13.1.2 and 13.1.3 is about to occur.
13.2 The Buyer may, on 30 days written notice, terminate: 13.2.1 the Contract within 30 days of receiving notice from the Seller 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 Seller pursuant to paragraph 5.3.
13.3 Where the Seller terminates the Contract in accordance with paragraphs 8.5 or 13.1 then, without prejudice to any other right or remedy available to the Seller: 13.3.1 the Seller 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 Buyer’s right to possession shall terminate and the Seller may dispose or use any of the Products as it wishes; and 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 Seller’s other rights and remedies, the Buyer shall indemnify and keep indemnified the Seller, 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 Buyer 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 Buyer’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 Seller or any event has occurred (including any act or omission) which would result in paragraph 11.1 ceasing to apply to those Products; 14.1.3 the use of Specifications or Tooling supplied by or on behalf of the Buyer or modified at the request of the Buyer; 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 Buyer; and 14.1.5 any termination pursuant to paragraphs 8.5 or 13.1.
15. Export Terms
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 Buyer and the Seller) 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 Buyer 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 Buyer shall be responsible for notifying the Seller of any obligations which the Seller is obliged to comply with pursuant to any such legislation or regulations and for bearing or reimbursing to the Seller any associated costs.
16.1 The Seller 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 Seller and shall be subject to the exclusions or limitations on liability set out in these Terms and Conditions. The Buyer shall not transfer, assign or sub-contract any of its rights or obligations under the Contract without the Seller’s prior written consent and in any event shall remain responsible for the performance of the Contract by any transferee, assign or sub-contractor.
16.2 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 Seller, The General Manager South Africa; Unit 2, Corner Suni and Tsessebe Streets, Sage Corporate Park South, Randjiesfontein, Midrand, South Africa, Fax +27 11 314 8759. In the case of the Buyer: to the Buyers chosen domicilium address or its registered address or such other address as may at the relevant time have been notified to the Seller. 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.
16.3 No waiver and/ or indulgence by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. Failure by the Seller to enforce any term of the Contract shall not be deemed as a waiver of the Seller’s rights.
16.4 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.
16.5 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).
16.6 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 Seller from time to time, the latest version will prevail.
16.7 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 Seller shall reserve the right to bring proceedings against the Buyer in any court having jurisdiction over such proceedings.
16.8 Save in respect of the rights, indemnities or warranties expressly stated to be given in favour of the Group, or the Seller’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.