Standard terms & conditions of Sale
1. SCOPE OF APPLICATION All current and future supplies of products and services (including any literature or other information) offered by PCC to the Customer (collectively referred to as “the Goods”) shall be governed under these terms and conditions of sale. These terms and conditions shall supersede any terms and conditions stipulated by the Customer, including any stipulations included in an order for Goods.
2. PRODUCT QUALITY, SPECIMENS & SAMPLES
2.1 Subject to the mandatory provisions of any applicable law and unless expressly agreed otherwise in writing between the Parties:
2.1.1 The quality of the Goods shall be determined strictly and exclusively in accordance with the Supplier’s product specifications (as updated by PCC and the Supplier from time to time and available on request).
2.1.2 The properties of specimens and samples (including any descriptions and compositions) shall not be binding on PCC.
2.1. 3 PCC does not warrant the suitability of the Goods for any specific purpose and gives no express or implied warranties in respect of the Goods. This shall, however, not relieve the Customer from having to conduct its own investigations and tests as to the suitability and application of the Goods for any particular purpose.
3.1 The purchase price of the Goods shall be the price reflected in PCC’s written quotation, or in limited instances PCC’s standard price list as provided by PCC to the Customer, and shall only be valid for the period indicated thereon.
3.2 PCC reserves the right to change its prices from time to time, as it in its discretion, deems fit. In the event of a price increase, the Customer shall be entitled to approach PCC, within 14 days after notification of the price increase, and propose alternative prices. This shall however exclude any orders that are already “in transit”.
4. OFFERS AND ACCEPTANCE OF ORDERS
4.1 PCC’s quotations are not binding offers but merely invitations. 4.2
All orders for Goods (“Order”) need to be placed in writing, in accordance with PCC’s standard processes and, unless expressly stated otherwise by PCC, sent to the address stipulated in clause 15.4. 4.3
A binding agreement shall only come into existence upon PCC’s acceptance of an Order.
5. PAYMENT OF AN ORDER 5.1
Payment shall be made in full to PCC upon production of an invoicerelating to an Order, unless specifically otherwise stated on an official PCC tax invoice.
5.2 The Customer shall not be entitled to claim set off or deduction in respect of any payment due by the Customer to PCC for Goods ordered.
5.3 Subject to applicable law, PCC may allocate all payments made by the Customer at the discretion of PCC.
6. OWNERSHIP & RISK
6.1 Notwithstanding that all risk in and to the Goods shall pass on delivery (as set forth in Clause 7) and irrespective of whether PCC may not be the distributor of the Goods, ownership of all Goods sold and delivered to the Customer shall remain vested in PCC until the purchase price of such Goods has been paid in full.
7.1 Delivery shall be affected as specifically agreed to between the parties in writing. General Commercial Terms shall be interpreted in accordance with the INCOTERMS in force on the date the agreement is concluded.
7.2 PCC has the right to defer delivery of Goods under this
agreement if and for as long as the Customer fails to pay any invoice under one or more of these when due.
7.3 In the event that the Customer rejects delivery of the Goods and the Goods have been delivered on the date, time and location agreed upon, the Goods were not damaged at time of delivery and there is no reasonable explanation for the rejection of delivery of the Goods, PCC may charge the Customer a reasonable cancellation fee, which may in the circumstances be the full price of the Goods.
7.4 If the Customer fails to take delivery of the Goods ordered due to a direct or indirect act or omission by the Customer, its employees or agents, then the risk in the goods shall immediately pass to the Customer and, the Customer shall be liable to pay PCC the reasonable costs of storing, insuring and the handling of such Goods, until delivery takes place.
8. DAMAGE IN TRANSIT Notice of claims arising out of damage in transit must be lodged and carried out in accordance with the agreed INCOTERMS. To the extent that any claim arising out of damage in transit is held to be against PCC, the Customer shall co-operate in good faith and assist and provide PCC with all reasonable requests for documentation and/or information as may be required by PCC in defending such a claim.
9. CUSTOMER’S COMPLIANCE WITH LEGAL REQUIREMENTS
9.1 The Customer shall comply with all laws and regulations regarding import, transport, storage and use of the Goods.
9.2 In performing its obligations under this Agreement the Customer undertakes to comply with all applicable laws and regulations
10. LIMITATION OF LIABILITY AND INDEMNITY
10.1 Subject to the mandatory provisions of any applicable law:
10.1.1 Under no circumstances whatsoever, including (without limitation) as a result of its negligent acts or omissions or those of its servants, agents or contractors or other persons for whom in law it may be liable shall PCC be liable to the Customer for any claims, actions, liabilities, damages, costs and expenses suffered or incurred by the Customer in relation to Goods damaged in the Customer’s possession, the use or application of the Goods contrary to any instructions and/or warnings provided or available in respect of the Goods, or any other direct or indirect act or omission by the Customer, its employees or agents resulting in the Goods being damaged or causing harm to any person or damage to any property.
10.1.2 PCC shall not be liable for any harm caused by the Goods to a third party if the harm caused to the third party is due to the Customer, its employees or agents’ actions (including the provision of inadequate instructions or warnings) in respect of the Goods to the third party.
10.1.3 PCC shall not have any liability for indirect, special or consequential losses or any of the following losses, regardless of whether same may be classified as direct or indirect losses: loss of profit; loss of revenue, loss of use; loss of goodwill or reputation; loss of anticipated savings and loss of production.
10.1.4 Under no circumstances whatsoever, including (without limitation) as a result of its negligent acts or omissions or those of its servants, agents or contractors or other persons for whom in law it may be liable shall PCC be responsible for any loss, damage, injury or death, however caused, to the Customer or to any of its agents, employees or sub-contractors.
10.1.5 The Customer agrees to indemnify and hold PCC harmless against all and any claims, losses, demands, liability, costs and expenses of whatsoever nature, which PCC may, at any time sustain or incur arising out of the use of the Goods and any conduct on the part of the Customer or its employees provided that such loss, damage, injury or death is not caused by any willful action or omission or gross negligence of PCC or its employees.
10.1.6 Each party (“Indemnifying Party”) hereby indemnifies and holds harmless the other party and its respective directors,
officers and employees, (collectively, the “Indemnified Parties”) from and against any and all claims, actions, liabilities, damages, costs and expenses asserted against, imposed upon or incurred by the Indemnified Parties as a result of or arising out of any contravention of any applicable law, including the Consumer Protection Act, (“Loss”) alleged or proven by a consumer or another person, to the extent that such Loss is attributable to the negligent or intentional conduct of the Indemnifying Party or any contravention by the Indemnifying Party of such applicable law.
10.1.7 The Indemnified Party shall promptly notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim indemnification under this indemnity. Notwithstanding anything to the contrary contained herein, the failure of the Indemnified Party to so deliver notice to the Indemnifying Party within 14 (fourteen) days after becoming aware of a Loss shall not relieve the Indemnifying Party of any liability to the Indemnified Party under this indemnity.
11. NEGOTIABLE INSTRUMENTS Acceptance of any negotiable instrument by PCC shall not be deemed to be a waiver of PCC’s rights under this agreement. In relation to a cheque furnished by the Customer, it waives its right to insist on notice of dishonour or protests being given to it in the event that the cheque is dishonoured.
12. CUSTOMER’S RIGHTS REGARDING ALLEGEDLY DEFECTIVE GOODS
12.1 Subject to the mandatory provisions of any applicable law:
12.1.1 The Customer shall inspect the Goods immediately following delivery of the Goods for quantity variances and defects.
12.1.2 Any complaints shall then be made in writing to PCC at the address stipulated in clause 15.4 below:
a) immediately where defects are apparent upon reasonable inspection; or
b) no later than 7 (seven) days after discovery of the defect, in the case of latent defects but in any event no later than 6 (six) months after receipt of the Goods. The Goods supplied shall otherwise be considered free of defects.
12.1.3 In such case, where the Goods are found to be defective by PCC after the Customer has complied with clause 12.1 above, then PCC has the right to choose whether to remedy the defect or to supply the Customer with non-defective replacement Goods.
13. RETURNS POLICY
13.1 Subject to the mandatory provisions of any applicable law:
13.1.1 The Goods are only returnable, at PCC’s sole discretion and must be returned complete, clean, sealed, undamaged and in their original packaging. The Customer will also need to notify PCC of the relevant packaging slip and batch numbers before any return will be considered.
13.1.2 The value of credit or refund for any returned Goods shall be calculated against the payments actually received by PCC with respect to the Goods.
13.1.3 All Goods are to be returned at the Customer’s sole risk and expense. Further the Customer may be liable for a fee of up to 20% (twenty per cent) of the original invoice.
14.1 Should the Customer breach any of the terms and conditions contained herein (all of which are deemed to be material) or commit an act of insolvency, or allow a judgment to be entered against it, or be provisionally or finally liquidated or sequestrated (a “Breach”), and fail and/or refuses to remedy such Breach within 5 (five) business days of written notice by PCC calling for such Breach to be remedied, then, without prejudice to and in addition to its other legal remedies and any rights under this agreement, PCC shall be entitled to:
a) immediately cancel this agreement or any unfulfilled part thereof on written notice to the Customer; and/or
b) to claim payment of the full price or the balance thereof (as the case may be) in writing, and failing such payment PCC is specifically authorised to repossess all unpaid-for Goods in the possession of the Customer, without further notice to the Customer.
15. LEGAL PROCEEDINGS AND NOTICES
15.1 These terms and conditions (including their existence, validity, interpretation, implementation, termination and enforcement) and all modifications and amendments hereof, shall be governed by and decided upon and constructed and interpreted under and in accordance with the laws of the Republic of South Africa.
15.2 For purposes of applying for urgent relief, the Customer and PCC hereby consent and submit to the exclusive jurisdiction of the Magistrates Court in any dispute arising from or in connection with this agreement.
15.3 A certificate issued and signed by any member or manager of PCC, whose authority need not be proved, in respect of any indebtedness of the Customer to PCC or in respect of any other fact, including the fact that such Goods were sold and delivered, shall be prima facie (until the contrary is proved) evidence of the Customer’s indebtedness to PCC and prima facie (until the contrary is proved) evidence of such other fact and prima facie (until the contrary is proved) evidence of the delivery of the Goods.
15.4 The Customer’s physical address as given on the Order shall be recognized as the Customer’s address for receipt of notices and execution of legal documents for all purposes in terms of this agreement whether in respect of the serving of any court process, notices, the payment of any amount or communications of whatever nature. PCC chooses its domicilium as [insert client’s business address here].
15.5 The customer shall be liable for all costs incurred by the supplier in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
16. ALTERNATIVE DISPUTE RESOLUTION
16.1 PCC and the Customer may agree to refer any dispute arising from or in connection with this agreement to arbitration, which arbitration shall be final and binding on both PCC and the Customer and shall only be subject to review by the High Court if one of the established grounds for review exist and under no circumstances shall the arbitrator’s decision be appealable to the High Court or any other appropriate body with requisite jurisdiction to hear such a matter.
16.2 That arbitration shall be held with only the parties and their representatives present thereat and held in Tshwane, South Africa. It is the intention that the arbitration shall, where possible, be held and concluded in 21 (twenty one) business days after it has been demanded. The arbitration shall be subject to the arbitration legislation for the time being in force in South Africa.
16.3 The provisions of this clause are severable from the rest of this agreement and shall remain in effect even if this agreement is terminated for any reason.
17.1 This agreement represents the entire agreement between PCC and the Customer.
17.2 The Customer acknowledges that it is aware that PCC’S dealers and sales persons have no authority to vary these terms and conditions of sale and PCC assume no liability and shall not be bound by any statements, warranties or representations made by such persons.
17.3 No amendment and/or cancellation of these terms and conditions, shall be of any force or effect unless reduced to writing and signed by, the Customer, and a director of PCC.
17.4 The Customer acknowledges that no warranties, representations or guarantees have been made by PCC or on behalf of PCC which may have induced the Customer to sign this agreement.
17.5 No relaxation or indulgence which PCC may give at any time in regard to the carrying out of the Customer’s obligations in terms of any contract shall prejudice or be deemed to be a waiver of any of PCC’S right in terms of this agreement.
17.6 The Customer shall not cede its rights nor assign its obligation in terms hereof without PCC’S prior written consent thereto.
17.7 PCC shall at any time in its sole discretion be entitled to cede all or any of its rights in terms of this application for Goods facilities including all terms and conditions to any third party with prior notice to the Customer.
17.8 Each of the terms herein shall be a separate and divisible term and if any such term becomes unenforceable for any reason whatsoever, then the term shall be severable and shall not affect the validity of the other terms.
18. FORCE MAJEURE (ACTS BEYOND THE PARTIES’ CONTROL) To the extent any incident or circumstance beyond PCC’S control (including natural occurrences, war, strikes, lock-outs, shortages of raw materials and energy, obstruction of transportation, breakdown of manufacturing equipment, fire, explosion, acts of Government or interrupted electricity supply), reduces or delays the availability or delivery of Goods or delays the availability or delivery of Goods from the plant from which PCC receives such Goods, such that PCC cannot fulfil its obligations under this agreement, and PCC has informed the Customer accordingly and without delay, PCC shall:
a) be relieved from its obligations under this agreement to the extent that PCC is prevented from performing such obligations and
b) have no obligation to procure Goods from other sources. If the aforementioned occurrences last for a period of more than 3 (three) months, PCC is entitled to withdraw from the agreement without the Customer having any right to compensation.
19.1 Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing and if received or deemed to be received by the addressee as stipulated in clauses 19.2 and
19.2 Any notice to a party sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered shall be deemed to have been received on the 7th business day after posting (unless the contrary is proved).
19.3 Any notice to a party delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery. 20. TERMINATION This agreement shall commence on the day of last party signing and shall continue for indefinite period unless terminated by either party on two months written notice to the other.