Busch Vacuum South Africa (Pty) Ltd
STANDARD TERMS AND CONDITIONS OF SALE
The sale of goods and services (“Product”) by Busch Vacuum South Africa (Pty) Ltd referred to as the Company to any Customer of such goods or services (herein referred to as “the Customer”) will be subject to the following terms and conditions and shall bind the Company and the Customer in all future transactions and no other terms and conditions and variances with those contained herein shall be applicable or binding on the Company unless agreed to in writing by both parties.1. The Order
1.1.1 No Purchase order addressed by the Customer to the Company shall result in a contract between the Company and the Customer until processed and accepted by the Company in writing and communicated to the Customer. All orders will only be processed by the company on receipt of an official order from the Customer (via electronic format or post) where the order number and company registration number is recorded in terms of the Governments legislation.
1.1.2 Once accepted by the Company, the Customer shall not be entitled unilaterally for any reason whatsoever to cancel or vary the order.
2. Price and Payment
2.1.1 The price of the Product will be the Company’s quoted price as per the order or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only after which time they may be altered by the Company by giving prior notice to the Customer.
2.1.2 Customer's written order accepting this Offer of Goods ("Order") or written direction to the Company to proceed with engineering, procurement, furnishing, manufacturing, shipment or delivery of such Goods, shall constitute agreement to these Terms and specifications on the offer. Any additional or contrary terms in customer's written purchase order, acknowledgment, quote request and other written direction or specification for a specific order shall not be valid unless agreed in writing and duly signed by a person authorized by the Company.
2.1.3 Unless a fixed price has been agreed in writing between the Company and the Customer, the Company reserves the right by giving prior notice to the Customer at any time before delivery to increase the price of the Products to reflect any increase in the cost to the Company which is due to any factors beyond the control of the Company, any change in delivery dates, quantities or specifications for the Products which is requested by the Customer or any delay caused by any instruction of the Customer or failure of the Customer to give the Company adequate information or instructions.
2.1.4 The Company will be entitled to invoice the Customer for the price of the Products on or at any time after delivery of the Products, unless the Products are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Products in which event the Company will be entitled to invoice the Customer for the price at any time after the Company has notified the Customer that the Products are ready for collection or (as the case may be) the Company has tendered delivery of the Products.
2.1.5 Payment in full without deduction or set-off (less any discount to which the Customer may be entitled) in respect of Products sold shall be due and payable with customer credit terms as signed off by the Company from date of invoice, such payment is to be received by the Company not later than the last working day of the calendar month next following the date of the Company’s invoice.
2.1.6 Preferably irrevocable/confirmed letter of credits will only be accepted on export customers
2.1.7 The Company shall still charge the Customer interest at a rate of 2% (two percent) per annum above the prevailing bank prime rate charged by the Company’s bankers to its most favoured corporate customers, on all accounts outstanding in excess of customer’s credit terms, provided however, that nothing herein contained shall be interpreted as obliging the Company to afford the Customer as indulgence to effect payment after the due date.
2.1.8 The Company reserves the right at any time to refuse to deliver any outstanding orders should the Company not be able to obtain satisfactory guarantees for the due and prompt payment to it of all monies which may become due.
2.1.9 Upon failure to comply with the conditions of payment, the Company reserves the right to, in its sole discretion, suspend delivery of any outstanding orders or to require cash payment prior to or cancel the order.
2.1.10 The Company shall have a lien on all Customer’s property in the Company’s possession for all sums due at any time from the Customers to the Company. If Customer has not paid and collected goods after 3 months, the Company will give the Customer one month’s notice in writing. After 4 months the Company shall be entitled to use, sell and dispose of such property as agent for and at the expense of the Customer and apply the proceeds in and towards the payment of monies due and outstanding from the Customer to the Company. Thereafter the Company shall be discharged of any liability in respect of the Customer’s property.
3. Delivery
3.1.1 Delivery of the products will be made by the Customer by collecting the Products at the Company’s premises at the time after the Company has notified the Customer that the products are ready for collection or, if some other place for delivery as agreed by the Company, by the Company delivering the Products to that place.
3.1.2 Except as otherwise stated under the terms of any order or in any price list of the price list of the Company, all prices are given by the Company on an ex-works basis and where the Company agrees to deliver the Products to the Customer or any other site, whether by standard transport, packaging and insurance, provided that the same shall be approved of prior to incurrence thereof by the Company, save where delivery is effected within a 50 km radius from the Company’s premises, in which case delivery shall be effected by the Company free of charge.
3.1.3 Any dates quoted for delivery of the Products are approximately only and the Company will not be liable for any additional costs to the Customer arising out if any delay in delivery of the Products however caused. Time for delivery shall not be of the essence of the agreement unless previously agreed by the Company in writing. The Products may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer. The Company does not accept any penalties of any description or type and are not held liable for any such penalties that form part of the Customers agreement with others. Any delay in delivery shall not entitle the Customer to cancel any order or refuse acceptance delivery thereof.
3.1.4 If the Customer fails to take delivery of the Products or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any right or remedy available to the Company, the Company may: -
3.1.4.1 Store the Products until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
3.1.4.2 Sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Agreement or charge the Customer for any shortfall below the price of the Agreement.
3.1.5 If the Products have not been received by the Customer within 60 days of notification of despatch by the Company, or if they have been received but are in a damaged condition or if the quality received differs from the quality advised by the Company at despatched, the Customer shall immediately give notice in writing to the Company of the relevant facts. If such notice is not received within 7 days from notification of despatch by the Company the Company will not be liable to the Customer in respect of any loss or damage suffered and the Customer shall accept liability as if all products have been received and shall not claim against the Company in respect of non or short delivery or damage in transit, nor in respect of the warranty.
3.1.6 Where Products are offered for delivery to the Customer or another site the obligation of the Company is to deliver only as near to the site as a safe hard road permits. The Customer is to provide to the Company, free of charge, reasonable assistance in unloading.
4. The Customer
Agrees and acknowledges that on the event of;
4.1.1 The Customer breaching any of the terms of these standard terms and conditions of sale;
4.1.2 The Customer failing to pay any amount due and payable on due date;
4.1.3 The Customer suffering and civil judgement to be taken or entered against it;
4.1.4 The Customer causing a notice of surrender of its estate to be published in terms of the insolvency act;
4.1.5 The Customer dying;
4.1.6 The Customer being placed under an order of provisional or final winding up, or provisional or final judicial management, as the case may be; then and in that event all amounts owing by the Customer to the Company under all agreements of sale of Products shall become immediately due and payable and the Company shall, in addition to any other remedies which it may have at law;
I. Be entitled to summarily cancel any or all outstanding orders or agreements of sale of Products to the Customer on written notice.
II. Be entitled to claim specific performance of all the Customer’s obligations under the order or sale agreement concerned, with or without a claim for damages.
5. Ownership
5.1.1 All Products sold by the Company to the Customer shall, notwithstanding the fact of the sale being on credit and delivery having been made, remain the sole property of the Company until such time as payment has been received in full by the Company.
5.1.2 Risk in and to the Products shall pass to the Customer upon acceptance/signature of and delivery thereof by the Company to the Customer.
5.1.3 All loading racks, pallets or other material used or supplied by the Company for the purpose of transportation of any Products shall remain the property of the Company and the Company reserves the right at the time to, at its sole election, require the Customer to return such racks, pallets or other materials to the Company or a third party nominated by the Company, or allow the Company or such third party to collect same, at the Customer’s cost.
6. Information
6.1.1 The Customer hereby agrees that the Company may obtain from other known creditors of the Customer, details as to the status of the Customer’s accounts with such creditors.
6.1.2 The Customer agrees that the Company may use the information obtained from one or more credit bureaus to assess any credit application by the Company.
6.1.3 The Customer acknowledges and agrees that any information regarding creditworthiness, defaults in payment to the Company and details of the manner in which it conducts its account with the Company, may be disclosed to any other creditor of the Customer or to any other bureau.
7. Company’s Liability
Should any force majeure prevent the performance of any of its obligations the Company at its option shall be entitled to cancel or suspend performance of its obligations hereunder without being liable for any loss or damage, consequential or otherwise, resulting from such cancellation or suspension, for as long as it is prevented from performing.
8. Jurisdiction
8.1.1 The customer consents to the jurisdiction of the Magistrate Courts in terms of Section 45 of the Magistrates Court act No 32 of 1944 (as amended) having jurisdiction under section 28 of the said act, notwithstanding that the claim by the Company exceeds the normal jurisdiction of the Magistrates Court as to amount. The Company shall in its discretion be entitled to proceed against the Customer in any other courts of competent jurisdiction, notwithstanding the foregoing.
8.1.2 The Customer agrees that in the event of any dispute arising between the parties the Company shall have the right to refer such dispute to an independent arbitrator for immediate resolution of such dispute. The arbitrator shall have the widest possible powers to arbitrate between the parties, to dispute with any or all rules of Court for the purpose of such proceedings and to make such award against any or both parties as he/she in his/her sole discretion and may deem fit and the arbitrator’s award shall be final and binding on the parties and shall not be subject to appeal.
9. Domicilium
9.1.1 The Customer hereby chooses as its domicilium citandi executandi for all purposes in connection with or arising out of these standard terms and conditions of sale or any agreement of sale relate, the physical address as stated in the attached form marked “confidential credit application form”. The Company chooses as it domicilium citandi et executandi for all purposes in connection with or arising out of these standards terms and conditions of sale or any agreement of sale relate, the following:
9.1.2 Physical Address: 87 Mimetes Road, Denver, Johannesburg, South Africa
It is the responsibility of the Customer to update his/her records at all times and any changes in its domicilium citande et executandi shall be notified immediately to the Company to enable it to update its records accordingly.
10. General
10.1 These standard terms and conditions of sale and any agreement of sale to which they relate shall be governed by the law of the Republic of South Africa.
10.2 No relaxation or indulgence granted to the Customer by the Company at any time shall be deemed to be negation of any of the terms and conditions set out herein, or create any estoppels against the Company.
10.3 The Customer understands that credit facilities may be revised or withdrawn by the Company without notice and in the Company’s absolute discretion.
11. Warranty and Liability
11.1 Subject to Clause 11.2 the Company warrants that the Busch Products (pumps & spares) will be free from defects in materials throughout the Warrantee period of 18 Months from delivery on Pumps and Spares. Workmanship on Busch pump services/overhauls/repairs will carry a warranty of 1 year baring services are done regularly and when required by an approved Busch technician or an approved service provider and workmanship on Competitor pump services/overhauls/repairs will carry a warranty of 1 year baring services are done regularly and when required by an approved Busch technician or an approved service provider.
11.2 The above warranty is given by the Company subject to the following conditions:
11.2.1The Company will be under no liability in respect of any defect in the Products arising from any drawing, design or specification supplied by the Customer. The Company will be under no liability in respect of any defect in the Products arising from (a) Fair wear and tear; (b) accidental or wilful damage or misuse by the customer; (c) incorrect installation; (d) failure to follow the Company’s instructions (whether verbal or in writing); (e) the use with the Products of water containing sand, salt or harmful chemicals; (f) inadequate motor protection; (g) the use of faulty ancillary equipment in conjunction with the Product; (h) Force majeure.
Under no circumstances should the Product be dismantled prior to return to the Company and any failure by the Purchaser to comply with this provision will render the warranty in clause 11.1 void.
11.3 The Customer will notify the Company as soon as reasonably practicable and in any event within 14 days after becoming aware of any defect in the Products and will provide authority for the Company’s employees or agents to inspect the Products. Where any valid claim is made by the Customer that the Products are defective then the Company will at its discretion and at its cost either repair or replace the Products (or the part in question), free of charge on an exchange basis. The Customer will if required by the Company but at the cost of the Customer remove the Product and return it to the Company for repair or replacement. The Customer will be responsible for the costs of returning the repaired or replacement Product to the Customer and the costs of refitting the Product. The Company will send a suitable qualified person/s out to site at the Customers request to do such repair under warranty but the costs or travel and any accommodation for such trip will be for the Customer’s account, and such action will require the standard written instruction in the form of an official order from the Customer before such a trip is made.
11.4 Subject to clause 11.5 and 11.6 the Company will have no other or further liability to the Customer and whether for breach of the Agreement, negligence otherwise in respect of any direct or consequential loss or damage suffered by the Customer arising from or in connection with any defect in the Product.
12. Return of Products
Products may not be returned to the Company except by prior written permission of an authorised officer of the Company and such return shall be subject to payment by the Customer of handling and restocking charges, transport and all other costs incurred by the Company. Such returns will not be considered for made to order product that is a non - South Africa stock item.
13. Service
13.1.1 If the agreement includes an obligation for the Company to undertake servicing of the products/provide services/carry out repairs to the Customers goods, the Customer shall pay the price stipulated in the Agreement for such service upon collection of the Customer’s goods or 30 days following the date of issue of the notification by the Company to the Customer that the service has been completed whichever shall be the earlier. If Customer has not paid and collected goods after 3 months, the Company will give the Customer one month’s notice in writing. After 4 months the Company shall be entitled to use, sell and dispose of such property as agent for and at the expense of the Customer and apply the proceeds in and towards the payment of monies due and outstanding from the Customer to the Company. Thereafter the Company shall be discharges of any liability in respect of the Customer’s property.
14. Jurisdiction
The Agreement is subject solely to South African Law and any dispute arising here from shall be settled in accordance therewith.