Terms and Conditions
1. INTERPRETATION
1.1 The word “T&C’s” refers to these General Conditions of Sale and the words “clause” or “clauses” refer to clauses of these T&C’s respectively.
1.2 In these T&C’s, unless the context clearly indicates a contrary intention, the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
1.2.1 “Credit Facility” – means a formal credit facility granted by the Company to certain of its customers via the approval of a formal credit application;
1.2.2 “Company” – means Mopani Transport (Pty) Ltd trading as Six O Six Truck Spares with Registration Number: 1997/14349/07;
1.2.3 “Customer” – means the person/entity acquiring Products from the Company;
1.2.4 “NCA” – means the National Credit Act (Act 34 of 2005) as amended;
1.2.5 “Parties” – mean the Company and the Customer jointly and “Party” means either of them individually;
1.2.6 “Products” – means the products acquired by the Customer from the Company, as more specifically described in the relevant “order documentation” delivered to the Company by the Customer (albeit an order form completed and delivered by the Customer, a quote delivered by the Company and accepted by the Customer, or any other document referencing the products ordered by the Customer);
2. APPLICATION
2.1 Unless otherwise agreed in writing, only these T&C’s shall apply to an order for the sale of Products, whether the order arises out of:
2.1.1 an offer made by the Company and accepted by the Customer, or
2.1.2 an offer made by the Customer and accepted by the Company, including any such offer made by the Customer in response to a quotation by the Company, or
2.1.3 any other contract, agreement or arrangement entered into between the Parties.
2.2 For avoidance of doubt, these T&C’s will override all terms and conditions of sale and/or purchase stipulated/advanced by the Customer, unless specifically agreed otherwise between the Parties in writing. In this regard, and unless specifically agreed otherwise in writing:
2.2.1 The Customer hereby renounces its own terms and conditions of purchase/sale, or any equivalent or like terms and conditions implemented by the Customer from time to time; and
2.2.2 Clauses, provisions, terms, conditions etc. contained in, or forming part of, the Customer’s aforementioned terms and conditions (refer clause 2.2.1) shall not amend or modify these T&C’s; and
2.2.3 No conflicting or other provisions, terms, conditions, clauses etc. in the Customer’s aforementioned terms and conditions (refer clause 2.1.1) shall be binding on the Company, in any form or manner.
3. QUOTATIONS AND ORDERS
3.1 Quotations delivered by the Company shall be valid for a period of 14 (fourteen) days only.
3.2 The acceptance of quotations and the placing of orders shall not be binding on the Company, unless acknowledged and confirmed in writing by the Company.
3.3 The Company reserves the right to adjust prices quoted if the Customer fails to order the volumes originally given as a basis for the quotation.
3.4 Any and all orders shall be executed at the discretion of the Company and the mere receipt by the Company of an order shall not oblige the Company to supply or sell any Products ordered.
3.5 The Company shall not be obliged to deliver on an order that is below the Company’s indicated minimum order quantity (if any and as determined from time to time).
4. PRICE
4.1 In instances where a quotation has been delivered by the Company and accepted by the Customer, the purchase price applicable will, subject to clauses 3.1, 3.3 and 4.3, be based on the accepted quotation.
4.2 Should no accepted quotation exist, the acceptance of an order is subject to the proviso that the Products will, subject to clause 4.3, be supplied at the prices applicable as per the Company’s official price list in force from time to time.
4.3 If any of the Company’s costs/expenses in selling and delivering the Products to the Customer (i.e. costs of sales, transport, delivery, etc.) have increased for any reason beyond the Company’s control, or in the ordinary course of the Company’s business, before delivery, then the purchase price, albeit as per accepted quotation or Company price list, shall be increased by the excess or, if the excess cannot be determined exactly, by a reasonable allowance for it.
5. DISCOUNTS AND REBATES
5.1 Prices charged will be strictly nett and not subject to any discount/rebate, unless otherwise agreed in writing between the Parties.
5.2 In the event that the Company agreed to grant a settlement, volume, trade or other discount/rebate, such discount/rebate shall only be effectively and formally granted where the Company receives full payment by due date. If the Company does not receive full payment by due date, the settlement or trade discount/rebate shall be regarded as null and void and the Customer shall be liable for payment of the full amount charged. Interest and penalty charges, as provided for in these T&C’s, shall be levied on such full amount charged.
5.3 The Company shall be entitled to set-off any and all rebates/discounts effectively granted to the Customer, against any indebtedness of the Customer towards the Company arising or existing from any cause whatsoever.
6. PAYMENTS
6.1 General
6.1.1 All payments shall be made to the Company:
6.1.1.1 via electronic funds transfer or cash deposit only, and
6.1.1.2 in South African currency free of bank and other charges, and
6.1.1.3 into such bank account as the Company may determine, and
6.1.1.4 free from any deduction and/or set-off.
6.1.2 Should any payment not be received on or before the due date for payment, the Company shall have the option, without prejudice to any of its other rights, to cancel or suspend further supply of Products and/or, by giving written notice thereof to the Customer, to require immediate payment of all amounts owing by the Customer to the Company, whether or not those amounts are actually due, and/or to take any other action it may deem necessary, in accordance with these T&C’s, until such payment is received.
6.1.3 All payments received by the Company shall be appropriated firstly towards levied interests and thereafter to capital.
6.1.4 The Customer shall not withhold payment to the Company for any reason whatsoever.
6.2 Cash Payments
6.2.1 In the event that the Customer does not hold a Credit Facility with the Company, or the Parties determine that a particular sale will be concluded on a “cash” basis, purchases shall be treated on the basis of:
6.2.1.1 cash before delivery; or
6.2.1.2 cash on delivery; or
6.2.1.3 a deposit before delivery and the residual on delivery; or
6.2.1.4 cash within 30 (thirty) days of date of statement; or
6.2.1.5 a deposit before delivery and the residual within 30 (thirty) days of date of statement; as the Parties may formally agree.
6.2.2 Any payment to be made “before delivery” shall only be deemed to have been made once formal proof of payment has been delivered to the Company and the relevant amount reflects in the Company’s nominated bank account. Until such a time as the aforementioned has occurred, the Company shall have no obligation to commence
with delivery of any Products ordered.
6.2.3 The sufficiency, and subsequent acceptance, of the “formal proof of payment” referred to in clause 6.2.2 above, shall be within the sole and absolute discretion of the Company.
6.2.4 Any payment to be made “on delivery” shall be made before 16h00 on the day of delivery.
6.3 Credit Facilities
6.3.1 In the event that the Customer holds a Credit Facility with the Company, the Customer shall make payment within the time frame prescribed via the Credit Facility it holds.
6.3.2 The time frame for payment under Credit Facilities differs from one customer to the next, and shall be either 30 (thirty), 60 (sixty) or 90 (ninety) days after date of delivery. The Customer’s time frame for payment under the Credit Facility it holds (if any) shall be determined via the relevant Credit Facility documentation completed, signed and submitted by it and accepted by the Company.
7. INTEREST
7.1 In the event that the Customer is a juristic person, all amounts not paid by the Customer on due date for payment, shall bear interest at the prevailing prime overdraft rate charged by ABSA Bank from time to time plus 5% (five percent) capitalised monthly in arrears, from the date on which payment falls due until the date on which payment is received in full.
7.2 In the event that the Customer is a natural person, all amounts not paid by the Customer on due date for payment, shall bear interest at the maximum rate of interest permitted under the NCA from time to time with regard to incidental credit agreements.
8. CERTIFICATE
A certificate under the hand of any member, shareholder, director and/or manager of the Company (whose appointment need not be proved) as to the existence and the amount of the Customer’s indebtedness to the Company at any time, as to the fact that such amount is due and payable, the amount of interest accrued thereon and as to any other fact, matter or thing relating to the Customer’s indebtedness to the Company, shall be prima facie proof of the contents and the correctness thereof for the purposes of provisional sentence, summary judgment or any other proceedings of whatsoever nature against the Customer in any competent court and shall be valid as a liquid document for such purpose.
9. DELIVERY
9.1 Products shall at all times be delivered by the Company Ex-Works (as defined in Incoterms 2010). Therefore, it is specifically agreed that:
9.1.1 the Company’s only responsibility in terms of delivery is to make the Products available for collection at its designated premises; and
9.1.2 all risk, liability, responsibility and costs/expenses in collecting the Products at the Company’s designated premises and transporting same to the Customer’s designated premises shall reside with the Customer;
9.2 Notwithstanding that stated in clause 9.1 above, the Company may, upon request from the Customer, assist the Customer in arranging collection and transport of the Products from the Company’s designated premises to the Customer’s designated premises. In such instances, the following shall however apply:
9.2.1 The engagement/arrangement of a carrier shall be at the sole and absolute risk and liability of the Customer, irrespective of the extent of the Company’s involvement in arranging/engaging the carrier, with the carrier at all times representing the Customer;
9.2.2 Any and all costs/expenses relating to the engagement/arrangement of a carrier (and all other delivery costs) shall be for the account of the Customer;
9.2.3 All risk and liability in and to the Products shall pass to the Customer in terms of the provisions of the Incoterm Ex-Works, irrespective of the fact that the Company assists the Customer with transport arrangements.
9.3 Time shall not be the essence of any order and any and all delivery dates which may be advanced must be (and will be) treated as approximate/estimated only, based on the latest information available to the Company. Under no circumstances shall the Customer be entitled to withdraw from and/or terminate any order on account of any delay in delivery or have any claim of any nature whatsoever against the Company arising from late delivery.
9.4 If the Customer fails to take delivery of the Products upon the Company tendering delivery (in accordance with the Incoterm Ex-Works) then:-
9.4.1 all risk in and to the Products shall pass immediately from the Company to the Customer, and
9.4.2 The Customer shall refund to the Company, on first demand, the reasonable costs (including storage and insurance) of keeping the Products during the period of that delay.
9.5 The Customer shall be deemed to have taken possession and to have accepted delivery of the Products upon it, or its representative (albeit a third party carrier), signing the Company’s official delivery note. For avoidance of doubt, such a signature of the delivery note shall be deemed to be an express communication to the Company by the
Customer, that the Customer has accepted delivery of the Products.
9.6 Notwithstanding any other provision to the contrary in any documents exchanged or delivered between or to the Parties, the Company’s obligation to deliver the Products shall in all instances be subject to the following conditions precedent:
9.6.1 The availability of the Products ordered; and
9.6.2 Timeous receipt by the Company of any and all specifications and information that may be required by the Company from the Customer;
10. RISK AND OWNERSHIP
10.1 Notwithstanding the delivery of any Products to the Customer, ownership and benefit therein shall remain vested in the Company until such a time as the Company has received payment of the full purchase price relating thereto. This shall apply even where Credit Facilities are afforded to the Customer.
10.2 All risk, liability and responsibility in the Products ordered shall pass to the Customer on either the due delivery date, if the Customer has not yet taken possession of the Products (refer clause 9.4 above), or on the moment delivery has been completed, whichever occurs first.
10.3 The Company reserves the right to repossess any Products delivered, without prejudice, or to resell such Products from the Customer’s designated premises (or such other premises as the Products may have been moved to), should payment not be received in full on due date for payment.
11. PRODUCT SPECIFICATIONS
11.1 It is noted and agreed that it shall at all times be the sole and absolute responsibility and liability of the Customer to ensure that correct and accurate Product specifications and descriptions are delivered to the Company with regard to each order. Any document (including order forms, quotations, e-mails, faxes, etc.) delivered or
transmitted to the Company by the Customer, albeit a signed document or not, referencing the type, quantity, description and/or specifications of Products ordered, shall serve as:
11.1.1 Absolute proof of the Customer’s agreement with and acceptance of the entire content referenced in such document; and
11.1.2 Absolute confirmation and agreement by the Customer, that the correct Products have been ordered by it.
11.2 It is noted and agreed that it shall at all times be the sole and absolute responsibility and liability of the Customer to ensure that correct and accurate Products (as relates to description, type, quantity, specifications, etc.) are delivered to it by the Company. A delivery note signed by the Company or its representative (albeit a carrier or
otherwise) shall serve as:
11.2.1 Absolute proof of the Customer’s agreement with and acceptance of the entire content referenced in such document; and
11.2.2 Absolute confirmation and agreement by the Customer that the correct Products ordered (including quantity, type, specification, description, etc.) have been delivered.
11.3 The Customer wholly indemnifies and undertakes to hold the Company completely harmless with regard to any and all claims, damages, losses, costs, expenses and/or any other negative result the Company may suffer as a result of the Company ordering and/or delivering incorrect Products (albeit as relates to quantity, type, specifications, description, etc.) based on the communications and/or confirmations made and/or delivered by the Customer.
11.4 If Products or any part thereof are to be supplied or delivered in accordance with any special specifications, instructions or information furnished by the Customer, the Customer shall not have any claim of any nature whatsoever against the Company and the Company shall in no form or manner be liable for any loss, damage, claim or cost sustained by the Customer as a result of any error, discrepancy or defect in, or brought about by, those specifications, instructions and/or information.
12. RETURNS
12.1 The Customer acknowledges that it, or its representative in collecting the Products, will at all times have a reasonable opportunity to inspect the Products before the Company’s delivery note is signed. The inspection will generally be aimed at satisfying the Customer that the Products delivered:
12.1.1 are of the type and quality reasonably contemplated by the Parties, and
12.1.2 correspond, in all material respects and characteristics, to that which an ordinary alert customer would have been entitled to expect, when considering the descriptions and/or a reasonable examination of any samples presented as basis for the order, and
12.1.3 in the case of special-order Products, reasonably conform to the material specifications of the special-order.
12.2 In the event that the Company’s delivery note is signed, irrespective of whether the right to inspection referenced in clause 12.1 has been exercised or not, it shall be deemed that the Customer is completely aware of and satisfied with the entire nature and extent of the Products delivered. Subsequently the Customer will have no right or title to return any of the said Products to the Company based on any of the reasons contemplated in clauses 12.1.1 through 12.1.3 above. For avoidance of doubt, the Customer shall always have the opportunity to examine the Products before the Company’s delivery note is signed, albeit via third party representatives or
otherwise.
12.3 In addition to that stated in clause 12.1 above, the Company shall only accept a return of Products in circumstances where it is obliged by law to do so or where it specifically in writing agrees to do so.
12.4 In events where the Company’s acceptance of a return is prescribed and necessitated by law:
12.4.1 it shall either repair the Product returned, or replace the Product returned or refund the Customer the amount/s paid for the Product, as the law may prescribe; and
12.4.2 the costs and risk regarding such a return shall be carried by the Party prescribed to carry such risk and cost in the relevant law.
12.5 In events where the Company’s acceptance of a return is based on its agreement to such return:
12.5.1 the Company may, in its sole and absolute discretion, determine whether it will refund the Customer the amount/s paid, or whether it will repair the Products, or whether it will replace the Products; and
12.5.2 the costs and risk regarding such a return shall be carried by the Customer.
12.6 Any and all Products either refunded, or replaced in terms of clauses 12.4 and 12.5 above, will become the sole and absolute property of the Company who shall be entitled to do with same whatever it pleases.
13. WARRANTIES
13.1 The Company does not deliver or provide any guarantees/warranties of any nature whatsoever with regard to any Products, except for those that are prescribed by law or which are expressly provided in writing by the Company.
13.2 Any and all guarantees/warranties delivered by the Company, shall only cover defects that may develop during proper use, treatment, storage, dispensing and handling of the Products.
14. LIMITATION OF LIABILITY
14.1 The Company shall be exempted from and shall not be liable under any circumstances whatever for:
14.1.1 Any indirect or consequential damages of any nature whatsoever or any loss of profit or special damages of any nature whatsoever, whether in the contemplation of the Parties or not, which the Customer or anyone else may suffer as a result of any act and/or neglect of the Company of any nature whatsoever;
14.1.2 Any claim for any alleged shortage in delivery, unless written notice of the short delivered claim is received by the Company within 10 (ten) days after the Customer has taken possession of the Products. The aforementioned shall be and remain subject to the Customer’s risk and liability (including risk of damage and loss) in the
Products in accordance with the Incoterm Ex-Works, as applicable to delivery under these T&C’s.
14.2 The Customer acknowledges that it shall ensure that it is fully acquainted with the condition of all purchased Products at all times, albeit via third party representatives or otherwise.
14.3 All Products are retailed/provided to the Company by its suppliers under the guise and on the presumption that same complies with all relevant and required specifications, regulations, standards, etc. Under no circumstances and for no reason whatsoever shall the Company be required or liable to verify, ensure or test
compliance of any Products with any relevant specifications, regulations and/or standards.
14.4 The Customer shall always have due regard for the Company’s role and function as distributor and/or retailer of the Products. This includes regard to the fact that it would be unreasonable to expect the Company to discover certain unsafe product characteristics, failure, defect or hazard with regard to the Products it markets and sells. The Customer furthermore acknowledges and accepts that any unsafe product characteristics, failures, defects or hazards arising/existing:
14.4.1 most likely existed in the Products at the time they were supplied to the Company by its suppliers; or
14.4.2 would most likely be attributable to compliance by the Company with instructions provided by its suppliers.
14.5 Notwithstanding anything contained herein or elsewhere to the contrary, the Company’s liability toward the Customer shall never exceed the amount/s actually paid by the Customer for the Product to which the specific claim relates, unless specifically prescribed otherwise by law.
15. NON PERFORMANCE
15.1 The Customer shall not have any claims of any nature whatever against the Company for any failure by the Company to carry out any of its obligations under an order or these T&C’s as a result of vis major, force majeure, act of God, strike or lockout, shortage of labor or materials, breakdown of machinery delays in transport, accidents
of any kind and default or delay by any sub-contractor or supplier of the Company, riot, political or civil disturbances, the elements, any act of any state or government or any authority, or any other cause whatever beyond the Company’s control.
15.2 The Customer shall not have any claims of any nature whatever against the Company for any failure by the Company to carry out any of its obligations under an order or these T&C’s as a result of failure of carriers to furnish facilities for transportation, interference with supplies to the Company from the then existing sources of supply of
any Product, such interference including expropriation, confiscation, nationalization, relinquishment of ownership or control over all or part of the Product by reason of request of or agreement with any governmental authority to whose jurisdiction the Company is subject or person purporting to act therefore, breakdown of or injuries to
the facilities used in the production, transportation, receiving, handling or delivery of such Product or any allocation programmed or rationing or priorities in effect pursuant to government direction or request or instituted in co-operation with any governmental authority or person purporting to act therefore.
15.3 The Company shall not be required to settle strikes, differences with workmen or government claims by acceding to any demands when in the discretion of the Company, it would be inadvisable to accede to such demand. Notwithstanding the provisions of this clause 15, the Customer shall not be relieved of any obligation to make payment in the normal course as stipulated for Products delivered to it.
5.4 If, for any cause referred to in clauses 15.1 and 15.2 above, the Company’s available supplies of Products become, or in its opinion will become, unable to meet the requirements of all customers at any time, then the Company shall be entitled to allocate those supplies among its customers (including the Customer and the
Customer’s associated and affiliated companies) in such manner it deems fair and equitable in its sole and absolute discretion, and to vary its obligations to the Customer accordingly.
15.5 In the event that the Company is unable to comply with an order, for any reason which the Company did not actually foresee/anticipate, the Company shall be entitled to cancel the order by notice in writing. The Customer shall have no claims regarding such cancelled order and the Company shall not be liable, in any form or manner, for any claims, losses, damages and/or any other negative inferences suffered by anyone as a result thereof.
16. SUPENSION OF COMPANY’S OBLIGATIONS
16.1 If any amount owed by the Customer to the Company, from any cause whatsoever, whether under an order or not, is not paid on due date then (and without prejudice to any other rights the Company may have):
16.1.1 all amounts then owed by the Customer from any cause whatever, shall immediately become due and payable; and/or
16.1.2 the Company may retain in its possession, any Products of the Customer until all outstanding amounts have been paid; and/or
16.1.3 Until payment is made, the Company may suspend the carrying out of any of its then uncompleted obligations from any cause whatever and whether under any order or not; and/or
16.1.4 Terminate any Credit Facilities granted to the Customer, whether agreed or not; and/or
16.1.5 Retain any payment made by the Customer to the Company prior to the due date of the payment in question
17. CANCELLATION
17.1 The Company may cancel any order or any uncompleted part of an order for any reason, including the following but not restricted thereto:
17.1.1 If the Customer commits a breach of any of the provisions of these T&C’s;
17.1.2 If the Customer being an individual, dies or is provisionally or finally sequestrated or surrenders his/her estate; or
17.1.3 If the Customer being a partnership, the partnership is terminated; or
17.1.4 If the Customer being a legal entity/juristic person, is placed under a provisional or final order of liquidation or judicial management; or
17.1.5 If the Customer compromises or attempts to compromise generally with its creditors.
17.2 The Company’s rights in terms of 17.1 shall not be exhaustive and shall be in addition to its other rights under these T&C’s or otherwise.
17.3 Upon the termination of an order for any reason whatsoever:
17.3.1 all amounts then owed by the Customer to the Company under the order shall become due and payable immediately, and
17.3.2 the Company may retake possession of any Products sold where ownership has not passed.
18. ARBITRATION
18.1 If any dispute or difference of any kind whatsoever shall arise between the Customer and the Company in connection with or arising out of an order, then the matter in dispute or difference shall be referred to arbitration in accordance with the provisions
of AFSA (Arbitration Foundation of South Africa).
18.2 The Arbitration shall be held in Pretoria, South Africa, in English before a single arbitrator and with a view to obtaining and expeditious result.
19. INTERNATIONAL TRADE
19.1 Regardless of the Parties’ place of execution, performance or domicile, these T&C’s and all modifications and/or amendments thereto shall be governed by and construed under and in accordance with the Laws of the Republic of South Africa.
19.2 International Customers:
19.2.1 shall furnish South African Bank Guarantees with a financial institution within the Republic of South Africa, as specified by and acceptable to the Company;
19.2.2 shall choose a domicilium citandi et executandi at an address within the jurisdiction of the South African Courts.
19.3 All sums payable shall be converted to South African currency at a rate of exchange prevailing on date of invoice, alternatively date of payment, whichever sum is the larger.
20. COMPANY EQUIPMENT
20.1 All general containers and/or equipment of the Company, used by it for its own purposes such as transport and delivery of Products, shall remain the sole and exclusive property of the Company. The Customer shall ensure that same is returned to the Company only.
20.2 For as long as any general containers and/or equipment of the Company are in the possession, or under the control, of the Customer, the Customer shall apply and implement all reasonable measures to ensure that same is not damaged, destroyed or lost, in any form or manner, and remains safeguarded until returned to the Company.
21. MISCELLANEOUS
21.1 Applicable Law
The validity of these T&C’s, its interpretation, the respective rights and obligations of the Parties and all other matters arising in any way out of its performance or expiration or earlier termination for any reason, shall be determined in accordance with the laws of the Republic of South Africa.
21.2 Interpretation
The headings in these T&C’s are for convenience only and are not to be taken into account for the purpose of interpreting these T&C’s.
21.3 Costs
The Customer agrees that if any claim against the Customer is handed over to the Company’s Attorneys for collection, the Customer will be responsible for all attorney’s costs incurred by the Company, which costs shall include all collection charges, disbursements and costs on the scale between attorney and own client, and inclusive
of collection commission.
21.4 Severability
21.4.1 It is agreed that each paragraph, clause and each sub-clause in these T&C’s is severable, the one from the other;
21.4.2 If any paragraph, clause or sub-clause is found to be defective or unenforceable for any reason by any competent court, the remaining clauses, paragraphs and sub- paragraphs shall continue to be of full and competent force and effect.
21.5 Entire T&C’s and non-variation
21.5.1 These T&C’s represent all the terms and conditions pertaining to the sale of Products between the Company and the Customer. The Customer warrants that it understands all the terms and conditions and accepts them.
21.5.2 No alteration or variation of these T&C’s shall apply unless the alteration or variation in question is expressly agreed to in writing and signed by an authorized representative of the Company at the time in question.
21.6 Confidentiality
The Customer and the Company agree to take all reasonable measures to preserve the confidential nature of an order.
21.7 Assignment of rights and obligations
21.7.1 The Customer may not cede or assign its rights or obligations in terms of any order or these T&C’s to any third party without the prior written consent of the Company, which consent shall not be unreasonably withheld.
21.7.2 The Company may cede and assign its rights and obligations in terms of any order or these T&C’s to any third party without the prior written consent of the Company.
21.8 VAT
All prices referred to, exclude VAT.
21.9 Relaxation
No relaxation which the Company may give at any time and on any occasion in regard to carrying out of the Customer’s obligations in terms of any order or these T&C’s, shall prejudice or be a waiver of any of the Company’s rights to enforce those obligations on any subsequent occasion.
21.10 Counterparts
These T&C’s may be signed in counterparts, each of which will form one and the same agreement.