Terms & Conditions for the Supply of Goods
“Customer” means any person or persons at whose request or on whose behalf the supplier undertakes to supply any goods, do any business, or provide any advice or service;
“Supplier” means SMC IT SOLUTIONS PTY (LTD) of companies and divisions supplying the Goods;
“Goods” means any materials, products and/or services supplied to the customer by the supplier;
“Agreement/Contract” shall mean these standard terms of agreement, and such other terms and conditions of agreement as may be agreed in writing between the parties.
- TERMS AND CONDITIONS TO PREVAIL
These standard terms of agreement shall be deemed to be incorporated in and shall apply consistently to every agreement entered into between the supplier and the customer.
- NO VARIATIONS OR AMENDMENTS
Subject to clause 1.d above, this agreement constitutes the whole agreement between the customer and the supplier and no amendment or consensual cancellation and no extension of time, waiver or relaxation of any of the provisions or terms of this agreement shall be binding unless recorded in writing and signed by the authorised representative of the supplier.
No extension of time or waiver or relaxation of any of the provisions or terms of this agreement, bill of exchange or any other document shall operate as an estoppel against the supplier in respect of its rights under the agreement nor shall it preclude the supplier from exercising its rights strictly in accordance with this agreement.
The supplier shall not be bound by an express or implied term, representation, warranty, promise or the like not recorded herein.
Any quotation given shall not be an offer by the supplier to sell the goods, but constitutes an invitation by the supplier to the customer to do business with the supplier.
A quotation may be revoked at any time by the supplier. In the event of the supplier not accepting the customer’s order within one month from the date thereof, the order shall be deemed to have been withdrawn.
A contract will only come into force once the supplier accepts the customer’s order or if the supplier supplies, or tenders to supply, the goods in question to the customer.
The quotation is based on rates of exchange, freight charges, insurance, railage, costs of labour, material, import duty, taxes and other charges ruling at the date of the quotation. Any variations occurring subsequent to the date of the quotation in any of the aforesaid rates or charges, shall entitle the supplier to vary the amount of the quotation accordingly.
- PURCHASE PRICE AND PAYMENT
Unless otherwise stated in any order given to the supplier (or elsewhere in writing to the supplier), payment of the purchase price in respect of any goods despatched by the supplier , must be made into and reflect in the supplier’s banking account by the 30th day of the invoice date. If the price stated in the quotation of the supplier is subject to a discount, then that discount will only be allowed if payment is made timeously on or before the due date for payment. Should any payment due by the customer to the supplier not be made on due date, or should the customer commit any other breach of this agreement, or be placed in liquidation, or commit any act of insolvency, then the full balance owing to the supplier by the customer, as at the date thereof, from whatsoever cause arising, shall immediately become due and payable without notice. The supplier in its sole discretion shall furthermore have the right to cancel the agreement between the supplier and the customer and refuse to deliver any further goods to the customer. In such event the customer shall have no claim or claims of whatsoever nature or kind against the supplier arising out of such cancellation or the refusal of the supplier to deliver any further goods to the customer.
Unless otherwise stipulated in the agreement, the contract price is based on such “ex works delivery”, exclusive of the costs of packaging, freight, off-loading and insurance.
Any promissory notes and/or bills of exchange shall be deemed to have been accepted by the supplier without prejudice to the supplier’s claims or rights against the customer in respect of the original cause of debt and the customer hereby waives presentment, notice of dishonour and protest in respect of any promissory note or bill of exchange of which it is an endorser, surety or other party and of which the supplier may become the holder.
The customer shall not be discharged from its obligation to pay the contract price until the supplier actually recovers payment in full, notwithstanding the means and method of payment agreed upon by the parties.
Prices are exclusive of value added tax, which VAT the customer shall pay or reimburse to the supplier simultaneously with the purchase price. The purchase price shall be payable by the customer to the supplier in South African currency (ZAR), without deduction or set-off, and free from any exchange.
The customer has no right to withhold payment for any reason whatsoever. The customer shall not be entitled to set-off any amounts, which may be claimed by the customer from the supplier, against any amounts owing by the customer to the supplier.
The risk in and to the goods shall pass to the customer from the moment that it or its transporter signs for the goods which are loaded onto the delivery vehicle, or is in the customers’ possession.
Any claims for shortages or damage to the goods must be made in writing by the customer within ten (10) days of the goods being received by the customer, failing which the supplier shall be excused from all liability in respect of such claims.
Any delivery date indicated by the supplier shall not bind the supplier to effect delivery on such date. The customer shall accept delivery when it is tendered and shall not be entitled to derail from the agreement, withhold or defer payment, reduce the price or be entitled to any other remedy against the supplier on account of delays in effecting delivery.
The customer shall be liable for all costs occasioned by its failure or refusal to take timeous delivery of the goods from the supplier.
The signature of any employee of the customer on any official delivery note, invoice, waybill of the supplier or the similar paper of any authorised independent carrier of the supplier shall constitute good and sufficient proof of delivery of the goods to the customer.
Notwithstanding delivery of the goods by the supplier to the customer, or the use of the goods after delivery, the goods shall remain the property of the supplier until it has received payment in full of the contract price.
- WARRANTIES & INDEMNITIES
No warranties, guarantees or representations, express or implied whether by law, contract or otherwise, which are not set forth in this agreement, shall be binding on the supplier. The goods are purchased “voetstoots”. The supplier shall not be liable for any inaccuracies in any drawing, specifications or other information supplied by the customer.
The supplier shall under no circumstances be liable for any special, consequential or indirect damages or losses.
The supplier shall under no circumstances (except if gross negligence is proven) become liable to the customer for any direct damages or losses sustained by the customer, which are alleged to have been sustained by the customer as a result of but not limited to:
Any delay or failure in the manufacture or delivery of the goods;
Defective or incorrect materials, workmanship, design or specification.
Without prejudice to the provisions of 9.3, the supplier’s liability on account of defective materials and workmanship shall be limited exclusively to the repair or replacement thereof at the supplier’s sole discretion, but the supplier shall nevertheless be excused from all liability unless it has been notified of such defect in writing within twelve months from date of commissioning or within eighteen (18) months from the date of the delivery of the goods, whichever period concludes earlier; whether the defects be patent or latent
Returns, if accepted by the supplier at its sole discretion and upon such terms as it may prescribe, shall be credited in full, less a minimum of 10% (ten percent) as a handling charge, subject to the goods being within their specified shelf life and in a marketable condition and provided further that the purchaser shall be liable for all costs of delivery to the supplier’s designated premises.
In the event that the customer provides any specifications or designs to the supplier and requests the goods to be manufactured according to such designs or specifications, then the customer hereby indemnifies and holds harmless the supplier against all claims and expenses of whatsoever nature and description arising from the alleged or actual infringement of any Letters Patent, Trade Marks, Designs or Copyrights occasioned by the supplier’s performance.
The customer shall keep confidential and shall not use for any purpose all drawings and designs supplied by the supplier, and the customer hereby indemnifies the supplier against any loss suffered by the supplier as a result of the breach of this clause.
The parties agree that the supplier shall have no liability in respect of any loss or damage (direct, indirect or consequential) arising out of any Patent or Trade Mark relating to any of the goods sold being infringed, cancelled, breached or otherwise set aside or declared invalid if the supplier is not the original manufacturer of the goods.
If either party (the “defaulting party”) breaches any of the terms and conditions hereof, and remains in breach after receipt of 14 (fourteen) days’ written notice requesting remedy of the breach, or commits any act of insolvency, or endeavours to compromise generally with its creditors, or is placed under provisional or final liquidation, or judicial management, or its estate is voluntarily surrendered, then in such event the other party shall have the right, without prejudice to any of its other rights, to cancel this agreement and any other agreements concluded with the defaulting party.
The customer agrees that the amount due and payable to the supplier shall be determined and proven by a certificate issued by the supplier and signed on its behalf by any person duly authorised, which authority need not be proven, such certificate being binding and prima facie proof of the indebtedness of the customer. Such certificate shall be sufficient for purposes of judgment, provisional sentence or any other legal proceedings.
- DOMICILIUM AND NOTICES
The customer chooses domicilium citandi et executandi for purposes of the giving of any notices, the payment of any sum, the serving of any process and for any other purpose, the delivery address as set out in the Application to Open a Credit Account form. Notice sent by pre-paid post shall be deemed to have been received on the seventh day after posting and if sent by telefacsimile, on the first business day after the date of transmission, and if delivered by hand during normal hours, to have been received by the addressee at the time of delivery. If the notice is sent by telefacsimile, the original document shall be immediately delivered by hand or sent by pre-paid registered post.
Regardless of the place of execution, performance or domicile of the parties, this agreement and all modifications/amendments shall be governed by or construed under and in accordance with the laws of the Republic of South Africa.
Either party shall be entitled to recover from the other party all costs incurred by it in enforcing any rights that it has hereunder, including collection charges, costs on an attorney and own client scale, costs of counsel as on proposal (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.