terms and conditions of contract

  • 1. DEFINITIONS
    • Unless inconsistent with the context,
    • 1.1. the words set forth below shall bear the following meanings:
    • 1.1.1. “the company” herein refers to Victor Industrial Equipment (Proprietary) Limited.
    • 1.1.2. “goods” - the movable property whether fixed or free to be supplied by the company in terms of any contract which is subject to these conditions and includes any work and services to be performed by the company.
    • 1.1.3. “customer” the other party to any contract concluded with the company on these conditions.
    • 1.1.4. “contract” any contract concluded between the company and a customer on these conditions:
    • 1.2. words and expressions which denote:
    • 1.2.1. any gender includes the other genders.
    • 1.2.2. a natural person includes an artificial person and vice versa, and
    • 1.2.3. the singular includes the plural and vice versa.
    • 1.3. The head notes to the clauses of these conditions are inserted for reference purposes only and shall in no way govern or affect the interpretation hereof.
  • 2. GENERAL
    • 2.1. These conditions govern all quotations and invoices issued by the company, contracts and sub-contracts entered by the company and orders received by the company. Any conditions stipulated by a customer which conflict with these conditions are excluded from the contract. These conditions shalt prevail over and supersede all terms and conditions whether written or implied which the customer may seek to incorporate in the contract in whatsoever manner.
  • 3. VALIDITY
    • 3.1. Subject to the provisions of seven, quotations are open for acceptance during the period stated therein, or where no period is stated within 30 (thirty) days after the date of such quotation.
  • 4. ACCEPTANCE AND ORDERS
    • 4.1. The acceptance of the company's quotation or the placing of an order must be confirmed in writing with sufficient instructions to enable the company to proceed with the execution of the order forthwith, falling which, the company will be entitled to amend the prices quoted to cover any increase in costs.
  • 5. SAMPLES
    • 5.1. All sample delivery by the company to a customer shall be returned to the company at the customers' cost and expense and in the same condition in which it was delivered to the customer within 120 (one hundred and twenty) days from the date of such delivery. Failing which, the customer shall be deemed to have purchased such sample from the company at the company's then prevailing price.
  • 6. DESCRIPTIVE MATTER AND ILLUSTRATIONS
    • 6.1. All specifications, drawings and particulars of weights and dimensions issued by the company are approximate only and are intended only to present a general impression of the goods to which they refer and shall not form part of the contract unless so agreed by the company.
  • 7. STOCK
    • 7.1. Any quotation by the company, whether written or oral, for delivery of goods from stock is subject to the company not having sold or committed itself to sell to third parties such stock at the date of acceptance of the company's quotation.
  • 8. DELIVERY AND STORAGE
    • 8.1. Delivery will be made at the place specified in the company's quotation or invoice.
    • 8.2. The company shall have the right to effect part deliveries.
    • 8.3. Failure to give the company forwarding instructions within seven days after notification that the goods are ready for delivery, or failure to take delivery alter the company has given the company forwarding instructions shall entitle the company to arrange storage either at the company's premises or elsewhere at the customer's risk and all charges for handling, storage and insurance incurred by the company will be for the customer's account.
  • 9. PROPERTY AND RISK
    • 9.1. Risk in the goods shall pass to the customer on delivery but ownership in the goods delivered shall remain vested in the company until the entire purchase price have been paid. All such goods where goods are affixed to immovable property or structures shall be deemed to remain movable property and severable therefrom.
  • 10. DEFAULT
    • 10.1. All delivery times are estimated only, and the company shall be liable for late delivery only if the customer has suffered loss and the company shall have agreed in writing to pay the customer liquidated damages, in which event the company's liability shall be limited to 10% of the company's initial order value accrued at the rate of one percent per week of delay.
    • 10.2. In all cases, whether a time for delivery be quoted or not, such time shall be extended by a reasonable period if:
    • 10.2.1. a delay in delivery is caused by the customer's instructions or lack of, or
    • 10.2.2. by the company's access to the point of delivery being delayed, or
    • 10.2.3. by industrial dispute, or
    • 10.2.4. by reason of force majeure, or
    • 10.2.5. by any cause whatsoever beyond the company's control.
    • 10.3. The contract shall not be cancelled on the ground of the company's delay unless the company shall first have received reasonable notice in writing of the customer's intention to insist on adherence to contractual delivery dates.
  • 11. LOSS OR DAMAGE IN TRANSIT
    • 11.1. When the price quoted includes the cost of delivery, the company will repair or replace within a reasonable time and free of charge, goods damaged in transit to the point of delivery, only if the company receives written notification of such loss or damage within 7 (seven) days of the date of delivery.
  • 12. PERFORMANCE
    • 12.1. Any performance values given by the company are based upon the company's experience and the company accepts no liability for any damages for failure to attain such values, unless the company has specifically guaranteed performance values in writing subject to the recognised tolerances applicable to such values in an agreed sum as liquidated damages, in which case the company's liability shall be limited to 10% of the contract value.
    • 12.2. Before making any claim upon the company or rejecting the goods, the customer shall afford the company reasonable time and opportunity to rectify performance, and the company shall be entitled at its option, to replace the goods or the defective parts thereof.
    • 12.3. The customer assumes responsibility that goods in respect of which the customer has given the company specifications are sufficient and suitable for the customer's purposes.
  • 13. LIABILITY
    • 13.1. The company undertakes to make good by replacement or repair any defects in or failure of the goods supplied which, under proper use, appear therein and arise solely from faulty design, materials or workmanship, within a period of 180 (one hundred and eighty) days after the original goods shall have been first delivered at the termination of which period all liability on the company's part ceases, provided always that such defective parts are promptly returned to the company free of any charge.
    • 13.2. Repaired or new parts will be delivered free to the customer's premises within the Republic of South Africa.
    • 13.3. The company does not accept responsibility for goods repaired or attempted to be repaired by any person not acting under the company's instructions or without the company's written consent. Any such action shall automatically invalidate the company's undertaking to remedy such defects.
    • 13.4. In respect of components and materials not produced by the company, the company limits all liabilities and warranties to those extended to the company by the suppliers of such components and materials.
    • 13.5. The company's liability under any contract is limited to replacement or repair work undertaken under these conditions of contract, to the entire exclusion of any other remedy, which, but for this condition, the customer might have. Any representation, condition, warranty, or other undertaking in relation to the contract, whether express or implied by statute, common law, custom or otherwise and whether made or given before or after the date of contract, is hereby excluded for all purposes. Save as provided in these conditions, the company shall not in any circumstances be liable for any damage, injury, consequential or other loss or loss of profits or costs, charges, and expenses, howsoever arising.
  • 14. PATENTS
    • 14.1. The company will indemnify the customer against any claims or proceedings for or on account of infringement of any letters patent, registered design, trademark, or copyright protected at the date of contract in the Republic of South Africa by the use or sale of any article or materials supplied by the company to the customer provided that:
    • 14.1.1. this indemnity shall not cover any infringement which Is due to the company having followed a design or instruction furnished or given by the customer.
    • 14.1.2. this Indemnity is conditional upon the customer giving the company the earliest possible notice in writing of any claim being made or action threatened or brought against the customer and the customer permitting the company, at the company's own expense, to conduct all negotiations for a settlement of the same and any litigation which may ensue.
    • 14.1.3. the customer on its part warrants that any design or instruction furnished or given by it shall not be such as will cause the company to Infringe any letters patent, registered design, trademark or copyright in the performance of the contract.
  • 15. OWNERSHIP AND COPYRIGHT
    • 15.1. The ownership, together with the copyright therein, of all plans, drawings diagrams, descriptions and other information, jigs, tools templates and patterns submitted by the company or used in the production of the goods shall remain vested in the company or its principles and no copies thereof shall be made without the company's prior written consent.
  • 16. VARIATIONS TO BE DONE IN WRITING
    • 16.1. No variation, modification, or waiver of any provision of these conditions, or consent to any departure therefrom, shall in any way by any force or effect, unless confirmed in writing and signed by a director of the company, and the customer and then such variation, modification, waiver, or consent shall be effective only in the specific Instance and for the purpose and to the extent for which made or given.
  • 17. INCREASE IN CONTRACT PRICE
    • 17.1. The company shall be entitled to increase the contract price by a sum of money sufficient to cover any additional costs incurred or sustained by the company as a direct or Indirect consequence if the customer requiring any variation in the work to be performed or suspending delivery of the goods by the company.
  • 18. CANCELLATIONS AND RETURNS
    • 18.1. The customer may not cancel any order/contract placed with the company or return any goods whole or in part without the express written consent of the company and without prejudice to any other rights of the company. The company may at his sole discretion make a charge for any such cancellation or return of goods.
    • 18.2. OVERTIMEUnless otherwise stated, the company's quotations and prices are based on the assumption that all work will be carried out during the company's ordinary working hours, and if it shall be agreed with the customer that overtime be worked, the price to be paid to the company shall be increased by an amount equal to the overtime wages actually paid by the company and to which amount shall be added the company's overhead charges and profit.
  • 19. TERMS OF PAYMENT
    • Unless otherwise agreed in writing by the company the following terms will apply to the sale of all goods:
    • 19.1. The full amount stated on invoices and reflected on statements will become due and payable 30 (thirty) days after the date of the statement.
    • 19.2. No discounts will be given other than those indicated on the company's invoices and which will be final.
    • 19.3. Overdue accounts will bear interest at prime overdraft rate plus 2 % charged by and as certified by the company's bankers from time to time and shall be paid by the customer on demand.
    • 19.4. If any account is handed over to the company's attorneys for collection, the customer will be liable for collection charges, tracing fees and all legal costs (both party and party attorney, as well as client costs) even though action may not have been instituted.
    • 19.5. The customer waives all rights of set-off against the company, and the customer shall not be entitled to make any deductions whatsoever from payments due.
    • 19.6. The customer agrees to pay, in addition to the basic contract price for each unit, the amount of any tax (including general sales tax) duty or charge levied upon the import, sale, transfer, use, ownership or possession of the goods to be supplied and/or installed subject to these conditions, imposed by any law or regulation coming into operation after the date of the company's price list or quotation.
    • 19.7. The cost of imported components shall be subject to adjustment by the company to compensate the company fully for any losses suffered by the company by reason of any currency fluctuations following the date of the company's quotation, whether written or oral.
  • 20. JURISDICTION
    • 20.1. The customer hereby agrees and consents that the company shalt be entitled, at the company's election, to institute any legal proceedings which might arise out of or in connection with these conditions in any Magistrates Court in the Republic of South Africa having jurisdiction over the customer's person, notwithstanding that the claim or the value of the matter in dispute might exceed the jurisdiction of such Magistrates Court.
    • 20.2. The foregoing shall not preclude the company from instituting such proceedings in any division of the Supreme Court of South Africa having jurisdiction.
  • 21. LEGAL CONSTRUCTION AND GOVERNING LAW
    • 21.1. Should one or more of these conditions be invalid or unenforceable for any reason the remaining conditions shall remain in full force and effect. Any contract for the supply of goods by the company shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.
  • 22. WAIVER
    • 22.1. Waiver by the company of any breach by the customer shall not pre-judice the company in respect of any continuing or other breach.
    • 22.2. No delay or indulgence by the company in exercising any right hereunder shall operate as a waiver of such right, and no such waiver shall be operative against the company's duly authorised official.
  • 23. NOTICES
    • 23.1. Any notice required to be given by either party to the other hereunder shall be considered properly given if sent (by registered letter, telex, or telegram) to the respective business address of the other party, or to such other address as the addressee shall have furnished in writing to the addressor. When these conditions require that a notice be given within a specified period, and for such notice to be valid, must reach the party to whom it is addressed within that period.