GENERAL TERMS AND CONDITIONS OF SALES ARMOR IIMAK SOUTH AFRICA
- SCOPE
1.1 The purpose of these General Terms and Conditions of Sale (“Sale Agreement”) is to define the terms of the relationship dealing with the sale of products and the performance of services that apply between the company Armor Africa Imaging Supplies (Pty) Ltd (“the Vendor”) and its clients (“the Purchaser”).
1.2 These General Conditions of Sale may be varied from time to time by the Vendor.
1.3 For the purposes of this Sale Agreement a reference to a day is a reference to a business day excluding weekends, and public holidays in the Republic of South Africa.
1.4 Ordinary days means ordinary calendar days including weekends and public holidays.
- ORDERS
2.1 All orders must be in writing by the Purchaser, and communicated to the Vendor. Placement of an order shall constitute a full and unconditional acceptance by the Purchaser of these Sale Conditions. The Vendor shall at its sole election (which election shall be binding on the Purchaser) be entitled to accept an order placed upon it which is not in writing.
2.2 Once the Vendor is in receipt of the Purchaser’s order, the Purchaser shall have no further right to cancel the order, irrespective whether such order is in respect of the performance of a service or the provision of any product. The Vendor may however, in its sole and absolute discretion consider any request for the modification or cancellation of an order made by the Purchaser to the Vendor, provided the request is made in writing, and has been communicated to the Vendor prior to performance of the services and/or the manufacture and/or the shipment of any product.
2.3 Where the Vendor has agreed to the modification or cancellation of an order, any deposits or payments made prior to such modification or cancellation can only be returned in their equivalent value in products. The Purchaser agrees that it will never be entitled to a refund of any monies so paid.
- DELIVERY AND TRANSPORTATION
3.1 Applicable delivery times are recorded on the acknowledgements of order and are determined in accordance with the Vendor’s work schedule.
3.2 While the Vendor will endeavour to meet the delivery times so recorded and/or agreed to, the Vendor does not guarantee that the products and/or services so ordered will be delivered and/or provided within the period recorded in the acknowledgement of order. The Purchaser shall have no right of action against the Vendor in respect of any loss it may suffer by reason of any non-delivery or non-compliance by the Vendor with the delivery times recorded in the acknowledgement of order, nor may the Purchaser cancel any order by reason of any such delay or non-delivery.
3.3 Unless arrangements have been made to the contrary, and recorded in writing, where the Purchaser has elected to take delivery of the products at the Vendor’s premises, delivery shall be deemed to have occurred when the products are removed from the Vendor’s premises by the Purchaser or its agent. Where the Purchaser has elected to secure that delivery is made at premises designated by it (which designation shall be required to be in writing), delivery shall be deemed to have taken place once the products are off loaded at the designated premises (provided that if the Purchaser’s employees/agents assist with the off-loading of the products from Vendor’s vehicle, delivery shall be deemed to have occurred once the Vendor’s vehicle arrives at the Purchaser’s designated premises).
3.4 All risk in and to the products shall pass to the Purchaser on delivery.
3.5 The person signing the delivery note shall be deemed to have the necessary authority to represent the Purchaser. Such signature shall mean that:
3.5.1 The correct quantity of the products have been delivered.
3.5.2 The products were delivered in a proper and satisfactory condition and free of any defects.
3.5.3 The products delivered are the same as those the Purchaser ordered from the Vendor.
3.5.4 Where the Vendor has made delivery to the Purchaser in part, each part shall be deemed a part of the original order and non-
delivery or delay in delivery of any part shall not affect the balance of the order or entitle the Purchaser to cancel the order and the terms and conditions of this Sale Agreement shall apply equally to every delivery made.
3.6 Unless provided for to the contrary, the cost of delivery will be EX-Works.
- PRODUCT PACKAGING
4.1 The cost of any specific packaging required by the Purchaser shall be agreed prior with the Vendor, subject to additional invoicing and payable to the Vendor 30 (thirty) ordinary days from date of receipt of the Vendor’s invoice.
4.2 Where any specific packaging is requested by the Purchaser, the Purchaser shall become liable for the payment incurred in the production of such packaging to the Vendor before the Vendor commences with the order placed upon it.
- COMPLAINTS
5.1 It shall always be the responsibility of the Purchaser to ensure that it has examined all products and/or services prior to or at the time of delivery and/or implementation, to satisfy itself as to:
5.1.1 The type and quality of the products and services purchased.
5.1.2 That the products and/or services conformed to the requirements of the Purchaser. Notwithstanding the provisions of clause 3.4 and clause 3.5, should any apparent defects or non-compliance with the products and/or services ordered be present, the Purchaser shall in writing within 8 (eight) days of the products having been delivered or services rendered, provide the Vendor with a full description of any such defects.
5.2 For these purposes, a shortfall in a number of products so ordered shall be deemed a defect in the products.
5.3 The Purchaser shall afford the Vendor every reasonable opportunity to examine the products and/or services complained of for the purpose of determining whether the defect complained of by the Purchaser is indeed present.
5.4 Subject to the Purchaser having informed the Vendor of the defects in the manner contemplated in 5.1.2, any return of products and/or services must be agreed to in writing by the Vendor and the Purchaser shall within a period of 15 (fifteen) days of the conclusion of such written Agreement be obliged to secure the return of the defective products to the Vendor, failing which the Vendor’s obligations to rectify any such defects shall be deemed fulfilled.
5.5 Where the Vendor determines that there is indeed a defect in any of the products or services, it will remain liable for payment of the cost of the return of the products to it, and the cost of repair. If the Vendor determines that no defect is present in either the products and/or the services, the cost of the return of any product, or the provision of any additional service, and the re-delivery of any such product, shall be for the Purchaser’s account.
5.6 Where the Vendor has in its sole discretion determined that the products or services are defective, it will pass a credit note in favour of the Purchaser to the invoiced value of the defective products and/or services.
5.7 The Purchaser agrees to indemnify and hold the Vendor blameless for any loss or damage it may have incurred arising from the provision of any defective product and/or service in the manner more fully recorded in 15 below.
- WARRANTIES
6.1 The products are warranted for 1 (one) year against any manufacturing defect and any defect arising from their normal use.
- FORCE MAJEURE
7.1 The Vendor will inform the Purchaser at the earliest possible time of any facts giving rise to a case of force majeure. The Purchaser hereby agrees to waive any right to claim any action for any loss or damages, and indemnifies the Vendor from any loss and/or damage it may incur arising from the Vendor’s inability to perform in terms of this Sale Agreement, due to any event of force majeure.
- PRICES
8.1 The prices for the provision of products and/or services are those
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prices which apply to any new order, it being recorded that no retroactive price modification may take place.
8.2 The Vendor reserves the right to change its prices on 30 (thirty) calendar days written notice to the Purchaser.
8.3 All taxes, levies, duties or other charges due under any legislation either in the country in which the goods are manufactured and/or exported from, as well as in the destination country or the transit country through or to which the products are conveyed, shall be for the Purchaser’s cost, and payable immediately upon receipt of the Vendor’s invoice.
- SETTLEMENTS
9.1 Regardless of the method of settlement agreed, the place of payment is fixed at the Vendor’s registered office. Payment must take place in the currency stipulated on the Vendor’s invoice. Unless expressly otherwise agreed in writing between the Vendor and the Purchaser, all invoices are payable no later than the end of the month in which the invoice has been submitted, or 30 (thirty) days from the date of the Vendor’s statement, whichever is the later.
9.2 A failure to pay any amount which has become due and owing (whether by way of a once off payment or in instalments), shall result in all amounts, whether due for payment or not, becoming immediately due and payable.
9.3 In the event of:
9.3.1 The insolvency on the part of the Purchaser, or any application made for the winding up of the Purchaser.
9.3.2 The Purchaser having been placed under Business Rescue or compromising or attempting to compromise with its creditors.
9.3.3 Any Judgment having been taken against the Purchaser, which Judgment the Purchaser has not satisfied within 21 (twenty one) days thereof,
the Purchaser shall be obliged to make payment of all amounts outstanding to the Vendor, irrespective whether the date for payment of such amounts has fallen due.
9.4 Where the Purchaser has failed to make payment of any amount on due date or in the amount agreed, the Vendor shall without prejudice to any other rights it may have to enforce payment, immediately suspend the delivery of any product or the provision of any service, and the Purchaser agrees to indemnify the Vendor against any loss or damage it may incur arising from any such suspension.
9.5 Any late payment shall entitle the Vendor to claim interest thereon at the prime rate as charged by the Vendor’s bankers plus 4% compounded monthly in arrears on all overdue amounts; alternatively the maximum rate of interest as prescribed in terms of Section 40(2)(c) as read with Section 42 of the Regulations to the Credit Act Number 34 of 2005 under Government Notice 713 of 1 June 2006, or any such additional regulations pertaining to the maximum rate of interest as may be promulgated from time to time.
9.6 The Purchaser shall not be entitled to set off any indebtedness which the Vendor may owe to it against any monies which it may owe to the Vendor.
9.7 Unless agreed to in writing, prior to the acceptance of any order, the Purchaser shall not be entitled to any discount or rebate on the purchase price of any products provided or services rendered.
9.8 Where the Purchaser has been afforded credit facilities, the Vendor shall in its sole discretion and on 5 (five) days written notice to the Purchaser, be entitled to cancel such credit facilities whereafter the Purchaser shall become obliged to pay the Vendor for all products ordered or services rendered on a cash basis.
- RESERVATION OF TITLE
10.1 The Vendor remains the owner of the products and/or the services even where delivery has taken place until:
10.1.1 The full purchase price has been paid.
10.1.2 The Customer has rectified any breach by it of any of the terms and conditions of this Sale Agreement.
10.2 At the request of the Vendor, the Purchaser shall be obliged to provide the Vendor with full details of the location of the products and where applicable allow the Vendor to retake possession of the products. All costs incurred in securing possession and return of the products shall be for the account of the Purchaser.
10.3 The Purchaser shall inform the Landlord of the premises at which the products are kept that such products remain the sole and absolute property of the Vendor until such time as the Purchaser has made payment of the full purchase price thereon.
10.4 Should any product for which payment remains outstanding be the subject of an attachment in execution or be claimed by any third party, the Purchaser shall immediately and in writing inform the Vendor, and at its cost provide whatever assistance may be
required by the Vendor to oppose any such attachment and/or claim.
10.5 The Purchaser shall not in respect of any product for which payment is outstanding, pledge or cede any of its rights to such products to any third party.
- INTELLECTUAL PROPERTY
11.1 The trademarks ARMOR, inkanto, etc. range names, domain names and patents are protected in France and in certain foreign countries in favour of the Vendor and/or its affiliates. These trademarks are proof of superior workmanship associated with the products delivered by the Vendor.
11.2 The Purchaser agrees that any infringement or improper use of the Vendor’s trademarks, domain name, patents and the like, or of its products and/or services to which it becomes aware, will immediately be communicated in writing by the Purchaser to it. The Purchaser shall, when so requested, provide the Vendor with such reasonable assistance as the Vendor may require, at the Vendor’s cost, to allow for the Vendor to protect its intellectual property from any such abuse.
- PROTECTION OF PERSONAL DATA
12.1 The Purchaser is directed to consult the Personal Data Protection Policy of the Vendor, available on its website and on request. The Purchaser agrees that it will be bound by the Data Protection Policy so published.
- SETTLEMENT OF DISPUTES
13.1 In the event of any dispute arising between the parties, the parties agree first to attempt to resolve the dispute by referring same to personnel identified by each respective party, and duly appointed for this purpose.
13.2 The contact e-mail address of the Vendor to which any dispute is to be referred is [email protected]. The person appointed by the Vendor to represent it will be a mediator appointed for this purpose, or such other person as the Vendor in its discretion may select.
13.3 If within a period of 30 (thirty) days from the date of such referral, the parties are unable to resolve their dispute, the Vendor shall at its sole election be entitled to refer the dispute for determination to arbitration.
13.4 The arbitration shall be conducted according to South African law, and at Johannesburg alternatively Sandton, by an arbitrator mutually agreed to between the parties alternatively and failing such agreement within 5 (five) days of such demand, by a person appointed by the President of the Legal Practice Council or any equivalent body.
13.5 The arbitration shall be conducted in an informal manner, the arbitrator deciding issues before him in what he considers to be just and equitable in the circumstances and without having to refer to strict rules of law.
- BREACH
14.1 Notwithstanding the provisions of clauses 13.1 and 13.5, where the Purchaser has breached any term of this Sale Agreement and failed to rectify such breach after receipt of a notice affording the Purchaser a period of 10 (ten) days within which to do so, or to make payment of any amount outstanding by it to the Vendor, then, the Vendor shall, notwithstanding any other remedies afforded it in terms of this Sale Agreement, be entitled to proceed with legal action against the Purchaser in South Africa, and in this regard:
14.1.1 The Parties consent to the jurisdiction of the Magistrate’s Court in terms of Section 45 of Act 32 of 1944 (as amended) in respect of any such action to be instituted; alternatively to the jurisdiction of the High Court South Gauteng Division.
14.1.2 All legal costs incurred by the Vendor in enforcing its rights in terms of this Sale Agreement shall be paid for by the Purchaser on the scale as between attorney/own client, and in addition the Purchaser agrees that it shall always remain liable for the cost of any tracing and collection fees incurred in the prosecution of any action.
- INDEMNITY
15.1 Save for any loss or damage which the Purchaser incurs as a result of any grossly negligent act or omission on the part of the Vendor, the Purchaser agrees that it shall have no claim against the Vendor for any breach of any of the provisions of this Sale Agreement, including any loss of profit, income, or any consequential loss or damage which the Purchaser may incur arising from any aforestated breach on the part of the Vendor.
15.2 The aforestated indemnity in clause 15.1 shall apply to any of the Vendor’s obligations which may be carried out by any of its employees, agents, sub-contractors, suppliers or the like.
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