TERMS AND CONDITIONS
1.1 In these Conditions:
“Buyer” means the person accepted by the Seller to purchase Goods from it, subject to these Conditions;
“Conditions” means these terms and conditions of sale and includes any special terms and conditions agreed in Writing between the Buyer and the Seller; “Contract” means any agreement for the supply of Goods resulting from a Purchase Order and accepted by the Seller in accordance with Clause 5.3;
“Goods” means the goods, including any instalment of the goods or any part of them, which the Seller is to supply in accordance with the Con-tract;
“Purchase Order” means the Buyer’s order for Goods in Writing,
“Seller” means Hardware Distribution SA (Pty) Ltd registered in South Africa under number 2001/008689/07;
“Writing” includes facsimile transmission, e-mail and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Status of buyer
2.1 The Buyer confirms that it is not dealing as a consumer and that it is buying the Goods for use in its business or the business of a third party end-user.
3.1 Unless otherwise specified in writing by the company to the customer, payment is to be made by the customer within 30 (thirty) days from date of the Company’s statement.
3.2 In all cases where the Customer uses a postal, banking, electronic or similar such service to effect payment, such services shall be deemed to be the agent of the Customer.
3.3 Should any amount not be paid by the Customer on due date, the Customer shall be deemed to be placed in mora and then the whole amount in respect of all purchases by the Customer shall become due, owing and payable, irrespective of the dates when the goods were purchased. The Customer shall then be liable to pay interest in respect of amounts unpaid as at the due date, at the compound rate of 2% above the prime overdraft lending rate of the Company’s Bank or as determined by the National Credit Act on all overdue amounts from due date, until date of payment, calculated and payable monthly in advance and should the said interest not be paid in full as aforesaid, such interest shall be added to the principal sum, and the total shall form the principal debt which shall then bear interest in the manner as set out above.
3.4 If the Customer should fail to object to any item appearing on the Company’s statement of account / tax invoice, by notifying the Financial Director/ Bookkeeper of the Company within fourteen (14) days of date of the dispatch of the statement, or tax invoice(s), the company’s account / tax invoice shall be deemed to be in order.
3.5 The Customer shall not be entitled to claim set off or deduction in respect of any payment due by the Customer to the Company for goods supplied.
3.6 The Company may appropriate all payments made by the Customer to such accounts as it will in its sole and absolute discretion determine.
3.7 Copies of invoices, statement of accounts and any other relevant documents (including any computer printouts) shall, upon representation by or on behalf of the company be regarded as being what they purport to be, unless the contrary is shown.
3.8 The Company shall have the right to immediately suspend deliveries to the customer if any amount is not paid by the Customer to the Company on or before the due date.
3.9 The Customer undertakes to keep a comprehensive set of books at all material times from which it will be able to ascertain its liability to the Company without the need for any debatement.
4. Credit facilities
4.1 The Customer understands that the Company’s decision to grant credit facilities to the Customer is at the sole discretion of the Company.
4.2 The Company reserves the right to withdraw or suspend any credit facilities at any time without prior notice and the nature and extent of such facilities shall at all times be in the Company’s sole discretion.
4.3 Despite the fact that the Company may grant the Customer a credit limit or a credit facility up to a certain amount, the Company reserves the right to increase this amount at its sole discretion. The credit limit shall not be deemed to be the limit of a customer’s indebtedness to the Company.
4.4 Any account that has been/becomes dormant for 6 months, at Managements’ discretion, will be reverted to C.O.D basis.
5. Application of these conditions
5.1 Every Contract shall be subject to these Conditions and no variations to these Conditions, or any other conditions which the Buyer purports to make applicable, shall be binding unless expressly accepted in Writing by an authorised representative of the Seller.
5.2 The Seller’s employees or agents are not authorised to make any representations concerning the Goods or their performance characteristics either during communications via telephone or facsimile or e-mail or any other method of communication, unless confirmed by the Seller in Writing. The Buyer acknowledges that it does not rely on any representations which are not so confirmed.
5.3 All statements or terms concerning Goods, including prices, quoted or listed by or on behalf of the Seller, or including published price lists, catalogues, pamphlets or postings on the Website constitute invitations to treat, and shall not be construed as offers under any circumstances. Any Purchase Order for Goods received by the Seller from the Buyer shall be deemed to be an offer by the Buyer to purchase Goods, subject to these Conditions. No order shall become binding until the Seller either expressly, by giving notice of acceptance in Writing, or impliedly, by fulfilling the Purchase Order, in whole or in part accepts the offer.
6. Quotations, Orders and Specifications
6.1 All quotations given by the Seller will be linked to the R/$ exchange rate, and are subject to the rate on the date of order. Quotations are subject to acceptance of the Purchase Order by the Seller pursuant to clause5.3.
6.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) sub-mitted by the Buyer and providing the Seller with any additional information relating to the goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms. If the Buyer does not provide correct and sufficiently detailed information and the Contract is performed late or the goods delivered are incorrect in terms of specification or quantity the Seller will not be held liable.
6.3 The quantity, quality and description of and any specification for the Goods and Services shall be those set out in the Buyer’s Purchase Order (if accepted by the Seller.) The Seller reserves the right to make any alterations to the specifications of the Goods, which are necessary to conform with any applicable statutory or legislative requirements or variations or substitutions which do not materially affect the quality and performance of the Goods.
7.1 Cancellations should be expressed in Writing to the Seller seven (7) days prior to the commencement of delivery. The Seller’s acceptance of a cancellation will be evidenced by receipt of consent in Writing.
8.1 The price of the Goods shall be the price set out in any valid quotation, or where no price has been quoted or a quoted price is no longer valid, the price listed in the Seller’s published price list or posted on the Seller’s Website, current at the date of acceptance of the Purchase Order. Prices will be linked to the R/$ exchange rate and will be subject to rate fluctuations.
8.2 The Seller reserves the right, by giving notice to the Buyer at any time before
delivery, to increase the price of the Goods to reflect any changes in specifications for the Goods which are requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
8.3 All prices are exclusive of any applicable Value Added Tax (VAT).
9.1 No goods will be accepted back for replacement/repair or credit without an RMA number.
9.2 Should a product go faulty or you wish to return a product for credit, an RMA number must be applied for.
9.3 Should no fault be found, the product will be returned to you, and a 25% handling fee will be charged.
9.4 Hardware Distribution SA (Pty) Ltd warranty does not cover Acts of God i.e. lightning or power surges/spikes or obvious visible damage.
9.5 Credits are passed at management’s discretion. A 25% handling fee will be levied on goods returned after 14 days. No goods will be accepted for credit if they are incomplete or have been opened.
10.1 The Goods shall be delivered, carriage paid, to the Buyer’s notified place of business or to such other place of delivery as is agreed between the Parties inWriting prior to the Goods being passed to the carrier.
10.2 Any dates specified for delivery of the Goods are intended to be estimates only and time of delivery may not be of the essence. If no dates for delivery are specified, delivery will be within a reasonable time. Subject to the other provisions of these Conditions the Seller will not be liable for late delivery of the Goods (even if caused by the Seller’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Purchase Order unless such delay exceeds 60 days.
10.3 The Seller reserves the right to elect the carrier of the goods, unless otherwise agreed in Writing between the parties. The Seller also reserves the right to arrange adequate insurance, either independently or through the carrier, for the Goods up until the time when they are delivered, to the place agreed between the parties, and a Proof of Delivery has been issued, at which time risk passes to the Buyer.
10.4 The Goods are at the risk of the Buyer from the time of delivery. If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations, risk in the Goods will pass to the Buyer (including for loss or damage caused by the Seller’s negligence) from the moment of attempted delivery, the Goods will be deemed to have been delivered and the Seller may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance).
10.5 If the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
10.6 If the Seller fails to deliver the Goods (or any instalments) for any reason other than Force Majeure (as defined below) or the Buyer’s fault, and the Seller is accordingly liable to the Buyers, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over and above the price of the Goods as quoted originally.
11.1 Property in the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect both of the Goods, and all other sums which are or which become due to the Seller from the Buyer on any account.
11.2 Until property in the Goods has passed to the Buyer the Buyer must: store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way as they remain readily identifiable as the Seller’s property; not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; maintain the Goods in satisfactory condition insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller. The Seller shall be entitled to recover payment for the Goods notwithstanding that property in the Goods has not passed from the Seller. The Buyer grants the Sellers, its agents and employees an irrevocable licence at any time to enter any premises where the goods are or may be stored in or-der to inspect them or, where the Buyer’s right to possession has terminated, to recover them. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall, without prejudice to any other right or remedy available to the Seller, forthwith become due and payable.
12. Warranties and Liability
12.1 All Goods are sold subject to the express warranty terms specified by the original manufacturer or supplier. The Seller will pass to the Buyer to the extent that it is able to do so, the benefit of such guarantee or warranty relating to the Goods as it may receive from the manufacturer of the Goods.
12.2 Save as expressly provided in these Conditions, the Seller shall be under no liability to the Purchaser under these Conditions, any Contract or otherwise for any loss or damage howsoever caused to the Buyer or any other person including, without limitation, any loss of profit, loss of earnings, damage to property, business interruption, damage to reputation or goodwill or any indirect, special or consequential loss or dam-age (save in respect of death or personal injury resulting from negligence) and any term, condition or representation to the contrary whether express or implied by statute, common law or otherwise is hereby expressly excluded as far as it is possible to exclude it, save for fraudulent misrepresentation to which this exclusion shall not apply.
12.3 The liability of the Seller to the Buyer for any loss or damage of whatsoever nature and however caused shall be limited to and in no circumstances shall exceed the price paid by the Buyer for the Goods.
13. Defective Goods
13.1 The Seller reserves the right at its sole discretion to decide whether any goods are defective. Defective goods will either be replaced with a Good of the same or similar specification or will be repaired. If replacement or repair is not practicable, the Seller will credit the value of the defective Good (as detailed on the invoice) to the Buyer’s account. The Seller shall have no other liability in respect of defective Goods. All defective Goods must be reported within seven (7) days of the delivery date and must be returned in accordance with the following RMA procedure. All Goods that are reported defective during the warranty period, will be given an RMA number and must be returned following the Returns Materials Authorization procedure, details of which can be provided to the Buyer on request. No Goods may be returned except pursuant to the RMA procedure. No goods may be returned without a valid RMA number displayed in the packaging. Any defects discovered shall not entitle the Buyer to rescind the Purchase Order. The Buyer will pay for the Goods to be returned to the Seller, but will be reimbursed for these costs if the defect is reported to the Seller within the warranty period and returned to the Seller in adherence with the RMA procedure. Transport charges shall be charged to the Buyer if the defect is reported after the expiration of the warranty period, if the Good is not returned in compliance with the RMA procedure, and/or if the Good is returned in compliance with this clause but proves not to be defective.
14.1 All notices required to be given hereunder shall be given in writing to the recipient at the address stated on the face of these Conditions, or to such other address as the recipient may from time to time specify in writing by sending the same by pre-paid postage or facsimile. All notices shall, if sent by post, be deemed to be delivered forty eight (48) hours after posting and if sent by facsimile, shall be deemed to have been received at the time of delivery as indicated on the facsimile activity report of the sender.
14.2 Neither party shall be deemed to be in breach of these Conditions or otherwise liable to the other party for any delay in performance or any non-performance of any obligations under these Conditions (and the time for performance shall be extended accordingly) if and to the extent that the delay or non-performance is due to circumstances beyond its reasonable control including without limitation flood, fire, earthquake, riots, industrial disputes (other than disputes with a party’s employees) not arising through the fault of either party (“Force Majeure”).
14.3 No delay or omission on the part of either party in exercising any right, power or remedy provided by law or under these Conditions shall impair such right, power or remedy or operate as a waiver thereof. The single or partial exercise of any right, power or remedy provided by law or under these Conditions shall not preclude any other further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies provided in these Conditions are cumulative and not exclusive of any rights, powers and remedies provided by law.
15. Legal proceedings
15.1 Regardless of the place of execution or performance under these terms and conditions or domicile of the Customer, these terms and conditions and all modifications and amendments hereof, shall be governed by and decided upon and construed under and in accordance with the laws of the Republic of South Africa.
15.2 The parties agree, notwithstanding the amount in dispute, to submit to the jurisdiction of the Magistrate’s Court and shall be entitled to institute action out of such Court. A certificate issued and signed by any Director or Manager of the Company, whose authority need not be proved, in respect of any indebtedness of the Customer to the Company or in respect of any other fact, including the fact that such goods were sold and delivered, shall be prima facie evidence of the Customer’s indebtedness to the Company and prima facie evidence of such other fact and prima facie evidence of the delivery of the goods.
15.3 The Customer’s physical address as given on the front page of the application, shall be recognised as the Customer’s domicilium citandi et executandi (domicilium) for all purposes in terms of this agreement, whether in respect of the serving of any court process, notices, the payment of any amount or communications of whatever nature.
15.4 The Customer shall pay all legal costs, including attorney/own client costs, tracing agent’s fees and collection charges which the Company may incur in taking any steps pursuant to any breach or enforcement of these terms and conditions by the Customer.