GENERAL TERMS AND CONDITIONS OF SALE
According to context, and where relevant herein:
“Palian”Means Palian Manufacturing Pty Ltd including its directors, employees, contractors and agents
“Contract”Includes quotation, tender, agreement or buyer’s order
“Goods”Includes products, work, services, repairs, erection and installation
“Delivery”Includes execution of work, rendering of services, erection and installation
“Buyer”Includes the buyer’s sub-contractor, carrier, representatives and employees
Any reference to the singular shall include the plural and vice-versa and any reference to anyone gender shall include the other.
The following terms and conditions apply to all contracts entered into by Palian for the supply of goods and/or services whether or not arising from Palian’s oral or written quotation or offer:
1.Each party warrants to the other party that it has power, authority and legal right to sign and perform according to this agreement.
2.This agreement constitutes the whole agreement between the parties as to the subject matter hereof and no agreement, representations or warranties between the parties other than those set out herein are binding on the parties.
3.The parties agree and undertake to act in good faith towards each other at all times regarding this agreement.
4.Palian reserves the right to suspend deliveries or to terminate any contract at Palian’s option in case of war, vis major, riots, strikes, acts of God, fire, civil commotion, accidents, inability to obtain supplies from Palian’s usual suppliers and/or unforeseen circumstances of any kind effecting Palian’s ability to deliver. In any such events, Palian shall be relieved from all liabilities in connection with the contract and Palian shall be entitled to obtain payment in respect of deliveries already performed at the time of such suspension or cancellation.
5.All prices and charges quoted relate only to the goods detailed in this contract. The contract price shall be paid by the Buyer free of bank and other charges and shall be paid without any deduction or set off. Any promissory, bill of exchange, cheque or other negotiable instrument tendered shall not be a novation of the debt for which it is given and the Buyer waives presentment, a notice of dishonour and protest where applicable. Palian shall be entitled to refuse to deliver the goods to the buyer until the Purchase Price has been paid in cash or finance facilities have been arranged to the satisfaction of Palian.
6.Articles manufactured by Palian are inspected and submitted to Palian’s standard tests. Any special tests required by the Buyer will be for the Buyer’s account.
7.1Drawings, specifications and illustrations submitted by Palian and the copyrights therein remain Palian’s property and are not to be copied or divulged to any person without Palian’s written consent and are to be returned to Palian on demand;
7.2Where Palian supplies goods to the Buyer’s specifications, drawings, design and/or where Palian amends Palian’s original design or recommendations at the Buyer’s request, the Buyer indemnifies Palian against any claims which may arise in respect of patents and/or design rights, and any warranties whatsoever which may have been given shall lapse.
8.Dates given by Palian for delivery are approximate. Time of delivery shall not be the essence of any contract. Each partial delivery is to be considered as a separate contract for purposes of payment. Failure by Palian to make a delivery on the intended date shall not entitle the Buyer to refuse to accept any other delivery and shall not give rise to any claim for damages.
9.Unless otherwise specified by Palian in writing, payment is to be made to Palian on the last day of the succeeding month following each delivery or partial delivery. All charges shall be paid to Palian in full without any deductions, set-off and/or retention whatsoever and notwithstanding any counterclaim or complaints which the Buyer may have or claim to have. Interest at 2% above bank prime rate shall be payable by the Buyer on all amounts which are overdue for payment.
10.Should the Buyer refuse or be unable to accept any complete or partial delivery when tendered, Palian shall be entitled to claim payment of the full contract price forthwith. If the execution of Palian’s performance is delayed or cancelled by the fault of the Buyer, the Buyer will be liable for any consequential expenses, losses and damages incurred or suffered by Palian, including but not limited to Legal Costs on the scale as between attorney and own client.
11.Should the Buyer fail to make any payment on the due date or meet any other obligation in terms of any contract with Palian, then Palian shall be entitled without prejudice to any other rights which Palian may have in law, to suspend further deliveries, obtain payment forthwith of all amounts arising from whatsoever cause including but not limited to work in progress whether or not already delivered and/or:
11.1Obtain payment of any outstanding balance of the full contract price against Palian’s undertaking to complete the contract, or
11.2Require the Buyer to return to Palian any or all of such goods as may have already been delivered but not yet fully paid for and to treat the contract as cancelled.
In addition to and without prejudice to any claim Palian may have against the Buyer, the Buyer shall be liable for any expense, loss (including loss of profit) injury or damage incurred or suffered by Palian, including any loss on the disposal of reclaimed and/or undelivered goods.
12.Ownership of any goods and racking delivered remains vested in Palian until payment in full has been received by Palian, whether or not such goods may have been attached to immovable property. Notwithstanding the reservation of ownership, the risk in the goods shall pass to the Buyer upon delivery.
12A.Landlord’s Lien Waiver and Consent to Access Premises: If the Buyer rents the premises where Palian’s goods and racking (“the goods”) are installed, the Buyer must notify the Landlord in writing that Palian retains ownership of the goods until full payment is received by Palian. Upon Palian’s request, the Buyer must obtain from the Landlord a signed lien waiver, consent for Palian to access the premises in the event of the Buyer’s breach of payment terms or insolvency, and an acknowledgement that the Landlord’s rights under any lease agreement are subordinate to Palian’s ownership rights in the goods. If the Buyer defaults on payment, Palian reserves the right to enter the premises to detach, disassemble and remove the goods.
13.Palian reserves the right to adjust all quoted prices in direct proportion to any variations which may occur in Palian’s costs between the date of quotation and the date of delivery of any goods. Such amended prices shall be deemed to be the agreed prices in terms of any contract.
14.Palian shall under no circumstances be liable for any damages or loss (direct or indirect, consequential or otherwise) howsoever arising.
15.Any terms or conditions which may be contained in the Buyer’s order shall not apply to any contract resulting from such order insofar as such terms and conditions conflict herewith.
16.The Buyer shall be responsible for the safekeeping of all goods including tools and equipment delivered to or left by Palian on the premises where any installations, services and/or deliveries are effected or made.
17.Should the Buyer (whether a company or otherwise) commit any act of insolvency or attempt to compromise with creditors or allow a judgement of any court to remain unsatisfied for 10 days, or have made any incorrect statement or representation in connection with any contract or, being a company, should an application for its judicial management or liquidation be made, then Palian shall be entitled to apply mutatis mutandis the remedies described in Paragraph 11 hereof.
18.A certificate by our auditors in respect of any prices, costs or adjustments referred to herein shall be final and binding.
19.All contracts are subject to the goods referred to therein being available and unsold on receipt by Palian of the order.
20.1Goods supplied by Palian will conform only to such requirements as are specifically undertaken by Palian in writing under the signature of one of Palian’s directors. If proved to Palian’s satisfaction that any goods fail to conform to such specific requirements, then Palian’s liability shall be limited to either rectifying or replacing the goods or Palian shall be entitled at Palian’s option to require that the Buyer return such goods to Palian against Palian’s passing of credit for the purchase price of such defective goods as are returned and Palian shall have no further responsibility thereunder. No other express or implied warranties or representations of any nature whatsoever are given or made regarding performance, quality, function, workmanship, or suitability of any goods for their intended purpose, whether or not such purpose is known to Palian. All implied warranties are specifically excluded. The Buyer shall, in any event, be responsible for payment for the repair or replacement of any goods which may be damaged in the Buyer’s possession.
20.2In the event of repairs or alterations being made by any person other than Palian’s authorised personnel without Palian’s written consent or the goods having been used in such manner, as in Palian’s opinion, to have caused or aggravated any defect or failure to conform, any warranty given by Palian will be rendered null and void.
21.The risk in goods shall pass to the Buyer on delivery. Delivery shall be deemed to have been effected when the goods are handed to any carrier for conveyance, or when delivered by Palian’s transport to the entrance of the destination premises. The Buyer shall be responsible for unloading the delivery vehicle and Palian does not accept any responsibility for moving or packing goods at the destination. If not delivered by Palian’s transport, the carrier shall be deemed to be the agent of the Buyer for this clause whether or not goods are consigned to carriage for onward conveyance. The signature of the Buyer on the relevant consignment or delivery note shall be proof of delivery in good order and condition. No claim for damage or incorrect or defective delivery will be valid unless made in writing on such note at the time of delivery.
22.All quotations given by Palian are subject to rectification of any errors and/or omissions.
23.Orders placed with Palian may not be cancelled in part or whole by the Buyer expect with Palian’s written consent. The Buyer may not return goods to Palian without Palian’s written agreement in which event Palian reserves the right to make a handling and restocking charge.
24.Second hand, used or undergrade goods are sold voetstoots and without any other conditions and warranties whether express or implied.
25.The laws of the Republic of South Africa shall apply to all contracts. The Buyers and the sureties agree that Palian will be entitled to institute legal proceedings against the Buyer in any Magistrate’s Court in South Africa or subordinate court of the first class of Botswana, Lesotho or Swaziland having jurisdiction over the Buyer, though the cause of action may otherwise exceed the jurisdiction of such Court.
26.The Buyer warrants that the owner of any premises where the goods are to be delivered has agreed thereto that the contract does not conflict with any conditions of title or other restrictions and that the Buyer has or will at the Buyer’s own expense obtain the approval and comply with the regulations of any relevant local authority. The Buyer further indemnifies Palian against any claim of whatsoever nature which may arise here from.
27.The Buyer shall provide convenient access for purpose of installation and maintenance and shall provide and connect suitable and adequate power supplies (to the approval of the relevant authorities) to any equipment requiring it, together with such protective devices as may be necessary or advisable.
28.The placing of any order with Palian implies acceptance by the Buyer of all the conditions contained herein.
29.No variation, addition, cancellation, novation of any of the terms and conditions of this agreement and waiver of any of Palian’s rights arising from this agreement shall be of any legal force and effect unless agreed to by Palian in writing only under the signature of one of Palian’s directors. Any indulgence, relaxation or extension of time which Palian may grant shall not be construed as a novation or waiver of any of Palian’s rights, which rights remain expressly reserved at all times.
30.Palian shall not be liable for any death, injury, loss or damage suffered by the Buyer through or contributed to by any cause whatsoever including but not limited to theft, loss of or damage to property or any intentional, fraudulent, negligent, gross negligent act and/or omission or breach of contract on the part of Palian, and the Buyer hereby indemnifies Palian against any claim arising therefrom.
31.During the currency of this agreement and after termination thereof, the Buyer will keep matters concerning the business, marketing, policies and other information relating to Palian confidential and secret and will not disclose the same to any person and will not use any information acquired during this agreement for its benefit or that of others or derive or allow any other person to derive any benefit therefrom.
32.The Buyer acknowledges that any and all of the intellectual property, including patents, copyright and trade name and the know-how used or embodied or in connection with the confidential information, is and will remain the exclusive property of Palian. The Buyer will not, while this agreement is in force and thereafter, question or dispute the ownership of any such intellectual property rights by Palian or utilize either directly or indirectly the intellectual property.