1.1. “this Agreement” means these trading terms and conditions and including the quotation, purchase order, drawings, and Conditions of Sale as well as all annexures thereto.
1.2. “the Company” means RWW Engineering (Pty) Ltd with registration number 1986/004209/07, VAT number 4520117898 with the principal place of business situated at 1047 Schooner Avenue, Laser Park, Johannesburg.
1.3. “the Customer” means the purchaser of the Goods and or the Services supplied by the Company.
1.4. “the Goods” means the Goods supplied by the Company to the Customer as more fully set out in the Conditions of Sale.
1.5. “the Services” means the Services supplied by the Company to the Customer as more fully set out in the Conditions of Sale.
2. THIS AGREEMENT
2.1. This Agreement shall govern the supply of Goods and/or the rendering of Services by the Company to the Customer and shall take precedence over any other terms and conditions which may be contained in any of the Customer’s documentation and will govern all transactions between the Company and the Customer, whether past, present or future. In the event of a discrepancy between these terms and conditions and any other terms and/or conditions contained in any of the Company’s other documentation, the provisions contained in these terms and conditions shall prevail.
2.2. When the Customer places a purchase order with the Company, the Customer will be deemed to have knowledge of and have accepted the provisions of this Agreement.
3. RISK AND OWNERSHIP
3.1. Risk in the goods will pass to the Customer on the date of delivery but ownership in the Goods shall remain vested in the Company until the full purchase price for such goods is paid to the Company. If the Customer delays or fails to accept delivery of the goods to be delivered at its nominated address, the risk in such goods shall pass to the Customer as soon as the Company attempts to deliver same to the Customer.
3.2. While any amount is owed by the Customer to the Company in respect of any Goods, the Customer shall be obliged to keep the Goods concerned free of any lien, hypothec, encumbrance and/or attachment.
3.3. The Customer shall take all such steps as may be necessary to notify interested third parties and inform the owner/landlord of the premises at which the Goods are kept of the Company’s ownership of such Goods.
3.4. The Customer shall fully insure the Goods against loss or damage until it has paid the full purchase price to the Company. All benefits in terms of such insurance policy shall be ceded to the Company.
3.5. The Company shall have the right to remove and/or recover the Goods from the Customer or any third party placed in possession of the Goods through the Customer, at the Customer’s expense, in the event of non-payment, and for such purpose the Customer irrevocably authorises the removal and/or recovery of such goods and indemnifies the Company against any and all claims, including claims for costs, whether direct, indirect or consequential, made by any person against the Company and arising out of the aforesaid removal and/or recovery.
4.1. In the absence of any specific agreement between the Company and the Customer as to the payment terms agreed upon and written confirmation thereof from the Company to the Customer, the payment terms shall be deemed to be 30 days for approved account holders only. The Customer shall be obliged to make payment 30 days from date of the statement.
4.2. No discounts may be claimed or taken unless the Company has agreed to such discount in writing and the Customer shall have effected payment within the payment period allowed for such discount.
4.3. Unless otherwise expressly agreed in writing, all payments are to be in South African Rand.
4.4. The Customer carries any risk associated with or arising from the method elected to effect payment to the Company.
4.5. The Customer shall not be entitled, for any cause whatsoever, to withhold, deduct from or defer any amount due by it to the Company. All payments shall be free of exchange and set off. However, the Company shall be entitled, at its sole discretion, to set off any amounts that it owes to the Customer against any amounts that the Customer owes to the Company and such set-off shall be effective as soon as the Company notifies the Customer in writing of the set-off.
4.6. The Company may appropriate all payments from the Customer to any such outstanding amounts as it deems fit.
For non-account Customers, full payment must be made prior to despatch of the goods.
4.7. The company reserves the right to levy interest at 2% above the prime overdraft rate on all overdue accounts.
4.8. The Customer must notify the Company of any error in any invoice and/or statement submitted to it by the Company within 14 (fourteen) days from the date of the invoice and/or statement concerned, failing which the invoice and/or statement will be deemed to be free of any errors.
4.9. Rate of exchange variation – the Company reserves the right to adjust prices that are subject ROE based on the rate applicable on the date of payment for the foreign amount should this rate deviate from that quoted. Additionally, CUSTOMS DUTY, FREIGHT & INSURANCE are also based on this Rate of Exchange and are subject adjustment according to the rate applicable on the day of importation.
5. VALIDITY OF PRICES
5.1. All Goods offered and prices quoted shall be available and valid for acceptance for the period stated in the quotation or tender.
5.2. Where no specific validity period is stated in the quotation or tender, quotations shall be valid for a period of 30 days from the date of the quotation or tender.
5.3. Quotations may be withdrawn by the Company prior to acceptance thereof by the Customer.
5.4. In the event that the Customer places the order after the expiry of the validity date of the price; the order price shall be subject to written confirmation by the Company to the Customer that the price is still valid as set out in the quotation or tender.
5.5. All prices quoted are based on the complete tender or order. Any individual items specified in such tender or order is subject to confirmation by the Company of the price in respect of such item.
6. DELIVERY OF THE GOODS AND SERVICES
6.1. The date of delivery of the Goods and Services will be deemed to be the date when the Goods or Services are delivered to the Customer’s nominated delivery address or the date on which the Company notifies the Customer that the Goods are available for collection. Any third party who accepts delivery or who collects the Goods from the Company will be deemed to be the Customer’s agent and it shall not be necessary for the Company to prove the authority of such person, who shall be deemed to have been duly authorised for such purpose.
6.2. The Company may affect delivery in one or more instalments;
6.3. The Customer warrants that the signatory to any tax invoice, delivery note or any other documentation of the Company made out in the name of the Customer is duly authorised to bind the Customer in relation to the transaction and shall be accepted as proof of such indebtedness or delivery or such other fact, unless Customer proves otherwise and that the goods are received in good order.
6.4. The Company will endeavour to deliver the Goods or services within the indicated delivery time frame. The Customer shall not be entitled to cancel any order by reason of any delay and the Company shall not be liable for any damages or penalties for failure to timeously affect the delivery of the Goods or services for any reason.
7.1. The Customer must inspect the Goods on delivery. Unless the Customer notifies the Company in writing within 7 days of the date of delivery that the Goods delivered are defective, short delivered, damaged or not in accordance with the order, the Company shall not be liable for any of the aforesaid discrepancies, provided that receipt of the aforesaid written notice shall only constitute proof of notification and not an admission of the discrepancy.
7.2. Once the Company has satisfied itself of the validity of the Customer’s complaint, it will determine, in its absolute discretion, the manner in which it will resolve such complaint.
8.1. All conditions and benefits of the Manufacturer’s warranty in respect of the Goods are passed on by the Company to the Customer.
8.2. The Manufacturer will, at its expense and through the Company make good, at its option by repair or replacement, any defects in material and faulty workmanship of its products in respects of defects which occurs within 18 (eighteen) months from date of delivery of the Goods to the Customer or 12 (twelve) months from date of commissioning of the Goods, whichever occurs first.
8.3. The Customer is responsible for the costs of removal and re-installation, packaging, insurance and transport of the Goods to and from the Company.
8.4. The Customer is responsible for the costs of all warranty related site work.
8.5. For replaced or repaired parts of the Goods a 3 month warranty period and the warranty conditions as those applicable to the originally delivered Goods shall apply.
8.6. For the remaining parts of the Goods, the warranty period shall be extended only by a period equal to the period during which the Goods have been out of operation as a result of the defect.
8.7. The Customer shall notify the Company, in writing, of any defects of the Goods without delay after the defect is discovered and in the warranty period. The written notification of a defect of the Goods shall contain a description of the defect and, as the case may be, specification of how the defect is shown.
8.8. The warranty will be automatically cancelled in case the warranty services are not executed by the Company or its duly authorised agents or if the Customer is in breach of any of its obligations under this Agreement.
8.9. The Customer shall bear the risk of damages suffered as a result of its breach of its obligations under this section.
9. LIMITATION OF LIABILITY AND INDEMNITY
9.1. All representations made by the Company in respect of the capabilities of the Goods are made in good faith and based on the Company’s interpretation of the specifications provided by the Manufacturer of the Goods. The Company will not be held liable for any deviations from such representations made by the Company to the Customer.
9.2. The Company will not be liable for any indirect, consequential, special or delictual loss or damage of any nature and howsoever arising which may be suffered by the Customer or any third party as a result of or in connection with any transaction contemplated herein.
9.3. Any liability of the Company for direct loss or damage arising from a breach of this Agreement will not exceed the total price paid or due to be paid by the Customer for the Goods that form the subject matter of such claim.
9.4. The above exclusions and limitations of liability shall apply regardless of how the loss or damage may be caused and whether based in contract, delict or otherwise.
9.5. The Customer hereby indemnifies the Company for and holds it harmless against any claim, damage, loss, cost or expense of whatever nature made against the Customer by any third party arising from or associated with the Goods supplied by the Company to the Customer, the Customer’s or a third party’s use, operation or storage of the Goods, the Customer’s representations given to third parties in respect of the Goods or any other matter for which the Company would not be liable to the Customer under this Agreement.
9.6. If any Goods or any part of them are to be supplied in accordance with specifications, measurements or other instructions furnished by the Customer, the Customer shall not have any claim of any nature whatsoever against the Company for any loss or damage sustained by the Customer or any third party as a result of any error, discrepancy or defect in those specifications, measurements or other instructions, or if the Goods in question are not suitable for the purpose for which they are required, whether that purpose was known to the Company or not.
9.7. Notwithstanding the above, the Company does not exclude or limit its liability, if any, for any matter for which it would be illegal for the Company to do so.
10. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIAL INFORMATION
10.1. The Company or its holding or associated companies (“its Affiliates”) is/are the owner/s of all intellectual property rights in respect of those Goods that the Company or its Affiliates manufacture. The Customer shall not at any time acquire any right or title in or to the intellectual property rights of the Company or its Affiliates other than as expressly provided for in this Agreement.
10.2. The Customer shall not at any time use, exploit or disclose any of the Company’s confidential information as to the methods of manufacture, plans, drawings, price lists, documents or any other information relating to the Goods.
11.1. suspend or cease performance of its obligations to the Customer until the Customer’s breach has been remedied; and/or
11.2. summarily cancel the sale of any Goods to the Customer; and/or repossess any Goods which have not been paid for; and/or
11.3. exercise its lien over any of the Customer’s property in its possession or under its control; and/or
11.4. summarily cancel this Agreement or claim specific performance of all of the Customer’s obligations whether or not such obligations have fallen due for performance,
11.5. in all events without prejudice to the Company’s right to claim damages.
If the Customer breaches any provision of this Agreement, or fails to pay any amount on its due date, or suffers any civil judgment being taken or entered against it, or commits an act of insolvency, or is placed under sequestration, liquidation or judicial management (whether provisional or final, voluntary or compulsory) or takes steps or steps are taken against it to commence business rescue proceedings, or makes or attempts to make any general offer of compromise with any of its creditors or sells its business or changes the structure of its ownership, the Company shall, without prejudice to any other remedies that it has available to it, be entitled to:-
12. RETURN OF GOODS
12.1. Goods are not returnable save with the written consent of the Company.
12.2. Should the Company in its absolute discretion elect to accept the return of any Goods, subject to 12.5 hereunder, it will furnish the Customer with written notification and the Goods must be immediately returned to the Company with the corresponding invoice, undamaged in its original packaging, unused, clean and re-saleable.
12.3. The risk in the Goods shall remain with the Customer until the Goods are received by the Company.
12.4. The Company reserves the right to levy a handling fee in respect of any such returned Goods in order to recover costs incurred for the shipping, supply and inspection of the Goods.
12.5. The return of the Goods and the passing of a credit in respect of such Goods are is subject to final acceptance after thorough inspection and testing of the returned Goods
13. FORCE MAJEURE
13.1. The Company will not be liable to the Customer for failing to perform its obligations in terms of this Agreement as a result of an act of God or any cause beyond its control.
13.2. Subject to the provisions of this Agreement, in the event of delays in delivery or performance caused by a force majeure event or the Customer, the estimated date of delivery or performance shall be extended by the period of time the Company is actually delayed.
14. LEGAL PROVISIONS
14.1. This Agreement and all transactions between the Customer and the Company shall be governed by and decided upon in accordance with the laws of the Republic of South Africa.
14.2. The Company has the sole option to refer any dispute arising from or in connection with this Agreement to arbitration, which arbitration will bind both the Customer and the Company. The arbitration will be held in Johannesburg, South Africa, in accordance with the rules of the Arbitration Foundation of Southern Africa (“AFSA”) and shall be administered by AFSA.
14.3. Either party shall be entitled to institute action in the Magistrate’s Court, notwithstanding that the amount of its claim exceeds the jurisdiction of such Court. This provision shall not preclude the Company from instituting action against the Customer in any other competent court with jurisdiction.
14.4. A certificate issued by any manager of the Company, whose authority, appointment and signature it shall not be necessary to prove, that certifies any indebtedness of the Customer to the Company, delivery of the Goods to the Customer or any other fact shall be accepted as proof of such indebtedness or delivery or such other fact, unless the Customer proves otherwise.
14.5. A party that successfully enforces or defends its rights under this agreement shall be entitled to recover from the other party all legal costs incurred by the successful party on the scale as between attorney and own client, including costs of Counsel on brief, tracing agent’s costs and collection commission.
15.1. The Customer and Surety/ies choose as their address/details where they will receive service of all legal process, notices and communications in respect of this agreement, the Customer’s physical address, the customer’s email address and the Customer’s facsimile numbers as set out in the application section of this Agreement.
15.2. Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing, provided that it shall be competent to give notice by way of email or facsimile.
15.3. A party may change its domicilium (its physical address, email address or facsimile number) by furnishing the other party with 7 (seven) days written notice of its new physical address, provided that the change will only become effective from the seventh business day from the deemed receipt of the notice by the other party.
15.4. A party will be deemed to have received a notice at its domicilium on –
15.4.1. the 7th day after posting if sent by prepaid registered post in a correctly addressed envelope to its domicilium;
15.4.2. the day of delivery, if delivered by hand to a responsible person at its domicilium;
15.4.3. the day of despatch, if sent by email or facsimile to its chosen email address or facsimile number.
15.4.4. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by the Customer or Surety/ies shall be adequate and valid, notwithstanding that it was not sent or delivered at its chosen domicilium.
The signatory/ies to this Agreement (“the surety”) binds himself/herself in his/her private and individual capacity as surety for and co-principal debtor with the Customer in favour of the Company for the due performance of any obligation of the Customer and for the payment to the Company by the Customer of any amount which may have been incurred by the Customer with the Company in the past, now or which may at any time be or become owing to the Company by the Customer in the future.
The surety’s liability to the Company shall not be limited by any credit limit granted by the Company to the Customer.
This suretyship shall remain in full force and effect for so long as any amounts shall remain owing by the Customer to the Company and notwithstanding the temporary extinction of the Customer’s indebtedness to the Company.
The surety waives and renounces the legal benefits of excussion (the right to require the Company to first proceed against the Customer for payment of any debt owing to the Company before proceeding against the surety), cession of action (the right to require the Company to give cession of the action for payment of debts to the surety before any action against the surety may be taken), the benefit of simultaneous citation and division of debt (the right of a co-surety to be liable only for his pro rata share of the principal debt) and the right to an accounting from the Company.
The surety, on demand from the Company, shall furnish the Company with a declaration of the surety’s assets and other financial information.
The surety further undertakes to be bound by the remaining provisions of this Agreement as if a reference to the Customer was a reference to the surety and chooses its address where it will receive service of all legal process, notices and communications in respect of this agreement as the Customer’s physical address set out in the application section of this Agreement.
17.1. This Agreement constitutes the entire agreement between the parties. No party shall be entitled to rely upon any term, warranty, guarantee, condition or representation unless it is contained herein.
17.2. No amendment of this Agreement and no extension of time, waiver or relaxation of any of the provisions of this Agreement shall be binding unless recorded in a single document signed by both of the parties.
17.3. No relaxation or indulgence shall prejudice or be deemed to be a waiver of any of a party’s rights hereunder.
17.4. Each provision of this Agreement is severable, the one from the other. If any provision is found to be defective, unlawful or unenforceable for any reason, the remaining provisions shall continue to be of full force and effect.
17.5. The rule of construction that this Agreement be interpreted against the party responsible for drafting this document shall not apply.
17.6. The Customer shall not be entitled to cede its rights or assign its obligations under this Agreement.
17.7. The Company shall be entitled to cede its rights or assign its obligations under this Agreement, without notice to the Customer, Surety/ies or any other person and such cessionary shall be entitled to enforce its rights hereunder against the Customer and the surety in respect of Goods that it supplies to the Customer.