TRADING TERMS & CONDITIONS
EUROCELT TERMS AND CONDITIONS (T&C’S)
1.1 These terms and conditions shall govern any sale of goods or any quotations by EUROCELT, notwithstanding any conditions to the contrary accompanying the Purchaser’s order.
1.2 The contract pursuant to any written quotation between EUROCELT and the Purchaser shall come into existence, only when EUROCELT has confirmed to the Purchaser receipt of the Purchaser’s order, acceptance of the order by EUROCELT either wholly or in part and an undertaking by EUROCELT that it will execute the order.
2.1 The prices quoted by EUROCELT are based on the then labor rates, the cost of materials, components, accessories, customs and import duties and charges and currency exchange rates.
2.2 EUROCELT may, at any time before delivery of the goods, increase the quoted prices in the event of any increase in the rates or costs referred to in 2.1.
2.3 All prices of the goods are strictly net unless otherwise stated in writing.
2.4 Unless otherwise stated, the prices of the goods shall not include insurance, railage or transportation which shall be for the Purchaser’s account.
3 PAYMENT AND INTEREST
3.1 The Purchaser shall pay the purchase price of the goods plus Value Added Tax to EUROCELT in cash [free of exchange at such place as EUROCELT may from time to time direct in such currency determined by EUROCELT] within 30 [THIRTY] days from the date of EUROCELT statement in respect of such goods and without any deduction or set-off.
3.2 EUROCELT may [without prejudice to its rights] suspend performance of any of its obligations if any amount owing by the Purchaser to EUROCELT is not paid on due date.
3.3 Eurocelt is entitled to charge interest to the purchaser at its bank prime overdraft rate from time to time on any amount due and owing by the Purchaser to Eurocelt which is not paid when due, such interest to be applied and to accrue on the first day of the month following which the purchase price becomes
overdue for payment.”
4.1 Packing shall be in accordance with EUROCELT normal practice.
4.2 The time for delivery is approximate only and shall commence only after receipt by EUROCELT of all information, drawings, plans and other documents necessary to enable EUROCELT to execute the order.
4.3 The goods shall be deemed to be delivered by EUROCELT to the Purchaser at EUROCELT premises either when delivered free on rail, or free on truck, or over the counter or on delivery to any airfreight forwarding Distributor at EUROCELT premises, as the case may be.
4.4 Where the goods are exported from the Republic of South Africa, delivery to the Purchaser shall be deemed to have taken place when the goods are loaded at EUROCELT for despatch to the Purchaser.
4.5 Any quotation to deliver goods held in stock or ordered by EUROCELT is subject to that stock being available and unsold on the date of acceptance by EUROCELT of the Purchaser’s order.
4.6 The Purchaser shall accept delivery immediately it is tendered.
4.7 In the event of:
[a] the quantity of the goods received by the Purchaser being less than the quantity invoiced to the Purchaser; or
[b] there being any defect in the packing of the goods received by the Purchaser;
4.7.1 the Purchaser shall notify EUROCELT of such shortfall or defect within 48 [FORTY EIGHT] hours of receipt of the goods;
4.7.2 the goods purchased and received shall not be unpacked by the Purchaser [except in so far as is necessary to establish such shortfall or defect]; and
4.7.3 EUROCELT shall have the right to inspect the goods at the place where they are being stored by the Purchaser and if the Purchaser has complied with the provisions hereof, EUROCELT shall make good any shortfall or defect in the goods purchased, at its own cost, either by, in its sole discretion, replacing the goods, or by passing a suitable credit.
4.8 Except as set out in 4.7 EUROCELT shall have no liability whatsoever to the Purchaser by reason of such short delivery or defect.
4.9 If EUROCELT is unable for any reason whatsoever to effect delivery, the date of delivery shall be deemed to be postponed until such time as EUROCELT can effect delivery.
4.10 A signed delivery note shall constitute prima facie proof that the goods have been delivered to and received by the Purchaser in good condition whether signed by the Purchaser, or its employee or agent or representative or a nominated transporter of the Purchaser”.
Should the business of EUROCELT be interrupted, suspended or restricted by strike, lockout, fire, explosion, government interference or other cause beyond the control of EUROCELT [whether of the foregoing or not] EUROCELT shall be entitled to postpone the date or dates of delivery until such time as the suspension, interruption or restriction has ceased.
6 OWNERSHIP AND RISK
6.1 Ownership of the goods shall not pass to the Purchaser until payment therefore has been made in full by the Purchaser to EUROCELT.
6.2 Risk in the goods shall pass to the Purchaser as soon as the goods leave EUROCELT [or its Distributor’s] premises or are delivered, whichever is the earlier.
6.3 Except as is set out in 7, EUROCELT shall not be liable for any consequential or other loss or damage whatsoever sustained by the Purchaser arising from the sale and/or delivery of the goods, or any failure whatever to deliver these goods.
6.4 Between the time that risk and ownership passes, the Purchaser shall keep the products free from any lien and hypothec or other security interest and shall give appropriate notice of the reservation of ownership to the third parties who through the operation of law or otherwise may obtain a lien, hypothec or other security interest in or over the products.
7.1 All specifications, illustrations, drawings, diagrams, price lists, dimensions, performance figures, advertisements, brochures and other technical data furnished by Eurocelt in respect of the goods, and whether in writing or not, are furnished only on the basis that they will not form part of the contract or be relied upon by the Purchaser for any purpose.
7.2 If any goods or any part of them are to be supplied in accordance with specifications, measurements or other instructions furnished by the Purchaser, the Purchaser shall not have any claim of any nature whatever against Eurocelt (i) for loss or damage sustained by the Purchaser as a result of any error, discrepancy or defect in those specifications, measurements or other instructions: (ii) if the goods in question are not suitable for the purpose of which they are required, whether those purposes are known to Eurocelt or not.
7.3 Eurocelt warrants that the product/s supplied conform/s to its description and is reasonably fit for the purpose referred to in the directions for use when used in accordance with the directions under normal conditions. The Purchaser assumes the risk of any contrary to such directions. Eurocelt makes no other warranty or representation of any kind, express or implied, concerning the product, including NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE GOODS FOR ANY OTHER PARTICULAR PURPOSE. No warranties shall be implied by law and no agent of Eurocelt is authorized to alter this warranty in any way except in writing with a specific reference to this warranty. The exclusive remedy against Eurocelt shall be a claim for damages not to exceed the purchase price of the product, without regard to whether such a claim is based upon breach of contract/warranty or delict.
Any dispute, controversy or claim arising out of this contract or breach thereof, shall be settled by arbitration in accordance with the provisions of the Arbitration Act No. 1965 as amended. The parties shall agree upon an arbitrator, failing which an arbitrator shall be nominated by the President of the KwaZulu-Natal Law Society. Eurocelt shall under no circumstances whatsoever be liable, save for the provisions of 7.4, for any loss or profit or any damages, direct or indirect, consequential or otherwise sustained by the Purchaser, whether or not caused by the negligence of Eurocelt, its agents or employees.
7.4 The Purchaser’s rights restricted in this paragraph 7, do not include gross negligence on the part of Eurocelt
7.5 The Purchaser shall not have any claim of any nature whatever against Eurocelt for any failure by Eurocelt to carry out any of its obligations under the contract as a result of causes beyond Eurocelt’s control, including but without being limited to any strike, lock-out, shortage or labour or materials, delays in transport, accidents of any kind, any default or delay by any sub-contractor of Eurocelt, riot, political or civil disturbances, the elements, any act of any State or Government, any delay in securing any permit, consent or approval required by Eurocelt for the supply of goods under the contract or any other authority, or any other cause whatever beyond Eurocelt’s absolute and direct control.
7.6 Any claims in any event made by the Purchaser must also be made in accordance with the procedures set out on the website of Eurocelt in order to constitute a claim at all.”
Under no circumstances shall EUROCELT at any time be liable in contract or in depict for any special damages or consequential losses suffered by the Purchaser or by any third party from whatsoever cause arising including negligence arising out of any use or application of the goods sold and the Purchaser waives such claims [if any] and indemnifies and holds EUROCELT harmless against all claims, damages and costs which the Purchaser may suffer as a result of damage to or destruction of
any property of whatsoever nature, or injury to or the death of any person arising out of any use or application of the goods sold.
9 RETURN OF GOODS
The return of any goods purchased from EUROCELT by the Purchaser shall only be accepted by EUROCELT at its discretion and provided such goods are returned to EUROCELT within 10 [TEN] calendar days of delivery. Returned goods accepted by EUROCELT will be subject to a 10% [TEN PERCENTUM] handling charge payable by the Purchaser.
10 VARIATION OR PREJUDICE
No variation of these terms and conditions shall bind EUROCELT unless in writing and signed on behalf of EUROCELT by a director of EUROCELT. No relaxation which EUROCELT may permit in regard to the carrying out of any of the terms of the contract by the Purchaser shall in any way prejudice, or be a waiver of any of EUROCELT rights in terms of the contract.
11.1 If the Purchaser commits any breach whatever of the terms and conditions of this contract [and every breach shall be deemed to be a material breach], EUROCELT may cancel this contract without prejudice to any rights which EUROCELT may have arising out of such breach or cancellation and/or claim immediate payment of the amounts owing by the Purchaser to EUROCELT and/or recover from the Purchaser any damages which it may have sustained arising out of the breach by the Purchaser of
its obligations hereunder, provided further that EUROCELT shall be entitled to retain any amounts paid by the Purchaser on account of the purchase price until the damage suffered by EUROCELT shall have been determined and thereupon to apply and/or set off the amount so retained against such damages suffered by EUROCELT.
11.2 The amount of the Purchaser’s indebtedness to EUROCELT at any time [including interest and the rate of interest payable] may be determined by EUROCELT and proved by a certificate signed by any financial manager of EUROCELT and it shall not be necessary to prove the appointment of the person signing any such certificate which certificate shall be binding on the Purchaser and shall be prima facie proof of the amount of the Purchaser’s indebtedness to EUROCELT and shall be valid as a liquid document against the Purchaser in any competent court for the purpose of obtaining judgment and/or provisional sentence against the Purchaser thereon.
11.3 The Purchaser agrees to pay the costs of Eurocelt in respect of any of its attorneys charges upon the attorney and own client scale, should it be necessary for the Purchaser to instruct its attorneys to institute action to collect the amounts due by the Purchaser to Eurocelt and such costs shall also include collection commission.
. The Purchaser consents and submits to the jurisdiction of the magistrate`s Court having jurisdiction in respect of the Purchaser`s persona (area) in terms of Section 28 of the Magistrate`s Act 32 of 1944, notwithstanding the amount in dispute may exceed the jurisdiction of such Magistrate’s Court.
Any written notice required to be given in terms hereof, shall:
13.1 Be given by prepaid registered letter sent:
13.1.1 to EUROCELT at
197 MAIN ROAD
13.1.2 to the Purchaser at the principal place of business of the Purchaser;
13.2 Be transmitted by means of a facsimile transmission to the addressee’s telefax number and in respect of
which telefax an acknowledgement has been received.
14 The Purchaser nominates its physical address as recorded on the first page of the Application for Credit Facilities as its domicilium citandi et executandi for all purposes arising out of this agreement as its address for the service of any notice required to be served on it hereunder, and for the service of any legal process.