1. DEFINITIONS
In these conditions:
- “Company” means Optron Geomatics (Pty) Ltd.
- “Customer” means the other contracting party;
- “Products” means all the goods supplied by the Company under the Contract;
- “Services” means all the services supplied by the Company in relation to the Products;
- “Order” means the order placed by the Customer with the Company for the Products and/or Services;
- “Contract” means an Order accepted by the Company (in writing);
- “Total Contract Price” means the aggregate price of all the Products and/or Services (excluding VAT) supplied by the Company under the Contract;
- “Specification” means the Company’s Specification for the Products’;
- “FCA” means Free Carrier (… named place) as such expression is defined in INCOTERMS 1990 published by the International Chamber of Commerce.
2. QUOTATION
All quotations shall be subject to these conditions and unless otherwise stated or unless withdrawn by the Company, shall be valid for a period of thirty (30) days from the date of the quotation. The quotation is not an offer to proceed and the Customer is required to place a written Order with the Company using the same reference as on the quotation.
3. PRECEDENCE OF THESE CONDITIONS
The Customer agrees that the Order fully specifies its requirements for Products and/or Services and unless agreed to by the Company in writing shall be deemed to be placed subject to these conditions notwithstanding anything to the contrary contained in or referred to on the Order. The Order shall not be binding on the Company until specifically accepted in writing.
4. PRICES
Unless otherwise stated, all prices are strictly net, and are for delivery to site in the mainland of Republic of South Africa or FCA South African airport/port for any other destination.
5. PRICE ADJUSTMENT
The Company reserves the right at any time prior to delivery to vary the price quoted for the Products and/or Services if following the date of the Order there is any change in rates of exchange, any imposition or alteration of Government tax, any increase in the cost of materials, labour or transport or if the cost of supplying the Products and/or Services is increased by any other factor beyond the control of the Company.
6. PAYMENT
6.1 RSA Customers Unless otherwise agreed, payment is to be made against the Company’s tax invoice and payment shall be net cash within thirty (30) days of the date of tax invoice.
6.2 Overseas Customers Unless otherwise agreed the Order must be accompanied by a remittance or advise that an irrevocable South African Rand Letter of Credit has been established with and confirmed by a major SA Clearing Bank in favour of the Company. This Letter of Credit shall have a validity equal to the full delivery period of the Equipment plus one month and shall provide for part shipment and trans-shipment with the release of one hundred per cent of the value for each shipment against presentation of commercial tax invoices, packing list and bill of lading, or forwarding agent’s receipt, or airway bill as evidence of despatch of the Equipment.
6.3 Payment of Interest Any sums not paid on the due date shall be subject to an interest charge at the rate equal to 4% above prime overdraft rate of the Standard Bank of South Africa Limited, per annum compounded monthly on all amounts overdue until payment thereof such to run from day to day and to accrue after as well as before any judgement.
7. SET-OFF
In the event that either (a) the Customer has not paid any sum or sums which are due and payable to the Company; or (b) the Company has not paid any sum or sums which are due or about to be due and payable to the Customer for any reason; the Company shall have the right at its sole discretion to reduce the Customer’s indebtedness referred to in sub-clause (a) above by setting off against such indebtedness any sums due and payable to the Customer by any Group company or reduce the Company’s indebtedness referred to in sub-clause (b) above by setting-off against such indebtedness any sums due and payable by the Customer to any Group company.
8. DELIVERY AND RISK
(a) Subject to the following sub-clauses of this clause 8, all risks shall pass to the Customer upon delivery.
(b) Unless otherwise specified, delivery shall be deemed to take place when the Products have been delivered to the Customer’s premises or other specified delivery point in the Republic of South Africa, to the Customer’s carrier if to be collected or FCA South African airport/port if for dispatch overseas.
(c) All dates and times specified to the Customer for delivery and installation of the Products or the provision of Services are estimates only and the Company shall not have liability for delay or for any damages or losses sustained by the Customer as a result of such dates or times not being met. The customer shall not be entitled to refuse acceptance of the Products or Services as a consequence of such delay.
(d) The Company may in its absolute discretion withhold delivery of the Products and/or supply of the Services pending payment of any sum due from the Customer either to the Company or to any Group company.
(e) If the Customer does not accept delivery of a consignment of Products in accordance with the Contract then:
i. the Company shall be entitled to claim payment in accordance with clause 6 above for the Products refused; and
ii. the Products refused shall be in all respects at the Customer’s risk; and
iii. the cost of storing the products shall be borne by the Customer; and
iv. if such failure to accept delivery continues for more than ten days, the Company shall have the right to terminate the Contract pursuant to clause 18 below.
9. DAMAGE OR LOSS IN TRANSIT
The Company will at its discretion either refund the cost or replace or repair free of charge any Products proved to the Company’s satisfaction to have been lost or damaged in transit up to the moment of delivery provided that within three (3) days of receipt of the Products in the case of damage or within ten (10) days of the date of the invoice or advice note or equivalent notice whether oral or written in the case of loss, the Customer notifies both the carrier and the Company in writing of the nature and extent of the damage or loss. The Company accepts no liability for delay in transit. Unless the Products are checked on receipt, the carriers documentation should be endorsed “unexamined”.
10. NOTICES
The Customer chooses domicilium citandi et executandi for all purposes under the Contract at its address stated in the Contract. Any notice required to be given hereunder shall be sufficiently given if properly addressed and sent by registered post, facsimile transmission or telex (and if sent by facsimile transmission or telex, shall be confirmed by an equivalent notice sent by registered post within 48 hours of the sending of the original notice, or delivered by hand) to in the case of the Company its registered office and in the case of the Customer its chosen domicilium address or, failing the giving of such address, its last known address and shall deemed to have been properly served at the time when in the ordinary course of transmission it would reach its destination.
11. TITLE
(a) The Company shall retain title to the Products as legal and equitable owner until it shall have received all sums due to it from the Customer whether under the Contract or any other contract between the parties.
(b) Subject to sub-clauses (d) and (e) below, until the Customer has paid the Total Contract Price together with all VAT payable thereon:-
i. the Customer shall store the Products in a manner which makes them readily identifiable as the property of the Company; and
ii. the relationship of the Customer to the Company shall be fiduciary in respect of the Products and accordingly the Company shall have the right to trace any proceeds of sale.
(c) If any event occurs under clause 18 below which would entitle the Company to terminate any Contract:-
i. the Customer shall immediately notify the Company of such event; and
ii. notwithstanding any failure to so notify, all sums due to the Company shall become immediately payable; and
iii. the Company by its servant or agents may for the purposes of recovery of all or any of the Products enter upon any premises where they are reasonably thought to be stored and may repossess the same.
(d) The Customer is licenced by the Company to agree to sell the Products, subject to the express condition that the entire proceeds thereof are held in trust for the Company.
(e) The Customer is licenced by the Company to mix the Products with goods not supplied by the Company subject to the following express conditions, which shall apply unless and until all sums due to the Company have been paid;
i. if the Products are incorporated in or fixed or attached to or used as material for goods owned by the Customer to form new goods such goods shall be deemed to be the sole and exclusive property of the Company; or
ii. if the Products are incorporated in or used as material for goods owned by a third party to form new goods such goods shall become or shall be deemed to be owned in common with that third party in proportion to the value of the Products to the other goods at the date of such incorporation to use.
The Company’s rights hereunder shall extend to those new goods whether under sub-clauses (e)(i) or (e)(ii) above and in particular the Customer shall hold any proceeds of sale of such new goods on trust for the Company.
12. SPECIFICATION
(a) The Products will be supplied generally in accordance with the Specification. The Company’s policy is one of continuous development and consequently the Specification may vary from time to time. The Company will not accept liability for the Products in respect of variations from the Specification except where any variation from the Specification is material.
(b) Descriptions and illustrations contained in Company catalogues shall not form part of the Contract.
(c) All specifications, drawings and technical descriptions submitted with or in connection with any quotation or acknowledgement of the Company are the Company’s copyright.
13. WARRANTY
(a) Any Products which are found to the Company’s satisfaction to be defective as a result of faulty design, manufacture or workmanship will at the sole discretion of the Company either be replaced free of charge or repaired free of charge provided that:-
i. the Products (or samples thereof showing the alleged defects) are returned properly packed carriage paid to the Company’s works in the Republic of South Africa at the Customer’s risk within 12 months from the date of delivery as defined in clause 8 above, and
ii. the Products have not been misused, mishandled, overloaded, amended, modified or repaired in any way by the Customer, its servants or agents, or used for any purpose other than that for which they were designed, and
iii. if the Products have been manufactured to the Customer’s design the defects are not as a result of faulty design of the Customer.
(b) Repaired or replaced Products will be returned free of charge to destinations on the mainland of the Republic of South Africa or delivered FCA South African airport/port for other destinations.
(c) If the Customer wishes to return any Products, the Customer shall notify the Company thereof within 14 days of delivery of those Products, failing which the Customer shall not be entitled to return any of those Products to the Company and the Customer shall have no further claim against the Company in respect of those Products.
14. CUSTOMER ACKNOWLEDGEMENT
The Customer acknowledges and agrees that:
(a) it is responsible for the operation of the Products and should ensure that they are used safely and that it should use, maintain, store and keep the Products in accordance with any instructions, user handbook or other form of guidance relating to them; and
(b) it would be prudent for the Customer to insure against all loss or damage the Customer may suffer as result of the Company’s acts or omissions whether negligent or not on the basis that the Company’s potential liability hereunder might otherwise be disproportionate to the Total Contract Price.
15. LIABILITY
(a) The warranty given in clause 13 above is the only warranty given by the Company and otherwise this clause 15 specifies the entire liability of the Company including liability for negligence and in particular but without limitation all statutory or other express, implied or collateral terms, conditions or warranties are excluded.
(b) The Company shall not be under any liability (including liability for negligence) for any loss or damage or injury to the Customer whatsoever, no matter when or how arising, out of the Products or Services or otherwise, whether direct or indirect, consequential or contingent and whether foreseeable or not and in particular shall not be liable for financial loss or loss of profits, contracts, business, anticipated savings, use or goodwill.
(c) The Customer will indemnify the Company against any liability (including liability for negligence) no matter when or how arising out of any claim by any third party against the Company together with all legal costs relating thereto except that insofar as the claim relates to direct physical damage to or loss of property resulting from the negligence of the Company this indemnity shall only apply if and to the extent that the claim and/or legal costs exceed the sum calculated pursuant to clause 15 (d)(i) and (ii) below.
(d) Under no circumstances will the Company’s liability, whether in contract or otherwise, exceed in the aggregate:
i. where the Total Contract Price is R100,000 or less, the sum of R50,000; or
ii. where the Total Contract Price exceeds R100,000, fifty percent of the Total Contract Price.
16. PATENT INDEMNITY
If the Customer is threatened with any action alleging that the Products in the form sold infringe any Patent, Copyright Registered Design or the intellectual property rights then provided that the Customer promptly informs and fully co-operates with the Company and in cases where the Company so requests allows the Company to defend any action on the Customer’s behalf and have the sole control of any and all negotiations for settlement, then the Company will indemnify the Customer against any award of damages and costs against the Customer arising from such action.
Further, if such event occurs the Customer agrees that the Company shall have the option at its own expense either:
(a) to modify the Products so that they do not infringe or
(b) to replace the Products with non-infringing goods or
(c) to procure for the Customer the right for the Customer to continue its use of the Products or
(d) to repurchase the Products from the Customer at the price paid by the Customer less depreciation.
The Company shall have no liability in respect of claims for infringement or alleged infringement of third parties patent or other proprietary rights arising from the execution of the Order in accordance with the Customer’s designs, plans or specifications and the Customer shall indemnify the Company against all losses, damages, expenses, costs or other liability arising from such claims.
17. EXCUSABLE EVENTS
The Company shall be under no liability to the Customer for any breach of any provision hereof or failure on its part to perform any obligation as a result of acts of God, war (whether declared or not), sabotage, riot, explosion, Government control, restrictions or prohibitions or any other Government act or omission whether local or national, fire, accident, earthquake, storm, flood, epidemic, drought, or other natural catastrophes, inability to obtain equipment, suitable raw materials, components, fuel, power or transportation, disputes with workmen, strikes or lockouts, shortage of labour or any cause beyond the control of the Company and the Company will notify the Customer if affected by any of the causes referred to in this sub-clause.
In the event that the Company is unable to perform its obligations under the Contract by reason of any of the causes referred to above for a period of six months or more, then either party may at any time after the expiration of such six month period terminate the Contract by written notice.
18. TERMINATION
Without prejudice or any claim or right it might otherwise make or exercise in terms of the Contract or by law, the Company shall be entitled forthwith to cancel the Contract upon written notice to the Customer and to claim for any losses, costs or expenses thereby incurred by it:
a) the Customer commits any material breach of any of these terms and conditions which goes to the root of the Contract, or
b) the Customer commits any other breach of any of these terms or conditions and fails to remedy such breach within a reasonable period of time after having received due notice from the Company to do so, or
c) the Customer makes or offers to make any arrangements or composition with its creditors or commits any act of insolvency, as defined in the Insolvency Act, 1936, as amended or any replacement thereof, or if the Customer, being an individual or partnership, is sequestrated, whether provisionally or finally, or being a body corporate, is placed in liquidation, whether provisionally or finally, or if any resolution is passed for the winding up of the Customer, or if the Customer is placed in judicial management or if a third party seizes or threatens to seize the Products before legal ownership has passed to the Customer in accordance with clause 11 above.
19. CONSENTS
Where applicable the Company shall endeavour to obtain an export licence and all other necessary consents to enable the Products to be exported from the Republic of South Africa. In the event that the Company is unable to obtain any export licence or visas or consents for personnel required to provide Services outside the Republic of South Africa the Company shall not be held liable for its failure to perform the Contract. The Customer shall be responsible for obtaining all consents necessary for the import of the Products to the country of its destination.
20. FORWARDING INSTRUCTIONS
Forwarding instructions where required shall be provided by the Customer not later than seven days after being advised that the Products are ready for despatch. If no forwarding instructions are received within this period the Company shall have the right thereafter to deliver the Products and to charge the Customer in accordance with clause 6 above.
21. SOFTWARE
Where software is incorporated in or forms part of or is supplied with the Products the provision of software is subject to the Company’s Special Software Licence Conditions. In the event of conflict between these conditions and the Special Software Licence Conditions the latter shall take precedence.
22. INSTALLATION AND COMMISSIONING
If the Services required by the Customer are special services such as installation, commissioning, training, development or management services any additional terms of the Company applicable to such Services will apply except that in the event of any conflict these conditions shall prevail.
23. AMENDMENTS OR CANCELLATIONS
Once accepted by the Company no Order can be amended or cancelled except with the Company’s written approval and upon terms, which indemnify the Company against any loss of profit or additional costs resulting therefrom.
24. ENTIRE AGREEMENT
These conditions supersede all previous conditions, understandings, commitments, agreements or representations whatsoever whether oral or written relating to the subject matter hereof and shall not be varied except with the Company’s written consent.
25. TAXES
(a) Orders for Supply within the Republic of South Africa All prices are exclusive of Value Added Tax which will be shown separately on quotations and invoices and will be charged at the rate current at the date of invoice.
(b) Orders for Supply outside the Republic of South Africa All prices are exclusive of all taxes, charges or levies of any kind whether payable on the supply of the Products and/or Services to destinations outside the Republic of South Africa or otherwise, and these are payable by the Customer.
26. GOVERNING LAW
These conditions and the Contract shall be governed, construed and shall take effect in accordance with the laws of the Republic of South Africa, and shall be subject to the jurisdiction of the Cape Provincial Division of the Supreme Court of South Africa.
27. HEADINGS
The headings in these conditions shall not be deemed to be part hereof or be taken into consideration in the interpretation or construction hereof or of the Contract.
28. CONSTRUCTION
If any of the words or provisions of these conditions shall be deemed to be invalid for any reason, then the conditions shall be read as if the invalid provisions had to that extent been deleted therefrom and the validity of the conditions shall not be affected thereby.
