TERMS AND CONDITIONS OF SALE – Associated Automotive Distributors (Pty) Ltd (“the company”)
Including all AAD associated and subsidiary companies
1. GENERAL APPLICABILITY OF THESE CONDITIONS:
The order given by the customer to the company constitutes an offer subject to the conditions contained hereunder and acceptance of the order by the company constitutes a binding contract/sale. No variation of the terms and conditions herein shall be binding unless reduced to writing and signed by the customer and a duly authorised representative of the company.
2. VALIDITY OF TENDER AND/OR QUOTATION:
Unless withdrawn by the company prior to acceptance, tenders/quotations are open for acceptance during the period stated therein. When no period is stated, tenders/quotations are open for acceptance within thirty (30) days after the date of the tender/quotation.
The acceptance of any tender/quotation must be made known to the company in writing and is subject to the special terms set out in Clause 4 hereunder. Such acceptance must be accompanied by sufficient information in writing to enable the company to proceed with the execution of the contract forthwith, failing which, the company shall be entitled to amend the tender/quotation prices to cover any increase in costs incurred by the company as a result of such delay and not otherwise provided for or contemplated herein.
4. SPECIAL CONDITIONS RELATING TO ACCEPTANCE OF TENDERS/QUOTATIONS:
4.1 Tenders/quotations are made subject to the customer’s credit being approved and shall not be binding upon the company until the customer’s credit has been approved.
4.2 Quotations to deliver ex works are subject to confirmation by the company only if in receipt of written notice of acceptance of such quotations by the customer.
4.3 The prices stipulated in any tender/quotation for goods to be supplied by any manufacturer, including goods to be imported are based upon the ruling price at the date of the tender/quotation. Any alteration in such price between the date of the tender/quotation and the date of acceptance of such tender/quotation will be for the customer’s account.
4.4 Quotations/tenders are based on a parity rate of exchange quoted United States Dollars to the Rand. Any increases in price due to fluctuation of the above parity rate or any increases in freight and insurance or any source of price increases which is beyond the company’s control of whatsoever nature, will be for the customer’s account.
5. LIMITS OF CONTRACT:
5.1 The company’s tender/quotation includes only such goods, accessories and work as are specified therein.
5.2 The responsibility rests with the customer for the selection of the site upon which the goods covered by any tender/quotation will be delivered, the customer will be responsible for the suitability of all other materials or services supplied by the customer in connection with the tender/quotation.
5.3 All goods supplied by the company in terms of any tender/quotation are guaranteed to perform to the standard(s) specified by the manufacturer(s) of such goods. The company acknowledges the customers rights in terms of the Consumer Protection Act as read in conjunction herewith.
6. DRAWINGS AND SPECIFICATIONS:
All descriptive and shipping specifications, drawings and particulars of masses and dimensions submitted without tenders are approximate only and descriptions and illustrations contained in the company’s catalogues, price lists and other advertising matter are intended merely to present a general idea of the goods described therein and none of these shall form part of the contract. If certified drawings are to form part of the tender, the company must be advised and these will be provided at the customers cost.
7. INSPECTION AND TESTS:
The company’s products are, where practicable, submitted to the company’s standard tests at the company’s works before despatch and the customer will be advised of the relevant date(s) and time(s) to enable the customers representatives to be present. If tests other than the company’s normal tests or those specified in the tender or its special tests in the presence of the customers representatives are required, these will be charged for. In the event of any delay on the customer’s part in attending any test (s) after receipt of notice from the company that such test(s) is to be carried out, the test(s) will proceed in the customer’s absence and shall be deemed to have been made and/or carried out in the customer’s presence.
Proprietary equipment is guaranteed to perform to the standards of the association or body governing the manufacture of said equipment and/or any international standards as specified in the company’s tender. Such guarantee is, however, subject to the limitation referred to in clause 13 hereunder.
9.1 Delivery will be made at the place as specified in the company’s tender and, in the absence of such specifications, delivery shall be deemed to have been made by the company upon delivery to the customer.
9.2 Delivery shall be effected in the manner stipulated in the tender and, in the absence of such stipulation, by rail in which event the South African Railways shall, for all purposes, be deemed to be the customers agent. In the event of delivery being effective, by road, the duly appointed transporter shall, for all purposes, be deemed to be the customer’s agent.
9.3 Ownership in any goods delivered remains vested in the company until the entire purchase price has been paid. All such goods shall be deemed to remain moveable property and severable where necessary from other goods.
9.4 If the customer fails to furnish forwarding instructions to the company in writing within seven (7) days after notification that the goods are ready for despatch either at the customers own works or elsewhere on the customers behalf and at the customers own risk then and in such event, all charges for storage or for any insurance which the company may affect shall be for the customer’s account. In addition, the customer will be responsible for any demurrage incurred for any reason whatever.
9.5 If the customer fails to take delivery within a reasonable period of time of the company having, by notice in writing, required the customer to do so, the company shall be entitled to terminate the contract/tender and to recover from the customer any loss suffered by the company by reason of such failure.
9.6 The company shall have the right to affect part deliveries and each delivery of an order shall be deemed to be sold under a separate contract. Neither failure on the company’s part to make any delivery nor part delivery in accordance with these terms and conditions shall entitle the customer to reject the balance of the order.
9.7 When the price quoted includes delivery, the company will replace or repair free of charge goods damaged in transit to the stipulated point of delivery only if the company receives written notification of such damage within the carriers stated period of receiving such notice and not in any other circumstances.
9.8 No claim for shortages in delivery or damages in transit will be entertained unless made within seven (7) days after delivery or, in the event of non delivery, within ten (10) days of the receipt of the company’s invoice.
10. DELIVERY DATES AND LIABILITY FOR DELAY:
Notwithstanding that a date or dates of delivery might be stated in the company’s tender/quotation, the company does not accept responsibility for delays caused by any reason whatsoever beyond the company’s control including, but without restricting the generality thereof, caused by the breakdown of machinery, strikes, labour disputes, war, riot, civil commotion or delays caused by manufacturers, transporters, carriers or by regulation or order of any government or other competent authority.
11. TERMS OF PAYMENT:
Unless otherwise specified, payment in full in respect of any goods or services sold or provided to the customer shall be due on presentation of the company’s invoice and / or notification by the company in writing to the customer that the goods are ready for delivery.
12. SPECIAL CONDITIONS RELATING TO PAYMENT:
12.1 The customer shall not be entitled to withhold payment of any amount due to the company for any reason whatsoever and the customer shall not be entitled to set off any payment due to the company in any counter-claim which the customer might allege to have against the company arising from any cause whatsoever.
12.2 Should the customer’s financial position, at any time, become unsatisfactory to the company, the company reserves the right to require the customer to make payment of any amount due in advance or to receive satisfactory security. Should the customer fail to make payment in such event or if the customer fails to comply with any provision of these conditions, the company reserves the right to cancel any unperformed portion of the contract and, in such event, the customer will remain liable for payment in respect of completed work up to the date of such cancellation.
12.3 All overdue accounts will bear interest at the current prime rate of interest as charged by the Standard Bank of South Africa plus 2% per month.
13.1 The warranty applicable in respect of any equipment supplied by the company shall be the warranty given by the manufacturer for such equipment and no other.
13.2 The company’s liability under this condition shall be in place of any warranty or condition implied by law, as to the quality for any particular purpose of the goods and, save as provided in this clause, the company shall not be under any liability, whether contractual, delictual or otherwise.
13.3 In respect of parts or components not of the company’s manufacture or for which the company does not hold franchise rights the company undertakes to cede to the customer all and any rights which the company may have received from the supplier or manufacture of such parts or components and to render to the customer such assistance as might reasonably be necessary to enable the customer to enforce such rights.
All and any customer vehicles, goods, items, assets and property of whatsoever nature which are left on or at the property / premises of the company are left entirely and exclusively at the risk of the owner / customer thereof. The company does not provide insurance cover over and for such property and / or vehicles and shall not be held liable or responsible in any way whatsoever for any loss, damage or theft to or of such property and / or vehicles howsoever such loss, damage or theft may occur.
15. EXCLUSION OF CONSEQUENTIAL DAMAGES:
Under no circumstances whatsoever shall the company, at any time or for any reason whatsoever be liable for any claims for consequential loss or damages that may be sustained by the customer or for any claims made by any other person whatsoever in connection with contracts made with the company or the use of goods sold by the company, whether due to delays, defects, negligence or otherwise on the part of the company or any third party.
16. GENERAL PRICE VARIATION:
16.1 Any price quoted which is a list price is subject to adjustment and the list price to apply shall be that in force on the date of delivery. The amount of all duties, taxes or other charges applicable to the manufacture and sale of any goods shall be borne by the customer.
16.2 The company’s prices are based on the cost of materials, transport and labour ruling at the date of the company’s tender/quotation and, unless otherwise stated, if between that date and the date of delivery, variations occurred in these costs, then the price quoted shall be amended to provide for these variations. Where applicable, such prices shall be amended in accordance with the appropriate Price Adjustment Formula of the Steel and Engineering Industries Federation of South Africa.
16.3 In the event of any doubt or dispute regarding any adjustment of prices or recovery of costs in accordance with the conditions, a certificate furnished by the company’s auditors acting as experts and not as arbitrators, shall be conclusive and binding.
No representative, agent or salesman is entitled to vary these terms and conditions or to amend or to amplify these terms and conditions without the express written authority from a Director or his nominee as appointed by him for such purpose in writing.
18. RETENTION OF OWNERSHIP:
The customer acknowledges that if the said goods are to be utilised by the customer on behalf of third parties then failure to make payment in terms of this contract shall entitle the company to notify the end user that the said goods remain the property of the company.
19. CUSTOMS STORAGE WAREHOUSE (BONDED CARGO)
Where the customer makes use of the company’s customs storage warehouse (for bonded cargo), the following shall apply:
19.1 The ‘customer’ shall include the owner, consignee or consignor of the goods concerned as well as any agent acting for such persons in dealing with or associated with the goods.
19.2 The ‘goods’ shall mean any goods coming under the control of the company or its agents, employees, contractors, or subcontractors on the instructions of the customer and shall include any container, transportable tank, pallet, package or other covering not supplied by or on behalf of the company.
19.3 In the event that the customer is not the owner of the goods, then the customer warrants that he is authorised to bind the owner to the conditions of contract, he shall provide the owner with a full copy of the contract and bring the contents of the contract to the attention of the owner, and accepts that to the extent that the owner may attempt to deny that he is bound by the contract or cannot be located, the customer shall be liable to the company for all purposes relating to any agreement between the company and the customer.
19.4 The company shall be duly authorised to act as an agent on behalf of the owner upon the owner’s default to provide timeous instructions for the removal of the goods from the customs warehouse, as governed by and in terms of Section 19(9) of the Customs and Excise Act. No 91 of 1964, which provides inter alia that the goods are required to be removed and cleared or re-exported within the specified period, currently two years. Application for the extension of this period for a maximum period of six months, can be brought upon good cause shown and must be submitted before the expiration of the initial two year period. The company shall be authorised to make such an extension application on behalf of the customer in the event that the customer fails to provide such instructions to the company.
19.5 The goods shall only be regarded as being in the actual custody of the company and under its control from the time the goods are received by the company at the customs warehouse to the time the goods are collected by a person with the necessary authority to do so. An acknowledgement of receipt of the goods by the company shall not constitute an acknowledgement or admission in regard to the state or condition or quantity of such goods, nor as to the correctness of any statement on any transport documentation.
19.6 The company may request security from the customer in request of goods kept in its customs warehouse to cover any potential outstanding duties or VAT pertaining to such goods.
19.7 The customer indemnifies the company and agrees to defend, and hold harmless the company in respect of all duties, fines, penalties, taxes, imposts, detention charges, levies, deposits, and outlays of whatsoever nature levied by or paid to an authority.