GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF SKS WELDING SYSTEMS (PTY) LTD

2. INTERPRETATION

In this AGREEMENT unless the context otherwise requires –
 

2.1 
The singular shall import and include the plural and vice versa;
 

2.2 
Words indicating one gender shall import and include other genders;
 

2.3 
Words indicating natural persons shall import and include artificial persons;
 

2.4 
The headnotes to this AGREEMENT are used for the sake of convenience only and shall not govern the interpretation of the clauses to which they relate;
 

2.5 
Where any number of days is prescribed in this AGREEMENT, they shall be calculated exclusive of the first day and inclusive of the last day unless the last day falls on a Saturday, Sunday or public holiday. In which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday;
 

2.6 
If any doubt or conflict arises where figures are referred to in numerals and in words, the words shall prevail;

3. DEFINITIONS

Unless such meaning is inconsistent with the context, the following terms shall, throughout this AGREEMENT, have the meanings respectively ascribed to them, namely:
 

3.1 
“AGREEMENT” – shall mean this AGREEMENT between the PARTIES with the terms and conditions contained herein and annexures, if any, attached hereto;
 

3.2
“CONTRACT PRICE” – shall mean the price of the GOODS and/or SERVICES as set out in the INVOICE;
 

3.3
“CONTRACT SPECIFICATION” – shall mean the specification or other description of the GOODS and/or SERVICES on SKS’ INVOICE;
 

3.4 
“CPA” – shall mean the Consumer Protection Act, 86 of 2008, as amended;
 

3.5 
“CUSTOMER” – shall mean the person or legal entity that has been issued with an INVOICE from SKS;
 

3.6
“DELIVERY NOTE” – shall mean a note on which is reflected at least the invoice number, delivery instruction note number, net and gross weights and number of bags/packages/cartons or other containers in which the GOODS and/or SERVICES are supplied. All INVOICES shall be accompanied by a tax invoice complying with the Value Added Tax Act (as amended);
 

3.7 
“FORCE MAJEURE” – shall mean any cause beyond the reasonable control of the PARTIES including but not limited to, fire, explosion, accident, strike, lockout, war (declared or undeclared), riot, acts of God or States enemies and actions out of any governmental authority;
 

3.8 
“GOODS” – shall mean the GOODS as described more specifically on the INVOICE;

4. APPLICATION OF THE CONSUMER PROTECTION ACT

4.1 
If the CPA is applicable to this AGREEMENT, the provisions of the CPA will be applied and take precedence where they contradict any provision of this AGREEMENT.
 

4.2 
Whether the CPA applies to this AGREEMENT depends on whether the asset value or annual turnover (the “Threshold Values”) of the CUSTOMER’S business are above or below the threshold, as contained in the CPA, as amended. 
 

4.3 
The Threshold Values are the CUSTOMER’s asset value or annual turnover. If either of these values exceed R 2 000 000 (Two Million Rand) on the date that the CUSTOMER receives the ORDER CONFIRMATION, the CPA will not apply to this AGREEMENT.
 

4.4 
The Threshold Values and the Threshold itself will be amended from time to time, in which case the PARTIES agree that the new measurements will apply to this AGREEMENT from the date of amendment. 

5. ORDER

The PROSPECTIVE CUSTOMER shall place an order with SKS specifying the GOODS and/or SERVICES it requires as well as any technical specifications the PROSPECTIVE CUSTOMER may require such GOODS and/or SERVICES to conform to.

6. QUOTATION

6.1 
On receipt of a request for quotation, SKS undertakes without undue delay to issue the PROSPECTIVE CUSTOMER with a QUOTATION together with these terms and conditions of sale and delivery.
 

6.2 
THE QUOTATION SHALL REMAIN VALID FOR ACCEPTANCE BY THE PROSPECTIVE CUSTOMER FOR THE PERIOD SPECIFIED ON THE QUOTATION, ALTERNATIVELY IN THE EVENT THAT A PERIOD OF VALIDITY IS NOT STIPULATED ON THE QUOTATION, THE QUOTATION WILL REMAIN VALID FOR A PERIOD OF 30 (THIRTY) DAYS FROM THE DATE OF QUOTATION AS REFLECTED ON THE QUOTATION.
 

6.3 
The PROSPECTIVE CUSTOMER may elect to accept the QUOTATION, WITH ACCEPTANCE OF THE QUOTATION ALWAYS BEING SUBJECT TO SKS'S TERMS AND CONDITIONS OF SALE AND DELIVERY.
 

6.4 
In the event that the PROSPECTIVE CUSTOMER elects to accept the QUOTATION, acceptance of the QUOTATION will only be effective if acceptance by the PROSPECTIVE CUSTOMER occurs within the period of validity specified in clause 6.2.
 

6.5 
SHOULD THE PROSPECTIVE CUSTOMER FAIL TO ACCEPT THE QUOTATION IN WRITING, ALTERNATIVELY IN THE PERIOD SPECIFIED IN CLAUSE 6.2, THE QUOTATION WILL BE DEEMED TO HAVE BEEN REJECTED BY THE PROSPECTIVE CUSTOMER.

7. ORDER AND INVOICE

Following receipt of the PROSPECTIVE CUSTOMER’S acceptance of the QUOTATION (if any) and the corresponding formal order, SKS without undue delay will issue the PROSPECTIVE CUSTOMER with an order conformation. The final INVOICE will comply with the Value Added Tax Act.

8.CONTRACT PRICE

8.1 
Save insofar as may be otherwise specifically agreed in writing to the contrary by SKS, ORDERS ARE ACCEPTED ONLY AT PRICES AND TRANSPORT TARIFFS RULING ON THAT DATE OF dispatch, subject to the provisions of clauses 8.5, 8.6 and 8.7 below.
 

8.2  
In the event that the CUSTOMER is based in a country other than the Republic of South Africa, save insofar as may be otherwise specifically agreed in writing to the contrary by SKS, ORDERS ARE ACCEPTED ON AT PRICES AND TRANSPORT TARIFFS RULING ON THE DATE OF INVOICE, SUBJECT TO THE PROVISIONS OF CLAUSES 8.5, 8.6 AND 8.7 below.
 

8.3 
Unless otherwise agreed in writing, the CONTRACT PRICE shall, inter alia, be deemed to exclude charges for landing costs, packing and storage.
 

8.4 
SKS shall retain the title to and copyrights in all offer documents; these may not be made available to third parties without SKS’S express written consent.

9.1 
Unless otherwise agreed upon in writing, payment in full without deduction or set off in respect of GOODS and/or SERVICES sold shall be made by bank transfer delivering proof ot the effected transaction on date of delivery/dispatch of the GOODS.

9.2 
In the event of any non-payment due by the CUSTOMER to SKS, SKS shall be entitled, at its sole election and discretion, to discontinue any order placed on it. The CUSTOMER shall have no claim for any damages or losses whatsoever, arising from such discontinuance.

9.3 
Notwithstanding the above provisions, SKS reserves the right to extend credit facilities to the CUSTOMER from time to time without any obligation to do so notwithstanding having extended such facilities in the past to any CUSTOMER.

9.4 
Where SKS has agreed to supply GOODS and/or SERVICES on credit, payment in full shall be due within 30 (Thirty) days from date of the statement rendered by SKS unless otherwise agreed upon.

9.5 
Credit facilities shall only be afforded to a CUSTOMER after completion of the necessary documents required by SKS and having provided SKS with the required guarantees/suretyships.

9.6 
SKS reserves its right to, at any time and after having provided the CUSTOMER with reasonable notice, and reasonable notice to be deemed to be 30 (Thirty) days, advise that credit facilities to a CUSTOMER by SKS will be terminated, and SKS will be under no obligation whatsoever to provide any reasons for such 
termination.

10. INTEREST

IT IS SPECIFICALLY AGREED AND RECORDED THAT INTEREST ON OVERDUE ACCOUNTS SHALL BE AT THE RATE AS PER THE PRESCRIBED RATE OF INTEREST ACT 55 OF 1975, AS AMENDED.

11. CANCELLATION

11.1 
THIS AGREEMENT MAY ONLY BE CANCELLED BY MEANS OF DELIVERY OF A WRITTEN NOTIFICATION OF CANCELLATION TO SKS.

12. CANCELLATION PENALTY

12.1 
SHOULD THE CUSTOMER CANCEL THIS AGREEMENT (AND UNLESS OTHERWISE AGREED UPON IN WRITING BY SKS) AT ANY TIME FOLLOWING THE CUSTOMER’S RECEIPT OF SKS’S INVOICE, THE CUSTOMER SHALL BE LIABLE FOR CANCELLATION PENALTIES, WHICH AMOUNT SHALL BE DETERMINED BY SKS AT ITS SOLE DISCRETION. THE CUSTOMER EXPRESSLY AGREES TO SUCH PENALTY BEING IMPOSED.:

13. DISPATCH AND DELIVERY

13.1 
Time of delivery shall not be of the essence in this AGREEMENT. 
 

13.2 
WHILST EVERY EFFORT WILL BE MADE TO DISPATCH THE GOODS AND/OR SERVICES AS ADVISED, SKS DOES NOT GUARANTEE DISPATCH ON ANY SPECIFIC DATE AND SHALL NOT BE LIABLE FOR ANY DAMAGES INCLUDING CONSEQUENTIAL DAMAGES THAT MAY BE SUFFERED BY THE CUSTOMER AS A RESULT OF ANY DELAYS IN THE DISPATCH OF THE GOODS AND/OR SERVICES THAT MAY OCCUR, SAVE TO THE EXTENT THAT SKS MAY BE LIABLE FOR ANY LOSSES IN TERMS OF SECTION 47 OF THE CONSUMER PROTECTION ACT 68 OF 2008, AS AMENDED.
 

13.3    
THE CUSTOMER SHALL NOT BE ENTITLED TO CANCEL ANY ORDER BY REASON OF SUCH DELAY IN DISPATCH.

14. REPRESENTATION AND WARRANTIES

14.1 
For a period of 1 (One) year from the date of the CUSTOMER’S receipt of the GOODS sold hereunder, SKS warrants that such GOODS shall be of SKS’S standard quality and will operate strictly in accordance with the CONTRACT SPECIFICATIONS. SKS makes no other warranty of any kind, express or implied, including without limitation, any warranty of merchantability, or non-infringement. SKS specifically makes no warranties as to any services or as to compliance with laws, regulations, standards and/or conventions including any related to the environment or to the packaging, labelling and/or transport of hazardous GOODS. No warranty shall apply to shipping damage, damage caused by improper installation or improper wiring, including incorrect electrical voltage, GOODS that have been modified or altered in any way, damage caused by corrosion, abrasion, or severe temperatures, or GOODS that have been subjected to improper maintenance, abuse, misuse, abnormal usage, the use of improper raw materials, or accident.
 

14.2 
THE CUSTOMER WARRANTS THAT IT SHALL FULLY COMPLY WITH ALL LABEL DIRECTIONS FOR THE HANDLING, STORAGE, POSSESSION OR USE OF THE GOODS SOLD HEREUNDER AND THE CUSTOMER AGREES THAT IT SHALL INDEMNIFY AND HOLD SKS HARMLESS FROM ALL CLAIMS (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) OF PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM ANY NEGLIGENCE, RECKLESSNESS OR WILLFUL MISCONDUCT ON THE PART OF THE CUSTOMER OR FROM ANY FAILURE OF CUSTOMER TO COMPLY WITH THE TERMS OF THIS WARRANTY.
 

14.3    
SPECIFICATIONS, ILLUSTRATIONS AND THE LIKE REMAIN THE PROPERTY OF SKS AND MAY ONLY BE USED FOR THE PURPOSE SPECIFIED IN THE AGREEMENT AND MUST BE RETURNED UPON THE REQUEST OF SKS.

15. RESERVATION OF OWNERSHIP

15.1 
SKS SHALL RESERVE OWNERSHIP OF GOODS DELIVERED TO THE CUSTOMER, UNTIL RECEIPT OF ALL PAYMENTS DUE IN TERMS OF THIS AGREEMENT. FURTHER, SKS RESERVES OWNERSHIP OF RETAINED GOODS UNTIL THE CUSTOMER HAS PAID ANY FURTHER PAYMENTS DUE IN TERMS OF THIS AGREEMENT OF WHATEVER NATURE. 15.2    In the event that the CUSTOMER defaults in payment, it shall deliver the GOODS to SKS upon receipt of notice by the CUSTOMER from SKS, without undue delay.
 

15.2 
In the event that the CUSTOMER defaults in payment, it shall deliver the GOODS to SKS upon receipt of notice by the CUSTOMER from SKS, without undue delay.
 

15.3 
SKS may elect, without detracting from other remedies which may be available to it, to continue with the AGREEMENT or to cancel it and cancel the sale of any further GOODS and/or SERVICES to the CUSTOMER and to rely on the provisions of this clause to repossess those GOODS sold and delivered by SKS to the CUSTOMER or to claim specific performance of all the CUSTOMER’S obligations whether or not such obligations would otherwise have fallen due for performance, in either event, without prejudice to SKS’S rights to claim damages.
 

15.4
SKS’S request for repossession and repossession itself shall not be construed as rescission from the contract. After repossession of the delivered items SKS shall be authorised to realise the same. The realisation proceeds shall be set off against the CUSTOMER’S liabilities – less appropriate realisation costs. SKS may also realise the repossessed reserved GOODS by selling them by private contract. 
 

15.5 
The CUSTOMER undertakes to handle the delivery items with care; in particular, it is obliged to insure them adequately at the reinstatement value against damage caused by fire, water, and theft at his expense.

16. RETURN OF GOODS

16.1 
A PRECONDITION OF THE WARRANTY RIGHTS (CLAIMS BASED ON DEFECTS) OF THE CUSTOMER IN TERMS OF THE AGREEMENT IS THAT THE CUSTOMER MUST INSPECT THE GOODS WITHIN 2 (TWO) DAYS FOLLOWING DELIVERY. ALTERNATIVELY, IF THE GOODS REQUIRE INSTALLATION AND/OR COMMISSIONING, IRRESPECTIVE OF WHETHER SUCH INSTALLATION AND/OR COMMISSIONING WAS DONE BY SKS, OR THE CUSTOMER, THE CUSTOMER MUST INSPECT THE GOODS WITHIN 2 (TWO) DAYS FOLLOWING THE INSTALLATION AND/OR COMMISSIONING.
 

16.2
FOLLOWING THE CUSTOMER’S INSPECTION OF THE GOODS REFERRED TO IN CLAUSE 16.1 ABOVE, THE CUSTOMER MUST, WITHIN 7 (SEVEN) FROM THE DATE OF INSPECTION, NOTIFY SKS OF ANY VISIBLE AND/OR HIDDEN DEFECTS. THIS SHALL ALSO APPLY TO INCORRECT DELIVERIES OR ITEMS IN INSUFFICIENT QUANTITIES BEING DELIVERED.
 

16.3 
If the CUSTOMER notifies SKS in terms of clause 16.2 above, the CUSTOMER shall arrange for a fact finding immediately following notification. The results shall be forwarded to SKS directly in writing.
 

16.4 
In the event that SKS receives notification in terms of clause 16.2 above and it is satisfied that the GOODS are defective or do not conform to CONTRACT SPECIFICATIONS, then SKS will, at SKS’S sole election, replace such quantity of GOODS with an equal quantity of GOODS or refund the applicable portion of the purchase price to the CUSTOMER against return of the defective portion of the GOODS.
 

16.5 
If the CUSTOMER confirms that the GOODS are free from any visible and/or hidden defects. ALTERNATIVELY, IF NO NOTIFICATION IS RECEIVED IN TERMS OF CLAUSE 16.2 ABOVE, IT WILL BE REGARDED AS SUFFICIENT (PRIMA FACIE) PROOF THAT NO DEFECTS WERE PRESENT AT THE TIME OF INSPECTION AND THAT THE GOODS COMPLY WITH THE CONTRACT SPECIFICATION.

17. LIMITATION OF LIABILITY

17.1 
IN NO EVENT SHALL SKS INCLUDING ANY GROUP COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING PUNITIVE DAMAGES OR ATTORNEYS’ FEES, WHETHER FORESEEABLE OR UNFORESEEABLE. BASED ON CLAIMS OF THE CUSTOMER OR ITS CLIENTS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF BUSINESS, GOODWILL, PROFITS, LOSS OF MONEY OR USE OF GOODS AND/OR SERVICES OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, DELAY IN DELIVERY BY A CARRIER, NEGLIGENCE, IN DELICT OR OTHERWISE IN CONNECTION WITH OR ARISING OUT OF THE AGREEMENT, EXCEPT IN THE CASE OF PERSONAL INJURY OR PROPERTY DAMAGE WHERE AND ONLY TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. TO THE EXTENT THE CUSTOMER INCORPORATES OR CAUSES OTHERS TO INCORPORATE THE GOODS IN ITS OWN GOODS OR THE GOODS OF ANY THIRD PARTY, SKS SHALL NOT BE LIABLE FOR THIRD PARTY CLAIMS FOR INFRINGEMENT OF PATENT, REGISTERED DESIGN, TRADEMARK OR COPYRIGHT RESULTING FROM SUCH INCORPORATION AND BASED UPON THE USE OF THE GOODS OR THE MANUFACTURE, USE, SALE OR OFFER FOR SALE OF ANY GOODS CONTAINING SUCH GOODS, EXCEPT AS SUCH LIABILITY FOR THIRD PARTY CLAIMS FOR INFRINGEMENT IS EXPRESSLY REQUIRED BY APPLICABLE LAW AND NOT WAIVABLE BY THE CUSTOMER THE CUSTOMER ASSUMES RESPONSIBILITY FOR ALL PERSONAL INJURY AND PROPERTY DAMAGE RESULTING FROM HANDLING, POSSESSION, USE, RESALE OR DISPOSAL OF THE GOODS.

18. BREACH

In the event that the CUSTOMER:
 

18.1 
Breaches any condition contained in these conditions and failing to pay any amount due and payable on due date, and having failed to rectify such breach or outstanding payment within 10 (Ten) days of having been requested to do so in writing by SKS;
 

18.2 
Suffering any civil judgment to be taken or entered against it, causing a notice of surrender of its estate to be published in terms of the Insolvency Act of 1936 (as amended);
 

18.3 
dies or ceases to exist; and/or

19. PRESCRIPTION

IN THE EVENT THAT SKS FAILS TO INSTITUTE LEGAL PROCEEDINGS TO RECOVER A DEBT OR AMOUNT OWING TO SKS BY A CUSTOMER, WITHIN THE 3 (THREE) YEAR PERIOD ALLOWED IN THE PRESCRIPTION ACT 68 OF 1969, AS AMENDED, THE CUSTOMER UPON HIS SIGNATURE OF THIS AGREEMENT HEREBY AGREES NOT TO RAISE THE DEFENCE OF PRESCRIPTION AGAINST SKS.

20. REMEDIES

THE CUSTOMER’S EXCLUSIVE REMEDY FOR SHORTAGE OF THE GOODS, DAMAGED OR DEFECTIVE GOODS AND/OR SERVICES (WHETHER OR NOT OCCURRING AS A RESULT OF SKS’S ALLEGED NEGLIGENCE) OR ANY OTHER CAUSE OF ACTION ARISING OUT OF THE CONTRACT, INCLUDING BREACH OF WARRANTY, IS EXPRESSLY LIMITED TO REPLACEMENT OF NON-CONFORMING GOODS AND/OR SERVICES OR PAYMENT OF AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE OF THE GOODS AND/OR SERVICES FOR WHICH DAMAGES ARE CLAIMED, AT SKS’S OPTION. THE CUSTOMER SHALL HAVE NO RIGHT TO SETOFF, TO WITHHOLD PAYMENT OR TO MAKE A REDUCTION IN PRICE. THE CUSTOMER’S REMEDY OF REPLACEMENT OR REFUND IS AVAILABLE ONLY IF NON-CONFORMANCE WAS NOT CAUSED BY THE CUSTOMER OR BY ACCIDENT, FIRE OR OTHER HAZARD.

21. INDEMNITY

THE CUSTOMER AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND SKS AND SKS’S DIRECTORS, OFFICERS, EMPLOYEE’S AND AGENTS, AND THE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF ANY GROUP COMPANY FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, LOSSES, DAMAGES, COSTS, FEES AND EXPENSES ARISING OUT OF THE DEATH OR INJURY TO PERSON OR DAMAGE TO PROPERTY RESULTING FROM THE SALE, MARKETING OR USE OF THE GOODS AND/OR SERVICES BY THE CUSTOMER.

22. INSURANCE

SKS shall obtain coverage as required by law and such other insurance coverage as SKS deems necessary, in its sole discretion, to fulfil its obligations under this AGREEMENT.

23. LEGAL ACTION

IN THE EVENT OF SKS INSTRUCTING ATTORNEYS IN REGARD TO ANY BREACH OF THE CUSTOMER, OF THE CONDITIONS OF THIS AGREEMENT, THEN THE CUSTOMER SHALL PAY ALL THE COSTS ON THE SCALE BETWEEN ATTORNEY AND CLIENT, INCLUDING ANY COSTS INCIDENTAL TO SUCH ACTION INSTITUTED AGAINST THE CUSTOMER.

24. CERTIFICATE OF INDEBTEDNESS

A certificate under the hand of the Managing Director of SKS as to the existence and the amount of the CUSTOMER’S indebtedness to SKS, as well as the amount of interest accrued thereon, and as to any other fact, matter or thing relating to the CUSTOMER’S indebtedness to SKS, SHALL BE ACCEPTED AS SUFFICIENT (PRIMA FACIE) PROOF OF THE CONTENTS AND CORRECTNESS THEREOF AND OF THE AMOUNT OF THE CUSTOMER’S INDEBTEDNESS FOR THE PURPOSE OF PROVISIONAL SENTENCE OR SUMMARY JUDGEMENT OR ANY OTHER PROCEEDINGS AGAINST THE CUSTOMER IN ANY COMPETENT COURT AND SHALL BE VALID AND CONSTITUTE A LIQUID DOCUMENT FOR SUCH PURPOSES. Furthermore, it shall not be necessary to prove the appointment of the person signing such a certificate and it shall be deemed to be sufficient particularly for the purpose of any action or any other proceeding instituted by SKS against the CUSTOMER.

25. JURISDICTION

25.1 
The PARTIES do hereby consent that the High Court of the Republic of South Africa shall have jurisdiction to determine any action or proceedings which may arise under or in connection with this AGREEMENT.
 

25.2 
This AGREEMENT, as well as the relationship between SKS and the CUSTOMER is governed by the Law of the Republic of South Africa.

26. SEVERABILITY

If any of the provisions of this AGREEMENT are held to be invalid, the validity of the remainder of this AGREEMENT shall not be affected and the rights and obligations of the Parties shall be construed and enforced as if this AGREEMENT did not contain the invalid term and to this end the provisions of this AGREEMENT and the application thereof are hereby declared to be severable.

27. NOTICE AND DOMICILIA

27.1 
Any notices to be given to the PARTIES in terms of this AGREEMENT shall be in writing and delivered by hand during ordinary business hours, posted by pre-paid registered post or served via any other acceptable means of service to the addresses mentioned hereunder, which addresses the PARTIES choose as their domicilium citandi et executandi for all purposes arising out of this AGREEMENT.