GENERAL TERMS AND CONDITIONS OF SALE
1. DEFINITIONS
1.1 “Seller” shall mean – Beninca Technical Services cc;
1.2 “Purchaser” shall mean – the company, close corporation or person with whom the Seller has contracted;
1.3 “Parties” shall mean – the Seller and the Purchaser;
1.4 “Contract” shall mean – the terms and conditions agreed upon between the parties and in particular the Seller’s quotation, special conditions, specifications, drawings, if any, and the terms and conditions herein contained, which shall be deemed to be incorporated in the contract entered into between the parties;
1.5 “date of delivery” shall mean – delivery in compliance with the terms of the contract;
1.6 “delivery” shall mean – delivery in compliance with the terms of the contract;
1.7 “equipment” shall mean – P.T.O. (Power Take-off) or hydraulic components from Bezares S.A., the Seller being the sole distributor in South Africa and the manufacture of bullbars, standard diesel tanks, long-range diesel tanks, tag axles and truck bodies by the seller;
1.8 “date of installation” shall mean – the date stipulated in the Contract;
1.9 “installation” shall mean – installation in compliance with the terms of the contract:
1.10 “order” shall mean – the terms of the proposed sale and delivery and/or installation specified therein;
1.11 “selling price” shall mean – the price stated in the order or contract;
1.12 “services” shall mean – installation and sale of the equipment and modification to trucks;
1.13 “specification” shall mean – the specifications annexed to the or issued with the general terms and conditions of sale.
1.14 “special condition” shall mean – other conditions annexed to or issued with these general terms and conditions of sale.
2. QUOTATION
The Seller’s quotation is valid for a period of 7 (Seven) days from the date specified therein and is subject to the rate of exchange.
Fluctuations are subject to alteration without prior notice.
3. PRICES
All quoted prices are exclusive of value added tax.
4. PAYMENT
4.1 Payment in full shall be made 30 (Thirty) calendar days from date of statement, unless otherwise agreed in writing;
4.2 payment shall not be set-off against or withheld on account of any counterclaims of the Purchaser, unless such counterclaims are acknowledged by the Seller in writing;
4.3 should the Purchaser fail to make payment in full on the due date therefore, it shall be obliged to pay interest on overdue amounts at the prime overdraft lending rate charged by Nedbank Ltd, plus two percentage points, compounded monthly in arrears. In the case of a dispute as to the rate so payable, the rate shall be certified by a manager or assistant manager of any branch of Nedbank Ltd, whose decision shall be final and binding on the parties.
5. OWNERSHIP
Notwithstanding delivery, all equipment sold by the Seller to the Purchaser and/or installed by the Seller for the Purchaser shall remain the sole property of the Seller until payment thereof has been received by the Seller in full.
6. WARRANTY
6.1 The Seller furnishes a 12-month warranty in respect of equipment imported from Bezares S.A. and equipment manufactured by the Seller from date of sale to date of installation of equipment by the Seller;
6.2 the Seller furnishes a 12-month warranty or guarantee in respect of its labor pertaining to equipment fitted by the seller;
6.3 the Seller does not give any warranty or guarantee or make any representation whatsoever in respect of fitment of equipment by any entity and/or third party other than the Seller other than the fitness of the equipment referred to in.
6.1 above and provided the equipment is fitted in accordance with the Seller’s instructions.
7. DELIVERY
7.1 If the contract does not include fitment of the equipment by the Seller, any period quoted for delivery by the Seller shall be reckoned from the date of receipt by the Seller of a written order which is in accordance with the conditions of the Contract, and which provide the Seller with all the clear technical and commercial information, drawings, and the specific equipment ordered which will enable the Seller to source the equipment;
7.2 all dates of delivery shall be treated as approximate dates only and the Purchaser shall not be entitled to cancel the contract or have any claim of whatsoever nature against the Seller arising or flowing from delays in delivery,
howsoever caused, save where the parties have agreed in writing to the contrary;
7.3 where the contract includes installation of the equipment, any period quoted for installation by the Seller shall be reckoned from the date of receipt by the Seller of a written order in accordance with the conditions of the contract and which provide the Seller with all the clear technical and commercial information and the equipment to be installed;
7.4 all dates for installation shall be treated as approximate dates only and the Purchaser shall not be entitled to cancel the contract, nor have any claim of whatsoever nature against the Seller arising or flowing from delays in installation, howsoever caused, save where the parties have agreed writing to the contrary;
7.5 notwhithstanding any specific additional agreement as mentioned herein before in sub-paragraphs 7.2 and 7.4, the Seller shall be entitled to a reasonable extension of time to cover delays caused by fire, strike, mobilization, tempests, accident, malicious acts of a third party, civil or military authorities, insurrections or riots, railway embargoes, air strikes, breakdown of machinery, delay in delivery of equipment by Bezares S.A., which is unavoidable or beyond the Seller’s control and acts of God. If agreed upon in writing in advance and if delivery time or installation time is not adhered to for reasons other than those stated above, the Seller’s liability to the Purchase from any cause whatsoever, incuding damages arising out of the Seller’s negligence or that of its servants, agents, or sub-contractors, shall in any event and under all circumstances, specifically exclude consequential damages or indirect damages of any nature or any loss of profit and whether in the contemplation of the parties or not;
7.6 the Seller has the right to effect part deliveries;
7.7 delivery shall be deemed to have been made when the equipment is delivered to the Purchaser. If delivery is delayed as a result of the Purchaser’s conduct, delivery shall be deemed to have been made on the date upon which the equipment is ready for delivery.
7.8 Installation shall be deemed to have been completed upon completion of the work.
8. RISK
8.1 The risk in the equipment shall pass to the Purchaser when the equipment is delivered or installed, unless otherwise specified.
8.2 if delivery of the equipment is delayed at the request of the Purchaser, the risk for the period of the delay will be transferred to the Purchaser from the day of readiness for dispatch.
9. PERFORMANCE AND GUARANTEE
9.1 The Seller warrants that all the equipment sold in terms hereof and installed in terms hereof shall be free from defects in material and workmanship under normal use and service subject to:
9.1.1 P.T.O. should be checked every week for leaks; any faults found must be reported forthwith to the Seller;
9.1.2 any noises from P.T.O. must be reported to the Seller immediately;
9.1.3 hydraulic system fitted by the Seller to be checked at truck service intervals;
9.1.4 filters and oil to be changed every 6 months;
9.2 The Seller records that some of the equipment sold and installed by it is supplied by Bezares S.A. and the warranty of such supplier shall be applicable to the equipment or any part thereof. If so determined by the Supplier, it shall be entitled, at its sole option, to repair or replace any part or parts of equipment;
9.3 the provisions of the warranty by the Seller shall not be applicable if:
9.3.1 the Purchaser fails to comply with the Supplier’s warranty requirements in all aspects;
9.3.2 if the Purchaser fails to grant the Seller access to inspect the equipment;
9.3.3 if the Purchaser has failed to fulfil any of its obligations in terms of the contract;
9.3.4 if the defect is due to fair wear and tear or misuse of the equipment, negligence, gross or otherwise, chemical or electro-chemical influences beyond the Seller’s control;
9.3.5 if any repairs or alterations were carried out by the Purchaser or third parties.
10. CESSION
The Seller shall be entitled to cede, assign and transfer all of its rights and delegate its obligations in terms of this agreement to any other person without the consent of the Purchaser. The Purchaser shall not be entitled to cede, assign and transfer any of its rights nor delegate its obligations in terms hereof without the prior written consent of the Seller.
11. BREACH
11.1 In the event of the Purchaser failing to make payment of any monies due on the due date for payment thereof, then the seller shall be entitled to either:
11.1.1 to cancel this agreement and retain all monies;
11.1.2 to require the Purchaser to fulfil all of its obligations hereunder and toeffect payment of the full balance then owing by the Purchaser to the Seller;
in either event, without prejudice to any of the Seller’s rights to claim damages (including consequential damages), or any of its other rights.
12. SEVERABILITY
Each of these terms and conditions shall be considered separately. In the event that any of these terms and conditions herein set forth are affected by any legislation, or if the provisions herein contained are held to be invalid or unenforceable, then such provisions shall be only ineffective only to the extent if the inability or unenforceability and each of the remaining provisions hereof shall remain in full force and effect.
13 CONFLICT
In the event of there being any special terms and conditions relating to the purchase of the equipment or the installation of the equipment, which is in conflict with these terms and conditions, then these terms and conditions shall always prevail.
14. LEGAL COSTS
In the event of the Seller approaching its attorney to enforce any of its rights against the Purchaser, the Purchaser shall be liable for the Seller’s legal costs on the scale as between attorney and own client, irrespective of whether summons or other legal process is issued on the Seller’s behalf, including collection commission and tracing agents’ charges.
15. GENERAL
No addition to or variation of these terms and conditions shall be of any force or effect unless in writing and signed by or on behalf of the Seller.
