Terms and Conditions of Sales
ICI South Africa (Pty) Ltd t/a /Akzo Nobel Powder Coatings
TERMS AND CONDITIONS
1. In this AGREEMENT, unless the context indicates otherwise:
1.1. AGREEMENT shall mean: these terms and conditions;
1.2. CUSTOMER shall mean: the party indicated in the application for credit facilities and/or the purchaser of the GOODS supplied by the VENDOR;
1.3. GOODS shall mean: the goods, products and services of the VENDOR which are sold or provided to the CUSTOMER and which are indicated on the VENDOR's forms, brochures, diagrams, price lists, quotations, delivery notes, orders or invoices from time to time, including the documents of any of the VENDOR's transport agents;
1.4 VENDOR shall mean: AKZO NOBEL South Africa (PTY) LIMITED and its associated companies, nominees, successors-in-title and assigns.
2. In the interpretation of this AGREEMENT: a reference to the singular shall include the plural and vice versa; a reference to any gender shall include the other genders; natural persons shall include created entities (corporate and non-incorporate) and vice versa; wherever the context permits, any reference to the CUSTOMER shall include its employees, directors, members, trustees, proprietors, partners, agents, servants and contractors; wherever the context permits, any reference to the VENDOR shall include its employees, directors, members, trustees, proprietors, partners, agents, servants and contractors; without derogating from anything else herein contained.
3. This AGREEMENT takes precedence over any other terms and conditions which may be contained in any VENDOR forms, price lists, quotations, delivery notes, orders or invoices as well as any of the CUSTOMER's documentation and will govern all transactions between the VENDOR and the CUSTOMER, including the sale of the VENDOR's GOODS, the rendering of the VENDOR's services and all credit transactions, unless otherwise recorded in writing in a single document and signed by both parties.
4. The CUSTOMER acknowledges that the granting of credit facilities to it is at the sole discretion of the VENDOR. The VENDOR reserves the right to suspend or withdraw the CUSTOMER’s credit facilities at any time if the CUSTOMER is in default under this AGREEMENT. The VENDOR reserves the right, by written notice to the CUSTOMER, to increase or reduce the credit limit under the credit facilities granted to the CUSTOMER. The credit limit that is granted to the CUSTOMER from time to time shall not be deemed to be a limit of the CUSTOMER’s indebtedness to the VENDOR.
5. Unless the VENDOR provides the CUSTOMER with a written quotation, which the CUSTOMER accepts within the period for which the quotation is valid, the price of the GOODS will be the VENDOR’s official list price ruling at the date of delivery of the GOODS.
6. Payment is to be made within 30 (thirty) days from date of the VENDOR's statement. Unless otherwise agreed no rebates or discounts may be claimed or taken unless the VENDOR's credit manager agreed to such rebate or discount in writing and the CUSTOMER shall have effected payment within the payment period allowed for such rebate or discount.
7. The CUSTOMER carries any risk associated with or arising from the method elected to effect payment to the VENDOR. The VENDOR will only be deemed to have received payment from the CUSTOMER once the VENDOR’s bankers have confirmed receipt of, and cleared, any payment effected by the CUSTOMER.
8. Should any amount not be paid by the CUSTOMER on due date:
8.1 the VENDOR reserves the right to levy interest at the maximum rate permitted by law on all overdue amounts; and/or
8.2 the VENDOR may suspend or cease performance of any of its obligations for any cause whatsoever to the CUSTOMER and shall not be liable for any loss or damage that may be suffered by the CUSTOMER as a result thereof.
9. Any indebtedness by the CUSTOMER to the VENDOR, from any cause whatsoever, notwithstanding that it would not otherwise have been due, shall, in addition to any other rights that the VENDOR has in terms of law or in terms of this AGREEMENT, become due and payable immediately in the event of: the CUSTOMER being placed under sequestration, liquidation or under judicial management, whether provisionally or otherwise; the CUSTOMER taking steps or having steps taken against it, to commence business rescue proceedings; the CUSTOMER making or attempting to make or recommending any general offer of compromise with any or all of its creditors; any circumstances arising in which the CUSTOMER may be sequestrated or liquidated; or the CUSTOMER committing any act of insolvency; the CUSTOMER suffering any default judgment, summary judgment or any other judgment being taken against it and failing to satisfy the same within 7 (seven) days of the granting of such judgment; or the VENDOR believing, at its discretion, that its interests are being or may be threatened by the continued indebtedness of the CUSTOMER.
10. The CUSTOMER shall not be entitled, for any cause whatsoever, to withhold, deduct from or defer any amount due by it to the VENDOR and shall pay such amount free of exchange and set off.
11. The VENDOR may appropriate all payments made by the CUSTOMER to such invoices or accounts, capital, interest, costs or any other item of indebtedness of the CUSTOMER to the VENDOR as it may in its sole and absolute discretion decide, unless the CUSTOMER advises the VENDOR in writing, at the time of effecting payment, how payment should be allocated.
12. Orders by the CUSTOMER for the GOODS shall, unless specified by the VENDOR to be otherwise, be made in writing to such address, electronic or otherwise, as may be nominated by the VENDOR from time to time. Orders shall constitute irrevocable offers to purchase the GOODS in question at the usual prices of the VENDOR and shall be capable of acceptance by the VENDOR by delivery of the GOODS to the CUSTOMER or by written acceptance or confirmation of the order or by the VENDOR notifying the CUSTOMER that the GOODS are ready for removal from the VENDOR's premises by the CUSTOMER. The CUSTOMER shall bear the risk of any errors or misunderstandings arising from oral orders.
13. The risk in and associated with the GOODS shall pass to the CUSTOMER upon delivery. If:
13.1 the CUSTOMER collects the GOODS from the VENDOR, delivery shall be deemed to have taken place when the VENDOR advises the CUSTOMER that the GOODS are ready for collection or when the CUSTOMER collects the GOODS from the VENDOR’s designated collection address, whichever occurs first. Any party who collects the GOODS will be acting as an agent for and on behalf of the CUSTOMER;
13.2 the VENDOR delivers the GOODS to the CUSTOMER, delivery shall be deemed to have taken place when the GOODS are delivered to the CUSTOMER’s nominated delivery address.
The CUSTOMER must inspect the GOODS as soon as it takes delivery of the GOODS. Once the CUSTOMER signs the VENDOR’s delivery documents, the CUSTOMER will be indicating to the VENDOR that it received the GOODS and that they are in good order and condition and ready for use.
14. Whilst every effort will be made to dispatch the GOODS as advised, the VENDOR does not guarantee dispatch or availability on any specific date and shall not be liable for any damages for failure to affect delivery/dispatch timeously for any reason. The VENDOR will endeavor to dispatch the GOODS either on a date agreed between the parties or within a reasonable period from receipt of the CUSTOMER’s order. If the VENDOR is not able to do so, the VENDOR will advise the CUSTOMER of this fact and deliver the GOODS within a reasonable period thereafter.
15. If the CUSTOMER fails to take delivery of the GOODS ordered or in any way delays the delivery of GOODS ordered, then the risk in the GOODS shall immediately pass to the CUSTOMER and the CUSTOMER shall pay the VENDOR, on demand, the reasonable costs of storing, insuring and handling the GOODS until delivery takes place.
16. In respect of special orders, required to be prepared by the VENDOR to suit the specific requirements of the CUSTOMER, the VENDOR reserves the right to dispatch up to 10 % more or less than the quantity ordered and to invoice the CUSTOMER for the quantity supplied.
17. Notwithstanding that all risk in and to the GOODS sold by the VENDOR to the CUSTOMER shall pass on delivery, ownership in all GOODS sold and delivered shall remain vested in the VENDOR until the full purchase price has been paid and in the event of a breach of these terms and conditions by the CUSTOMER, the VENDOR will be entitled to take possession of such GOODS.
18. If the GOODS that are dispatched to the CUSTOMER are not the GOODS that the CUSTOMER ordered, the CUSTOMER must notify the VENDOR of this discrepancy within 10 (ten) days from date of delivery and must return the GOODS to the VENDOR unused, undamaged, clean and saleable, in which event the VENDOR will refund to the CUSTOMER the price paid by the CUSTOMER for such GOODS. If the GOODS that are dispatched to the CUSTOMER are defective, the CUSTOMER must return the GOODS to the VENDOR within a reasonable period of time from date of delivery and the GOODS must not be damaged, must be clean and saleable, the CUSTOMER must not have altered the GOODS and the defect must not have been caused by any conduct or omission on the part of the CUSTOMER or any third party. In such circumstances the VENDOR will replace the GOODS or refund to the CUSTOMER the price paid by the CUSTOMER for the GOODS.
19. Save for clause 18, any other GOODS are only returnable with the consent of the VENDOR. Should the VENDOR, in its absolute discretion, elect to accept the return of any GOODS, the value of the credit for the GOODS returned will be calculated at the invoice value when the GOODS were purchased less a 10% (ten percent) handling charge, the credit control department must be notified of the relevant invoice, packing slip and batch number before any claim will be considered and all GOODS are to be returned at the CUSTOMER's expense and the risk in the GOODS remains with the CUSTOMER until the GOODS are received by the VENDOR.
20. SAVE FOR WARRANTING THAT THE GOODS ARE REASONABLY SUITABLE FOR THE PURPOSES FOR WHICH THEY ARE GENERALLY INTENDED (BUT NOT FOR ANY OTHER SPECIFIC PURPOSE), ARE OF GOOD QUALITY, IN GOOD WORKING ORDER AND FREE OF ANY DEFECTS AND WILL BE USABLE AND DURABLE FOR A REASONABLE PERIOD OF TIME (HAVING REGARD TO THE USE TO WHICH THEY WOULD NORMALLY BE PUT AND TO ALL THE SURROUNDING CIRCUMSTANCES OF THEIR SUPPLY) PROVIDED THAT THE GOODS ARE NOT MISUSED, ABUSED OR ALTERED IN ANY WAY, TO THE MAXIMUM EXTENT PERMITTED BY LAW THE VENDOR SHALL NOT BE BOUND BY ANY OTHER WARRANTIES, GUARANTEES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED.
21. THE VENDOR SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR DELICTUAL LOSS OR DAMAGE OF ANY NATURE OR LOSS OF PROFIT OR LOSS OF BUSINESS, HOWSOEVER ARISING, WHICH MAY BE SUFFERED BY THE CUSTOMER OR ANY THIRD PARTY AS A RESULT OF OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREIN. THE VENDOR’S LIABILITY FOR DIRECT LOSS OR DAMAGE, AS LIMITED HEREIN, SHALL NOT EXCEED THE TOTAL PRICE PAID OR DUE TO BE PAID BY THE CUSTOMER FOR THE GOODS THAT FORM THE SUBJECT MATTER OF SUCH CLAIM. THE CUSTOMER HEREBY INDEMNIFIES THE VENDOR FOR AND HOLDS IT HARMLESS AGAINST ANY CLAIM, DAMAGE, LOSS, COST OR EXPENSE OF WHATEVER NATURE MADE AGAINST THE CUSTOMER BY ANY THIRD PARTY ARISING FROM OR ASSOCIATED WITH THE GOODS OR ANY OTHER MATTER FOR WHICH THE VENDOR WOULD NOT BE LIABLE TO THE CUSTOMER UNDER THIS AGREEMENT. NOTWITHSTANDING THE ABOVE, THE VENDOR DOES NOT EXCLUDE OR LIMIT ITS LIABILITY, IF ANY, FOR ANY MATTER FOR WHICH IT WOULD BE ILLEGAL FOR THE VENDOR TO DO SO.
22. The VENDOR shall not be liable to the CUSTOMER for failing to perform its obligations in terms of this AGREEMENT as a result of an act of God or any cause beyond its control.
23. Regardless of the place of execution or performance under this AGREEMENT or the domicile of the CUSTOMER, this AGREEMENT and all modifications and amendments hereof, shall be governed by and decided upon and construed under and in accordance with the laws of the Republic of South Africa.
24. The parties consent in terms of Section 45 of the Magistrate's Court Act 1944, as amended, to the jurisdiction of the Magistrate's Court in respect of any action or proceedings which may be brought against it arising out of or relating to this AGREEMENT, notwithstanding that the amount in question may exceed the jurisdiction of such Court, provided that a party shall be entitled to bring any such action or proceedings in the High Court or any other Court having jurisdiction.
25. A certificate issued under the signature of any director or manager of the VENDOR, whose authority, appointment and signature it shall not be necessary to prove, that certifies any indebtedness of the CUSTOMER to the VENDOR, delivery of the GOODS to the CUSTOMER, that the VENDOR is the owner of the GOODS in question, that payment in respect of such GOODS has not been made or any other fact, shall constitute proof of such indebtedness, delivery of GOODS, ownership in the GOODS, non-payment or such other fact, unless the CUSTOMER proves otherwise.
26. The CUSTOMER shall not be entitled to cede its rights or assign its obligations under this AGREEMENT without the VENDOR’s prior written consent, which shall not be unreasonably withheld. The VENDOR shall be entitled to cede its rights or assign its obligations under this AGREEMENT without the CUSTOMER’s consent if such cession or assignment does not prejudice the CUSTOMER. In all other circumstances the VENDOR will obtain the CUSTOMER’s prior written consent, which consent shall not be unreasonably withheld. The VENDOR’s cessionary shall also be entitled to enforce its rights hereunder against the CUSTOMER in respect of the GOODS that it supplies to the CUSTOMER.
27. The parties choose their contact details, which appear on the first page of the application form to this AGREEMENT, as their domicilium details at which addresses/numbers they will receive service of any legal process, documents and communications relating to this AGREEMENT. A party may change its domicilium details by furnishing the other party with 7 (seven) days written notice of its new domicilium details.
28. A party that successfully enforces or defends its rights under this AGREEMENT shall be entitled to recover from the other party all legal costs incurred by the successful party on the scale as between attorney and client, costs of counsel on brief, tracing agent’s fees and collection commission.
29. This AGREEMENT constitutes the entire agreement between the parties. No party may be entitled to rely upon any term, warranty, guarantee, condition or representation, unless it is herein contained. No amendment of, variation of, addition to, deletion from or consensual cancellation of this AGREEMENT or any provision or term hereof (including this clause) and no extension of time, waiver or relaxation of any of the provisions or terms of this AGREEMENT shall be binding, unless recorded in a single written document signed by the parties. Any such extension of time, waiver or relaxation which is so given or made shall be construed as relating strictly to the matter in respect of which it was made or given. No extension of time or waiver or relaxation of any of the provisions of this AGREEMENT shall operate as an estoppel against any party in respect of its rights under this AGREEMENT, nor shall it operate so as to preclude that party thereafter from exercising its rights strictly in accordance with this AGREEMENT.
30. Each provision of this AGREEMENT is severable, the one from the other. If any provision is found to be defective, unlawful or unenforceable for any reason, the remaining provisions of this AGREEMENT shall continue to be of full force and effect.
31. The CUSTOMER hereby consents and grants authority to the VENDOR to conduct credit checks, searches and the like with any credit agency or party which the VENDOR may at its discretion consider expedient or necessary, amongst others, for the purpose of ascertaining the credit worthiness of the CUSTOMER or in order to trace the CUSTOMER or any of its assets. The VENDOR shall be entitled to record any adverse credit reports with any agency or person. The CUSTOMER acknowledges that the application for and the existence of any account with the VENDOR may be recorded by credit agencies and details of the conduct of the account may be given to and duly recorded by and shared with other persons for various purposes. The CUSTOMER hereby waives any claim and indemnifies and holds the VENDOR harmless against any claim of any nature and howsoever arising from the aforesaid instances.
32. THE SIGNATORY HEREOF AND THE CUSTOMER HEREBY UNDERTAKE AND WARRANT THAT THEY SHALL ADVISE THE VENDOR, IN WRITING, WITHIN 5 (FIVE) DAYS OF A RELEVANT AGREEMENT BEING ENTERED INTO, OF ANY CHANGES IN THE SHAREHOLDING, MEMBERS' INTEREST, PROPRIETORSHIP, PARTNERSHIP, CHANGE OF OWNERSHIP OF, OR IN THE CUSTOMER AND THAT THEY SHALL BE LIABLE TO THE VENDOR FOR ANY DAMAGES OR LOSSES SUFFERED BY IT AS A RESULT OF A FAILURE TO DO SO.
33. IN THE EVENT OF THE CUSTOMER BEING A JURISTIC PERSON (CORPORATE OR NON-INCORPORATE) THE SIGNATORY TO THIS AGREEMENT, WHO SIGNS FOR AND ON BEHALF OF THE CUSTOMER, WARRANTS THAT THE CUSTOMER IS DULY INCORPORATED AND THAT ITS FULL AND CORRECT NAME, REGISTRATION NUMBER AND OTHER DETAILS APPEAR IN ALL THE RELEVANT PLACES IN THESE DOCUMENTS, THAT THE INFORMATION CONTAINED IN THESE DOCUMENTS IS ACCURATE, TRUE AND CORRECT AND THAT HE HAS THE AUTHORITY TO BIND SUCH ENTITY. THE SIGNATORY SHALL BE LIABLE TO THE VENDOR FOR ALL LOSSES AND DAMAGES SUFFERED BY IT ARISING FROM BREACH OF THE AFORESAID WARRANTY.
34. THE SIGNATORY HERETO AND THE CUSTOMER WARRANT THAT THEY HAVE DISCLOSED TO THE VENDOR ALL MATERIAL FACTS WHICH MAY AFFECT THE GRANTING OF CREDIT FACILITIES TO THE CUSTOMER.