In these Terms and Conditions "Agreement" means these General Terms and Conditions of Sale and any subsequent agreement entered into; "the Customer" means the person, entity, firm, close corporation or company to whom the Products are sold; "Products" mean the item/s which are sold and supplied to the Customer; "Purchase Order" means the written request placed by a Customer to order the Products; "Parties" means the Customer and the Seller; "Seller" means SK Chemtrade Services (Pty) Ltd, a South African company registered under registration no 1993/000429/07
Any Order of Products implies full and unconditional acceptance of these General Terms and Conditions of Sale.
3. ADDRESS FOR LEGAL NOTICES
3.1. The Seller elects the address below as the delivery address where all notices, including legal notices and other communications must be delivered for the purposes of this Agreement:
SK Chemtrade Services Pty Ltd
Unit B2, the Meadows
Cnr Newton and Essex Road, Meadowdale, Germiston
Tel: 011 974 1124
4. DELIVERY, RISK AND OWNERSHIP
4.1. The Seller shall arrange, at its cost, for the Products to be transported to the Customer, unless the Customer uses its own transporter in which event the transportation costs shall be borne by the Customer. The Seller shall arrange for the Products to be delivered at the address designated by the Customer in the Purchase Order.
4.2. The indicated delivery times provided by the Seller to the Customer are estimated guidelines only, and delays shall not entitle the Customer to cancel the sale, refuse or return the Products or claim damages.
4.3. The risk in the Products passes to the Customer upon delivery of the Products by the Seller to the Customer or to the Customer's transporter, if the Customer appoints its own transporter.
4.4. Ownership of the Products remains with the Seller, notwithstanding delivery, until such time as the Customer has made payment to the Seller in respect of the Products.
4.5. The Seller may, without liability, totally or party cancel or suspend deliveries in respect of any period in which Seller is prevented, or hindered from, or delayed in manufacturing or supplying the Products by normal means by reason of force majeure which includes (but is not limited to) civil unrest and industrial action, any form of Governmental intervention, breakdown of plant or machinery (including transport), shortage or unavailability from Seller's normal source of the Products or any circumstances beyond the Seller's control.
5.1. The Customer shall make payment of the Products in Rand within the earlier of 30 (Thirty) days from the date of the purchase or the date of the Seller's invoice, by bank transfer to the bank account designated by the Seller, free of any deduction, cost or exchange.
5.2. Should the Customer fail to make payment of any amount to the Seller by the due date, interest shall accrue on the outstanding amount at the rate of 2% (Two Percent) per month, alternatively at the maximum interest rate permissible in terms of the National Credit Act No. 34 of 2005.
5.3. Any other conditions of payment are subject to the prior written approval of the Seller. In no case shall the Customer be entitled to set off or deduct any amount from any payment due to the Seller for Products purchased, unless with the prior written consent of the Seller.
5.4. The Seller is entitled to appropriate any payment received from or on behalf of the Customer to any indebtedness of the Customer to the Seller from whatever cause arising.
5.5. The Seller shall be entitled to refuse to accept any Order from the Customer, if any payment by the Customer to the Seller for any Products ordered is overdue, unless the Customer at the Seller's request makes upfront payment of the purchase price of the Products ordered.
5.6. The Seller reserves the right to cancel or suspend further deliveries of Products ordered and reserves the right to demand upfront cash payment before any delivery of Products, if any payment by the Customer to the Seller for any Products ordered is overdue.
6. PRICE VARIATION
6.1. Except where the price of Products is governed by a long term contract as between the Parties or by special arrangement, quotations and offers to sell are issued and Purchase Orders accepted on the basis of prices ruling at the date of issue. For the avoidance of doubt, if the Purchase Order issued by the Customer does not reflect the Seller's price, the Seller will inform the Customer of the prevailing Product prices within 24 hours from the issuance of the Customer's Purchase Order to the Seller, and a revised Purchase Order must be re-issued to the Seller.
6.2. The price of each delivery may be altered by the Seller to align with the Seller's price ruling at the time of dispatch.
7. INTELLECTUAL PROPERTY
7.1. In this clause, "Intellectual Property" means all intellectual property, including but not limited to; Patents; Designs (registered and unregistered); processes; formulas; know-how; research results; Copyright; business names; domain names; Trade Marks and trade mark applications; confidential and proprietary knowledge and information and any rights protecting same; business goodwill and reputation and rights protecting same; and all intellectual property rights and forms of protection of a similar nature to any of the foregoing or having an equivalent effect anywhere in the world.
7.2. If the Customer uses or sells goods in such a manner as to infringe any patent, trade mark, design or other intellectual property right owned by the Seller's suppliers, the Seller shall not be responsible for such infringement nor from any alleged infringement arising from the Customer's actions in relation to the Products in question, and the Customer shall indemnify the Seller from and against all liability arising therefrom.
7.3. The Parties hereto acknowledge that the Seller is the exclusive owner and proprietor of all the Intellectual Property pertaining to the Products manufactured by it.
7.4. The Parties expressly agree that except as provided for in this Agreement, the Customer acquires no rights, title or interest in the Intellectual Property of the Products and all goodwill associated with the Products vests in the Seller.
7.5. The Customer hereby undertakes to not at any time attempt to, directly or indirectly, dilute the value of the Intellectual Property pertaining to the Products, including any goodwill attaching thereto.
7.6. The Customer hereby undertakes not to use the Intellectual Property in any manner that would injure the reputation or goodwill of the Seller.
7.7. The Customer hereby undertakes not to register Intellectual Property which are the same as or confusingly similar to any of the Seller's Intellectual Property.
7.8. The Customer hereby agrees that any use of the Seller's Intellectual Property without the Seller's prior written consent shall be deemed to be an infringement of its rights.
8.1. In the event that the Customer defaults in making any payment to the Seller that has become due and owing, then the full outstanding balance (whether due or not) may at the option of the Seller, immediately become due and payable.
8.2. The Seller shall be entitled to terminate the Agreement upon written notice to the Customer, if the Customer commits a breach of any provision of this Agreement and fails to rectify such breach within 14 (Ten) days of the Seller's notice calling upon the Customer to rectify such breach. Any termination of the Agreement by the Seller shall be without prejudice to the Seller's rights to claim damages or any other rights that the Seller may have at law.
8.3. If the Customer:-(a) commits any act of insolvency or being a natural person surrenders his estate; or (b) allows a judgment by default to be granted against it and fails within 7 (Seven) days of such judgment coming to its notice to satisfy such judgment or apply to have it set aside; or (c) is sequestrated/liquidated or placed under judicial management or be wound up whether provisionally or finally; or (d) abandons the Products; or (e) allows the Products to be attached or seized under any due process of law; then the Seller may, without further notice, terminate this Agreement, claim any amounts outstanding whether due or not, without prejudice to any of its rights at law.
8.4. The Customer acknowledges and agrees that in the event that it fails to make payment within 30 (Thirty) days of invoice, the Seller is hereby irrevocably authorised by the Customer to enter upon the Customer's premises or any other premises where the Products may be found and is hereby authorized to take possession of the relevant Products supplied by it and in such event, the Customer hereby irrevocably authorises the Seller's representatives to enter its premises and take possession of such Products on behalf of the Seller. The Customer further hereby agrees that it will be responsible for all costs incurred for the recovery of the Products should the Customer fail to make any payment.
8.5. The Customer acknowledges and agrees to pay all of the Seller's legal costs on the scale between attorney and own client, should it be necessary for the Seller to incur any legal costs in order to enforce any of its rights which it may have pertaining to the purchase of the Products by the Customer or to defend any action instituted against it by the Customer arising from the purchase of the Products by the Customer.
9. INSPECTION AND RETURNS
9.1. Upon receipt of the Products, the Customer must check the Products and note any discrepancy, visible defect and/or damage of the Products, which must be noted on the Seller's delivery notice or carrier's form.
9.2. The Customer must notify the Seller in writing of such discrepancy, visible defect and/or damage in the Products, immediately upon receipt of the Products i.e. by no later than 48 hours after receipt of the Products.
9.3. The Customer may only return Products to the Seller in the circumstances as contemplated in Section 20 of the Consumer Protection Act No. 68 of 2008 ("the CPA"), and further in the event that the Seller fails to satisfy the requirements and standards contemplated in Section 55 of the CPA, and then only within the periods set out in Section 56 of the CPA.
9.4. In case such discrepancy, defect or damage is, properly notified, evidenced by the Customer and acknowledged by the Seller, the Seller shall at its sole discretion either replace at its expense the discrepancy, defective and/or damaged products or issue a credit note in favour of the Customer for the amount of the missing, defective and/or damaged Products; Products delivered in excess shall be returned to the Seller or invoiced to the Customer if the Customer accepts the Products in excess.
9.5. The Consumer may only in certain circumstances be liable for a refund for the Products if it satisfies the relevant requirements for a refund as contemplated under the aforementioned clauses.
10. WARRANTIES AND INDEMNITIES
10.1. The Seller makes no warranties regarding the Products, other than contemplated in Section 56(1) of the CPA.
10.2. The Seller shall not be liable to the Customer for any claim, liability, loss, injury, damage, cost, expense or penalty whatsoever and howsoever arising, other than a claim for liability, loss, injury, damage, cost, expense or penalty arising from or attributable to: (a) harm as provided for in terms of the provisions of Section 61 of the CPA; and (b) the gross negligence of the Seller or any person acting for or controlled by the Seller.
10.3. The Customer hereby indemnifies and holds the Seller harmless from any claim, liability, cost, expense or penalty suffered or incurred as a result of the Customer not installing or using the Products in accordance with the Seller's instructions.
10.4. The Seller shall not be liable to the Customer for any claim, liability, cost, expense or penalty suffered or incurred as a result of the Customer failing to use the Products in accordance with the Seller's instructions.
10.5. Te Seller shall not be liable to the Customer for any claim, liability, loss, injury, damage, cost, expense or penalty whatsoever and howsoever arising, relating to any article that the Products are used on or in relation to.
10.6. The Seller shall not liable in terms of this Agreement or in Delict or by operation of statute or otherwise in the event that:
10.6.1. the Customer makes any modification to the Products without obtaining the prior written consent of the Seller.
11. CESSION, ASSIGNMENT & WAIVER
11.1. The Customer may not cede, delegate or assign any of its rights or obligations hereunder without the written consent of the Seller.
11.2. The Seller shall be entitled to cede, delegate or assign any of its rights or obligations in terms of these Terms and Conditions, without the Customer's consent.
12. ENTIRE AGREEMENT
12.1. These Terms and Conditions constitute the entire agreement between the Parties with regards to the order, sale, supply, delivery and payment of Products.
12.2. No variation, amendment or addition to these Terms and Conditions, including this clause, will be of any force and effect unless agreed to by the Parties in writing.
If any clause or term herein is invalid, unenforceable, defective or illegal for any reason whatsoever, then the remaining terms and provisions herein shall be deemed to be severable therefrom and shall continue to be of force and effect.
No relaxation or indulgence including the acceptance of late payments by the Seller shall be deemed to be a waiver by the Seller of any of his rights to enforce strict compliance by the Customer of any of his obligations in terms hereof, nor shall such relaxation or indulgence be a novation of any of the terms and conditions of this Agreement, nor shall it found a defence of estoppel against the Seller.
15. GOVERNING LAW AND JURISDICTION
15.1. This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes arising out of or in connection therewith shall be settled by arbitration in the Republic of South Africa, and/or the relevant Magistrate or High Court proceedings that may be warranted.