TERMS AND CONDITIONS OF SALE AND INSTALLMENT
- The Supplier offers various goods and/or services and the sale of any such goods and /or services shall be subject to the terms and conditions contained in this Agreement.
- In this Agreement, unless the context clearly indicates a contrary intention the following expressions shall bear the meanings assigned to them below:
- "Force majeure" means an external, unforeseeable, unavoidable event rendering it absolutely impossible to fulfil an obligation and shall without limitation of the generality of the aforesaid, be deemed to include strikes, lock outs, accidents, fires, explosions, theft, war (whether declared or not), invasion, foreign enemies, hostilities rights, civil insurrection, flood, earthquake, lightning, act of local or national government or any other cause beyond the reasonable control of the party effected;
- "The Supplier" means Flying Solutions Consultancy cc a Closed Corporation Company, duly incorporated in terms of the South African law, with registration number 2011/085518/23 and with its business and registered address at No 22 Taylor Ave, Randpark Ridge Johannesburg Gauteng
- "Products" means goods and services (including advisory services where applicable) supplied by the Supplier in the ordinary course of its business;
- "Customer" means a consumer, its agents, employees, members, directors, shareholders, executers and / or trustees to who goods and / or services are supplied by the Supplier in the ordinary course of its business, including any person that consumes, applies and / or utilizes such products or services.
- "Order" means the form or document specifying the product and / or service, and price to which these Standard Terms and Conditions referred to are attached and form an integral part of this Agreement;
- "Party or Parties"- means the Supplier or the Customer, either collectively or individually.
- None of the provisions hereof shall be construed against or interpreted to the disadvantage of the party responsible for the drafting or preparation of this Agreement.
- The Customer's acceptance of any delivery of a product or service rendered by the Supplier shall constitute the Customer's acceptance of the terms contained herein.
- This agreement shall apply when the Customer purchases, places an Order and/or makes use of a product or service supplied / rendered by the Supplier and as a result an Agreement is entered into between the Supplier and the Customer whereby the Supplier offers for sale its products / services to the Customer and the Customer purchases / procures such products or services in accordance with the provided for in this Agreement.
- Products shall be manufactured and/or assembled / installed by the Supplier in accordance with the specifications and dimensions provided in writing by the Customer (where applicable).
- The Customer shall be responsible for ensuring the correctness of all specifications provided to the Supplier.
- The information, interpretation and/or description set out in the Customer’s order shall prevail in the event of conflict in the interpretation and/or description of a product, specifications, dimensions or any technical data. Notwithstanding the aforesaid, the Supplier reserves the right to make minor and/or necessary alternations and improvements in the design and/or method of manufacturing of the product without prior notice to the Customer.
PRICE & ORDERS
- Prices quoted by the Supplier are subject to change following site inspections.
- Services / Products shall be purchased by the Customer by
- Signed quotation and direct deposit.
- All equipment payable before leaving premises.
- All outstanding invoices payable on completion.
- The price payable in respect of the sale of the product or service shall be in South African Rand (ZAR) alternatively in the currency agreed upon in writing between the parties and shall be paid into the Suppliers nominated bank account.
- Any payments by the Customer for services rendered by the Supplier or products supplied shall be made free of deduction and / or set-off and exchanges.
- All prices quoted by the Supplier shall:
- be inclusive of Value Added Tax (VAT) unless specified otherwise by the Supplier;
- exclude fluctuation of foreign exchange, unless specified otherwise by the Supplier;
- excludes any delivery costs, except on written mutual agreement between client & supplier.
- Any quotations furnished to the Customer shall be valid for a period of 10 days after date of issuing and shall thereafter lapse in totality.
- Overdue accounts shall be subject to an administrative charge of 2.5% per month on the overdue balance.
- Notwithstanding any other provision in this Agreement to the contrary, the Supplier’s obligations to provide or deliver any product shall in all cases be subject to the following conditions precedent:
- The availability of the product and manufacturing material;
- The timeous receipt of instructions and specifications by the Customer.
EXCLUSIONS AND INDEMNIFICATION
- The Supplier shall not be liable, under any circumstances, for any loss or damages sustained by the Customer as a result of any error or discrepancy in the specification or any error or defect of any nature in the designs if such a loss is caused by the failure of the Customer to provide sufficient information to enable the Supplier to prepare the order acceptance or final product / material specifications or designs and / or due to the conduct / omission of the Customer.
- The Customer agrees to indemnify the Supplier against any claim, losses, liability or damage suffered or incurred by the Customer and/or any third party arising out of or in relation with the purchase, use or installation of the Supplier’s products or services.
- The Customer indemnifies and holds the Supplier harmless from and against any and all claims, actions, damages, demands, liabilities, costs and expenses, including reasonable legal costs and expenses relating to the purchase, use or installation of products supplied and / or installed by the Supplier, or resulting from any act or omission of the Supplier, or its directors, agents or employees under this Agreement, which actions may causes or results in damage, personal injury or death.
- The Supplier shall not assume liability for any loss, damage, or destruction of products after delivery thereof to the Customer.
WARRANTIES AND OBLIGATIONS
- The Supplier is not aware of the intended purpose of the products or the suitability of such products unless informed thereof in writing by the Customer, requiring it to express its opinion on the suitability of the said products for use by the Customer.
- It is the sole responsibility of the Customer to determine that the goods or services ordered are suitable for the purposes of intended use.
- The Customer acknowledges that it is aware of the purpose for which the goods were designed as well as all safety and maintenance procedures and personal protective equipment, which are required in respect of the goods by any lawful authority, and safety and maintenance procedures. The Customer acknowledges that it has the necessary knowledge and know how to safely and correctly use the goods.
- The Customer warrants that: -
- the Customer has disclosed all facts which may influence the sale of the products or rendering of the services envisaged in terms of this Agreement;
- the Customer has complied with all applicable legal provisions to the extent that the same are applicable to the conduct of its business or to its assets.
- The Supplier warrants that the products supplied by it are free of any cession, pledge, lien, hypothec, notarial bond or encumbrance whatsoever and are free of any other security interest or right of retention,
- The Customer acknowledges the industrial nature of the products supplied by the Supplier and that the products have certain potential risk of causing harm and even death.
- The Customer shall acquaint themselves with all instructions, manuals and/or warnings against risks and hazards as provided by the Supplier and use the product(s) in accordance with its design specifications.
- Any delivery note signed by the Customer and/or its authorised representative and/or its nominated agent and held by the Supplier shall be prima facie proof that delivery was made to the Customer.
- The signature of any employee of the Customer on any official delivery note, invoice, waybill of the supplier or the similar paper of any authorised independent carrier of the Supplier shall constitute good and sufficient proof of delivery of the goods to the Customer.
- The Supplier shall, at its sole and absolute discretion be entitled to engage a third party on its behalf to transport all goods purchased by the Customer to the delivery address stipulated by the Customer.
- The Customer shall be liable for all costs occasioned by its failure or refusal to take timeous delivery of the goods from the supplier.
- The Supplier does not guarantee that the goods / services ordered by the Customer shall be dispatched or delivered to the Customer on a particular date or time.
- The Customer shall have no claim whatsoever against the Supplier in respect of any loss occasioned by any reasonable delay in dispatch or delivery of any goods ordered and/or services rendered to the Customer, nor shall the Customer have the right to cancel any order by reason of such reasonable delay.
POST INSTALLATION ACCEPTANCE FORM
- Upon installation of any product, the Customer shall complete a post – installation whereby the Customer shall sign off on the installation of the product. Upon signature of the post installation acceptance form, the Customer shall have no claim of any nature whatsoever against the Supplier.
OWNERSHIP AND RISK
- All risk in and to all goods sold to the Customer by the Supplier shall pass to the Customer on delivery thereof.
- Ownership in all goods sold and delivered shall remain vested in the Supplier until the full purchase price has been paid.
- In the event of a breach of these terms and conditions by the Customer, or if the Customer is sequestrated or placed under liquidation or judicial management or commits any act of insolvency or enters into any compromise with its creditors or fails to satisfy a judgement granted against it within 7 (seven) days of the date of judgement or changes the structure of its ownership, the Supplier shall be entitled to take possession of the goods without prejudice to any further rights vested in the Service Provider, and is hereby irrevocably authorised to enter upon the Customer’s premises to take possession of such goods without a Court order.
- The Customer acknowledges the industrial nature of the products supplied by the Supplier and that the products have certain potential risk of causing harm and even death.
- The Customer shall acquaint themselves with all instructions, manuals and/or warnings against risks and hazards as provided by the Supplier.
- This Agreement shall be governed by and construed in accordance with the laws of South Africa
- In the event that any Party commits a breach of any of its obligations as contained in this Agreement and fails to remedy such breach within a period of 14 (fourteen) days after receipt of a written notice from the other party (the innocent party) calling upon the it to remedy such breach, then the Innocent Party shall be entitled, at its sole discretion and without prejudice to any of its other rights it may have in terms of this Agreement or in law, either to claim specific performance of the terms of this Agreement or to cancel this Agreement forthwith without any further notice, and in either case to claim and recover damages.
- The Parties agree that any costs awarded against the Defaulting Party will be recoverable on an attorney-and-own-client scale.
- Neither Party shall be responsible for any failure to perform due to a Force Majeure Event provided that such Party gives notice to the other Party of the Force Majeure Event as soon as reasonably practicable, but not later than five (5) calendar days after the date on which such Party knew or should reasonably have known of the commencement of the Force Majeure Event, specifying the nature and particulars thereof and the expected duration thereof; provided, however, that the failure of a Party to give notice of a Force Majeure Event shall not prevent such Party from relying on this Clause except to the extent that the other Party has been prejudiced thereby.
- The Party claiming a Force Majeure Event shall use Commercially Reasonable Efforts to mitigate the effect of any such Force Majeure Event and to cooperate to develop and implement a plan of remedial and reasonable alternative measures to remove the Force Majeure Event; provided, however, that neither Party shall be required under this provision to settle any strike or other labour dispute on terms it considers to be unfavourable to it.
- Upon the cessation of the Force Majeure Event, the Party affected thereby shall immediately notify the other Party of such fact, and use its Commercially Reasonable Efforts to resume normal performance of its obligations under the Agreement as soon as possible.
- In the event a Party fails to perform any of its obligations for reasons defined in this Clause 18 for a cumulative period of thirty (30) calendar days or more from the date of such Party’s notification to the other Party, then the other Party at its sole and absolute discretion extend the corresponding delivery period in accordance with the length of the delay.
- All orders placed with the Supplier will be regarded as confirmed and irrevocable and may not be cancelled without prior written consent of the Supplier.
- The Supplier may cancel the Agreement or any uncompleted part thereof if the Customer:
- Commits a breach of any of the terms and conditions of the Agreement;
- Upon termination of the Agreement for any reason whatsoever:
- All amounts owed by the Customer to the Supplier in terms of the Agreement shall become due and payable on demand;
- The Supplier may take possession of any equipment in respect of which ownership has not passed.
- In the event of there being any dispute or difference between the Parties relating to or arising out of this Agreement (including but not limited to any dispute or difference as to the validity or otherwise of this Agreement, or as to the enforceability of this Agreement), the said dispute or difference shall be adjudicated in terms of the Magistrate’s Court for adjudication in terms of the Magistrate’s Court Act 34 of 1944.
ADDRESSES FOR SERVICE AND DELIVERY OF LEGAL DOCUMENTS
- The Parties choose their addresses as set out in the quotation to serve as their addresses for service and delivery of legal documents for all purposes of the Agreement, which includes the giving of notice and the serving of documents or process.
- Any notice given in terms of the Agreement which is:
- delivered by hand during normal business hours to the Contractor’s or Employer’s address for service and delivery of legal documents shall be deemed to have been received by the Contractor or Employer at the time of delivery; and
- communicated by facsimile or e-mail, shall be deemed to have been received by the Contractor or Employer on received confirmation of the successful transmission thereof.
- Where, in terms of this Agreement any communication is required to be in writing, the term "writing" shall include communications by facsimile or e-mail. Communications by facsimile or email shall, unless the contrary is proved by the addressee, be deemed to have been received by the addressee on the day of transmission provided that transmission occurred during business hours.
- Whole Agreement
- This Agreement constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on either of the Parties.
- This Agreement supersedes and replaces any and all agreements between the Parties (and other persons, as may be applicable) and undertakings given to or on behalf of the Parties (and other persons, as may be applicable) in relation to the subject matter hereof.
- Variations in Writing
- No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.
- No Indulgences
- No latitude, extension of time or other indulgence which may be given or allowed by either Party to the other in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of either Party arising from this Agreement and no single or partial exercise of any right by either Party under this Agreement, shall in any circumstances be construed to be an implied consent or election by that Party or operate as a waiver or a novation of or otherwise affect any of its rights in terms of or arising from this Agreement or estop or preclude it from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
- Failure or delay on the part of either Party in exercising any right, power or privilege under this Agreement will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
- No Waiver or Suspension of Rights
- No waiver, suspension or postponement by either Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by that Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.
- Severable Provisions
- All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other.
- Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect.
- The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.
- Continuing Effectiveness of Certain Provisions
- The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
- No Assignment
- Neither this Agreement nor any part, share or interest herein nor any rights or obligations hereunder may be ceded, delegated or assigned by either Party without the prior signed written consent of the other, save as otherwise provided herein.