The conditions set forth herein shall apply to all transactions for the supply of goods and/or services entered into, or to be entered into, between Action Instruments SA (Pty) (Ltd) (hereinafter referred to as the “Company”) and the purchaser being any legal person, firm, partnership, close corporation or company or a natural person in his or her own right, including any agents, representatives and/or employees of such purchaser (hereinafter referred to as the “Customer”). Pursuant to acceptance of a Tender, no amendments nor alterations can occur unless agreed to in writing by both parties.
- ORDERS
1.1. The Customer shall purchase goods and/or services from the Company by completing an order form specifying the quantities and particulars of the goods and/or services required and, if applicable, the address to which the goods must be delivered and/or the services must be rendered.
1.2. No order for any goods and/or services shall be binding on the Company unless and until the Company has accepted such order in writing.
1.3. The Company shall be entitled in its sole discretion to decline any order placed. Each order accepted by the Company shall be and constitute a separate contract. - PRICES
2.1. Quoted prices are net and exclusive of Value Added Tax (“VAT”) and any other Governmental Charges, Duty or Tax, unless otherwise stated.
2.2. Where quotations are based in foreign currencies the Company reserves the right to change these prices to South African currency.
2.3. Prices on imported goods are based on Standard Bank (selling) rates of exchange ruling at date of quotation on 80% of price. Variances from these rates at date of invoice will cause a proportionate
(pro rata) change of price. Alternatively forward cover (available only after placement of the order) may be negotiated if requested. - TENDER
Prices in this Tender will remain firm for a period of 30 (thirty) days from the date of this Tender. - ACCEPTANCE OF TENDER
Notification to the Company by the Customer of acceptance of a tender for goods and/or services, in writing, is final and binding. Any alterations or additions shall not bind the Company unless agreed to in writing and any extra work in connection with alterations or additions are for the Customer’s account. - PAYMENT
5.1. Shall be in the quoted and/or agreed upon currency, without deduction or set off.
5.2. Shall be made by way of electronic funds transfer (EFT) and/or credit card. No other form of payment will be accepted.
5.3. Accounts shall be deemed overdue after a period of 30 (Thirty) days and any and all overdue accounts shall bear interest at 2% above prime lending rates as published by Standard Bank from time to time.
5.4. The Customer agrees and undertakes to notify the Company immediately of any material factor which could or might have a bearing on the credit facilities extended to the Customer by the Company, and furthermore undertakes to notify the Company immediately of any material change of or concerning the Customer, including any change of ownership, shareholding, status, name and address.
5.5. The Customer acknowledges that any payment made by EFT and/or credit card will only be deemed to have been made on the day that the amount so paid clears and becomes available as accessible funds into the banking account of the Company. - CUSTOM PRODUCTS
6.1. Any products manufactured in terms of the Customer’s customised and specific specifications and/or drawings and/or designs and the like, will be deemed Custom Products.
6.2. Payment in respect of Custom Products shall be made upfront. Manufacturing of Custom products will only commence once payment in full has been received by the Company.
6.3. No returns of Custom Products meeting the exact specification laid down by the Customer in the Tender will be accepted by the Company. - DELIVERY
7.1. The Customer may select to:
7.1.1. Have the goods delivered to a specified destination by way of a courier arranged by the Company, in which instance the Customer will be liable for the courier fees. In this instance delivery shall take place when the goods are delivered at the specified address.
7.1.2. Have the goods collected from the Company by way of a courier arranged and paid for by the Customer. In this instance delivery shall take place upon collection from the Company.
7.1.3. Personally collect the goods from the Company. In this instance delivery shall take place upon collection from the Company.
7.2. Time shall not be of the essence in the contract.
7.3. Any specified delivery date or time by either the Company or the Customer is an approximate estimate and should be considered as a guide, not a definite commitment.
7.4. In the event that the Company is unable to deliver a portion of the goods and/or or services on the specified date or time, the Customer is required to accept delivery when the Company can reasonably make it.
7.5. The Company strives to meet specified or mutually agreed-upon delivery dates but does not provide any warranties regarding the punctuality of delivery.
7.6. The Company expressly states that it will not be held accountable for any damages, loss of profit, or consequential/indirect damages suffered by the Customer due to delayed delivery.
7.7. The Company reserves the right to impose storage costs if, at the Customer’s request and with the Company’s agreement, delivery is delayed or postponed. The Customer agrees to bear all associated storage costs for goods not promptly taken, at the prevailing storage rates set by the Company and/or the relevant service provider.
7.8. The Customer assumes the risk associated with the purchased goods upon delivery. Delivery is considered complete when the goods are tendered for acceptance by the Company to the Customer during regular business hours, either at the Customer’s designated place of business or another location specified by the Customer. Alternatively, if the Customer chooses to collect the goods, delivery is deemed to occur at the Company’s place of business.
7.9. The Company shall not be liable for any delay or for any consequence of any delay in the production, delivery or commissioning of any goods or plant if such delay shall be due to fire, strike, lock-out, dispute with workmen, flood, accident, delay in transport, shortage of fuel, default of any subcontractor, inability to obtain material, embargo, act or demand or requirement of any Government department or local authority, or as a consequence of war or hostilities (whether war be declared or not) or to any other cause whatsoever beyond the Company’s reasonable control. If any such delay occurs then the Company’s period for performing its obligations shall be extended by such period (not limited to the length of the delay) as the Company may reasonably require to complete the performance of its obligations. - TERMS
8.1. Payment is to be made by the Customer to the Company prior to delivery of the goods, unless the Customer has a credit facility and/or 30-day account with the Company, in which instance payment is to be made within 30 (Thirty) days of the Company having despatched an invoice to the Customer.
8.2. The title to goods delivered by the Company shall remain vested in the Company until the full purchase price thereof shall have been paid to the Company.
8.3. Notwithstanding the title to all goods remains vested in the Company until the full purchase price thereof shall have been paid, the Customer accepts full responsibility for the safe custody of the goods from the date of delivery of the goods to the Customer and the Customer indemnifies the Company against all loss which the Company may suffer after despatch of the goods howsoever arising.
8.4. If the Customer fails to pay the full sum due by it to the Company on due date, the Company shall have the right in addition to recovering the amount due to it, to cancel the Contract and resume possession of the goods and/or recover from the Customer payment for any damage to the goods and/or to withhold the completion of any uncompleted portion of the Contract between it and the Customer. - CLAIMS
9.1. The Customer shall inspect the condition and quality of goods received by it and/or services rendered to it and agrees that it shall have no claim against the Company unless it notifies the Company of any visible fault or shortage within 7 (Seven) days after it has received the goods. - RETURNS OR CANCELLATIONS
10.1. No cancellation or returns, after acceptance of the Tender, will be allowed in respect of Custom Products.
10.2. Cancellation or returns after acceptance of the Tender will not be considered or be valid unless cancellation fee acceptable to the Company is paid by the Customer.
10.3. The goods will not be accepted for return without the prior written consent of the Company first being had and obtained, and should such consent be given the goods must be returned, and carriage paid to the Company, undamaged in the original factory sealed packing. Provided that inspection by the Company reveals that the goods are in a saleable condition, which decisions shall rest solely with the Company, credit will be passed to the Customer less 25% (twenty-five percent) of the original invoice price to cover the cost of examination, handling and repacking. In the event of the Company making an incorrect delivery, then and in such event the goods shall be returned without the prior written consent of the Company being first had and obtained and such returns shall be for the account of the Company and shall be properly marked with the order number. Should the goods be returned to the Company by the Customer without the prior written consent having been given, the Company shall be entitled to store the goods at the Customer’s sole risk and a reasonable charge for such storage shall be made. - WARRANTY
11.1. The Company does not provide any warranties whatsoever in respect of Custom Products.
11.2. The Company does not provide any warranty for defects in the supplied goods and/or services, whether these defects are patent or latent. No warranties or guarantees of any kind, including suitability for a specific purpose, are given by the Company, unless explicitly stated in writing. The Company is presumed to be unaware of the intended purpose for the goods and/or services or any resulting products, unless otherwise specified in writing.
11.3. The Customer must ensure that the goods are suitable for their intended use and are free from defects. The Customer indemnify the Company against any claims from third parties arising due to the unsuitability of the goods for a particular purpose.
11.4. Should the Customer discover any defects in the goods and/or services delivered, it should notify the Company within 7 (Seven) days of delivery of the goods and/or services of such defects. The Company will then investigate, and should it be discovered that the defects were caused solely by the Company, the Company may elect to either replace or repair the defective goods and/or services.
11.5. Under no circumstances will the Company be liable for any loss of profit or special damages, whether arising from its obligations under the contract, negligence, omission, or any other cause, similar or otherwise.
11.6. No agreement, warranty, condition, representation, promise, statement, or undertaking made before the sale is binding on the Company unless explicitly outlined in this contract or officially confirmed in writing and signed on behalf of the Company. - LIMITATION OF LIABILITY
12.1. The Company shall not under any circumstances whatsoever be liable for any loss (which expression in this clause includes injury, damage or delay) or for the consequence of any such loss arising out of any cause whatsoever including any malfunctioning of or defect in or failure of any of the goods or any loss of use of any goods notwithstanding negligence in the manufacture of the goods. The Customer indemnifies and holds the Company harmless against any claim by loss or damage to any person or property directly or indirectly occasioned by or arising from the use or operation or possession of any goods sold or arising from default (including non-compliance with any obligation of the Tender, any delay, any wrong information and any lack of required information) or misuse by or on the part of the Customer or of any person or persons of the goods. This indemnity shall extend to any costs and expenses incurred by the Company.
12.2. Furthermore, the Company shall not under any circumstances whatsoever, not even by virtue of negligence, be liable for any loss or for the consequence of any such loss arising out of any damage howsoever occasioned to any goods of the Customer, whether supplied to the Company as free issue or otherwise, whilst the said goods is in the possession of the Company at its premises, and/or whilst being commissioned by the Company, and/or whilst being worked on by the Company at the premises of the Customer or at any other place whatsoever, and/or whether the goods be in the Company’s possession for repairs and/or evaluation, and/or for inclusion in a system or panel being manufactured by the Company for the Customer, and/or for any other purposes whatsoever, and/or whilst the said goods is being transported to and from the Company’s premises.
12.3. The Company shall not be liable for any damage to or subsequent malfunctioning of goods as a result of work done on the goods or services rendered in connection with such goods by any unauthorised third party.
12.4. The Customer’s goods accordingly shall be insured by the Customer at the Customer’s own cost against any damage or loss being occasioned thereto whilst being worked on by the Company
and/or whilst it is in the possession of the Company for any purposes whatsoever arising out of this
agreement. The said goods accordingly shall be at the sole risk of the Customer at all times.
12.5. The word “Company” in this paragraph ONLY shall be meant to include “the Company’s employees, Directors, and/or servants” wherever it appears in this paragraph. - BENEFIT, RISK AND OWNERSHIP
13.1. Notwithstanding delivery of the goods to the Customer, the Company shall retain ownership of the goods until the whole of the purchase price, together with interest charged (if any) shall have been paid in full.
13.2. All other benefits and risks in and to the goods shall pass to the customer upon delivery having been affected. - COMPLIANCE WITH CUSTOMER’S
SPECIFICATIONS
Goods supplied by the Company might not necessarily meet the exact specification laid down by the Customer in the Tender but the Customer agrees to examine the Manufacturer’s specifications in regard to the goods and to accept the goods if it conforms or nearly conforms with the exact specifications contained in the Tender. - MATERIALS OF CONSTRUCTION AND
RECOMMENDATION
15.1. Recommendations regarding the suitability of materials of construction are made by the Company in good faith but the Customer agrees that the Company shall not be responsible for such recommendations and particularly so if anything supplied fails in an adverse environment. The Customer will satisfy itself that all materials offered are suitable. - INSTALLATION AND COMMISSIONING
16.1. The Customer undertakes all work necessary for putting the goods into proper condition for operating and the Company shall not be responsible for installation and commissioning of the goods or any other outside work, unless the Company’s quotation specifically covers such work and in this case the Company reserves the right to employ a sub-contractor chosen by the Company to carry out this work. - BREACH
17.1. Where the Customer, in any way, breaches the terms of this Agreement and fails to remedy such breach in a period of 7 (Seven) days after delivery of written notice to the Customer requiring him to remedy such breach, then the Company shall have the right without prejudice to any other rights which might thereupon be available to it, to:
17.1.1. claim repossession of the goods, for which purpose the Customer hereby irrevocably authorises the Company, through its duly authorised representative/s, to enter upon the premises where the goods are kept, to take repossession of the goods;
17.1.2. enforce the relevant provisions of this Agreement;
17.1.3. claim payment of the full amount due by the Customer, any instalments of the price falling due in the future to become due and payable immediately. In such event, the Company shall be entitled to charge interest on overdue amounts as provided for hereinabove; or
17.1.4. cancel this Agreement.
17.2. The exercise of the above rights shall not preclude the Company from its right to claim damages from the Customer occasioned by its breach.
17.3. If the Customer breaches these terms and conditions and the Company elects not to cancel the Agreement, the Company shall be entitled to suspend performance of any of its obligations until the Customer has complied with its obligations.
17.4. If the Customer is in anyway in breach of the agreement and the Company engages the services of an attorney to collect the whole or portion of the amount owing to it by the Customer, or to sue for any other damages as a result of breach by the Customer, the Customer shall be liable to pay all costs occasioned as a result thereof, including collection charges and costs on an attorney and own client scale. - SUSPENSION, DELAY AND/OR CANCELLATION
OF DELIVERY
18.1. The Company reserves the right to suspend, delay or cancel the delivery of some or all of the goods or to require advance payment for them if:
18.1.1. the Customer is insolvent or is unable to pay its debts;
18.1.2. the Customer seeks to effect any compromise with any of its creditors or compound any of its debts;
18.1.3. the Customer is placed under an order of sequestration, judicial management or liquidation, whether such order be provisional or final;
18.1.4. the Customer is the subject of any resolution passed to enable it to be wound-up or dissolved; or
18.1.5. Any judgement is given against it in any court of law and, if appealable, is not appealed against within the period allowed for the lodging of such an appeal or, if not subject to an appeal, remains unsatisfied for a period of 10 (ten) days; or
18.1.6. the Customer is in breach of any of its obligations to the Company.
18.2. Any suspension, delay or cancellation as a result of any of the abovementioned events shall not affect any other right which the Company may have against the Customer based on these terms and conditions of sale or otherwise. - CONSENT – JURISDICTION
For the purpose of any legal proceedings, the Customer hereby consents to the jurisdiction of any Magistrate’s Court having jurisdiction over the parties. This notwithstanding, it shall not preclude the Company from instituting action out of any division of the High Court of South Africa having jurisdiction. - CONSENT – CREDIT
20.1. The Customer specifically consents that the Company:
20.1.1. may carry out a credit enquiry in respect of the Customer;
20.1.2. may access a Credit Bureau’s database before granting any credit to the Customer;
20.1.3. may, where credit is granted, transmit details to a Credit Bureau of how the Customer has performed in meeting with its obligations under the account, and share such information with other Credit Bureaus for the purposes of assessing further applications for credit by the Customer (and its members, directors, or partners as the case may be) and for occasional debt tracing, debt collection and fraud prevention purposes;
20.1.4. if credit is granted in favour of the Customer and the Customer fails to meet its financial commitments to the Company, the Company may record the Customer’s default with a Credit Bureau; may refer information relating to the Customer’s credit performance to a Credit Bureau for banking and credit assessment, statistical analysis, and credit scoring purposes and use such information to identify products (including those supplied by third parties) which may be relevant to the Customer;
20.1.5. may record the existence of a Customer’s account with the Company at a Credit Bureau(s). - PRIVACY POLICY
21.1. The Company and Customer hereto are sensitive to the personal nature of the information provided herein.
21.2. By providing its personal information, the Customer, in line with the provisions of the Protection of Personal Information Act, No 4 of 2013:
21.2.1. agree to the Company’s Privacy Policy and authorise the Company to process such information as set out in this Agreement as well as in the said Privacy Policy; and
21.2.2. authorise the Company, its Service Providers and other third parties to process the customer’s personal information for the purposes stated in this Agreement as well as in the said Privacy Policy.
21.3. The Company will not use a Customer’s personal information for any other purpose than that set out in this Agreement as well as in the said Privacy Policy and will endeavour to protect such Customer’s personal information that is in the Company’s possession from unauthorised alteration, loss, disclosure or access, in line with the provisions of the Protection of Personal Information Act, No 4 of 2013.
21.4. The Company may review and update its Privacy Policy from time to time, in line with the provisions of the Protection of Personal Information Act, No 4 of 2013. The latest version of the Privacy Policy is available on request. - SEVERABILITY
22.1. Each and every provision of this Agreement (excluding only those provisions which are essential at law for a valid and binding agreement to be constituted) shall be deemed to be separate and severable from the remaining provisions of this Agreement. If any of the provisions of this Agreement (excluding only those provisions which are essential at law for a valid and binding agreement to be constituted) is found by any court of competent jurisdiction to be invalid and/or unenforceable then, notwithstanding such invalidity and/or unenforceability, the remaining provisions of this Agreement shall be and remain of full force and effect. - ENTIRE AGREEMENT
23.1. This document and its schedule contain the entire agreement between the Parties in regard to the matters with which this Agreement is concerned, and no Party shall be bound by any undertakings, representations, warranties, promises or the like not recorded or otherwise contained herein. - NON-VARIATION
24.1. No addition to, variation, amendment or agreed cancellation of this Agreement shall be of any force or effect unless recorded in a written document and signed by or on behalf of the Parties. For purposes hereof, a “written document” shall exclude any written document that is in the form, either wholly or partly, of a data message as that term is defined in the Electronic Communications and Transactions Act, No. 25 of 2002, as amended, and “signed” shall mean a signature executed by hand with a pen and without any electronic process or intervention. - ASSIGNMENT
25.1. Neither Party may assign this Agreement or cede any of its rights or delegate any of its obligations in terms of this Agreement without the prior written approval of the other Party. - INDULGENCES
26.1. The grant of any indulgence, extension of time or relaxation of any provision by a Party under this Agreement shall not constitute a waiver of any right by the grantor or prevent or adversely affect the exercise by the grantor of any existing or future right of the grantor. - GOOD FAITH
27.1. Each Party undertakes to do all things reasonably within its power which are necessary or desirable to give effect to the spirit and intent of this Agreement. - GOVERNING LAW
28.1. This Agreement shall be governed, interpreted and implemented in accordance with the laws of South Africa. - CALIBRATION CERTIFICATES
29.1. Units that include a manufacturers calibration certificate, is done by manufacturer during the production period. As the units are put in the manufacturers stock before it reaches us it will already be a few months old before it reaches us. As we also keep the units in stock, the likelihood is that the units would have a manufacturers calibration certificate several months old. Please note that even thought these calibration certificates are done in a very accurate high tech manufacturing facility, this is not typically done as a SANAS or ISO17025 calibration certificate as the procedure is time consuming and not suitable for a manufacturing line. We however can offer a up to date SANAS certificate separately at an additional cost.
Upon acceptance of a Tender, the Customer agrees to be irrevocably bound by the terms and conditions of this General Conditions of Sale.
Updated 14/11/24