1. APPLICABLE CONDITIONS:
Any contract resulting from the acceptance of this tender will be subject to the General Conditions contained herein. No amendments nor alterations can occur unless agreed to in writing.
Action Instruments SA cc, having its registered offices at Unit 45 Willowbrook Office Park, Van Hoof Street, Willowbrook, 1724 , South Africa are hereinafter referred to as the Seller and the person to whom this quotation is addressed is referred to as the Buyer and the expression BUYER includes the Buyer’s employees and agents.
3. ALTERATION TO PRICE LIST:
(a) Prices in this Tender will remain firm for a period of 30 (thirty) days from the date of this Tender, save and except that the amount of any or all or other Government charge or duty in respect of equipment, (whether upon its production, dispatch, installation, sale, purchase or otherwise) and the cost to the Seller of conforming with any other legal requirement (including any Act of Parliament and any Order or Regulation made by any Government body or department) proposed or coming into force after the date of this Tender, shall be added to the price paid by the Buyer.
(b) Prices on imported equipment 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.
The periods of delivery as specified in the Tender dates from the receipt by the Seller of a full, firm and final order entitling the Seller to proceed with an uninterrupted completion of the Contract.
5. DELAY IN DELIVERY DUE TO FORCE MAJEURE:
The Seller shall not be liable for any delay or for any consequence of any delay in the production, delivery or commissioning of any equipment 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 sub-contractor, 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 Seller’s reasonable control If any such delay occurs then the Seller’s period for performing its obligations shall be extended by such period (not limited to the length of the delay) as the Seller may reasonably require to complete the performance of its obligations.
6. ACCEPTANCE OF TENDER:
Notification to the Seller by the Buyer of acceptance of this Tender whether in writing or verbal is final and binding. Any alterations or additions shall not bind the Seller unless agreed to in writing and any extra work in connection with alterations or additions are for the Buyer’s account.
(a) Payment is to be made by the Buyer to the Seller within 30 (Thirty) days of the Seller having dispatched an invoice to the Buyer;
(b) The title to equipment by the Seller shall remain vested in the Seller until the full purchase price thereof shall have been paid to the Seller;
(c) Notwithstanding the title to all equipment remains vested in the Seller until the full purchase price thereof shall have been paid, the Buyer accepts full responsibility for the safe custody of the equipment from the date of delivery of the equipment to the Buyer and the Buyer indemnifies the Seller against all loss which the Seller may suffer after dispatch of the equipment howsoever arising. It is agreed that delivery means either delivery direct to the destination specified by the Buyer or delivery by the Seller to the Post Office or the Railways or other means of transport for onward transmission to the Buyer at a specified destination;
(d) If the Buyer fails to pay the full sum due by it to the Seller on due date, the Seller shall have the right in addition to recovering the amount due to it, to cancel the Contract and resume possession of the equipment and/or recover from the Buyer payment for any damage to the equipment and/or to withhold the completion of any uncompleted portion of the Contract between it and the Buyer.
The Buyer shall inspect condition and quality of equipment received by it and agrees that it shall have no claim against the Seller unless it notifies the Seller of any visible fault or shortage within 7 (seven) days after it has received the equipment.
9. CANCELLATION OR RETURNS:
Cancellation or returns after acceptance of the Tender will not be considered or be valid unless a cancellation fee acceptable to the Seller is paid by the Buyer.
10. WARRANTY: The Seller warrants that all equipment supplied by it is free from defects in workmanship and material under normal use and service but the Seller’s entire liability under this Warranty and resulting from the sale of the equipment, is at its option either to repair or replace defective equipment free of charge which during the period of 12 (twelve) months after delivery is found by the Seller’s inspection (at the Seller’s option either at the site of installation or its workshops), to be defective in workmanship or material and this Warranty is subject to the following limitations and undertakings of the Buyer, namely:
(a) Mechanical or electrical items which are of an expendable nature and subject to wear and tear are excluded from the Warranty;
(b) That the Buyer shall return, should the Seller so direct, alleged defective equipment to the Seller’s work, carriage paid;
(c) If it is necessary for the Seller or its staff or agents to proceed to the site of installation that the Buyer will pay travelling charges, travelling time, accommodation and time spent on site by the Seller’s servant or agent;
(d) That any fault or default in equipment shall be notified to the Seller within 7 (seven) days of discovery; and
(e) This Warranty does not specifically apply to equipment not normally sold nor represented by the Seller.
11. LIMITATION OF SELLER’S LIABILITY FOR LOSS:
(i) The Seller shall not under any circumstances whatsoever be liable for any loss (which expression in the 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 equipment or any loss of use of any equipment notwithstanding negligence in the manufacture of the equipment. The Buyer indemnifies and holds the Seller 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 equipment 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 Buyer or of any person or persons of the equipment. This indemnity shall extend to any costs and expenses incurred by the Seller.
(ii) Furthermore, the Seller 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 equipment of the Buyer, whether supplied to the Seller as free issue or otherwise, whilst the said equipment is in the possession of the Seller at its premises, and/or whilst being commissioned by the Seller, and/or whilst being worked on by the Seller at the premises of the Buyer or at any other place whatsoever, and/or whether the equipment be in the Seller’s possession for repairs and/or evaluation, and/or for inclusion in a system or panel being manufactured by the Seller for the Buyer, and/or for any other purposes whatsoever, and/or whilst the said equipment is being transported to and from the Seller’s premises.
The Buyer’s equipment accordingly shall be insured by the Buyer at the Buyer’s own cost against any damage or loss being occasioned thereto whilst being worked on by the Seller and/or whilst it is in the possession of the Seller for any purposes whatsoever arising out of this agreement. The said equipment accordingly shall be at the sole risk of the Buyer at all times.
The word “Seller” in this paragraph ONLY shall be meant to include “the Seller’s employees, Directors, and/or servants” wherever it appears in this paragraph.
If any action or proceeding is brought against the Buyer for alleged infringement of any letters patent by the equipment or any part thereof supplied hereunder or any allegation of such infringement is made, the Buyer shall give the Seller immediate notice in writing of such allegation or infringement or of the institution of any action or proceeding.
13. COMPLIANCE WITH PURCHASER’S SPECIFICATIONS:
Equipment supplied by the Seller might not necessarily meet the exact specification laid down by the Purchaser in the Tender but the Buyer agrees to examine the Manufacturer’s specifications in regard to the equipment and to accept the equipment if it conforms or nearly conforms with the exact specifications contained in the Tender.
14. MATERIALS OF CONSTRUCTION AND RECOMMENDATION:
Recommendations regarding the suitability of materials of construction are made by the Seller in good faith but the Buyer agrees that the Seller shall not be responsible for such recommendations and particularly so if anything supplied fails in an adverse environment. The Buyer will satisfy itself that all materials offered are suitable.
15. INSTALLATION AND COMMISSIONING:
The Buyer undertakes all work necessary for putting the equipment into proper condition for operating and the Seller shall not be responsible for installation and commissioning of the equipment or any other outside work, unless the Seller’s quotation specifically covers such work and in this case the Seller reserves the right to employ a sub-contractor chosen by the Seller to carry out this work.
16. PRIOR SALE:
If the Seller quotes ex-stock delivery such quote is subject to equipment not having been previously sold.
Any dispute arising out of this Tender or any agreement entered into as a result thereof shall be subject to and construed in accordance with South African Law. Disputes shall be resolved by arbitration – the costs for applicant’s account.
Any dispute of whatsoever nature arising out of this contract concerning any of the rights and/or obligations of any party thereto, either during the currency of the contract or after the completion or cancellation thereof, including any dispute as to the validity of the contract, is hereby referred to the arbitration and final decision of a single arbitrator who
(a) shall be selected by agreement between the parties, or failing such agreement
(b) be appointed at the request of either party by the Chairman for the time being of the Association of Arbitrators,
and the parties agree to accept his award as final and binding upon them.
The cancellation of this contract by either party for whatever reason shall not affect the validity of this clause.
Edition 0703 Updated 13/07/2017