General Conditions of Tender, Contract and Sale
1.1 Seller – S.A.M. Engineering (Pty) Ltd
1.2 Purchaser – The party whose order is accepted by the Seller in terms of Clause 3.
1.3 Goods – The materials, products and/or services described in the Seller’s tender and as confirmed in the Acceptance of Order to be sold to the Purchaser in terms of the Contract.
1.4 Contract – These General Conditions of Tender, Contract and Sale, the Seller’s Tender and the Acceptance of Order, together with only such other terms and conditions as may be specifically agreed in writing between the parties.
2. Acceptance of Order
2.1 The Purchaser’s order on the Seller shall constitute an offer and an agreement shall only come into existence between the parties on acceptance of the order by the Seller, whether in writing or by performing in response to the order.
2.2 The acceptance of the Seller’s tender / quotation includes the acceptance of these conditions unless any variation is agreed to in writing and signed by an authorised representative of the Seller.
2.3 Following the acceptance of an order, it may not be cancelled without the written consent of the Seller.
2.4 Unless otherwise specifically stipulated in writing in the Seller’s tender / quotation or in the acceptance of Order, any terms and conditions forming part of the Purchaser’s Enquiry or the Purchaser’s order which deviate from these terms and conditions shall be of no force or effect.
3.1 The time of delivery is dependent on full details, information, plans and all other documents required for carrying out the work being supplied to the Seller at the time of acceptance, enabling work to commence without interruption. Any delay in supplying the above shall entitle the Seller to an automatic extension of the time of delivery equivalent to such delay.
3.2 Unless otherwise stipulated delivery is based on “ex-works” and any carrier shall be the agent of the Purchaser. Notwithstanding any pre-payment of transport charges, risk shall pass to the Purchaser on delivery.
3.3 If the Purchaser fails or refuses to take delivery of the Goods when the Seller tenders delivery, delivery shall be deemed to have occurred and the Purchaser shall be liable for such costs as may be incurred by the Seller in consequence thereof.
3.4 The Seller’s products are carefully inspected and where practicable submitted to standard tests at the Seller’s works before despatch. Where tests other than those specified in the tender / quotation or tests in the presence of the Purchaser’s representatives are required, they will be done at extra cost. In the event of any delay on the part of the Purchaser in attending such tests after three days notice that the Seller is ready to test, the test will proceed and the Purchaser shall be deemed to have been present.
3.5 The Seller shall only accept liability for late delivery where its liability for such delivery is not excluded in terms of the foregoing and where the Seller has specifically agreed in writing to the payment of a penalty or liquidated damages for such late delivery, in which case the Seller’s liability shall be limited to the amount so agreed, or the amount actually paid as a penalty by the Purchaser whichever is the lesser amount.
4.1 The Seller guarantee’s that the Goods supplied will conform to specifications and to any requirements specifically accepted in writing in regard to each Contract but, except as aforesaid, gives no warranty, express or implied, of material, workmanship, or fitness of Goods for any particular purpose whether such purpose be known to the Seller or not. In the event of the Goods proving to be not in accordance with the specifications or requirements aforesaid, or should defects under proper use appear in the Goods within a period of 12 calendar months from date of installation or 18 calendar months from date of delivery, whichever comes first, or caused solely by faulty design, materials or workmanship the Seller shall, at its option repair or replace the defective parts thereof at the initial place of delivery, or at the further option of the Seller, credit the Purchaser with the invoiced value of the defective parts.
4.2 In respect of bought out or proprietary items not manufactured by the Seller, the Seller gives no greater warranty and accepts no greater liability than that given or accepted by and enforceable against the supplier / manufacturer thereof.
4.3 The Seller gives no warranties in respect of Goods used other than for the intended purpose, or for defects arising through fair wear and tear or neglect.
4.4 The Seller shall in no event be liable for the Purchaser’s loss of profits, loss of use, loss of production, loss of contracts, loss of custom or goodwill, or for any special, indirect or consequential damages howsoever arising.
4.5 All prices are quoted ex works. All freight, packaging and crating costs are for customer's own account.
4.6 Pumps not collected within a 3-month period will be sold by the Seller to recover costs.
5. Terms of Payment
Unless otherwise agreed in writing the terms of payment shall be:
5.1 Payment in full in respect of the Goods shall be due 30 days after the last day of the month in which delivery is effected and terms are NETT or C.O.D. if Purchaser has no account with the Seller.
5.2 When the Goods offered or any part thereof are imported, the price is based on the rates of exchange, freight, insurance premiums, lighterage, landing charges, port dues, customs duty and railage at the date of tender or as specifically stated. Should these rates vary between the date tender and the date upon which the charges are incurred, the price shall be varied by the amount of the increase or decrease in such charges.
5.3 If delivery of the Goods is delayed by the Purchaser for any reason whatsoever then delivery will be deemed to have taken place in the month that the Purchaser was notified that the goods were ready for despatch.
5.4 Any settlement discount agreed to is offered specifically in return for early payment and will be allowed only on receipt of payment as per Clause 5.1, failing which said discount falls away.
5.5 Where payment by the Purchaser is sent by post, the risk of loss arising therefrom, including loss of discount due to late payment, shall rest with the Purchaser.
5.6 The Purchaser shall pay interest on all overdue amounts at the rate of 2 % above the ruling prime overdraft rate of First National Bank from the date payment is due until payment is actually received.
5.7 The credit facilities offered may be revised or withdrawn by the Seller at any time without prior notice.
5.8 Notwithstanding delivery of the Goods to the purchaser or to any third party, it is specifically agreed that it is the intention of the parties that the Goods shall not accede to any other property, whether movable or immovable, and that as far as any other goods or equipment are concerned the Goods shall, for the purposes of accession be deemed to be the principal items, and that ownership of the Goods and any items accessory thereto shall at all times remain vested in the Seller, and shall not pass to the Purchaser until the full contract price has been paid. In the event of non-payment, the Purchaser hereby irrevocably authorises the Seller or its duly authorised agents to repossess the goods wheresoever they may be found, and further, at its option, to detach or unmix by itself, its agents or servants, the goods from anything to which they are attached or in which they are installed or annexed without being responsible for any damage that may be caused thereby and, may, for such purposes, by itself, its servants or agents, enter upon any land or building, vehicle or vessel or other place upon which the Goods are reasonably thought to be situated.
5.9 All legal expenses incurred in connection with the recovery of any amount due by the Purchaser shall be for the Purchaser’s account.
5.10 The Purchaser agrees that the physical trading address given shall be their domicilium citandi et executandi for all purposes under this agreement.
6. Force Majeure
6.1 Neither party shall be liable to the other party for inability to perform or delayed performance should such inability or delay arise from any cause beyond the reasonable control of such party, the existence or happening of which cause has been drawn to the attention of the other party within a reasonable time of the occurrence of such cause (hereinafter referred to as a Force Majeure event).
6.2 For the purposes of this clause a Force Majeure event shall, without limitation of the generality of the aforegoing, be deemed to include strikes, lock-outs, labour disputes, accidents, plant & machinery breakdowns, fire, theft, explosions, war, riot, civil insurrection, flood, earthquake, lightening, act of local or national government, failure or delay on the part of the Seller’s suppliers of services, bought out or raw material to meet delivery dates, or delay on the part of the Purchaser’s agents or other contractors to provide the Seller with free issue material, specifications, or defects or changes in such specifications, or any other cause beyond the reasonable control of the party affected.
7. Patents, Copyright and Confidentiality
7.1 The Seller warrants that any designs specified by it shall not infringe any Letters Patent, Trademarks or Registered Design (published at the date of the contract).
7.2 The Purchaser, in turn, also warrants that any design or instruction furnished or given to the Seller shall not be such as will cause the Seller to infringe any Letters Patent, Trademarks or Registered Design in the execution of the order.
7.3 The Purchaser shall keep confidential and shall not use for any purpose other than the Contract itself, all drawings and designs supplied by the Seller in terms of the Contract and the Purchaser shall indemnify the Seller against any loss suffered by the Seller as a result of breach of this clause.
Should either party be in breach of any material obligations imposed in terms of the Contract and fail to remedy such breach or take positive steps towards remedying such breach within 14 (fourteen) days of written notice of such breach from the other party, then the non-defaulting party shall be entitled to cancel the Contract, without prejudice to such other rights as the non-defaulting party may have in terms of this agreement or at law.
9. Governing Law and Disputes
9.1 The Contract shall be construed and interpreted in accordance with the laws of the Republic of South Africa.
9.2 Any dispute arising between the parties in respect of the Contract shall at the option of the Seller be justiciable either in the Supreme Court of South Africa or in the Magistrates Court having jurisdiction over the Purchaser and the parties hereby consent to such jurisdiction notwithstanding the fact that the dispute might otherwise have fallen outside the jurisdiction of such Magistrate’s Court.
10. Future Contracts
These General Conditions (as they may be amended from time to time by the Seller) shall also apply to any future oral or written contract for the supply of Goods by the Seller to the Purchaser, save to the extent that these General Conditions are in any future contracts specifically varied or excluded or are inconsistent with what is expressly agreed in any such future contract.
11.1 In respect of repairs, the Seller guarantees that pumps restored to original specifications will be covered under warranty for 6 months, alternatively the warranty will be deemed null and void should the Client instruct S.A.M. Engineering to re-use any component that is not recommended.
11.2 The Seller guarantees against defects in material and workmanship.