PJH Trading/Mondo Automotive Terms and Conditions

SCOPE AND APPLICATION

  1. The General Terms and Conditions of Sale (hereinafter referred to as the “GTCS”) shall be applicable to all offers made or submitted by PJH TRADING/MONDO AUTOMOTIVE (hereinafter referred to as “the Supplier”) and to the acceptance by the Supplier of any order given and received by any prospective purchaser.
  2. The GTCS shall be the sole document governing the contract between the Supplier and the purchaser.
  3. Any variation or modification to the provisions of the GTCS which may have been agreed to between the Supplier and the purchaser shall only be valid, effective and binding on the Supplier if reduced to writing and signed by the Supplier and the purchaser.
  4. No agent or representative of the Supplier shall have any authority to conclude contracts, amendments to contracts or instruments of similar nature on behalf of, or in any way bind, the Supplier in respect of any purchaser.
  5. Notwithstanding 1.4 above, any contract, amendments to contracts or instruments of similar nature entered into by an agent or representative of the Supplier shall become valid, effective and binding on the Supplier upon written confirmation thereof by the Supplier.
  6. No agent or representative of the Supplier shall be entitled to receive any payment in respect of contracts, amendments to contracts or in respect of instruments of any similar nature on behalf of the Supplier without prior written authorization from the Supplier to that effect.
  7. “contract” shall mean the GTCS together with any special terms and conditions and appendices thereto (if any) in accordance with the provisions of the GTCS.
  8. “goods” shall to mean the corporeal or incorporeal objects, albeit moveable or immovable, to be supplied by the Supplier to the purchaser in terms of the Contract of Sale.
  9. “purchaser” shall mean the firm or individual purchasing the Goods under the Contract of Sale from the Supplier.
  10. “parties” shall mean the Supplier and the purchaser.

FORMATION OF THE CONTRACT

  1. All orders and contracts of whatever nature are subject to written acceptance by the Supplier. Written acceptance by the Supplier, subject to the provisions of the GTCS, in respect of an order placed by a purchaser, shall form a binding, effective and valid contract between the Parties.
  2. Any order or offer submitted by a purchaser shall not be binding on the Supplier and the Supplier shall be entitled to revoke any offer at any time prior to acceptance thereof.
  3. Notwithstanding the provisions in 2.2 above, any offer or order submitted by the purchaser to the Supplier shall be irrevocable upon the purchaser for a period of 30 (thirty) days from the date the offer and/or order is submitted to the Supplier.
  4. The GTCS, as amended from time to time by the Supplier, shall be applicable to any further amendment or variation of a contract concerning the supply of Goods by the Supplier in respect of the purchaser.

SPECIFICATION OF AND INFORMATION ON GOODS

  1. All goods supplied under the Contract shall conform to those characteristics and specifications which are explicitly contained and provided for in the Supplier’s publication. The purchaser hereby acknowledges receipt of the aforesaid publication, and expressly states and confirms that it is fully aware of the contents thereof and is bound thereby.
  2. The goods delivered are deemed to conform to the requirements and specifications of the contract despite any discrepancies in weight, colour, size, measurement or quantity
  3. Save as provided in 3.1 above, all data, specifications and information contained in brochures, catalogues, circulars, advertisements, price lists and any other printed, published or other materials distributed by the Supplier shall be of no purpose and effect and shall not be deemed to form part of the GTCS or the contract.
  4. All software, drawings, technical information, calculations and the like furnished by the Supplier to the purchaser shall remain the property of the Supplier. The Supplier shall also remain the owner of any property rights relating to the goods. Software, drawings, technical documents or other technical information provided by the Supplier, shall not, without prior written authorization of the Supplier, be used for any other purpose than installation, commissioning, operation or maintenance of the goods, and shall not, without the prior written authorization of the Supplier, otherwise be used, copied, reproduced, transmitted or communicated to a third party.

DELIVERY TERMS

  1. It is agreed between the Parties that all orders below the value of R 950.00 shall be considered Ex Works Alternatively, the Purchaser can request delivery of the goods for and additional delivery fee as quoted by the Supplier. This value can be amended from time to time by the Supplier.
  2. All risk in and to the goods shall pass to the purchaser immediately upon the goods having been placed at the purchaser’s disposal. Partial shipments shall be permitted unless otherwise expressly agreed to by the parties.
  3. All deliveries shall, subject to any variation contained in the contract, be subject to the Supplier’s reserved right that the Supplier is able to deliver the goods at the time for delivery. If the Supplier anticipates that the goods may not be delivered at the time for delivery, it shall be obliged to notify the purchaser thereof and, if possible, set out the time when the delivery is to be expected.
  4. In the event that the delay or failure to delivery is caused by war, demands or requests of governmental authority, national defence, civil commotion, strike, local or general boycott, labour trouble, industrial dispute, fire, flood, accident, explosion, failure in production or production equipment, inability to obtain fuel, power, raw materials or shipping capacity, actions by local or other administrative agencies, seizure, embargo, delays or defects in deliveries by sub-contractors or by any other circumstance beyond the reasonable control of the Supplier (“Force Majeure”), the time for delivery shall, subject to the provisions of 4.5 below, be extended by a period which is reasonable having regard to all the circumstance in the case.
  5. In the event of the Force Majeure event referred to in 4.4 becoming applicable , which event is beyond the control of the Party affected, and which the Party had no reasonable way of preventing or grounds to anticipate, the affected Party shall immediately notify the other Party in writing of the causes and expected duration of any such occurrence. Failure by the Supplier to supply the Goods or a delay in the delivery of the Goods due to Force Majeure shall not constitute a breach of contract.
  6. The Supplier shall be under no liability whatsoever, whether by penalty, indemnity or otherwise, for and in respect of any delays or failures in delivery, defects, losses or damages caused by or resulting from circumstances or situations referred to in Clause 4.4 and 4.5 above. The provisions of Clause 4.4 and 4.5 and of this Clause shall apply regardless of whether the reason for the delay or failure in delivery has occurred on the date of acceptance of a particular order by the Supplier.
  7. The purchaser shall forthwith examine the goods upon delivery and shall notify the Supplier in writing of any claims with respect to shortages in quantities of goods delivered or delivery of goods other than as ordered or other defects or lack of conformity concerning the delivered goods within 15 (fifteen) days of the delivery supported by material evidence satisfactory to the Supplier. The purchaser shall have no remedy in respect thereof if he fails to comply with the notification requirement provided in this Clause.
  8. The purchaser shall always be under the obligation to take delivery of the Goods at the agreed time for delivery. If, for any reason whatsoever, the purchaser fails to take delivery of the goods at the time for delivery it shall pay the price of the respective goods which becomes due on delivery as if delivery had taken place, provided further that, it shall fully be liable for any damage to the goods whatsoever.

RESERVATION OF TITLE

  1. Notwithstanding delivery of the goods or any document representing title to the goods and the passing of the risk to the purchaser as provided in Clause 4.2, ownership of the goods shall remain with the Supplier until the price as agreed to between the parties has been paid in full. The purchaser shall, unless otherwise agreed to by the Supplier in writing, ensure that the goods which are in its possession and under its control but which remain the property of the Supplier, are stored separately so that they may be readily identified by the Supplier and adequately insured, at all times, by the purchaser.
  2. The purchaser shall be obliged to immediately notify the Supplier in writing of any acts or claims by its customer or other third parties which may entail infringement of the Supplier’s property right over the goods that are in the possession and under the control of the purchaser. The purchaser shall ensure that any measures necessary or required to be taken to protect the Supplier’s property right over such goods are diligently taken and shall bear all the costs attendant thereupon.

SCOPE OF WARRANTY AND LIMITATION OF LIABILITY

  1. Except where the Supplier has provided the purchaser with an express written warranty for specific goods, the Supplier warrants only that the goods shall, to the extent explicitly stated and undertaken, conform to the characteristics and specification mentioned in the publication referred to in Clause 3.1 above.
  2. Where the purchaser has examined the goods before or on the date of conclusion of the contract, the purchaser shall be deemed to have given full regard to the condition of the examined goods and have approved and purchased the goods “voetstoots”. In such case, the Supplier shall be indemnified of any of its warranty obligations in terms of the contract.
  3. The purchaser is, in terms of the GTCS, obligated to examine the goods immediately upon delivery by the Supplier and notify the Supplier of any claims (if any), as provided and stipulated in Clause 4.6 above. Subject to the provisions of clause 7.2 above, any warranty provided by the Supplier is limited to a period of 6 (six) months from date of delivery and, the purchaser shall have no remedy for any defect or lack of conformity if he fails to notify the Supplier thereof within the 6 (six) month period which commences from the date of delivery of the Goods. Without prejudice to the foregoing provisions, no action in respect of defective goods or a lack of conformity of the goods may be instituted by the Purchaser, whether before judicial or arbitral tribunals, after 6 (six months) from the date of delivery of the goods.
  4. In the event of preparation and submission of any calculation, statement or recommendation or provision of any assistance by the Supplier or his representatives to the purchaser or to his representatives or customers concerning the use, installation, operation, maintenance and otherwise utilization of the goods, as requested by the purchaser or required in terms of the contract or rendered otherwise, any such calculation, statement, recommendation or assistance shall have been prepared and submitted or rendered solely on the basis of the data and information provided and furnished by the purchaser or by its duly authorized agent, representative or customer, as the case may be. The Supplier shall be under no obligation to investigate, control or verify the correctness and reliability of any data or information provided by the purchaser or its duly authorized agent, representative or customer. Except and to the extent of willful misconduct or gross negligence of the Supplier, the Supplier does not assume nor shall it assume any responsibility and liability in respect of services to be performed subject to the provisions of this Clause.
  5. The Supplier provides no warranty, and shall not take any responsibility and liability, for goods not manufactured by it. Any such goods shall carry the warranty of the manufacturer thereof.
  6. Where the goods shall, subject to the terms and conditions set forth herein, be other than as warranted or otherwise defective, and provided that the Purchaser has duly complied with the notification requirements in the GTCS, the Supplier shall, at its sole discretion, either (i) replace the goods without charge to the purchaser (cost of delivery excluded); or (ii) repair the goods without charge to the purchaser (cost of delivery excluded); or (iii) reimburse the purchaser for the price paid for such goods : Provided that any of the foregoing options shall be the sole and exclusive remedy afforded to the purchaser.
  7. Unless specifically agreed by the parties in writing, the purchaser shall not be entitled to claim liquidated damages for delays in delivery of any goods. Where the purchaser is, subject to the foregoing provision, entitled to claim liquidated damages, the Supplier’s total aggregate liability for such delays shall not exceed 5% (five percent) of the price of the delayed goods. Liquidated damages under this Clause are the only remedies available to the purchaser in case of delay on part of the Supplier.
  8. Without prejudice to the terms, conditions and limitations set out in clauses 7.1 - 7.8 inclusive above or elsewhere in the contract, the Supplier’s total aggregate liability for any and all losses and damages to the purchaser resulting from any cause whatsoever, including but not limited to the Supplier’s delay in delivery or negligence or supply of damaged or defective goods, irrespective of whether such damages or defects are discoverable or latent, shall in no event exceed the price of the goods in respect of which damages and losses are claimed. In no event shall the Supplier be liable for incidental, indirect or consequential damages such as loss of production, loss of opportunity, loss of profit, loss of revenues and other indirect losses or damages.

DAMAGE CAUSED BY THE GOODS<

    1. The Supplier shall not be liable for any damages caused to third parties or property which may arise from the use or installation or utilization of the delivered goods by the purchaser. The Supplier shall also not be liable for any damage to goods or products manufactured by the Purchaser. If the Supplier incurs any liability towards any third party for such damages to third parties or the property, the purchaser shall indemnify, defend and hold the Supplier harmless in respect thereof.

BREACH

  1. Should the purchaser breach or fail to comply with any term or condition of the GTCS and Contract which in law justifies termination of this agreement, then the Supplier shall be entitled to cancel this agreement (either as an alternative to a claim for specific performance or upon the abandonment of such a claim), provided the Supplier has first given the purchaser 21 (twenty one) days written notice to rectify such breach and the defaulting Party has failed to rectify such breach within the stipulated period.
  2. Written notice of any such cancellation shall be given to the purchaser and such cancellation shall take effect on the giving of such notice.
  3. The exercise by the Supplier of any right conferred by the foregoing provisions of this clause shall, subject to such provisions, be without prejudice to any claims of such Party hereunder then accrued or to any other right or remedy of such Party.
  4. The parties choose domicilium citandi et executandi for all purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purpose arising from the GTCS and the Contract at the registered addresses of the Supplier and the purchaser as evidenced by CIPRO. 

TERMINATION

  1. In the event of termination of the contract by the Supplier, the purchaser shall be obliged at its own cost to return all goods supplied to it up to and including the time of termination.
  2. In the event of the purchaser failing to return the goods as referred to in 10.1 above, then the Supplier shall be entitled to collect the goods from the purchaser and the purchaser shall remain liable for the payments of all costs and expenses incurred as a consequence of such termination.
  3. Unless otherwise expressly and specifically agreed in writing between the parties, the purchaser shall not be entitled to terminate, in whole or part, the contract for its convenience, and shall remain obliged to pay the purchase price in full irrespective of any termination instituted by it.

LIABILITY AND INDEMNITY

The purchaser shall indemnify the Supplier, its employees, representatives and subcontractors against claims in connection with any installation of goods at the premises of the purchaser and/or its customer as a result of:

(a) the death of or personal injury to the Supplier's employees, representatives or subcontractors;

(b) the loss of or damage to property of the Supplier, the Supplier's employees, representatives or subcontractors.

LAW

The GTCS and contract shall be subject to and interpreted in accordance with the Laws of Republic of South Africa. Any dispute which may arise in connection with the GTCS and Contract, which cannot be settled through negotiation between the parties shall be concluded in terms of the provisions of clause 9 above.

SUB-CONTRACTS

The Supplier may sub-contract the supply of any services relating to the installation of the goods on behalf of the purchaser. In such sub-contracts the Supplier will act as a principal but may if so requested by the purchaser, act as its agents.