CONDITIONS OF CONTRACT OF TABLE STABILIZA
1.1 the clause headings in these conditions of contract are for convenience and shall not be used in their interpretation;
1.2 unless the context clearly indicates a contrary intention, an expression which denotes:
1.2.1 any gender shall be deemed not to be gender specific, and includes the other genders;
1.2.2 a natural person includes a juristic person and vice versa;
1.2.3 the singular includes the plural and vice versa.
1.3 the statutory rights of the customer shall not be amended by the terms and conditions of this contract.
2. ORDERS AND DELIVERY
2.1 The provisions of section 19 of the Consumer Protection Act no 68 of 2008 shall not apply to this agreement, but notwithstanding this exclusion, the COMPANY shall use its best endeavours to deliver the goods or render the services within a reasonable period of any delivery date, and shall not be liable for any loss or damage of whatsoever nature suffered as a result of a delivery date not being met. The delivery dates shall not be of the essence of this agreement and any such date shall be construed as an estimate. Delivery shall be made ex works of the COMPANY.
2.2 The COMPANY shall be entitled, at its election, to terminate this agreement, or to a reasonable extension of time to comply with its obligations, if delayed by vis major, or by reason of directions of the customer, or by causes beyond the control of the COMPANY, and shall not be liable to the customer by reason of such termination or delay.
2.3 The COMPANY shall be entitled to suspend any delivery while the customer is in breach of any of the terms of this, or any other agreement between it and the customer.
3. OWNERSHIP AND RISK
Notwithstanding delivery, ownership of the goods shall pass to the customer against payment of the whole of the contract price. The risk in specific goods shall pass to the customer on the date of this agreement, and in non-specific goods on their appropriation by the COMPANY to this agreement.
4. THE CONTRACT PRICE
4.1 The contract price is based on duties, levies, other imposts, and the foreign exchange rates ruling affecting the goods at the date of this agreement, and the cost at this date of every item of expenditure involved in the goods and services including, without limiting the generality of the aforegoing, the costs of materials, labour, transport and insurance of each component part. The agreement price shall be adjusted by the auditor of the COMPANY to take into account any change in the basis of the agreement price which occurs between the date of this agreement, and the date of completion of the agreement, as if the change were applicable at the former date. For purpose of facilitating the whole or part of the computation of the contract price adjustment, the auditor shall, at his sole election, be entitled to use a cost price adjustment formula for manufacturing agreements based on a material and labour mix and indices, as the auditor may in his discretion determine. The contract price adjustment as certified by the auditor shall be final and binding on the parties.
4.2 All payments shall be made by the customer to the COMPANY at the COMPANY'S registered office, or at any of its offices as stipulated by the COMPANY.
4.3 The price is exclusive of VAT, and if no other terms of payment have been agreed upon in writing by a director of the COMPANY, then payment shall be made by the customer as follows:
4.3.1 50% (Fifty percentum) of the price at the date of signature of this agreement by the customer;
4.3.2 the balance (including all escalations and any other monies outstanding) on certification that the goods are completed.
4.4 On signature of this agreement, the customer shall hand to the COMPANY 2 (two) currently dated cheques in the amounts specified in clauses 4.3.1 and 4.3.2, and the COMPANY shall only present each cheque for payment on its respective payment date, as stipulated in clauses 4.3.1 and 4.3.2.
4.5 In the event of the customer failing to make payment on due date, the COMPANY shall be entitled to charge interest on the full balance of the price outstanding from time to time at the maximum rate of interest chargeable on such amount in a money-lending transaction in terms of the Usury Act 73 of 1968, as amended.
4.6 The customer shall be liable for all costs incurred by the COMPANY in collecting or enforcing payment of any amount due to it from the customer, calculated on the attorney and client scale.
4.7 The COMPANY shall be entitled to appropriate any payment received by the customer to the debt of the customer which the COMPANY may in its sole election determine, notwithstanding the customer's stipulation to the contrary.
4.8 The customer shall not be entitled to withhold any sum payable to the COMPANY, or to make any deductions therefrom, or to set any such sum off against any sum, which is owed to the customer by the COMPANY.
5. CUSTOMERï¿½S RESPONSIBILITY
The customer warrants that he is the owner of the assets on which goods are to be attached, and he shall be responsible for the following:
5.1 submitting and obtaining the customer's client's approval of samples, and working drawings;
5.2 satisfying himself as to the fitness of the assets, to which he requires the goods to be attached; the fact that the COMPANY commenced operation in terms of this agreement, shall not be deemed to confirm that it considers such assets fit for the attachment of the goods;
5.3 indemnifying the COMPANY, as it hereby does, against all claims and losses, which may be made against, or suffered by the COMPANY arising out of this agreement other than as a consequence of the willful act or omission of the COMPANY, or its employees or agents.
Any action by the customer for breach of this agreement shall be commenced against the COMPANY within 6 (six) months after the cause of action accrued.
7. WARRANTIES AND LIMITED LIABILITY
7.1 Any recommendation, figure, advice, specification, illustration, diagram, price list, dimension, weight, or other information, and particulars furnished by the COMPANY concerning the goods and services, is an approximate representation only, and not binding in detail, and unless otherwise expressly agreed to in writing by a director of the COMPANY, does not form the basis, or any part of this agreement.
7.2 Any model or sample of the COMPANY shown to the customer is illustrative of the general type and quality of goods, and shall not be construed as a representation that the goods conform to the model or sample.
7.3 COMPANY warrants that all goods and services supplied by it shall be free from defects in materials and workmanship under usual and proper use and service. The liability of the COMPANY hereunder is limited to repairing or replacing at its election any defective goods or services or parts thereof of, which the COMPANY shall be notified within 24 (twenty four) months of date of delivery. The goods and services found to the satisfaction of the COMPANY to be defective, shall be repaired and/or replaced at the election of the COMPANY free of charge to the customer. This warranty shall not be applicable if the customer is in breach of any of the terms of this agreement, or if a defect is due to misuse, negligence, or any cause beyond the COMPANY'S control. In the case of goods and services not manufactured, or supplied by the COMPANY, the liability of the COMPANY shall be limited to the extent that the COMPANY can assign its guarantee rights in respect of such goods and services to the customer. The above warranty is given, and accepted, in lieu of any other warranties express or implied. Save as otherwise herein contained no guarantees, representations, or warranties of any nature whatsoever have been given by the COMPANY to the customer, or by any other person purporting to act on behalf of the COMPANY, who is not a director of the COMPANY.
7.4 The COMPANY shall not be liable for damages suffered by a customer as a result of vis major, or any cause of whatsoever nature, out of the direct control of the COMPANY before, or after the delivery of the goods.
8.1 This agreement is concluded on the basis that the condition of the assets to which the goods are to be attached, are of such nature that they will adequately support the goods. The COMPANY shall not be responsible for any damages resulting from defective or unsuitable assets of the customer.
8.2 The contract price does not include any charges for services to the customer's assets, other than the attaching of the goods thereto, unless specified in writing by a director of the COMPANY. Should the COMPANY have to carry out any work in respect of the aforegoing then the said work shall be charged for as an extra, at the usual rates of the COMPANY, and the customer shall make payment to the COMPANY for such extras on request.
8.3 The customer shall utilise the goods in the manner strictly complying with the COMPANY'S warnings, directions, and instructions affixed to the goods, and the COMPANY shall not be liable for any claims and losses of whatsoever nature, which may be made against the COMPANY or suffered by the COMPANY arising directly or indirectly from the customer's breach of this obligation, and the customer hereby indemnifies the COMPANY against such claims and losses.
9.1 The COMPANY shall have the right for technical, or aesthetic reasons, to make changes in the goods provided that the goods shall not be varied by more than 10% (ten percentum) in the volume or area as calculated by an independent expert, appointed by the COMPANY, whose decision shall be final and binding on the parties, and the customer undertakes to accept the goods, as altered, in satisfaction of the obligations of the COMPANY.
9.2 The customer undertakes not to give a variation or additional order to any person, other than to a director of the COMPANY, and hereby indemnifies the COMPANY against any loss or damage incurred by the COMPANY, as a result of a breach hereof, and undertakes to pay on demand, the usual charge of the COMPANY, in respect of such variation or additional order.
The customer shall not have the right to cede, assign or transfer any of his rights or delegate any of his obligations arising out of this agreement without first obtaining the COMPANY'S written consent.
11.1 Should the customer fail to make payment on due date, or breach any of the other terms and conditions of this agreement (all of which are deemed material), or commit any act akin to an act of insolvency, then the COMPANY, without prejudice to, and in addition to, its other legal remedies, shall be entitled without notice to the customer:
11.1.1 to cancel this agreement, and to retain all amounts paid, either as liquidated damages, or as security pending determination of its claim for damages; or
11.1.2 to claim payment of the full amount of the contract price, or the balance thereof, as the case may be.
11.2 Upon the cancellation of the agreement for any reason whatever, the COMPANY shall be entitled to repossess the goods, if ownership had not been passed to the customer in terms of clause 3.
Should the parties be unable to settle any dispute, which may arise between them directly or indirectly from this agreement, such dispute shall, at the sole election of the COMPANY, be referred either to the South African Court having jurisdiction in respect of the matter, or to arbitration in accordance with the provisions of the Arbitration Act No. 42 of 1965 as amended, provided that the arbitration shall take place in Johannesburg, and the arbitrator shall be an independent third party agreed between the parties, or failing such agreement within 5 (five) days of the dispute having been declared, the arbitrator shall be nominated by the Chairman of the Johannesburg Bar Council at the request of the COMPANY.
The customer hereby appoints his physical address in the annexure, as his domicilium citandi et executandi, for all purposes incidental to, or arising out of this agreement.
14.1 No variation of this agreement shall be of any force or effect unless it is recorded in writing, and signed by the COMPANY'S director.
14.2 No representative, agent, or salesman has any authority to waive, or vary any of these conditions of contract, or make any representations whatever on behalf of the COMPANY.
14.3 No indulgence, extension of time, relaxation, or latitude, which the COMPANY may permit at any time in regard to the carrying out of any of the customer's obligations, shall prejudice the COMPANY in any manner whatever, or be a waiver by the COMPANY of any of its rights against the customer.
14.4 The customer consents to the COMPANY instituting any proceedings arising out of this agreement in any magistrate's court having jurisdiction over the customer, irrespective of the amount of the claim.
14.5 All agreements concluded between the COMPANY, and the customer shall be deemed to have been concluded at the principal place of business of the COMPANY.
14.6 This agreement constitutes the entire agreement between the parties, and the COMPANY shall not be bound by any statements, representations, or warranties made by any salesman, employee, representative, or person acting on behalf of the COMPANY, unless such statements, representations, or warranties are specifically recorded in writing by the COMPANY, and signed by a director of the COMPANY.