CONDITIONS OF CONTRACT
1. GENERAL:
All orders accepted and all tenders made by FESTO (PROPRIETARY) LIMITED ("the Company") are made and accepted upon the following terms and conditions. Any order given to the Company, or the acceptance of the Company's tender, shall be deemed to constitute an agreement to be bound by such terms and conditions. Any stipulation or condition contained in any of these conditions, or in any way purports to quality or negate any of them, shall not be applicable.
2. PERIOD FOR ACCEPTANCE OF TENDER:
Any tender made by the Company may be withdrawn at any time before acceptance. If not accepted within one month from the date thereof, the tender shall be deemed to have been withdrawn.
3. DRAWINGS AND SPECIFICATIONS:
All the information contained in any specifications, drawing and catalogue (or which accompanies or forms part of any tender made by the Company), is subject to alteration at any time without prior notice and the Company will not be bound to comply exactly therewith. The Company shall not be liable for any inaccuracies in any drawings, specifications or other information supplied by the user, and the Company shall not be liable for any defects accidents or happenings arising out of such faulty information.
4. PRICE VARIATION:
This tender is based on the freight, insurance, import duty, V.A.T. and exchange rates ruling on the date of quotation, and in the event of any alteration thereto before delivery of the goods, any increase or decrease as the case may be, will be added to or subtracted from the contract price. Further, the tender has been based on the cost of materials and standard wage rates ruling at the date of tender, and any statutory increases or decreases therefrom shall also be added to or subtracted from the contract price. A certificate by the Company's auditors as to the amount of any adjustment shall be final and binding.
5. TERMS OR PAYMENT:
Payment for any goods delivered by the Company shall be made at the nett invoice price without deduction of any discount within 30 days after the end of the month of delivery, or alternatively under such terms as are specified on the invoice, and all overdue accounts shall bear interest at prime bank overdraft rates. If at any time the terms of payment are exceeded, the Company reserves the right to cancel any outstanding or uncompleted orders, and all expenses incurred thereby shall be for the Purchaser's account.
6. RESERVATION OF OWNERSHIP:
Notwithstanding delivery to the Purchaser, all goods sold by the Company shall remain the Company's sole property until payment in full therefore has been made by the Purchaser.
7. RISK:
The risk of loss or damage to the goods shall pass to the Purchaser from the time when delivery has taken place in terms of the contract between the Company and the Purchaser, and the Company shall not be responsible for any loss or damage to the goods beyond the point of delivery.
8. DELIVERY:
The period of time stated by the Company for delivery of goods ordered or tendered for is to be measured from the date the Company receives a written order to proceed together with all information necessary to enable the Company to put the work in hand and to deliver the goods. The Company will not be responsible or accountable for any delay occasioned by any cause outside its control, but shall be allowed a corresponding extension of time. In particular, but without limitation, the Company will not be responsible or accountable for any delay occasioned by strike, lock-out, war, fire, ice, accident (wherever any of the said causes shall occur), defective material, or any failure on the part of any supplier to make delivery. Should the Company be prevented from delivering any goods especially manufactured by reason of any of the said causes, the Purchaser shall take goods as the Company is able to deliver and shall pay for the same at the agreed prices.
9. GUARANTEE OF PRODUCTS MANUFACTURED:
Subject to the conditions hereinafter contained, the Company guarantees all products that have been manufactured by itself for a period of 6 months from the date of delivery against any defect attributable to faulty material or workmanship. Should any defect develop within that period the Company will repair or (at its option) replace the defective product or the defective part at the Company's factory without charge
provided that:
(a) The Purchaser shall have reported any defect to the Company immediately the defect manifested itself;
(b) The product was not subjected to abnormal use, or to use under abnormal conditions, or beyond its capacity as rated and recommended by the Company;
(c) The defect was not caused or contributed to by exposure to direct weather conditions or by operation in abnormal atmospheric conditions;
(d) No repairs or alterations to the product were carried out by the Purchaser or any third party; and
(e) The Purchaser has fulfilled its obligations under the contract The onus of showing that the conditions set out above have been complied with shall rest on the Purchaser. The Purchaser shall at its own expense return the defective product or part to the Company's factory and shall meet all other incidental expenses however incurred. The Company shall have a reasonable period of time during which to effect the repairs (or at its option make the replacement), and the guarantee period stated above shall be extended by that time.
10. GUARANTEE OF PRODUCTS NOT MANUFACTURED:
The Company will use its best endeavours to pass to the Purchaser the benefit (with the corresponding liabilities) of any guarantee received by the Company from the supplier of goods not manufactured by the Company. Nothing herein contained shall, however, impose upon the Company a greater liability than would be imposed by its own guarantee set out above, nor shall the Company have any obligation to enforce that guarantee by litigation or other proceedings.
11. EXCLUSION OF LIABILITY:
It is expressly agreed that the Company shall not be liable for any damage, loss, injury, or expenses of any sort or kind caused directly or indirectly to any person or property by any goods sold or delivered by the Company or arising from the use thereof, and all such liability, whether general, special consequential or otherwise arising out of or due to any of the acts, omissions, negligence or wilful default of the Company or its servants, whether at common law, by statute or otherwise, and whether arising from any condition, representation or warranty (express or implied) relating to the goods sold or delivered is expressly excluded.
12. ERECTION AND INSTALLATION:
Any erection or installation included in the tender, unless otherwise arranged, shall be performed by the Company on condition that the Purchaser provides suitable foundations and structures ready and free for use when required, with satisfactory means of access to the site. If the Company is prevented from proceeding with the work by circumstances beyond its control, and the Company's workmen are required to be sent back to complete the work, a charge will be made by the Company to cover the additional expenses incurred. If the terms for erection and installation provide only for work by the Company's skilled men, all necessary and adequate unskilled labour and tackle shall provided free of cost by the Purchaser as and when required, but such labour shall at all times be deemed to remain in the employ of the Purchaser and the Purchaser undertakes all liability in respect of claims made under the Workmens Compensation Act. It is also the responsibility of the Purchaser to provide electricity and compressed air for the purpose of any erection or installation. If work is required to be completed out of normal working hours an additional charge at the Company's usual rates for such work shall be added to the contract price.
13. PATENTS:
The Purchaser shall have no claim of whatsoever nature against the Company arising out of or flowing from any damages suffered by the Purchaser as a result of any patent or trade mark relating to any of the goods sold being infringed, cancelled, breached or otherwise set aside or declare invalid.
14. RIGHT OF CANCELLATION:
The Seller shall have the right to cancel this contract by written notice to the Purchaser in the event that the Purchaser is placed under provisional or final liquidation, judicial management or sequestration or commits any act of insolvency as defined in the Insolvency Act or ceases to carry on business.
15. LEGAL CONSTRUCTION:
No alteration of any of the above conditions shall be binding on the Company unless agreed thereto by the Company in writing. These conditions and every contract in which they are incorporated, shall be governed by and construed in accordance with the laws of the Republic of South Africa.