ELECTROLUX SOUTH AFRICA (PTY) LTD TERMS AND CONDITIONS
The following conditions are applicable for all goods and services supplied and/or rendered by Electrolux South Africa (Pty) Limited, hereinafter referred to as Electrolux and shall govern any contract between the Buyer and Electrolux.
(a) “The Seller” means Electrolux South Africa (Proprietary) Limited.
(b) “The Buyer” means the Purchaser of any goods supplied by the Seller.
(c) “The Goods” means the goods supplied by the Seller to the Buyer.
2. Incorporation of Conditions
These conditions will form part of any Contract whereby the Seller agrees to sell goods to the Buyer. These conditions will take precedence over any terms and conditions submitted by the Buyer whether before or after these conditions. No variation whatsoever to these conditions will be valid unless specifically agreed to in writing.
Any literature published or submitted by the Seller which contains any descriptions, specifications, drawings or prices of the goods is published for guidance only The Seller reserves the right to make modifications in the designs and specifications for the goods without notice to the Buyer.
(a) Unless otherwise agreed in writing any price quoted by the Seller or any quotation or order is subject to variation at the discretion of the Seller to reflect increase which may occur from time to time in list prices and costs (including, without limitation, cost of transportation, materials, labour, taxes or other fees and charges) prior to delivery.
(b) In the event that a variation in price shall occur between the date of the acceptance of the Buyer’s order and the delivery for the goods by the Seller, the Seller will advise the Buyer of any such variation in price (the “new price”) and the Buyer will be obliged to take delivery of the goods at the new price. If the Buyer is not prepared to pay the new price for the goods then the Buyer must advise the Seller within seven days of the notification of the new price that he is unwilling to do so whereupon neither party will be under any obligation to the other in respect of goods which have not been delivered.
(c) Where applicable VAT, GST or any other government taxes at the statutory rate at the date of delivery will be changed.
(d) Unless other stated the price for the goods as stated on the invoice is inclusive of delivery to an address or railhead within the Republic of South Africa. For neighbouring states and other export countries a delivery surcharge may be applied at the discretion of the Seller.
(a) Payment for the goods shall be made in accordance with the provisions which are agreed between the Seller and the Buyer. If no specific provisions have been agreed between the Seller and the Buyer payment shall be made strictly in accordance with the terms published by the Seller from time to time.
(b) All payments due as detailed on the Sellers invoice must be paid in full with the exception of any discount which has previously been agreed in writing by the Seller and the Buyer.
(c) The Seller reserves the right to demand in full or partial payment of any monies due and payable on any invoice before proceeding further with any order placed by the Buyer.
(d) Where payment of any monies is overdue the Seller may suspend the delivery of any goods ordered by the Buyer or terminate any order placed the Buyer without any further liability to the Buyer. Any costs incurred by the Seller in obtaining payment of overdue amounts will be borne by the Buyer.
(e) If payment is not received the due date the Seller may charge interest on the overdue amount at the rate of 2% per month. Any sums due as interest payments will be debited to the Buyer at the end of each month for which any payments are outstanding.
(f) Payments affected through the post shall be entirely at the risk of the Buyer.
(g) If the Buyer defaults with payment that is due, the Seller reserves the right to demand payment for all amounts owed by the Buyer, even if it is not due yet.
6. Ownership at Risk
(a) Property in the goods shall not pass to the Buyer until the Buyer has made payment in full of sums due to the Seller in respect of the goods provided always that the Seller shall nevertheless be entitled to maintain an action to the invoice price or any part thereof unpaid at any time after the due date for payment.
(b) If payment in full is not made by the due date then without prejudice to any other rights which the Seller may have it shall be at liberty to remove and sell the goods and apply the proceeds of sale towards satisfaction of the Buyers liability to the Seller under the contract of sale and the Seller shall be entitled to recover damaged in respect of any loss or damage caused by failure of the Buyer to make payment in full by the due date.
(c) Property in the goods supplied shall not pass to the Buyer or to any other person merely by virtue of their becoming affixed to the real or personal property of the Buyer or some other person.
(d) Pending payment of the purchase price the Buyer shall
(i) store the goods separately or such a way that they are clearly marked as the property of the Seller
(ii) not alter or modify them in any way
(iii)keep the goods fully insured against all usual risks at the Buyer’s expertise and procure that the Seller’s interest is noted on the policy.
(e) The Buyer shall be entitled to sell the goods to a third party within the normal course of its business provided that the proceeds of the sale of the goods be for the Sellers account and all monies deriving there from identifiable until such time as the goods are paid for the Buyer. All amounts owing to the Buyer by his customers for goods processed from the Seller, are ceded to the Seller for any outstanding amounts owed to him by the Buyer.
(f) For the purpose of this clause only:
(i) Where it is not possible to ascertain on the balance of the probabilities whether any payment for goods made by the Buyer to the Seller is made in or towards satisfaction of the purchase price of particular goods such payments shall be deemed to have been appropriated and applied by reference to the date of order of the Sellers invoices delivered to the Buyer taking the earliest date invoice first.
(ii) Where it is not possible to ascertain on the probabilities whether goods supplied by the Seller to the Buyer in the possession of the Buyer are goods in which properly has passed to the Buyer all goods supplied by the Seller shall be deemed to have been dealt with the Buyer on a first in first out basis.
(g) (i) the risk of the goods shall pass to the Buyer immediately after delivery.
(ii) if the Buyer fails to take delivery when delivery falls due, Electrolux shall be considered to have tendered and the Buyer to have refused to accept delivery, in this event the risk in the goods shall pass to the Buyer immediately.
(a) The Seller will use its best endeavours to deliver the goods to the Buyer in accordance with delivery times agreed between the Seller and the Buyer. Notwithstanding this time shall not be of the essence and the Seller shall not be liable in any way to any loss or expense sustained by the Buyer.
(b) The Buyer will supplier to the Seller all necessary details to enable the Seller to make delivery of the goods. The Buyer will accept delivery by mutual agreement with the Seller. If the Buyer refuses to accept delivery of goods then.
(i) the seller shall be entitled to the payment of all monies due in respect of such delivery.
(ii) the Seller shall be entitled to be indemnified y the Buyer for any consequential loss, damage or expense sustained as a result of refusal by the Buyer to accept delivery.
(iii)the Seller shall be entitled to sell the goods to a third party without prejudice to its rights to claim damages from the Buyer or the Seller may store the goods at a place of its choosing at the Cost of the Buyer.
(c) The Seller reserves the right to make delivery instalments unless otherwise expressly agreed in writing.
(d) The Seller reserves the right to postpone or cancel delivery in whole or in part when it is delayed in or prevented from making delivery where such is occasioned by strikes, lockouts, trade disputes or any other cause beyond the control of the Seller but without limitation act of God, act of Buyer or its agents, embargo or other government act or regulation, fire, accident, war, riot, delay in transportation, inability to obtain adequate labour, materials or manufacturing facilities, pestilence and the Seller shall not be bound to obtain goods in the open market with which to replace the goods delivery of which has been postponed or cancelled.
(e) The place of delivery will be the Buyer’s place of business unless otherwise agreed in writing and on delivery of the goods the Buyer shall be responsible for their unloading.
8. Damage or loss in transit
(a) The responsibility of the Seller for damages or loss in transit ends when the goods arrive at the designated point of delivery. The Seller will not be responsible for the damage or loss during or after the unloading of the goods.
(b) Within twenty-four hours of receipt of goods the Buyer will examine them and where necessary will immediately notify the Seller by telephone, telex or facsimile and notify the Carrier by use of the Carrier’s delivery document or any error in quantity or description of the goods delivered, or that the goods were mixed with other not included in the those which were delivered.
9. Guarantee and liability limitations
(a) The Seller warrants to the Buyer that it has the right to sell the goods and that the goods are free from any charge or encumbrance unknown to the Buyer.
(b) If any of the goods sold to the Buyer are faulty in workmanship of materials and any such faults become apparent prior to resale by the Buyer, the Buyer shall notify the Seller immediately in writing. Upon receipt of written notice, the Seller shall dependent upon the circumstances, either;
(i) Replace the faulty goods with similar goods (if similar goods are available); or
(ii) Refund the invoice price PROVIDED that the faulty goods are returned to the Seller.
(c) Save for damages of death or personal injury caused by the negligence of the Seller in the performance of the contract the Buyer shall not be entitled to claim from the Seller any loss, damage or consequential loss which arises by way of negligence of other default.
10. Resale of the Goods
The Seller and the Buyer acknowledge that goods which have been purchased by the Buyer from the Seller are to be resold by the Buyer on his own account, the price of which the goods are to be resold is a natter within the discretion of the Buyer. The Buyer acknowledges that the Seller does not wish the goods to be sold in the open market as loss leaders. The Seller reserve the right to cancel the delivery of any goods where it has evidence that the Buyer has sold or intends to sell goods of the same or similar description whether obtained from the Seller or elsewhere as loss-leaders. Before cancelling any delivery in these circumstances, the Seller shall serve written notice on the Buyer to this effect.
Except to the extent that condition 6 shall apply the Seller shall have lien on all goods which the Buyer agrees to purchase from the Seller for all monies due from the Buyer to the Seller under any contract between them.
12. Default by the Buyer
If the Buyer defaults in or commits breach of any of its obligation to the Seller or cease to carry on its business or substantial part thereof or is any distress or execution is levied on any of the Buyer’s makes or offers to make arrangements or composition with its creditors or commits any act of insolvency or if any resolution or petition to wind-up the Buyer’s business is presented or passed or a Judicial manager is appointed of the Byer’s undertaking, property or assets or any material thereof then the Seller shall be entitled forthwith to terminate any contract with the Buyer then subsisting and on written notice of such termination being posted by the Seller to the Buyer’s last known address any and every subsisting contract shall be deemed to have been terminated without prejudice to any claim or right which the Seller might otherwise make or exercise.
13. Governing Law
These conditions and any contract of which they form part shall be governed in accordance with the laws of the Republic of South Africa.
(a) The unenforceability of invalidity of any part of these conditions shall not affect the enforceability or validity of the remainder.
(b) Failure by the Seller in any one or more instances to pursue any breach of the terms by the Buyer shall not be taken to constitute a condonation or waiver of the same.
The Buyer may not cede or assign the rights or obligations in terms of this contract to any other party.
Any relaxation which Electrolux may permit on any occasion in regard to any of the Buyers obligations shall not prejudice or be regarded as a waiver of Electrolux’s right to enforce those obligations on any subsequent obligation.
In the event of any breach by the Buyer of its obligation to Electrolux under the contract, all costs and disbursements, including legal costs on the attorney and client scale, incurred by Electrolux in recovering possession of the goods, or in tracing the Buyer and/or locating the goods, or collecting commission, storage charges, cost of valuation of the goods, selling commission, removal and other charges or like nature, shall be borne by the Buyer.
The Buyer chooses he address at which the goods are to be delivered as domicilium et executandi, for all purposes of the agreement. The purchaser may change its domicilium by giving fourteen (14) days written notice to the Seller of its new domicilium. Electrolux selects Linbro Business Park, Unit 3, Galaxy Park, Galaxy Avenue, Linbro Park, as its domicilium citandi of executandi, for all purposes of this agreement.
Electrolux shall be entitled to institute proceedings arising out of the contract in the magistrate court having jurisdiction over the customer even if the cause of action exceeds the jurisdiction of the court.
20. Return of Goods
(i) no goods may be returned or exchanged without Electrolux’s written consent.
(ii) if Electrolux does consent in terms of 20 (i) the Buyer will be obliged to pay a handling fee of 10% (10 percent) of the price of the goods or service.
The headings of these conditions are to convenience only and are not to be taking into account for purposes of interpreting the contract.
22. Customer Order
The Buyer is deemed to have signified it’s dependence of these conditions, by inter alia, placing any orders with Electrolux or otherwise with Electrolux. In the event of an order being given to Electrolux on the Buyers official order form, the Buyer will be stopped from denying the validity of such order, notwithstanding the fact that such order may have been given or signed by a person not authorised the by Buyer.
We acknowledge receipt of and accept in full the terms and conditions of sale of Electrolux South Africa (Proprietary) Limited.