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Dalucon sells to the Customer who purchases the Goods/Services on these Terms.
Delivery, Dispatch and Transport of Materials:
Unless otherwise stated in the relevant Order, the Goods/Services shall be delivered by Dalucon to the Customer, at Customer’s cost. Every endeavor will be made to adhere to the quoted delivery dates but no liability can be accepted for the failure to do so. All such times and dates are to be accepted as estimates only, not involving any contractual obligations and are subject to Dalucon not being delayed by instructions or lack of instructions from the Customer. Dalucon accepts no responsibility for any loss or damage incurred by the Customer on account of any delay arising from any causes whatsoever, whether beyond the control of Dalucon or not. The Customer shall accept delivery when it its tendered and shall not be entitled to resile from the Order on account of delay in delivery.
Delivery shall be deemed to have taken place against signature of Dalucon’s delivery note. In all instances where delivery is by carrier, the carrier shall be deemed to be the Customer’s agent and delivery to such carrier shall be deemed to be delivery to the Customer.
Circumstances which prevent or delay the production of the goods such as, by way of example but without limiting effect, strikes (including company strikes), lock-outs, fires, prohibitions on imports, delayed resupply of raw material or limitations of energy sources and other circumstances which prevent or delay fabrication, are agreed to be treated as cases of force majeure and Dalucon may not be held responsible for the delay in delivery.
In the cases cited above, Dalucon may delay delivery for as long as the causes of the delay may last.
In the event that the cases of the delay last for more than thirty (30) days, Dalucon shall have the right to withdraw from the contract, without this implying the Customers right to the payment of compensation directly or indirectly attributable to the delay.
Upon the expiry of the agreed terms of delivery, within fifteen (15) working days of receipt of the notice that the merchandise is ready, the Customer shall collect the goods ordered, or, in the case of delivery to destination shall request their dispatch.
When this term has expired, the goods may be stored in the open air, Dalucon shall be released from all responsibility, all warranties being void, and the costs of moving and storage being charged at the rate of 1% of the value of the goods or part thereof; Dalucon furthermore reserves the right to dispatch the goods carriage forward to the Customer, or to put them into storage at the Customer’s expense. Eight (8) days after the issue of the advice that the merchandise is ready, a normal invoice shall in any event be issued, and the payment terms shall come into force.
Ownership in the Goods/Services shall only pass to the Customer upon the payment in full of the Purchase Consideration as well as the performances of any other obligations in favor of Dalucon arising from any cause of whatsoever nature. Providing a negotiable instrument does not constitute payment.
All risk of loss or damage to the Goods shall pass to the Customer upon physical delivery of the Goods to Customer’s premises or nominated addresses. Any evident defects and shortages must be reported at the time of delivery, under pain of voiding the relative warranty, by noting them on the packing list. Any demurrage, storage or waiting costs are payable by the Customer, even in the event that the merchandise is sold carriage paid and transport takes place by
Dalucon vehicles or by vehicles commissioned by the Dalucon.
Damage to Goods:
Unless Dalucon is advised in writing within 5 (five) working days of delivery of the Goods of any alleged damage of and / or defect in and or shortage of said Goods, it is deemed that the Customer has accepted the Goods as is and Dalucon shall not be liable for any claims instituted by the Customer in this regard.
Should Dalucon agree to the cancellation of any Order, such agreement shall be conditional upon the Customer promptly paying the cancellation fee and other charges stipulated by Dalucon. A certificate signed by a member of Dalucon whose appointment it shall not be necessary to prove, shall be prima facie proof of the amount owed.
Customer shall pay the Purchase Consideration strictly on or before the last working day of the month following the date on Dalucon’s invoice for that month.
Payment of the Purchase Consideration shall be made without set-off, withholding or deduction of any nature in South African Rand and as stipulated by Dalucon from time to time. Dalucon may appropriate any payments made by or on behalf of the Customer to any indebtedness of whatsoever nature of Customer. Any price or Purchase Consideration quoted by Dalucon prior to Dalucon accepting the Order are subject to changes in the applicable exchange rate.
Change in Price:
Prices are determined on the basis of costs in effect at the date of confirmation of the sale. In the event of the occurrence of increases larger than 2% in the cost of goods, a price revision shall be made, which shall be applied at the time of invoicing, with full recognition of the actual variation in accordance with the percentage impacts indicate below:
In cases where arrangements were made for split deliveries, the price revision shall be applied solely to the goods delivered subsequently to the occurrence of the price increases.
Unless specifically stated, the Purchase Consideration excludes any and all taxes (including value added tax), duties, tariffs and/or levies. Customer shall pay all taxes, duties, tariffs and/or levies in respect of these Terms on demand to Dalucon.
In the event of late payment, Dalucon shall be entitled to recover from the Customer interest from the due date of payment until the date of payment is made at a rate equivalent to the maximum rate provided for within the National Credit Act.
The Customer consents to Dalucon making enquiries about its credit record with any credit reference agency and any other party. Dalucon may also provide credit reference agencies with regular updates, including how the Customer manages its accounts.
Restriction of Customer’s rights:
Until the Goods are fully paid for by the Customer, the Customer shall be obliged to take whatever steps may be necessary to prevent the destruction or loss of the Goods, including without limitation insuring the Goods (and indicating Dalucon as an additional insured) and Customer shall not sell, cede, assign, transfer or pledge the Goods or allow them to become subject to any lien of whatsoever nature or deliver possession to any other person. The Customer shall be obliged to collaborate with Dalucon’s measures it intends to take in order to protect its proprietary rights in the Goods. If third parties try to assert or substantiate their rights to any Goods which Dalucon still owns, the Customer shall be obliged to inform Dalucon of any such action immediately.
Payments shall be effected at Dalucon address or by electronic transfer. The collection by Dalucon of sums paid at the time of placing the order does not constitute acceptance of the order.
If Dalucon does not accept the order, it shall repay the sums received, without interest.
In the event of default by the Customer, the sums paid on account shall be held by Dalucon by way of deposit, without prejudice to Dalucon’s right to recoup any larger damages.
Any claims or disputes, whether raised by way of legal action or by way of a plea, do not confer a right to suspend payments.
If the payment for the goods is provided by bills of exchange or by means of credit instruments, such as cheques or bills of exchange, etc., these shall clear in Dalucon’s bank account prior to delivery or collection of the goods.
The account summary sent by Dalucon is deemed to be accepted by the Customer if it is not contested within fifteen (15) days of receipt.
The Customer hereby acknowledges that should any amount not be paid on due date, the full amount owing by the Customer to Dalucon shall immediately become due and payable and Dalucon shall be entitled to demand immediate payment, not withstanding that any amount may, as at the date, not yet being due. The Customer further agrees that in the event of its default in any way, Dalucon shall be entitled to place an order for the supply of Goods on “stop supply” without any notice, not withstanding that the Customer may have placed an Order for the supply of Goods prior to the stop supply date.
Failure to Pay:
Should the Customer fail to pay the Payment Consideration within 14 (fourteen) days after demand, Dalucon shall have the option to cancel the sale and repossess the Goods in lieu of payment or the balance thereof and the Customer shall forfeit any amount paid on account. Should Dalucon be able to resell the Goods, the Customer will be given a credit for all the amounts received in excess of the expenses of the recovery and resale. Dalucon is similarly entitled to cancel the agreement in the event that the Customer:
- commits any act of insolvency, or being a natural person, assigns, surrenders or attempts to assign or surrender his estate; or
- allows a default judgment to remain unsatisfied for a period of 7 days or be refused rescission within 14 days of any default judgment; or
- is sequestrated or placed under Judicial management or wound up, whether provisionally or finally; or
- makes a compromise with any of its creditor/s or endeavors to attempt to do so.
- In the event that the Customer is placed under business rescue, this agreement shall be deemed to be cancelled by the Customer immediately prior to the Customer being placed under business rescue and in which event the Customer consents to the unpaid Goods being returned to Dalucon.
Should Dalucon at any time agree to any discount of its prices, it shall be conditional of such discount that it falls away if payment of the Purchase Consideration is not made strictly on due date.
Credit limits granted by Dalucon may not be exceeded without Dalucon’s written prior approval but should the Customer, for whatsoever reason, exceed such credit limit, it shall not withstanding, be liable for the full amount and not under any circumstances be limited to the amount of the credit limit. Dalucon will have the right to place such account on hold till Customer paid all amounts exceeding the limit granted. Should the account be misuse by the Customer, Dalucon will have the right to claim the full amount outstanding and the closing of the account thereof. Should the Customer then want to purchase from Dalucon is will be based on Cash Only. Should Dalucon accept a order from the Customer, and extra materials is needed and not stipulated in the quotation, that materials needs to be paid cash for by the Customer, and can not be used as part of the credit limit granted.
Dalucon warrants that under proper use no defects shall arise in the Goods during the warranty period. Any parts supplied to the Customer under this warranty will be supplied subject to the defective parts being returned to Dalucon, at Customer’s cost.
The warranty will be rendered null and void for the balance of the warranty period if:
- Any work is carried out on the Goods by any person other than suitably qualified employee(s) of Dalucon or its nominated service representatives; or
- The recommended service procedures are not followed.
Claims of any kind, must be made in writing to Dalucon within five (5) days of receipt of the products, it being understood after this period that the Customer will have forfeited all rights to warranty for defects and/or lack of quality and/or discrepancy in the goods sold.
Claims must be detailed, to allow Dalucon to make a prompt and complete check. The goods which are the subject of a claim must be kept, in the state in which they were delivered, in accordance with the “rules on movement, handling and storage” set out “Delivery, Dispatch and Transport of Materials”, and in accordance with any special instructions provided by Dalucon.
Goods which present manifest defects must not be used by the Customer; failure to observe this provision entails the forfeiture by the Customer of all warranty.
The customer must take responsibility for the suitability of products.
In the event of supply with split deliveries, any complaints, even if promptly made, shall not exonerate the Customer from the obligation to collect the remaining quantities of goods ordered.
If the contentions should prove unfounded, Dalucon shall charge the costs of the inspections and of any reports, including reports by third parties.
Dalucon guarantees the correspondence of the goods sold to the specifications contained in its catalogues and/or technical sheets (latest edition).
In the case of products faced with organic material, the warranty with respect to the facing is discharged, at Dalucon’s discretion, as follows:
- By means of execution by Dalucon of reinstatement works
- By contribution to the cost of reinstatement to an amount not greater than three (3) times the original price of the organic facing affected by defects; the amount of the contribution, as determined above, shall be progressively reduced in proportion to the period for which the product delivered has been in use.
In the case of metal surfaces without organic facing, no warranty is issued, beyond their correspondence to the applicable regulations; Dalucon is exonerated from any responsibility in respect of the occurrence of oxidization, this being a likely phenomenon.
Warranty discharged by Dalucon shall not be renewed for the repaired parts.
Dalucon does not accept responsibility in the case of reinstatement carried out by third parties.
Particular warranties and/or certifications can be issued, if specifically requested by the Customer when placing the order.
All warranty is voided both by use not in accordance with the “performance” characteristics, and by failure to observe the rules on movement, handling and storage and any special instructions provided by the Dalucon, as well as by the use of accessories functional to the use of the goods, e.g. fixing systems, buffers, corrugation ends, ridges, sealing caps, etc. not supplied and/or not expressly approved by Dalucon.
Calculation data, table values, materials estimates, graphic information and all other documents provided by Dalucon must be considered as simple guidance documents and not imply any responsibility on the part of Dalucon; for purposes of specification and compliance with legislation, the design, supervision of works and testing remain in the exclusive competence, responsibility and care of the Customer.
Dalucon reserves the right to introduce into its own products any modifications or technical improvements as it considers necessary.
Unless otherwise agreed in the Order, this warranty will remain in effect from date of delivery of the Goods for a period of 3 (Three) months.
Except for those warranties expressly stated in these Terms, Dalucon makes no representations and gives no warranties or guarantees whatsoever (express or implied) in connection with the Goods, including without limitation, the warranties of satisfactory quality and fitness for a particular purpose and all representations, warranties and guarantees are expressly excluded.
- To the extent permitted by the applicable law, the liability of Dalucon (and its directors, employees, agents, consultants, contractors or other representatives) to the Customer for any damages howsoever arising shall be limited to the Purchase Consideration actually paid hereunder in respect of the Goods which gave rise to the liability in question and save as otherwise provided for in these Terms, neither party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to these Terms, whether resulting from negligence, breach or any other cause.
- Under no circumstances shall Dalucon be liable to the Customer for and losses of whatsoever nature including but limited to loss of profits or any other indirect consequential damages suffered by the Customer and arising either directly or indirectly from the sale of any defective Goods. To the extent that Dalucon may be liable for damages sustained by any third parties, the Customer does hereby provide Dalucon with a full indemnity in relation to such damages.
Admissibility of Data Messages
- A requirement in these Terms that a notice, Order or document be in writing shall be satisfied if the document or information is –
The parties agree that they may conclude binding agreements by means of Data Messages. The parties hereby agree that:-
- in the form of a Data Message, and
- accessible in a manner usable for subsequent reference (including without limitation, a hard copy printout of the information concerned).
- referred to in a way in which a reasonable person would have noticed the reference and incorporation of such data; and
- such data is made accessible to the other party in a form in which it may be read, stored and retrieved by the other party on request.
For these purposes a “Data Message” means any information generated, sent received or stored by electronic means and includes, without limitation electronic mail and Records and a “Record” means any information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
Notice and Domiculium
The Customer choose as their domicilium citandi et executandi (“Domicilium”) for all purposes their address as stated in the Credit Application Form or if no credit facilities with Dalucon exist, then on the Customer’s official Order. Either party may change its Domicilium by giving written notice to the other. Any notice to a party’s Domicilium shall be in writing, provided that an electronic notification shall be regard as being in writing, and shall be deemed to have been received on the 7th day after the date of dispatch, if sent by prepaid registered post, or on the date of delivery or transmission if delivered by hand, transmitted by facsimile or by electronic transmission.
Neither party hereto shall have any liability by reason of failure to fulfill any obligations in terms of these Terms if such failure is occasioned by force majeure including, but not limited to, events such as acts of God, fire, accident, government act, explosion, industrial dispute or any other act, omission or event beyond the reasonable control of such party. Once the Installation commences Dalucon will not be liable for any of these damages occurring under force majeure.
Whatever is not expressly regulated by the present ‘General Conditions of Sale’ shall be governed by the regulations on sales provided by Article 1470 and following of the Civil Code, including cases of supply and fitting of the goods.
Any dispute arising from the interpretation, application, execution or dissolution of the contract and/or of the present ‘General Conditions of Sale’ or in any way relating to them, shall be referred exclusively to the jurisdiction of the court where Dalucon has its legal address, even in the event of a joinder.
- These Terms constitute the sole terms applicable to the supply of the Goods by Dalucon pursuant to these Terms and no terms sought to be imposed by the Customer shall be of any force or effect.
- Interpretation. If there is a conflict in meaning between these Terms and any Order or any other correspondence relating to any Order then the meaning of these Terms shall prevail, unless expressly provided otherwise. The clause and sub-clause headings to these Terms are intended for convenience only and shall not affect the construction or interpretation of these Terms.
- Variation. No amendment or modification to these Terms shall be effective unless in writing and signed by authorized signatories of both Dalucon and the Customer.
- Waiver. No relaxation or indulgence granted or given by Dalucon to the Customer or failure by Dalucon to exercise any right shall be deemed to be a waiver of any of Dalucon’s rights in terms of these Terms and such relaxation or indulgence shall not be deemed to be novation of any of these Terms.
- Applicable Law. These terms shall be governed and construed according to the laws of the Republic of South Africa. The Customer hereby consents and submits to the jurisdiction of the Magistrate’s Court having jurisdiction in respect of all proceedings in connection with these Terms, not withstanding that the amount claimed or the value of the matter in dispute exceeds such jurisdiction. In any event Dalucon shall be entitled, at its option, to institute any proceedings in connection with these Terms against Customer in any other court of competent jurisdiction.
- Costs. All costs and disbursements (including without limitation, legal costs on the attorney and own client scale including collection charges and tracing agent’s fees and valuation costs) incurred by Dalucon as a result of or relating to Customer failing to comply with its obligations in terms of these Terms shall be for the account of Customer and are payable on demand.
- Warranty of authority. Customer warrants that the person who places the Order on Dalucon is duly authorized to place the Order on behalf of Customer.
- Handling of products. Once the product leaves Dalucon’s property, the Customer will store the goods in safe, dry enclosed facility. All protective plastics should be removed within three (3) weeks of receiving the goods.
- Storage of goods left at Dalucon premises longer than 2 weeks will en-cure charges of R95 per m² per calendar week.
Withdrawal from the Contract
Dalucon reserves the right to withdraw from the contract if acts or circumstances occur which alter the stability of the markets, the value of money, the condition of the industries producing the raw materials or the procurement conditions.
Dalucon shall also have the right to withdraw from the contract without any charge, if cases come to light of dishonouring of bills on the part of the Customer, or the commencement of legal proceedings against the Customer, whether monetary, ordinary, insolvency or extra-judiciary proceedings.
I/ We acknowledge having read the above terms and conditions and without limiting the generality thereof, agree to be bound by all such terms and conditions.