General Terms and Conditions
Terms and Conditions of Use of the E-CardTerms and Conditions of Use for the E-Card as of 1 June 2012
The following terms and conditions of use apply to Hansgrohe's provision of the e-card function.
1. E-Card Services
We provide the users of the Website www.hansgrohe.de with the e-card function, which they can use to send e-mails to recipients they have selected and e-mail addresses they have entered. The user independently determines the contents of the messages with the exception of the e-card images selected by us and the legal notice. Messages are sent in unencrypted format and will not be sent if the recipient informs us that they are not desired.
2. Our Responsibilities
The e-card function is an optional and free of charge service supplied by ourselves, which can be discontinued or limited at any time. We do not check the accuracy of the e-mail addresses entered by the user and do not guarantee the availability of the function or that e-mails can be successfully sent and accessed.
3. User Responsibilities
The user confirms that the recipient agrees to receive a message. The user is solely responsible for the contents which are generated, selected and sent by him, his representatives or other persons with access to his access. The user must not violate current laws, and in particular not distribute content which is illegal, in breach of contract, infringes copyright or is offensive. The e-card service must not be used to send spam e-cards or any other form of advertising or marketing messages or chain letters.
4. Liability of the User for his Behaviour
The user is liable for breaches in his contractual or legal obligations in accordance with the legal regulations.
In addition, the user releases us from any third-party claims asserted against us due to an infringement of third-party rights through his use. If the user is in breach of his obligations, applicable laws or common decency, we reserve the right to temporarily or permanently block his usage.
Information on Data Protection
General Terms and Conditions of SaleVersion: 29 September 2016
Hansgrohe South Africa (Pty) Ltd
- In this Document, unless the context clearly indicates otherwise:
- clause headings are for convenience only and are not to be used in its interpretation;
- an expression which denotes any gender includes the other genders; a natural person includes a juristic person and vice versa; and the singular includes the plural and vice versa;
- the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:
“Costs” any costs related to the supply of the Products, including but not limited to the cost of freight, insurance, applicable taxes, duties, tariffs and charges of any nature whatsoever imposed in any country or territory, either directly or indirectly, in respect of the sale or supply of the Products, or payments for them
“Delivery Place” the place of delivery of the Products, which place shall be specified on the Invoice
“Document” the terms and conditions contained in this document, together with the schedules hereto which include but are not limited to all Price Lists and Invoices
“Invoice” the written invoice provided by the Company to the Purchaser which contains, inter alia, the details of the Product, the Purchase Price thereof, and any other information related to the Product
“Manufacturer” the manufacturer of the Products
“Parties” the Company and the Purchaser and “Party” shall be either one of them as the context may indicate
“Price List” the price list in the possession of the Purchaser, which price list contains a list of the current Products of the Company, together with the current prices therefore
“Prime” the publicly quoted basic rate of interest per annum charged from time to time by the Company’s Bankers in respect of monies lent and advanced on unsecured overdraft, which interest shall be calculated daily and compounded monthly in arrears on a 365 (three hundred and sixty five) day year, as certified by any manager of the said bank (whose appointment, designation and authority need not be proved), which certificate shall serve as prima facie proof of its contents
“Product” any products supplied by the Company to the Purchaser in terms of this Document as read with the Price List and the Invoice
“Purchase Price” the purchase price of the Products as set out in the Price List plus any Costs (if applicable)
“Purchaser” the Party to whom the Company is supplying the Products in accordance with the Terms and Conditions contained in this Document
“the Company” Hansgrohe South Africa (Pty) Limited, Registration Number 1994/008123/07
“VAT” value added tax levied in terms of the Value Added Tax Act, 89 of 1991, as amended
- schedules and attachments to this Document shall be deemed to have been incorporated herein and shall form an integral part hereof and expressions defined in this Document shall bear the same meanings in such schedules or attachments;
- if the due date for performance of any obligation in terms of this Document is a day which is not a business day then (unless otherwise stipulated), the due date for performance of the relevant obligation shall be the immediately succeeding business day;
- any words or expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout the whole of this Document;
- any reference to a notice shall be construed as a reference to a written notice, and shall include a notice which is transmitted electronically in a manner and form such that the notice can conveniently be printed by the recipient within a reasonable time and at a reasonable cost;
- any reference to:
- days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;
- “law” means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law and a reference to any statutory enactment shall be construed as a reference to that enactment as amended or substituted from time to time; and
- “writing” means legible writing and in English and includes printing, typewriting, lithography or any other mechanical process, as well as any electronic communication in a manner and a form such that it can conveniently be printed by the recipient within a reasonable time and at a reasonable cost;
- the words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it;
- where a particular number of business days is provided for between the happening of one event and another, the number of days must be calculated by excluding the day on which the first event occurs and including the day on which or by which the second event is to occur;
- where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention.
- This Document sets out the general terms and conditions of sale between the Company and the Purchaser
- These terms and conditions comprise the only terms and conditions upon which the Company will do business with the Purchaser and shall prevail notwithstanding any terms or conditions contained in any Price List or Invoice or any other document available at any time or otherwise brought to the Company’s attention by the Purchaser.
3. SALE OF THE PRODUCTS
- The sale of the Products by the Company to the Purchaser shall be subject to the terms and conditions recorded in this Document.
- An order may only be placed by the Purchaser, based on the information contained in the Price List, in writing. A non-refundable, minimum order of R 1000 (excluding VAT) is required for Hansgrohe to deliver and orders below this value should be self-collected. This applies within the borders of the Republic of South Africa only.
Orders for AXOR products require a 50% deposit before the processing of the order can be made. Deposits are strictly non-refundable.
- Once an order is received by the Company, the Company shall generate an Invoice reflecting the Products to be supplied and the Purchase Price thereof whereupon the order shall become binding on the Parties and the Purchaser shall be deemed to have accepted, and agreed to become bound by, the terms and conditions set out herein.
- Each Invoice shall set out the following details:
- the Products ordered by the Purchaser and the specifications pertaining to such Products;
- the quantities of the Products being purchased;
- the method of delivery of the Products;
- the Delivery Place; and
- the Purchase Price payable by the Purchaser to the Company in respect of the Products and/or delivery thereof.
- The Products shall be sold in accordance with the relevant Manufacturer’s warranties if applicable.
4. PURCHASE PRICE AND PAYMENT
- The Products are sold to the Purchaser by the Company, at the Purchase Price as set out in the Invoice.
- The Purchase Price is exclusive of VAT.
- Payment is to be made in full in accordance with the terms agreed between the Company and the Purchaser.
- Payments by the Purchaser shall not be deemed to have been received unless electronically paid into the Company’s bank account.
- The Purchaser may not make any deduction from the Purchase Price in respect of any alleged rights to set off or counter-claims whatsoever.
- The amount of the indebtedness of the Purchaser to the Company at any time shall be proven, on the face of it, by a certificate issued under the signature of any one of the Company’s managers, whose office need not be proved. In addition, such certificate shall be valid as a liquid document in any competent court for the purpose of obtaining summary judgement against the Purchaser and such certificate shall be deemed to be sufficient particularly for the purposes of pleading or trial in any action instituted against the Purchaser.
- Should any amount not be paid by the Purchaser on the due date, then the whole amount in respect of all purchases by the Purchaser (if applicable) shall become due, owing and payable, irrespective of the dates when the Products were purchased, and the Purchaser shall be liable to pay interest in respect all unpaid amounts as at the due date at Prime compounded per month or part thereof on all overdue amounts from due date until date of payment, calculated and payable monthly in advance. Should the said interest not be paid in full by the Purchaser, such interest will be added to the amount outstanding, and the total shall form the principal debt which shall then bear interest in the same way as set out above.
- The Company may appropriate all payments made by the Purchaser to such accounts as it in its sole and absolute discretion elects.
- The Company shall have the right to suspend deliveries and to exercise its rights in terms of clause 4.7 if any amount due by the Purchaser is unpaid.
5. DELIVERY AND RISK
- All risk in and to the Products shall be deemed to have passed to the Purchaser on the date on which the Product is delivered to the Purchaser by the Company at the Delivery Place.
- If delivery is postponed and/or delayed due to the Purchaser’s conduct or due to a circumstance outside of the Company’s control, the risk passes to the Purchaser against written notification from the Company of readiness for despatch.
- Unless agreed to otherwise in writing by the Parties and until ownership of the Products has passed from the Company to the Purchaser, the Purchaser must procure transportation insurance at its cost on the basis of the general transportation insurance conditions which cover the risk of transport of the Products to the Delivery Place.
- Ownership of the Product shall pass to the Purchaser on the date that payment of the total Purchase Price are received by the Purchaser.
- If delivery of the Product is postponed at the Purchaser’s request, the Purchaser must compensate the Company for costs incurred due to storage and all and any related and/or ancillary costs incurred due to the delay in delivery including storage costs. Notwithstanding the aforesaid, after expiry of a reasonable period of time, the Company is entitled to dispose of the Product otherwise and to provide the Purchaser with a replacement delivery after a reasonably extended period of time.
6. COMPANY’S RIGHT TO POSSESSION OF PRODUCTS ON BREACH BY THE PURCHASER
- Should the Purchaser fail to effect payment of any amount on the due date therefore, the Purchaser undertakes to, and shall forthwith return the Product to the Company together with all issued and current documents, certificates and exemptions (if any) pending institution of an action by the Company for payment of the monies then owing; alternatively the Company shall have the right to withdraw any Invoice and claim return of the Product. The Purchaser further agrees that in any such event the Company shall have the right to obtain an attachment order in any court of competent jurisdiction to place the Product in the custody of the Company pending the conclusion of any such action instituted or to be instituted against the Purchaser.
- The aforesaid rights shall be in addition to and without prejudice to and not in substitution of any rights to which the Company may be entitled in law for obtaining an order for attachment of the Product or an interdict against the Purchaser.
7. RETURNS, REPAIRS AND REFUNDS (SOUTH AFRICA ONLY)
- Return of Products delivered by the Company is, in principal, never accepted unless the Products are proven to be defective. Should the Company agree in writing to accept a return as an exception, a processing fee of 10% (ten percent) of the net value of the returned products plus VAT will be levied by the Company. The transportation risk and transportation costs will be borne by the Purchaser. The product must be in original condition and packaging. No damaged product will be accepted for return.
- In the event that the Purchaser finds any of the Products to be defective by reason of improper material and workmanship, the Purchaser must within 1 (one) year after delivery of the Products inform the Company of the defect, in writing, and return the Products to the Company. All claims in this regard must be accompanied by an original tax Invoice from the Company.
- Notwithstanding the aforegoing, the Company shall have no liability or obligation to the Purchaser, and/or any person to whom the Purchaser on-sells any Products, in respect of any Products which have been subjected to abuse, misuse, improper use, improper testing, negligence, accident, alteration, tampering or faulty repair, or as a result of ordinary wear and tear at the hands of the Purchaser or any person that the Purchaser on-sells the Products to, and the Purchaser hereby indemnifies the Company accordingly.
- If the Purchaser returns the Product and the Product breaks or is damaged (other than as a result of misuse or tampering) again, then the Company will advise the Purchaser whether the Product will be further repaired, replaced or whether a refund will be paid by the Company to the Purchaser.
- The Purchaser hereby undertakes and agrees to comply at all times with the provisions of the Consumer Protection Act No 68 of 2008 (“CPA”) regarding returns, repairs and refunds and the implied warranties in respect thereof. To the extent that any claim is made and/or any loss or damages are suffered by the Company as a result of a failure by the Purchaser to comply with these provisions of the CPA, the Purchaser hereby indemnifies the Company accordingly.
8. INTELLECTUAL PROPERTY
- Copyright and any other intellectual property rights in any/all drawings, tools, models, artwork, proofs, sketches, engraving, negatives, stereos, dies, moulds and other designs produced by or for the Company for the purpose of manufacturing the Products will remain the property of the Company unless otherwise agreed in writing, signed by both the Company and the Purchaser. To the extent necessary, the Purchaser hereby cedes and makes over to the Company such copyright and any other intellectual property rights of the Purchaser in respect of any such drawings, tools, models, artwork, proofs, sketches, engraving, negatives, stereos, dies, moulds and other designs.
- The Purchaser shall promptly inform the Company of any threat, claim or allegation of which the Purchaser becomes aware that the Products (or any of them) infringe the intellectual property or other rights of any person and shall, if so required by the Company, at the Company’s expense, take all reasonable steps to enable the Company to defend any such threat, claim or allegation.
9. LIMITATION OF LIABILITY
- To the extent permissible in law, the Company’s liability to the Purchaser for all and any claims, losses, damages or expenses from any cause whatsoever shall be limited to the direct damages proven, provided that same shall not exceed the Purchase Price.
- In no event shall the Company be liable for any incidental, consequential, or any other indirect loss or damage, including but not limited to lost profits or revenues, nor for exemplary or punitive damages. These limitations of liability shall apply regardless of the form of action, and regardless of whether the Purchaser has been advised as to the possibility of such damages and/or losses.
10. INDEMNITYThe Purchaser hereby indemnifies and holds the Company harmless against any losses, costs, damages, penalties or claims suffered, incurred or made against the Company by any third party which arise from the Product or out of the use or misuse of the Product by the Purchaser or any third party whatsoever, including but not limited to, the Purchaser's employees.
11. APPLICABLE LAW AND JURISDICTION
- The Purchaser consents to the jurisdiction of the High Court of South Africa, Gauteng Local Division for the purpose of all or any legal proceedings arising from or concerning this Document.
- This Document shall be interpreted and governed in all respects by the laws of the Republic of South Africa.
- No variation or modification of this Document shall be of any force or effect unless the same shall be confirmed in writing and signed by all the Parties.
- No waiver or abandonment by any Party of any of its rights in terms of this Document shall be binding on that Party, unless such waiver of abandonment is in writing and signed by the waiving Party.
- This Document as read with the Price List and the Invoice constitutes the entire agreement between the Parties in regard to the subject matter hereof and there have not been and there are no agreements, representations, or warranties between the Parties other than those specifically set forth herein.
General Terms and Conditions of Business of Hansgrohe South Africa (Pty) Ltd.
General Terms and Conditions of Business as of 6 June 2017The following terms and conditions of use apply to Hansgrohe South Africa's (Pty) Ltd general business conduct.
- These General Terms and Conditions of Business (“GTC”) of Hansgrohe South Africa (Pty) Ltd. (“Seller”) shall apply, to the extent that nothing else is provided, to all purchase contracts and contracts for work and materials as well as to other orders (“Order(s)”) between the Seller and customers (“Buyers”) who are not consumers as contemplated under the Consumer Protection Act, 2008 (“CPA”). Any divergent general terms and conditions of business of the Buyer’s shall not be recognized, even if they are not expressly contradicted.
- The GTC shall also apply in equal measure to any future business relationships with the same Buyer, even if they have not been again expressly stipulated. Insofar as nothing else is stipulated, the GTC shall apply in the version valid as of the date of the Buyer’s order or in any event, in the version most recently communicated to the Buyer using the text-form (Textform).
II. Conclusion of contract
- The offers from the Seller are non-binding, insofar as they are not expressly designated as binding in the text of the offer. The Buyer’s order shall be considered a binding contractual offer, which, in the absence of any deviating provision, shall remain valid for at least eight (8) days. The contract shall be formed only when the Seller confirms the order to the Buyer in writing (including the text-form (Textform)).
- In principle, the Seller shall assume a guarantee only vis-à-vis end consumers in accordance with a separate guarantee declaration designated as such.
- The documents transferred by the Seller within the scope of contract initiation, such as images and drawings, as well as technical details and specifications made by the Seller, shall be decisive. Any technical, engineering, or other changes to the order shall be permissible, if and to the extent acceptable for the Buyer.
- Individual agreements, including commerce clauses (Handelsklauseln), shall take precedence over these GTC. A written contract or the written confirmation by the Seller shall be decisive for the content of such agreements.
III. Scope of delivery, transportation, and passing of risk
- In principle, delivery by the Seller is stipulated to be “ex works” or at another point of shipment known to the Buyer, where the place of performance for the delivery and any supplementary performance is located. The risk shall pass to the Buyer by no later than with shipment of the goods. If the shipment is delayed by the conduct of the Buyer or due to circumstances for which the Seller is not culpable, then the risk shall pass to the Buyer upon notification of readiness for delivery.
- To the extent not otherwise stipulated, the Buyer shall take out transportation insurance at its own expense on the basis of customary terms and conditions therefore, which insurance shall cover transportation risk of the goods encompassed by the order from the place of shipment to the stipulated destination location. The expenses of transportation shall be borne by the Buyer in accordance with Sect. V.5.
- In the event that commerce clauses are stipulated, in case of doubt the Incoterms shall apply as currently amended.
- The Seller shall have the right to partial deliveries and partial invoices in a reasonable scope prior to the expiration of the delivery deadline.
- If the shipment or the delivery of the deliverable is delayed at the wish of the Buyer or due to circumstances which originate in the Buyer’s sphere of risk and responsibility, then the Buyer shall reimburse the Seller for any warehousing expenses that have arisen, as well as the costs of interest on the capital invested in the deliverable. In the event of warehousing by the Seller, the claim shall amount to at least 0.5% of the still-outstanding invoice amount for each month outstanding, beginning one (1) month after notification of the readiness for delivery. It shall remain possible to verify that no damage or that substantially lesser damage has arisen. However, the Seller shall have the right, after setting a reasonable deadline and after fruitless expiration thereof, to dispose of the deliverable and to deliver a substitute to the Buyer within a reasonably extended deadline or to cancel the contract.
IV. Delivery deadlines and operational disruptions
- Delivery deadlines shall commence by no earlier than after the taking into receipt of all documents requisite for determining the contents of the order, insofar as the Buyer shall procure such in accordance with the agreement and, as the case may be, after taking down payment into receipt. A delivery deadline is complied with if the delivery is brought to dispatch within the deadline or if notification has been made of the readiness for delivery.
- Delivery deadlines shall be extended upon the occurrence of such circumstances for which the Seller or its suppliers are not culpable and which are of not-inconsiderable influence upon the fabrication or the delivery of the goods (e.g., industrial unrest, force majeure, and other operational disruptions for which the Seller or its suppliers are not responsible), for the duration of the operational disruption. The Seller shall inform the Buyer about the prospective operational disruption and set a new delivery date. If the goods are undeliverable even by the new delivery deadline, then both parties shall have the right to cancel the contract, in whole or in part; any consideration of the Buyer’s already rendered shall be reimbursed without undue delay. Any claims for compensatory damages in lieu of performance as contemplated under Sect. X as well as to the Seller’s rights, including, but not limited to, those in the event of a preclusion of the duty to perform (e.g., due to impossibility) shall remain unaffected.
- The prerequisites of any delivery default shall be determined, irrespective of the provisions above, in terms of South African legislation. However, in every case, a written warning notice of the Buyer shall be necessary in derogation thereof.
V. Prices and ancillary expenses
- Deliveries shall be effected at the prices current upon entering into the contract, in accordance with the Seller’s confirmation of the order. All prices shall be valid ex works/place of delivery. All prices shall be understood to be in Rand, insofar as not otherwise marked, and to include other ancillary expenses (e.g., installation and instruction costs), as well as the statutory value-added tax and any other taxes as provided by law (e.g., customs duties, fees) in the respectively valid amount.
- The Seller reserves the right to reasonably raise the fixed stipulated prices for a time period of more than four (4) months if, after entering into the contract, increased costs occur, including, but not limited to, those due to collective bargaining agreements, market-based acquisition prices, or increases in the price of materials. These shall be substantiated upon demand to the person or party placing the order.
- In the event of an order value below R500.00, the Seller shall invoice a R100.00 minimum-quantity surcharge. Accepted quantities that are smaller than the specified packaging units shall be processed with a 10% surcharge on the net value of the goods.
- If the delivery is effected to outside third parties, then a surcharge of 10% of the net value of the goods shall be invoiced.
- For orders with a net goods value of R750.00 or more, the delivery shall be effected freight paid; in the event of a net goods value below R750.00, the freight costs shall be charged in the invoice. Any express costs and fees for delivery of goods via mail shall always be borne by the person or party placing the order.
VI. Payment and default
- Payments are to be rendered without any deduction, as specified in the invoice, immediately after receipt of the invoice and delivery of the goods to the Seller. The Seller shall, however, at all times have the right to carry out the respective delivery, in whole or in part, against pre-payment only. A corresponding reservation shall be declared by no later than at order confirmation. The Seller expressly reserves the right to accept checks. Checks shall only be accepted as payment after they have been redeemed. All payments are to be rendered free of expenses. In the case of checks, the Buyer, even without any express agreement, shall also have to bear any discount, collection, and any other bank charges. Payments shall be initially set off against costs, then interest, and then each older main receivable.
- In the event of default, default interest shall be charged in the statutory amount, but at least 10.5% annually; it shall remain possible to substantiate lesser damage up to the amount of the statutory interest rate
- The Buyer shall be entitled to rights of setoff and retention vis-à-vis the Seller’s claims only if the counterclaim is undisputed or has been judicially determined. This provision shall not apply to the extent that the counterclaim directly concerns the Seller’s primary performance duty arising from the same contract.
- Any assignment of claims shall require the consent of the Seller.
- If, after entering into the agreement or after delivery of the goods, it becomes discernible that the Buyer is not or is no longer creditworthy, e.g., if forced execution measures have been initiated against it; any mature invoices despite reminders have not been paid; or any other asset deterioration occurs, then the Seller shall be able to immediately assert claims even for receivables not yet mature and for such receivables for which a check was given. In these instances, for still-undelivered goods the Seller shall be able to demand pre-payment, the rendering of a security, or delivery based solely upon cash-on-delivery. If the Buyer does not comply with this demand within the reasonable deadline established for it, then the Seller shall have the right to cancel the contract.
VII. Retention of title
- The Seller shall retain title to the delivered goods until settlement of all receivables arising from the business relation with the Buyer on the date of entering into the contract, including all receivables arising on this date from follow-up orders, repeat orders, or orders for spare parts. To the extent that the value of all security interests to which the Seller is entitled exceeds the value of all secured claims by more than 10%, the Seller shall, at the desire of the Buyer, release a commensurate share of the security interest.
- In the event of any conduct of the Buyer in contravention of the contract, including, but not limited to, default in payment, the Seller shall have the right to take back the goods subject to retention of title. In the Seller’s reclaiming or attaching the goods subject to retention of title, there shall not be any cancellation of the contract, unless the Seller expressly confirms such in writing. The Seller shall be authorized to the exploitation; the proceeds from the exploitation are to be set off against the Buyer’s obligations, less any exploitation expenses that have arisen. The Buyer shall be obligated to treat the goods subject to retention of title with due care and to store them separately from other goods. Furthermore, the Buyer shall be obligated to sufficiently insure these goods at its own expense and at replacement value against any damages due to damage from fire, water, storm, burglary, and theft. Any security-interest claims arising in the event of damage are to be assigned to the Seller. Insofar that any maintenance and inspection work are necessary, the Buyer shall carry these out at its own expense and in a timely manner.
- The Buyer shall not be allowed either to pledge or to assign for security the goods subject to retention of title. In the event of pledges or any other infringements of third parties, the Buyer shall notify the Seller in writing without undue delay and to provide the Seller with all information and documents which are necessary to safeguard the Seller’s rights. Officials charged with forced execution or third parties are to be advised of the Seller’s title. Insofar as a third party is not in a position to reimburse the Seller for the in- and out-of-court costs of a third-party complaint in objection, the Buyer shall be liable for any shortage arising to the Seller, subject to the assertion of further claims for damage to, modification to, or destruction of the item itself.
- The Buyer shall be allowed to resell and/or to process the goods subject to retention of title in the ordinary course of business, as long as the Seller does not assert against the Buyer any rights arising from the ownership proviso. The Buyer already now assigns to the Seller all receivables in the amount of the final invoice amount, including value-added tax, which receivables accrue to the Buyer from the resale against its customers or third parties, and, moreover, independently of whether the item has been resold without or after processing. The Seller accepts the assignment. In the event of a current-account relationship between the Buyer and its customer, the receivable assigned in advance by the Buyer to the Seller shall also apply to the acknowledged balance as well as, in the event of the customer’s bankruptcy, to the then-present “causal” balance. The Buyer shall also be allowed to collect on the receivables after the assignment. The Seller’s authorization to collect the receivable itself shall remain unaffected by this. The Seller shall not itself collect the receivable as long as the Buyer complies with its payment obligations arising from the earned proceeds; the Buyer is not in payment default; and there is no application to initiate bankruptcy proceedings.
- The Buyer shall be obligated upon demand by the Seller to provide a precise list of receivables to which the Seller is entitled, with the names and addresses of the customers, the amount of the individual receivables, the invoice dates, etc.; to issue the Seller all of the information necessary to enforce the assigned receivable; to permit review of this information; and (iv) to disclose the assignment to the customers.
- The Buyer hereby declares its understanding that the persons charged by the Seller with picking up the goods subject to retention of title, may enter or drive into the building or the premises, in or at which the goods subject to retention of title are located, in order to repossess the goods subject to retention of title.
- The processing or remodeling by the Buyer of the item delivered shall always be performed for the Seller. If the item is processed with other objects not belonging to the Seller, then the Seller shall acquire joint title in the new item in proportion to the value of the item delivered to the other processed items as of the time of the processing. Apart from that, the same shall apply to the item arising from processing as to the item delivered subject to retention. If the processing, commingling, or mixing is effected in such a manner that the Buyer’s item is to be regarded as the primary item, then it shall be deemed as stipulated that the Buyer is transferring pro rata joint ownership to the Seller. The Buyer shall safeguard the thusly arisen sole title or joint title for the Seller.
VIII. Claims for defects – limitation period
- The provisions of the Consumer Protection Act, as applicable, shall apply to the rights of the Buyer in the event of any material defects and defects of title, insofar as nothing else is subsequently set forth. However, the provisions in Sect. X shall apply to any claim for compensatory damages even in the event of supplier recourse.
- Any claims of the Buyer for defects shall presuppose that the Buyer has properly inspected and given due notice of defects to the Seller.
- If a deliverable is defective, then the Buyer shall have the following rights:
a. The Seller shall be obligated to supplementary performance and shall render such by, at its own discretion, remedying the defect by way of repair, or delivering a defect-free item.
b. If the repair fails, then the Buyer shall have the right to cancel the contract or to reduce the purchase price. Any cancellation shall be precluded if the breach of duty by the Seller is merely negligible. Any claims of the Buyer’s for compensatory damages or reimbursement of futile expenditures shall also exist in the event of defects, only in accordance with the provisions under Sect. X.
c. Any supplementary performance shall include neither the dismantling of the defective goods nor the installation of a new or repaired good, unless the Seller was originally already obligated to carry out the installation.
d. The expenditures necessary for the purpose of testing and supplementary performance, including, but not limited to, labor and materials costs (not: dismantling and installation costs or costs of transporting the goods to the site of supplementary performance), shall be borne by the Seller, if there is actually any defect present. Otherwise, the Seller shall be able to demand from the Buyer that any expenses (including, but not limited to, costs of testing and transportation) having arisen from the unjustified demand for defect remediation be reimbursed, unless the lack of any defect was not cognizable for the Buyer.
e. The Buyer shall provide the Seller, after coordinated agreement with the Seller, the requisite time and opportunity for the performance of all repairs and replacement deliveries which appear necessary to the Seller. Otherwise, the Seller shall be released from any liability for any consequences arising therefrom. If the Buyer, for operational reasons, desires that a technician be dispatched on a rush basis, or that work be carried out outside normal work hours, both of which incur additional expense for the Seller, then the Buyer shall bear any additional expenses thereby incurred (e.g., overtime surcharges, longer access routes).
f. Warranty shall be provided for spare parts and for repairs in the same scope as for the original deliverable, but, however, limited in time through the end of the warranty period for the original deliverable.
- In principle, goods delivered by the Seller shall not be taken back, unless there exists an appropriate claim of the Buyer (e.g., due to cancellation on account of failed subsequent performance).
- If, by way of exception in the individual case, the Seller declares that it is ready to accept a return, then appropriate recompense (as a rule, 25% of the net worth of the goods) shall be levied for this purpose within the framework of a corresponding agreement. The risk of transportation and the costs of transportation shall be borne by the Buyer.
X. Liability for compensatory damages
- The Seller shall be liable for compensatory damages in accordance with the common law, to the extent that nothing else is provided below. In the event of breaches of duty – regardless of legal grounds – the Seller shall be liable for any willful intent and gross negligence. In the event of negligence, the Seller shall be liable only:
a. for damages arising from any considerable breach of a material contractual duty (duty whose accomplishment enables proper fulfillment of the contract in the first place and whose fulfillment a contractual party regularly relies or may rely on); in this case, the liability shall, however, be limited to the compensation of any foreseeable, typically occurring damage.
- The aforementioned limitations of liability shall also apply to the benefit of the Seller’s employees, co-workers, sales representatives, and support staff.
- The liability exclusions or limitations shall not apply to the extent that the Seller has maliciously concealed a defect or has assumed a guarantee for a quality of the item.
XI. Rescission of the purchase contract 1
- In the event of rescission of the purchasing contract (e.g., due to cancellation of one of the contracting parties), the Buyer shall be obligated, irrespective of the remaining process as contemplated under the following paragraphs, to surrender the deliverable to the Seller in advance. The Seller shall have the right to have the deliverable picked up from the Buyer’s premises.
- Furthermore, the Seller shall be able to demand reasonable compensatory payment from the Buyer for any deterioration or destruction of the deliverable, or anything occurring or having occurred that renders surrender of the deliverable impossible for another reason, which occurrence lies within the sphere of the Buyer’s risk or responsibility. In addition, the Seller shall be able to demand compensatory payment for the use or the usage of the deliverable if the value of the deliverable has declined between the completion of its installation and its completed, immediate repossession by the Seller. This decline in value shall be computed from the difference of the total price in accordance with the order and the current fair value as it is determined by the sales proceeds or, if a sale is not possible, through the estimate of a sworn expert.
- The Company sells and supplies the Products to the Purchaser upon and subject to the understanding and agreement that the Purchaser will act as an end-consumer/end-user retailer of the Products only, marketing, selling and delivering the Products to end-users/end-consumers only.
- The Purchaser shall never, unless it holds the Company’s prior written consent to the contrary, market, sell, distribute, deliver and/or otherwise provide the Products, or any of them, to any person or entity: i) who will, who may and/or who intends to resell the Products; ii) who is itself/himself a retailer, reseller and/or distributor; and/or iii) who the Purchaser knows, or should reasonably know, will, may and/or intends to resell the Products.
- The Purchaser acknowledges and agrees that the provisions of this clause 12 “RESALE” are reasonably necessary in order to ensure that the Company’s strategies in respect of, amongst other things, brand association and brand positioning, are achieved.
- The Purchaser agrees that a breach by it of the provisions of this clause 12 will be deemed and regarded by the Parties to be a material breach of this Document, entitling the Company to summarily terminate supply/sale of the Products, or any of them, to the Purchaser. The Company’s rights in terms of this clause 12.4 are in addition to, and not in limitation or substitution of, any and all other rights it may have in the event that the Purchaser breaches any of the provisions of this Document.
No assignment of rights and/or transfer of the duties of the Buyer arising from this contract shall be permissible without the written consent of the Seller.
XIV. Export control provisions
- The deliverables may be subject to the export control provisions of the Federal Republic of Germany, of the European Union, of the United States of America, or of other countries.
- In the event of a subsequent export of the deliverable to a foreign country, the Buyer shall be responsible for compliance with the provisions of law.
XV. Place of jurisdiction and applicable law
- The law of the Republic of South Africa shall apply to these GTC and the contractual relationship between the parties. The choice of law shall also apply to extra-contractual debt relationships standing in close connection with the contract. Apart from that, the scope and range of the choice of law shall be determined under the provisions of law.
- The Parties hereby consent and submit to the non-exclusive jurisdiction of the Gauteng Local Division of the High Court of South Africa, Johannesburg, in any dispute arising from or in connection with this Agreement.
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