1. Interpretation
1.1. “the company” shall mean BPW Axles (Pty) Ltd.
1.2. “the customer” shall mean the party with whom the company concludes the agreement.
2. Application
2.1. These terms shall apply to every agreement between the company and the customer.
2.2. These terms constitute the general terms of each agreement. Where any special term varies any of these general terms, it shall only be binding if in writing, and if the document containing it is signed by an authorised representative of the company. Where there is any inconsistency between any of these general terms and any special term, the special term shall prevail.
2.3. Where the company supplies any quotation or tender, no agreement will arise until the acceptance of that quotation or tender in accordance with its terms, is received by the company.
3. Delivery
3.1. Unless otherwise agreed in writing delivery shall be made to the customer at the company’s premises.
3.2. Delivery shall be completed when the goods are handed to the customer or its agent at the company’s premises.
3.3. The customer hereby warrants that its agents have the necessary authority to sign the delivery note.
3.4. After the completion of delivery the company shall not be responsible for the arrival of the goods at their destination or for any loss of or damage to the goods from any cause whatsoever, while in transit.
3.5. Should the company on written request from the customer engage a carrier to transport the goods for the customer then: -
3.5.1. the company is authorised to engage a carrier on such terms and conditions as it deems fit.
3.5.2. The customer hereby indemnifies the company against all demands and claims which may be made against it by the carrier so engaged and all liability which the company may incur to the carrier arising out of the transportation of the goods.
3.6. Notwithstanding any other provision in the agreement to the contrary the obligation to deliver the goods shall in all instances be subject to the following:
3.6.1. written order from the customer.
3.6.2. the availability of the goods ordered.
3.6.3. Timeous receipt by the company of any drawings, designs and specifications that may be required by the company from the customer provided that such drawings, designs and specifications shall be deemed to have been given to the company for purposes of description only and shall not form part of the agreement.
3.7. The company will use its best endeavours to adhere to any time or date given for the delivery of the goods or the commencement or completion of work but any such time or date whether specified or not given by the company shall only constitute an estimate made in good faith and shall not be binding on the company.
3.8. Under no circumstances shall the company be liable for any loss or damage sustained by the customer in consequences of any failure by the company to adhere to such times or dates by virtue of any other delay in such despatch, delivery, commencement or completion howsoever caused. It is hereby agreed by the parties that time shall not be of the essence.
3.9. The customer shall accept delivery of all goods when tendered. If it fails to do so for any reason whatsoever it shall be liable for all direct and indirect costs, expenses, losses or damage resulting there from.
3.10. A signed delivery note shall constitute prima facie proof that the goods have been delivered to and received by the customer in good condition, whether signed by the customer, an agent or representative of the customer.
3.11. Should delivery be made in instalments then the provisions of this clause 3 shall apply to each instalment.
4. Ownership
4.1. The risk in and to the goods purchased shall pass to the customer on delivery thereof. Notwithstanding delivery of the goods, ownership of the goods shall not pass to the customer until payment thereof has been made in full.
4.2. BPW, its parent company and its subsidiaries have obtained patent protection for a number of its products and reserved the right to take action in the event of any considered infringement.
5. Payment
5.1. The company shall furnish the customer with invoices in respect of all goods delivered under any agreement.
5.2. The customer shall pay the invoice price without being entitled to claim any discount or make any deduction, unless agreed to the contrary in writing, and signed by the parties.
5.3. Payment is due within 30 (thirty) days from the date of statement. The company shall be entitled, in the company’s discretion, to appropriate or allocate any payments received from the customer to any indebtedness of the customer to the company, from whatsoever cause arising and the customer hereby waives and abandons the right to name the debt to which any payments made to the company shall be allocated. Should any apportionment or allocation made by the company hereunder result in a shortfall in any other amount owing by the customer to the company, the customer shall forthwith make good such shortfall.
5.4. Should the customer fail to pay on due date any amount due or payable to the company or disbursed by the company on behalf of the customer under or arising from this agreement (for whatsoever reason), such overdue amount shall bear interest at 15.5% percent as at the date of default until payment has been made in full compounded monthly in arrears.
5.5. Notwithstanding any dispute between the parties the customer shall not be entitled to refuse, delay or withhold payment or any part thereof.
5.6. The company will only charge interest on account that is in arrears therefore this agreement is an incidental credit agreement in terms of the National Credit Act.
6. Warranties
6.1. The company warrants that the quality of the goods shall be as specified in the customer’s order or if not specified shall be the standard specification for such goods available from the company at the time of manufacture.
6.2. The company does not guarantee the goods against corrosion or erosion. Whilst the company is prepared to assist the customer in the choice of products, materials and lubricants, the company cannot accept responsibility or liability beyond that stated in this clause and can accordingly not be held liable.
6.3. The liability of the company in respect of any defect in, or failure of the goods supplied, or for any loss, injury or damage attributed thereto, is limited to making good, by replacement or repair, defects which appear in the goods under proper use and which arise solely from faulty materials and workmanship within a period of twelve calendar months from the date on which the goods are dispatched ex-works, provided always that such defective parts are returned at no charge to the company for examination. Such repair or replacement will be undertaken at the company’s premises. Should the goods returned not be manufactured by the company the customer will only be entitled to such benefits as the company received from the manufacturer.
6.4. The customer shall advise the company in writing of any defect within a period of twelve months from the date of delivery.
6.5. A warranty claim does not arise, if the defect is attributable to the non-observance of operation, service or installation instructions, inappropriate or unsuitable use, incorrect or careless treatment, normal wear and tear as well as to changes to the goods supplied made by the customer or a third party.
6.6. Training and documentation pertaining to the proper use and maintenance of the products are available from the company and it remains the responsibility of the customer to obtain the necessary training from the company.
7. Variations and Cancellations
7.1. The company shall not be obliged to accept any variation to any agreement nor its cancellation. If the company consents to any variation or cancellation, this shall not be construed as a waiver by the company of any of its rights.
7.2. The company reserves the right to charge the following additional charges should any order placed by the customer be cancelled:
7.2.1. If an order for standard stock items is cancelled, a 10% cancellation charge will be payable.
7.2.2. If an order for standard goods is cancelled during or after production of goods ordered, a 25% cancellation charge will be payable.
7.2.3. If an order for non-standard goods is cancelled during or after production, or after special raw materials have been bought, or products and components have been purchased or the company has committed itself for the purchase thereof, a 100% cancellation charge shall become payable by the customer.
7.3. The company reserves the right to classify the goods into any of the categories listed in clause 7.2 at their discretion.
8. Breach
8.1. If the customer:
Commits a breach of any of these general terms or any special term of any agreement; or is placed under provisional or final order of sequestration or liquidation or business rescue proceedings, or is wound up voluntarily, or compromises or attempts to compromise generally with its creditors; the company may summarily cancel any agreement by giving the customer written notice to the effect, without prejudice to any of the rights the company may have as a result of that breach or cancellation.
8.2. The whole amount then outstanding will immediately become due and payable notwithstanding the fact that a portion of the amount would not then be owed.
8.3. The company shall be entitled to recover all costs incurred by it in enforcing its rights under any agreement, on an attorney and own client scale.
9. Indemnity & Exclusions
9.1. All specifications, illustrations, drawings, price lists, dimensions, performance figures and other technical data furnished by the company in respect of the goods, and whether in writing or not, are furnished for any purpose, unless and to the extent that they are expressly warranted or guaranteed in writing by the company and are, as such, expressly stated by the company to form part of the agreement.
9.2. If the goods or any part of them are to be supplied in accordance with any specifications, measurements, weights or any instructions furnished by the customer, the customer shall not have any claim of any nature whatever against the company-
9.2.1. for any loss or damage sustained by the customer as a result of any error, discrepancy or defect in those specifications, measurements or other instructions;
9.2.2. if the goods in question are not suitable for the purposes for which they are required, whether those purposes are known to the company or not.
9.3. The company accepts no responsibility for failure to comply with any statutory or other regulations, local or international by-laws affecting the siting, use, operation, delivery or construction of the goods. All consents and approvals required shall be obtained by the customer. Where the company supplies safety devised, the company gives no warranty and makes no representations that such devices complies with statutory or other requirements and no liability is accepted in respect thereof.
10. Force Majeure
10.1. The company will not be held liable for any injury, loss, damage or expense of whatsoever kind arising from strikes, lockouts, shortages of materials, transport delays, manufacturer’s delays, delay or non-delivery of goods or materials by suppliers or other persons, act of God or any other circumstances whatsoever (whether similar to the aforegoing or not) beyond the control of the company.
10.2. Any delay in delivery resulting from any such cause mentioned in 10.1 shall under no circumstances entitle the customer to cancel, repudiate or terminate the agreement nor shall the customer have any claim as a result of such extension, delay or cancellation.
10.3. In the event of the company being prevented or delayed in accordance with clause 10.1 hereof from making delivery of any goods at the time specified in any order, the company shall have the right to suspend delivery without prejudice to its rights to claim payment for goods already delivered and the customer shall have no claim as a result of such suspensions, delay or cancellation.
11. Confidential Information
The customer shall treat all documents, drawings and other information supplied by the company as confidential and shall not, without written consent from the company, distribute, lend or sell any such drawings or documents or information or copies thereof or use them in any way except in connection with the goods for which they are issued. The customer acknowledges that copyright in respect of all drawings and other documents prepared or issued by the company shall vest in the company and remain the property of the company. The company hereby reserves its rights to institute action for any damages that the company may suffer as a result of any unauthorised use of or infringement of any of the confidential information by the customer.
12. General
12.1. The customer consents to the jurisdiction of the Magistrates Court in terms of Section 45(1) of the Magistrates Court Act, No 32 of 1944. Not with standing the aforegoing, the customer agrees that the Company may at its discretion disregard the aforegoing consent to jurisdiction and may institute any proceedings in any division of the High Court of South Africa having jurisdiction.
12.2. Should the customer be a resident of or carries on business in Botswana, Zimbabwe, Swaziland, Lesotho, Namibia or any other state, then the customer consents and submits to the jurisdiction of the High Court of South African for all purposes arising out of this Agreement.
12.3. No indulgence shown by the company shall constitute a waiver of any of its rights.
12.4. A certificate under the hand of any Director for the time being of the company as to the amount of any indebtedness of the customer or any other fact shall be prima facie proof of the customer’s indebtedness to the company and/or of such other fact and shall constitute sufficient proof to enable the company to discharge its onus (if any) which may rest on the company to prove such indebtedness or fact and, in particular shall constitute sufficient proof to entitle the company to provisional sentence and/or summary judgment in respect of such indebtedness.
12.5. No oral variation of these terms or oral special terms shall bind the company.
12.6. The customer shall not be entitled to cede any of its rights, nor assign any of its obligations hereunder without the prior written consent of the company.
12.7. This agreement shall be construed and interpreted according to the laws of the Republic of South Africa, which the parties choose as the governing law of this agreement.
12.8. The company is hereby irrevocably authorised to perform any credit investigation into the customer’s credit worthiness and financial affairs as the company, in its discretion, considers appropriate.
12.9. Should any provision of this agreement be unenforceable, such provision shall be severed from this agreement and the remaining provisions shall be of full force and effect.
