Conditions of Sale
a) These terms and conditions shall apply to any contract for the sale of any goods by Gossamer Structures (Pty) Ltd (Seller) whether that contract arises out of:
i. Any offer made by Seller and accepted by the Purchaser, or
ii. Any offer made by the Purchaser and accepted by the Seller, including any offer made by the Purchaser in response to a quotation by the Seller.
b) No alteration or variation of these terms and conditions shall be binding on the parties, unless reduced to writing and signed by a member of the Seller and by the purchaser.
c) These conditions, together with the specific terms agreed to overleaf, constitute the entire contract between the parties and supersede all previous written and/or verbal agreements, representations, warranties, undertakings and/or promises of whatever nature which may have been made by or on behalf of either party.
d) It is agreed between the parties that the Law of South Africa shall be the only law applicable to this contract.
2. VALIDITY OF QUOTATION AND PRICES:
2.1 Unless previously withdrawn, Seller’s quotation is open for acceptance within the period stated therein or, when no period is so stated, within thirty days after its date.
2.2 Prices are firm for delivery within the period stated in Seller’s quotation and are exclusive of (a) Value Added Tax and (b) any similar and other taxes, duties, levies or other like charges arising outside South Africa in connection with the performance of the Contract.
2.3 The costs as indicated, are excluding customer VAT, customer duties and GST (general VAT). Additional port storage costs due to any outstanding customer VAT, customer duties and GST will be for the account of the purchaser and not the seller.
2.4 Prices (a) are for Goods delivered EXW (Ex works) Seller’s shipping point, exclusive of freight, insurance and handling unless otherwise stated in the Seller’s order confirmation.
a) The contract price is strictly nett and not subject to any discount unless otherwise agreed to in writing.
b) If any discount is agreed to in writing it shall only be applicable if the purchaser pays the balance due to the seller on the due date and shall only be calculated on the nett price of the goods sold.
Payment shall be made:
(a) in full without set-off, counterclaim or withholding of any kind (save where and to the extent that this cannot by law be excluded)
(b) if delivery is to take place in instalments, each instalment will be invoiced and paid for separately; and
(c) in the currency of Seller’s quotation within thirty days of date of invoice unless otherwise specified by Seller’s finance Department.
Goods will be invoiced at any time after their readiness for dispatch has been notified to Purchaser. Without prejudice to Seller’s other rights, Seller reserves the right to:
(i) charge interest on any overdue sums at 4% above the base lending rate of South Africa commercial banks (or such higher rate stipulated by applicable law) during the period of delay; (ii) suspend performance of the Contract (including withholding shipment) in the event that Buyer fails or in Seller’s reasonable opinion it appears that Buyer is likely to fail to make payment when due under the Contract or any other contract; and (iii) at any time require such reasonable security for payment as Seller may deem reasonable.
5.1 Unless otherwise stated in Seller’s order confirmation, all periods stated for delivery or completion run from the effective date and are to be treated as estimates only not involving any contractual obligations.
5.2 Where the seller has contracted to install the goods at the premises of the purchaser: Delivery shall be made to the Purchaser at the purchaser’s address reflected overleaf.
5.3 If Seller is delayed in or prevented from performing any of its obligations under the Contract due to the acts or omissions of Buyer or its agents/suppliers (including but not limited to failure to provide specifications and/or fully dimensioned working drawings and/or such other information as Seller reasonably requires to proceed expeditiously with its obligations under the Contract), the delivery/completion period and the Contract Price shall both be adjusted accordingly.
5.4 If delivery is delayed due to any act or omission of the Purchaser, or if having been notified that the goods are ready for despatch, Purchaser fails to take delivery or provide adequate shipping instructions, Seller shall be entitled to place the Goods into a suitable store at the Purchaser’s expense. Upon placing the goods into the store, delivery shall be deemed to be complete, risk in the goods shall pass to the purchaser and the Purchaser shall pay Seller accordingly.
5.5 In all other instances, delivery shall be made by the seller to the purchaser at Gossamer Structures (Pty) Ltd.’s premises and should the seller, at the purchaser’s request, agree to engage a carrier to transport the goods for the purchaser, then:
a) The seller is authorized to engage a carrier on such terms and conditions as it deems fit;
b) The Purchaser hereby indemnifies the seller against all demands and claims which may be made against it by the carrier so engaged and all liability which the seller may incur to the carrier arising out of the transport goods.
c) The seller shall not be liable to the purchaser for any loss of or damage to the goods from any cause, which is beyond the reasonable control of the seller, while in transit.
5.6 Notwithstanding any other provision in the contract to the contrary Gossamer Structures (Pty) Ltd obligation to deliver the goods shall in all cases be subject to the following conditions precedent:
i. If the balance of the contract price payable on date of reservation is not paid on date of anticipated delivery to the Seller
ii The Purchaser will communicate unavoidable delay in delivery.
5.7 Time shall not be the essence of the contract.
5.8 If delivery is to be made in instalments then the provisions of this clause (5) shall apply to each instalment, individually.
The risk in and to the goods shall pass from the Seller to the Purchaser upon delivery. Where delivery takes place as described in
clause 5. Delivery shall be deemed to have been completed for purposes of the passing of risk when the seller has installed the goods and successfully completed the stallation and trail run. Where delivery takes place as described in clause 5.5 risk shall
pass to the purchaser when the seller physically hands the goods to the carrier.
Ownership of the goods shall pass from the seller to the purchaser when full payment of the purchase price is made. Where delivery
takes place in instalments, ownership of the goods forming part of a particular instalment shall pass when full payment for that
instalment is made. The purchaser shall not be entitled to cede, assign or delegate any of its rights and/or obligations in terms of this
contract without the prior written consent of the seller.
The purchaser shall keep the goods insured for the full contract price thereof until such time as ownership passes from the seller to the purchaser. The purchaser shall provide proof of such insurance to the seller.
a) The seller shall be deemed exempt from and shall not be liable under any circumstances whatever for:
i. Any direct or consequential damages of any nature or any loss of profit or special damages of any nature, and whether in the contemplation of the parties or not, which the purchaser may suffer as a result of any breach by the seller of its obligations under the
contract; unless such damage caused is within the reasonable control of Gossamer Structures (Pty) Ltd.
ii. Any negligence, including but not restricted to gross negligence, on its part or that of its servants or agents in carrying out any of its obligations under the contract, unless such negligence could reasonably have been prevented by Gossamer Structures (Pty) Ltd.
iii. Any claim for any alleged shortage in delivery or failure of the goods to comply with the contract, unless written notice of the claim is received by the seller within sever (7) days after receipt of the goods by the purchaser.
b) The purchaser shall not have any claim of any nature against the seller for any failure by the seller to carry out any of its obligations under the contract as a result of uncertain event, including but not limited to any strike, lock-out, shortage of labour or materials, delays in transport, accidents of any kind, any fault or delay by any sub-contractor or supplier, political or civil disturbances, the elements, any act of any State or Government or any other authority, or any other cause whatever beyond the seller’s reasonable control.
10. PATENT, ETC. INFRINGEMENT
10.1 Subject to the limitations set forth in Clause 11, Seller shall indemnify Purchaser in the event of any claim for infringement of Letters Patent, Registered Design, Design Right, Trade Mark or Copyright (“Intellectual Property Rights”) existing at the date of formation of the Contract/Quotation arising from the use or sale of the goods, against all reasonable costs and damages awarded against Purchaser in any action for such infringement, or for which Purchaser may become liable in any such action, provided always that Seller shall not be liable to so indemnify Purchaser in the event that:
(i) such infringement arises as a result of Seller having followed a design or instruction furnished or given by Purchaser, or the goods having been used in a manner or for a purpose or in a country not specified by or disclosed to Seller prior to the date of the Contract/Quotaion or in association or combination with any other equipment or software, or
(ii) Seller has at its expense procured for Purchaser the right to continue to use the Goods or has modified or replaced the Goods so that the Goods no longer infringe.
(iii) Purchaser has failed to give Seller the earliest possible notice in writing of any claim made or to be made or of any action threatened or brought against Purchaser and/or Purchaser has failed to permit Seller, at Seller’s expense, to conduct and control any litigation that may ensue and all negotiations for a settlement of the claim, or
(iv) Purchaser has made without Seller’s prior written consent any admission which is or may be prejudicial to Seller in respect of any such claim or action, or
(v) The Goods have been modified without Seller’s prior written authorization.
10.2 Purchaser warrants that any design or instructions furnished or given by it shall not cause Seller to infringe any Intellectual Property Rights in the performance of Seller’s obligations under the Contract/Quotation and shall indemnify Seller against all reasonable costs and damages which Seller may incur as a result of any breach of such warranty.
The purchaser recognizes that the goods have been designed and built through expenditure of substantial experience, expertise, time and money by the seller and undertakes not to make drawings of the goods or of any portions thereof, or permit others to do so, and not to duplicate or conspire in the duplications of the goods or of any portions thereof.
11. LIMITATION OF LIABILITY
Supplier’s maximum aggregate liability for any and all losses, liabilities, expenses (including legal expenses), damages, claims or actions incurred under or in connection with a specific order or a particular blanket order (CALL-OFF order) issued, arising in or by virtue of breach of contract, tort (including negligence), misrepresentation, breach of statutory duty, strict liability, infringement of intellectual property rights or otherwise, shall in no circumstances exceed a sum equal to the total price of the Call -Off in question.
12. STATUTORY AND OTHER REGULATIONS
12.1 If Seller’s obligations under the Contract shall be increased or reduced by reason of the making or amendment after the date of Seller’s quotation of any law or any order, regulation or bye-law having the force of law that shall affect the performance of Seller’s obligations under the Contract, the Contract Price and delivery period shall be adjusted accordingly and/or performance of the Contract/Quotation suspended or terminated, as appropriate.
13. COMPLIANCE WITH LAWS
Purchaser agrees that all applicable import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time, including without limitation those of the United States, the European Union and the jurisdictions in which Seller and Purchaser are established or from which items may be supplied, and the requirements of any licenses, authorizations, general licenses or license exceptions relating thereto will apply to its receipt and use of goods. In no event shall Purchaser use, transfer, release, export or re-export any such goods in violation of such applicable laws, regulations, orders or requirements or the requirements of any licenses, authorizations or license exceptions relating thereto. Purchaser agrees furthermore that it shall not engage in any activity that would expose the Seller to a risk of penalties under laws and regulations of any relevant jurisdiction prohibiting improper payments, including but not limited to bribes, to officials of any government or of any agency, instrumentality or political subdivision thereof, to political parties or political party officials or candidates for public office, or to any employee of any customer or supplier. Purchaser agrees to comply with all appropriate legal, ethical and compliance requirements.
14. DEFAULT, INSOLVENCY AND CANCELLATION
Seller shall be entitled, without prejudice to any other rights it may have, to cancel the Contract/Quotation forthwith, wholly or partly, by notice in writing to Purchaser, if
(a) Purchaser is in default of any of its obligations under the Contract and fails, within 7 (seven) calender days of the date of Seller’s notification in writing of the existence of the default, either to rectify such default if it is reasonably capable of being rectified within such period or, if the default is not reasonably capable of being rectified within such period, to take action to remedy the default or
(b) on the occurrence of an Insolvency Event in relation to Purchaser. “Insolvency Event” in relation to Purchaser means any of the following:
(i) a meeting of creditors of Buyer being held or an arrangement or composition with or for the benefit of its creditors being proposed by or in relation to Buyer;
(ii) a chargeholder, receiver, administrative receiver or similar person taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of Purchaser;
(iii) Purchaser ceasing to carry on business or being unable to pay its debts;
(iv) Purchaser or its directors or the holder of a qualifying floating charge giving notice of their intention to appoint, or making an application to the court for the appointment of , an administrator;
(v) Fails to pay the amount payable in terms of any instalment delivery on the date of such delivery; or
(vi) a petition being presented (and not being discharged within 28 days) or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of Purchaser; or
(vii) the happening in relation to Purchaser of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets. Seller shall be entitled to recover from Purchaser or Purchaser’s representative all costs and damages incurred by Seller as a result of such cancellation, including a reasonable allowance for overheads and profit (including but not limited to loss of prospective profits and overheads).
(viii) the seller may retake possession of any goods in respect of which ownership has not passed.
15. PAYMENT POLICY
The Seller reserves the right to suspend delivery of any order in the event that payment for such orders is not made on time. In the circumstances where payment is outstanding for a period exceeding 30 days from date of statement, Gossamer Structures (Pty) Ltd will charge interest at a rate not exceeding 2% per month or as per the maximum rate determined by the National Credit Act from time to time on overdue payments. All accounts older than 30 days will be handed over for collection and will the client be liable to pay all legal fees with regard to collection of such outstanding amounts on a fees scale as determined by the court of law / tribunal where the collection matter will be adjudicated. The Client hereby agrees to the jurisdiction of the Magistrates Court of Somerset West, South Africa in the event that any
outstanding amount is handed over for collection, although such Magistrate Court may normally not have jurisdiction in the matter.
a) If the purchaser is a resident or carries on business in the Republic then the seller shall be entitled to institute any proceedings against the purchaser, arising out of the contract, in any Magistrates Court having jurisdiction over the purchaser even if the cause of action in question exceeds the jurisdiction of the Court.
b) Subject to (c), if the purchaser is not a resident of and does not carry on business in the Republic, then the purchaser consents and submits to the jurisdiction of the Cape of Good Hope Provincial Division of the Supreme Court of South Africa, and all courts of Appeal therefrom for all purposes arising out of the contract.
c) In the event of the seller instructing its attorneys to take steps to enforce any of its rights under the contract, the purchaser shall be liable to pay to the seller all legal costs incurred by the seller on the scale as between attorney and client, including the cost of litigation, collection commission and other fees and charges reasonably incurred.
The headings in these conditions are for convenience only and are not to be taken into account for the purpose of interpreting the contract.
18. CHANGE OF LAWS
In the event that any change in any law, regulation, ordinance, or similar official decree renders any part of this agreement illegal or null and void, either party may terminate this agreement forthwith.
The terms and conditions of the contract are divisible and should any term or condition or part thereof be legally unenforceable, such
term, condition, or part thereof shall be deemed to be as though it wasn’t written and the exclusion thereof from the contract shall
not affect the remaining terms, conditions of parts thereof.
The seller warrants that the goods will be constructed in accordance with normal Gossamer Structures (Pty) Ltd methods of
manufacture and in terms of agreed specifications. The goods are warranted to be free from defects in material and workmanship for a period of twelve (12) months or 500 000 cartons (singles), whichever first occurs, from the date of delivery, and the seller agrees to replace, free of charge, any part or parts which fail through defect in material or workmanship, within such period. All equipment forming part of the goods but not manufactured by the seller, is limited in warranty and quarantine to the warranty and/or guarantee of its manufacturer and will
expire on the date such warranty and/or guarantee in favour of the seller expires. The purchaser shall give to the seller, during
the warranty period, written notice by hand delivered letter, prepaid registered mail or telefax of any alleged defect and the seller
will, at its option, repair or replace the defective goods or parts thereof free of charge.
Equipment replaced under the warranty shall have the same warranty as new equipment. No warranty is made in respect of
a) Failures not reported to the seller within the warranty period;
b) Failures or damage due to misapplication, lack of proper maintenance, abuse, improper installation or abnormal conditions or
temperature, moisture, dirt or corrosive matter, etc.
c) Failure due to operation, either intentional or otherwise, beyond the stated capacities for which the goods were qualified by Gossamer Structures (Pty) Ltd or in an otherwise improper matter (e.g. using glue not tested and approved by Gossamer Structures (Pty) Ltd.)
d) Any goods which have been altered by anyone other than the authorized representative of the seller.
e) Damage to goods caused by the purchaser or by anyone acting on his behalf in an attempt to correct any alleged defect(s) in the goods.
21. GENERAL DUTY OF PURCHASER REGARDING USE AT WORK OF THE GOODS
The purchaser hereby undertakes to take all steps prescribed in the operating manual of the goods, which manual shall be deemed to
incorporate all the provisions contained in manuals pertaining to components forming part of the goods but manufactured by a third
party. The parties agree that if the purchaser adheres to these prescriptions, the goods will be safe and without risks to
health when properly used.
21.1 No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.
21.2 If any clause, sub-clause or other provision of the Contract is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Contract.
21.3 Purchaser shall not be entitled to assign its rights or obligations hereunder without the prior written consent of Seller.
21.4 Seller enters into the Contract as principal. Purchaser agrees to look only to Seller for due performance of the Contract.
21.5 GOODS PROVIDED HEREUNDER ARE NOT SOLD OR INTENDED FOR USE IN ANY NUCLEAR OR NUCLEAR RELATED APPLICATIONS.
Purchaser (i) accepts goods in accordance with the foregoing restriction, (ii) agrees to communicate such restriction in writing to any and all subsequent purchasers or users and (iii) agrees to defend, indemnify and hold harmless Seller from any and all claims, losses, liabilities, suits, judgments and damages, including incidental and consequential damages, arising from use of goods in any nuclear or nuclear related applications, whether the cause of action be based in tort, contract or otherwise, including allegations that the Seller’s liability is based on negligence or strict liability.
21.6 The Contract shall in all respects be construed in accordance with the laws of South Africa excluding, however, any effect on such laws of the 1980 Vienna Convention on Contracts for the International Sale of Goods and to the fullest extent permitted by law, shall be without regard to any conflict of laws or rules which might apply the laws of any other jurisdiction. All disputes arising out of the Contract/Quotation shall be subject to the exclusive jurisdiction of the SA courts.
21.7 The headings to the Clauses and paragraphs of the Contract are for guidance only and shall not affect the interpretation thereof.
21.8 All notices and claims in connection with the Contract/Quotaion must be in writing.