1. Definitions
1.1 “Company” means Fabrinox (Pty) Ltd Registration Number 2008/000839/07;
1.2 “Customer” means the party to whom the tender/quotation is addressed;
1.3 “goods” means the goods and/or equipment and/or services as described in the tender/quotation.
2. Validity
2.1 This tender/quotation shall be open for acceptance by the Customer for a period of thirty days after the date of this tender/quotation or such other period determined by the Company in writing, whichever is the lesser.
2.2 Acceptance of this tender/quotation shall be in writing and shall not be capable of being withdrawn after acceptance of this tender/quotation without prior written consent of the Company.
3. Customer’s Conditions
Any terms or conditions contained in the Customer’s order or in his acceptance of this tender/quotation or any other document furnished by the Customer to the Company shall not constitute a variation of these conditions and shall not be binding upon the Company unless the Company specifically accepts such terms and conditions in writing.
4. Drawings & Illustrations
4.1 Should any drawings, illustrations, dimensions, weights or similar matter be furnished by the Company to the Customer with this tender/quotation, they shall be regarded as approximate only and are submitted solely for the purposes of showing the general style, dimensions, weights and arrangement of the subject matter of this tender/quotation and the specifications therein contained shall not be binding upon the Company unless agreed to by the Company in writing.
4.2 Should the Customer supply drawings, specifications and dimensions the Company shall supply the material or goods or carry out the work required according to the Customers instructions and specifications, subject thereto that the Company shall not be responsible for the efficacy of the design relating to the goods manufactured or supplied or the work carried out.
4.3 Should clause 4.2 be applicable the Customer shall provided all relevant drawings, specifications and dimensions to the Company upon acceptance of the tender/quotation. The client undertakes to pay all waste costs incurred by the Company due to incorrect data received from the Customer.
5. Credit Transactions
5.1 Tender/quotations are submitted subject to the creditworthiness of the Customer being established to the satisfaction of the Company.
5.2 The Company reserves the right to;
5.2.1 call for the provision of guarantees to the satisfaction of the Company for the timeous payment by the Customer of all monies which may become due to the Company in terms of this tender/quotation; or
5.2.2 to demand payment Cash on Delivery either by means of bank guaranteed cheque or prior electronic bank transfer.
5.2.3 the Company shall be entitled to cancel any contract concluded pursuant to the acceptance of this tender/quotation if such guarantees are not provided by the Customer within a period of twenty-one days from the date of such request, without prejudice to any other rights, which the Company may have in such circumstances.
6. Ownership
Ownership of all goods, material or goods supplied by the Company shall remain vested in the Company until payment of the tender/quotation price relating thereto has been made in full.
7. Risk
7.1 Risk in and to the materials and goods shall pass to the Customer upon delivery thereof to the Customer, whether at the Customer’s premises or at other premises nominated by the Customer.
7.2 The Customer is obliged to ensure that the materials and goods delivered by the Company corresponds with the delivery notes and upon signature thereof it shall serve as prima facie proof that the materials and goods referred to in the delivery notes have been delivered in a good condition to the Customer.
7.3 For the purposes of this paragraph delivery means the moment that the materials and goods have entered the Customers premises/site or such other premises/site nominated by the Customer.
8. Construction Work
Should the tender/quotation incorporate the erection, installation and/or commissioning and/or servicing of plant or goods the Customer shall, at his cost:
8.1 supply all construction work (e.g. foundations, channels, cable trenches, access holes and the making good thereof); and
8.2 suitable access to the premises/site to the satisfaction of the Company; and
8.3 any other work necessary to enable the Company to erect, install, commission and/or service the plan or goods; and
8.4 provide on the premises/site all necessary electrical power, water and lighting during the aforesaid period; and 8.5 all toilet facilities, lockable accommodation space for the storage of plant, materials and tools for the duration of the said period.
9. Variations & Extras
9.1 The tender/quotation is based on the assumption that all work will be carried out during normal working hours and without any delay.
9.2 Should
9.2.1 the carrying out of any work or the manufacturing of goods be delayed and it becomes necessary for the Company to adopt any special measures in order to make up for any delay, then, provided that the delay is not due to the Company’s fault, and/or
9.2.2 the Company accepts any instructions or directions (whether written or oral) from the Customer which constitutes or results in a variation of the subject matter of the tender/quotation, and/or
9.2.3 the Company incur any costs and expenses at the instance of any regulatory authority or the Customer, his architect, engineer or other authorised person, for materials, designs or labour additional to those required in terms of the plans and specification upon which this tender/quotation is based the tender/quotation price shall be increased or reduced, as the case may be, by the value of such special measures or variation.
9.3 The Customer shall pay as an addition to the tender/quotation price any tax, duty, Value Added Tax or other charge imposed by any law or regulation that is based upon the sale, transfer, use, ownership or possession of the goods or any component thereof.
9.4 The tender/quotation price is based on the rates of labour, costs of goods, products and material, import duty, rates of exchange, insurance premiums, freight, cartage, harbour and railage charges and other charges in force at the date of this tender/quotation. The tender/quotation price is therefore subject to adjustment in respect of any increases in these costs, rates, duties and charges between the date of this tender/quotation and the date such costs are actually incurred by the Company. No tender/quotation shall be accepted at a fixed price unless specifically agreed to by the Company in writing.
9.5 Should any material or product required by the Company to fulfil a tender/quotation not be available due to circumstances beyond the Company’s control, the Company shall have the right to use a substitute material or product which it considers to be suitable for the intended purpose. Any variation in the cost of such substituted material or product shall increase or reduce, as the case may be, the tender/quotation price.
10. Delivery
10.1 Delivery and/or installation dates of the goods will be effected according to the time schedule contained in this tender/quotation.
10.2 The Company undertakes to take all reasonable precautions to avoid or reduce any delay in the supply and installation of the goods. The Company shall however under no circumstances whatever, be responsible for any damage of whatever nature, whether general or special, which may be sustained by the Customer by reason of the goods not being supplied and/or installed within the period or by the tender/quotation.
10.3 Should the Customer be unable, for any reason whatsoever, to accept delivery and/or installation of the goods or any portion thereof, within the period or by the date specified in the tender/quotation,
10.3.1 payment of that part of the tender/quotation price relating to the supply and/or installation of such goods or any portion thereof (as certified in writing by the Company’s auditors as being attributable thereto) shall, notwithstanding anything to the contrary contained herein, become immediately due and payable; and
10.3.2 the Company shall in its sole discretion, be entitled;
10.3.2.1 to store the goods or the said portion thereof, at its premises or at any other premises; or
10.3.2.2 to deliver the goods or the said portion thereof to the Customer premises/site;
10.4 Any storage of the goods or said portion thereof shall, wherever such storage is effected shall be at the sole risk of the Customer.
10.5 The Customer undertakes to pay on demand
10.5.1 All storage costs and any additional charges and costs caused by the Customer’s inability to accept delivery and/or installation of the goods or portion thereof should the goods or the said portion thereof be stored at any other place than the Company’s premises.
10.5.2 An amount equal to one percent of the tender/quotation price per week or part thereof should the goods or the said portion thereof is stored at the Company’s premises.
10.6 Delivery of goods to the Customer’s premises/site within a road distance of 100 kilometres shall be free of charge. Transport costs for deliveries further that the said 100-kilometre distance is obtainable from the Company. Should the tender/quotation not specifically refer to transport costs such costs shall be in addition to the tender/quotation price.
11. Guarantee
11.1 Provided that the goods are operated under normal conditions and in compliance with any directions and/or instructions which may be furnished in regard thereto, the goods are guaranteed against defective workmanship and material (fair wear and tear excepted) for a period of three months calculated from the date upon which the goods are commissioned or six months after delivery, whichever date occurs sooner.
11.2 The Company’s liability in terms of this clause 11 shall be limited to the actual repair or replacement by the Company of the defective goods or any part thereof, free of charge or should the Company fail to effect the said reparation or replacement the reasonable cost thereof. The Company shall not be responsible for any other charges of whatever nature arising in connection with such repair or replacement or its failure to effect such repair or replacement. All such other charges of whatever nature that shall include, without limiting the generality of the aforesaid, all travelling and accommodation expenses incurred by the Company shall be paid for by the Customer.
11.3 The guarantee shall only be in respect of goods or component parts specified and supplied by the Company. This guarantee shall not apply to any goods or component parts supplied by the Customer or by any third party or the manufacturing of which have been done according to the specifications provided by the Customer and the Company shall in no way whatever be liable for any defect of whatever nature, whether in workmanship or in material, which may be found to exist in the goods or the component parts.
11.4 The guarantee shall automatically lapse and be of no further force or effect should any repair of, or replacement to, the goods or any component part thereof be effected by the Customer and/or by any third party, save where such repair or replacement has been effected with the prior written consent of the Company.
11.5 Should the Customer fail to effect payment as provided for in clause 13, the Company shall be entitled, in its sole discretion to either cancel the guarantee or to suspend the operation of the guarantee for so long as the Customer remains in such breach, provided that any such suspension shall not be deemed to prejudice the Company’s right to cancel the guarantee at any future date should the Customer remain in breach of his said payment obligations.
11.6 The guarantee is given in lieu of any other guarantees or warranties, whether express or implied, and the Company shall in no circumstances be liable for any consequential loss or any damages of whatever nature, whether general or special, which may be sustained by the Customer due to or in consequence of any defect that may be found to exist in, or in relation to, the goods or any component part thereof.
12. Design of the Goods
12.1 The Company shall in no way be responsible for the efficiency of any design of the goods if the Company has not prepared such design.
12.2 Where the design of the goods has been prepared by the Company, the Company undertakes to rectify, free of charge, any fault in such design, where such fault becomes apparent within a period of six months after the date that the goods is commissioned, provided that if any part of the goods is commissioned before the completion of the tender/quotation, this undertaking shall, in respect of such part of the goods, be calculated from the time at which such part is commissioned.
12.3 Except as set out above the Company shall under no circumstances be liable for any damage of whatever nature, whether general or special, as may be sustained by the Customer due to or in consequence of any faulty design of the goods or any part thereof.
13. Payment
13.1 Payment of the tender/quotation price shall be made on or before the 30th of the month following the month during which the goods or part thereof has been delivered to the Customer or as otherwise agreed to in writing. Any payment due shall be made in full without any deduction or set off of any nature whatsoever at the Company’s office in Paarl or such other place as the Company may indicate from time to time.
13.2 Where certification by an architect, consulting engineer, quantity surveyor or other agreed certifying authority is required, invoices issued by the Company shall be submitted by the Customer to such person or authority for final certification within seven days of issue by the Company and copies of all certificates relating to the Company’s work shall be delivered by the Customer to the Company immediately after issue thereof by the said person or authority.
13.3 All costs and charges incurred by the Company as a result of the Customer’s failure to comply with the terms of this tender/quotation shall be payable by the Customer on an attorney – client scale.
13.4 All amounts due by the Customer to the Company in terms of this tender/quotation shall bear interest at a rate equal to the prime overdraft interest rate charged by the Company’s bankers to the Company on overdraft from time to time on an unsecured basis plus 5% (five percent). Should a dispute arise between the Company and the Customer as to the said interest rate a certificate signed by the Manager of any branch of the Company’s bankers shall be prima facie proof of such interest rate.
14. Acceleration
Should:
14.1 the Customer fail to pay the Company any amount payable by it to the Company on the due date for payment thereof; or
14.2 an application be made for sequestration, voluntary surrender, judicial management or winding up as the case may be (whether in either instance, provisional or final) and such order be granted against the Customer; or
14.3 the Customer call a meeting of its shareholders with a view to going into voluntary liquidation; or
14.4 a default judgement be granted against the Customer and it fails to either satisfy or take steps to rescind such judgement within seven days after such judgement has been granted; or
14.5 the Customer call a meeting of its creditors with a view to compromising their claims; or
14.6 the Customer commit an act of insolvency; or
14.7 the Customer be in breach of any other provisions hereof except those referred to in 14.1 above and fails to remedy same within 7 days after receipt of written notice from the Company to remedy such breach then, without limiting any other rights which the Company may have in law, the Company shall be entitled, by written notice to the Customer to such effect, to declare the full balance of all amount then outstanding and owing to it by the Customer in respect of the tender/quotation price to be immediately due and payable.
15. Indulgences
No relaxation by the Company of any of the provisions hereof and no indulgence shown by the Company to the Customer shall be deemed in any way to affect, prejudice or derogate from the Company’s rights hereunder and in particular no acceptances of any amount due to the Company in respect of the tender/quotation price after the due date thereof shall be deemed to constitute consent on part of the Company to any future payment being made after due date.
16.General
16.1 This document contains the entire agreement between the parties in relation to the subject matter hereof;
16.2 The Customer shall have no claim or right of action arising from any undertaking, representation or warranty not included herein; 1
16.3 No amendment hereto or cancellation of this conditions shall be of any force and effect unless reduced to writing and signed by or on behalf of the Company and the Customer.