Unless otherwise agreed in writing, the following terms and conditions apply without exception to all sales by ADEMCO (Pty) Limited "ADI") to Buyer.
1.1 Any sale by ADI to the Buyer of equipment, parts, materials, consumables and/or other goods (hereinafter collectively referred to as “goods”) will be governed exclusively by these Terms and Conditions of Sale (hereinafter referred to as “these terms and conditions”) and any additional and/or different terms and/or conditions stipulated by the Buyer, whether on its purchase order or any other instrument, agreement, communication and/or document are deemed to be material alterations and are rejected and not binding upon ADI. The Buyer’s placing of a purchase order for goods on ADI constitutes the Buyer’s acceptance of these terms and conditions in their entirety and ADI’s acceptance of the Buyer’s purchase order is expressly conditional upon the Buyer’s said acceptance of these terms and conditions in their entirety.
1.2 Except as otherwise agreed in writing between ADI and the Buyer, these terms and conditions apply without exception to all sales and/or supply of goods by ADI to the Buyer.
2.1 All orders placed by the Buyer with ADI for goods are subject in all respects to approval and acceptance thereof by ADI, in its sole and absolute discretion in this regard, and ADI will not be bound to accept any order placed by the Buyer nor be liable to the Buyer for any claim of any nature whatsoever which may arise by virtue of its failure, neglect and/or refusal to accept any such order. An order placed by the Buyer with ADI becomes binding on, and irrevocable by, the Buyer upon ADI accepting such order, which acceptance need not be conveyed by ADI to the Buyer, and with ADI being entitled to accept such orders expressly, tacitly, impliedly and/or by its conduct. Once an order has become binding and irrevocable as aforesaid, cancellation of such order by the Buyer can only be effected with the written consent of ADI.
2.2 The Buyer bears the risk of any errors and/or misunderstandings arising from oral orders.
3.1 ADI may change the prices and specifications of all goods at its sole discretion and without any notice, with the exception that, subject to clause 3.4, a quotation from ADI is firm only if the Buyer places an order in terms thereof within the time specified on the quotation or, if none be mentioned, within 30 days of the date of such quotation.
3.2 The Buyer must request delivery of the entire quantity of goods ordered within 3 months from date of order, otherwise ADI’s standard prices at time of delivery may, at ADI’s option, apply to those quantities actually delivered, even if already invoiced.
3.3 Unless expressly stated otherwise, prices are in South African Rands, are exclusive of VAT and any other taxes, levies, import duties and charges of a similar nature, and do not include installation, start-up, commissioning, maintenance, insurance, packaging and/or flight charges. Where such prices are indicated in writing by ADI to be based upon a currency other than South African Rands, any fluctuations in the exchange rate of such currency against the South African Rand between the date of the order and the date of ADI’s invoice, which adversely affect ADI, will be passed on to the Buyer who will effect payment of the resultant higher amount. If, at any time, ADI’s costs of materials have increased by 5% or more, then ADI may increase the price on all affected goods accordingly with respect to existing and future ADI quotations and/or purchase orders of the Buyer.
3.4 Any quotation or estimate given by ADI is made in good faith based on information available at the time of quotation, and will not be binding upon ADI unless accepted by the Buyer in terms of clause 3.1 and subsequently confirmed by ADI in writing.
3.5 Any price lists issued, published and/or exhibited by ADI are for information only, are subject to change and do not constitute an offer for sale of any of the goods concerned at the prices listed.
4.1 Unless otherwise specified in writing by ADI to the Buyer, all payments by the Buyer to ADI for goods purchased by it from ADI are to be made in South African Rands and free of bank charges and/or commission and without deduction, demand or set-off, which payments are to be received into ADI’s account within 30 days from the date of ADI’s first statement in respect thereof. Amounts remaining unpaid after their due date will be subject to an interest charge maximum allowed by National Credit Act, compounded monthly, calculated from the due date of payment thereof to date of final payment, both days inclusive. ADI may appropriate payments from the Buyer to any outstanding amounts owing by the Buyer to it, as it deems fit.
4.2 ADI at all times reserves the right to evaluate the Buyer’s credit standing and, if the Buyer fails to qualify for credit under ADI’s criteria, ADI may modify or withdraw credit terms and/or facilities without notice and/or require guarantees, security and/or payment in advance for further deliveries of goods. The credit limit that is granted to the Buyer from time to time will not be deemed to be a limit of the Buyer’s indebtedness to ADI and the Buyer will remain indebted to ADI for the full amount of such indebtedness, notwithstanding that such indebtedness may exceed the then applicable credit limit.
5.1 All delivery dates are estimates only. Delivery terms for orders for goods are EXWORKS (Incoterms 2000) ADI’s facility, with all risk of loss and/or damage to goods passing to the Buyer upon ADI making the goods available to its carrier for shipment to the Buyer.
5.2 The Buyer will be liable for any delays and/or increased costs in respect of delivery incurred by ADI that are caused, directly and/or indirectly, by and/or related to the Buyer’s acts and/or omissions. Within 14 days of delivery, any claim for shortage must be reported in writing to ADI, otherwise all goods will be deemed delivered and accepted in good order.
5.3 Notwithstanding the delivery of goods to the Buyer, ownership in such goods will remain vested in ADI until the full purchase price in respect thereof is paid to ADI. While any amount is owed by the Buyer to ADI in respect of goods, the Buyer will keep the goods concerned free of any lien, hypothec, encumbrance and/or attachment, and will comprehensively insure the goods for the benefit of ADI against any and all risks until all amounts owing in respect of such goods have been paid in full to ADI.
5.4 If ADI delivers goods to the Buyer’s nominated delivery address, the Buyer undertakes to grant ADI and/or its subcontractors access to the premises for purposes of delivery and neither ADI nor its subcontractors will be liable for any loss and/or damages caused to any person and/or property as a result of the entry and/or activities of ADI and/or its subcontractors in effecting delivery of the goods. Any third party who collects the goods from ADI on behalf of the Buyer will be deemed to be the Buyer’s agent.
5.5 If the Buyer refuses to accept and/or delays delivery of the goods, then ADI may cancel the transaction and recover whatever damages it has suffered as a result of the Buyer’s refusal and/or delay, or (at ADI’s election) the following will apply:-
5.5.1 ADI will be entitled to payment of all money due in respect of the goods that form the subject matter of such delivery;
5.5.2 the Buyer will be liable for any losses, damages and/or expenses incurred and/or sustained by ADI as a result of the Buyer’s refusal and/or delay; and
5.5.3 ADI will be entitled to charge the Buyer a daily storage fee until such time as the goods can be delivered to the Buyer.
5.6 ADI will be entitled in its sole discretion to split the delivery of goods ordered in the quantities and on the dates it decides. In such event, each such delivery will be deemed to be a separate transaction and ADI will be entitled to separately invoice each delivery actually made.
5.7 The Buyer warrants that the signatory to any delivery note (or other such document of ADI made out in the name of the Buyer) is duly authorised to bind the Buyer in relation to the transaction and will constitute prima facie proof (i.e, sufficient proof unless proven otherwise) of delivery of the goods to the Buyer.
6. TAXES
The amount of any and all applicable taxes, including (but not limited to) VAT, in respect of the goods will be added to the price and paid by the Buyer, unless the Buyer has provided ADI with an exemption certificate or other documentation acceptable to the applicable taxing authorities in respect of the applicable tax.
ADI is not liable for any delay in the production and/or delivery of goods if the delay is, directly or indirectly, due to a force majeure event, which includes, but is not limited to, inability and/or refusal by third party suppliers to provide ADI with goods, parts, services, manuals and/or other information necessary for the goods to be delivered; shortages and/or inability to obtain materials and/or components; delays and/or refusals to grant an export licence or the suspension or revocation thereof; any acts of any Government that limit ADI’s ability to perform; fire; earthquake; flood; severe weather conditions; quarantines, epidemics, pandemics and/or other regional medical crises; labour strikes and/or lockouts; riots, strife, insurrection, civil disobedience, armed conflict, terrorism and/or war (or imminent threat of same); or any other acts of God and/or any other cause whatsoever beyond ADI's reasonable control. If the force majeure event continues for longer than 90 days, either party may terminate the Buyer’s purchase order and the Buyer will be liable for, and will pay, ADI for work performed and/or goods delivered prior to termination and all reasonable expenses incurred by ADI as a result of such termination. In the event of delays in delivery and/or performance caused either by force majeure or by the Buyer, the date of delivery or performance shall be extended by the period of time ADI is actually delayed. If, for reasons other than the aforegoing, ADI should default or delay or not deliver goods, the Buyer's sole remedy against ADI is an option to cancel the Buyer’s purchase order, through prior written notice to ADI.
Save as is provided for in clause 7, no Buyer purchase order may be terminated without ADI’s prior written consent thereto. Goods scheduled for shipment within 30 days cannot be rescheduled. Goods scheduled for shipment between 30 and 60 days may be rescheduled with ADI’s prior written consent thereto and, if rescheduled beyond 60 days, that quantity may not be further rescheduled. The Buyer is, nonetheless, liable for termination charges, which may include: (a) a price adjustment based on the quantity of goods delivered; (b) all costs, direct and indirect, incurred and/or committed by ADI in respect of the Buyer's terminated purchase order; (c) the full cost of all unique materials required for custom goods; and (d) a reasonable allowance for prorated expenses and anticipated profits consistent with industry standards. ADI may terminate a Buyer purchase order in whole or in part upon the Buyer’s breach of these terms and conditions and/or the Buyer’s bankruptcy, insolvency, dissolution or receivership or in the event of the Buyer being placed under business rescue. Further, ADI may terminate a Buyer purchase order due to failure of the Buyer to make payment required under the order when due.
9.1 ADI agrees to: (i) defend or settle any claims, suits or proceedings brought against the Buyer based solely upon a claim that any goods manufactured by ADI or its affiliates directly infringe any third party patent, copyright and/or trademark; and (ii) pay any costs and damages finally awarded to the third party, provided that: (A) the Buyer promptly notifies ADI in writing of such claim; (B) ADI is provided sole control of such defence and/or settlement, using attorneys and legal counsel of ADI’s choice; and (C) the Buyer provides ADI with all available information and assistance in respect thereof. Because ADI has exclusive control over resolving infringement claims hereunder, in no event will ADI be liable for the Buyer’s legal fees, if any. ADI will have no liability in respect of any such claims that relate to goods that are not manufactured by ADI or by an affiliate of ADI, but ADI will make available to the Buyer any indemnity given by the manufacturer of such goods to the extent that ADI has the right to do so.
9.2 ADI shall not be responsible for any settlement or compromise of any such third party claim made without ADI's written consent. ADI has no obligation in respect of, and this clause 9 will not apply to, any claims of infringement of any intellectual property right of a third party (i) in respect of goods not manufactured by ADI or an affiliate of ADI; (ii) in respect of the combination of any goods with other elements, if such infringement could have been avoided but for such combination; (iii) in respect of goods that have been modified, if such infringement would have been avoided by the unmodified goods; (iv) in respect of goods not used for their ordinary purpose; (v) in respect of software, if such software is other than the latest version of the software released by ADI or the relevant affiliate of ADI; and/or (vi) in respect of products and/or provided software supplied pursuant to the Buyer’s designs, customisations, drawings and/or manufacturing specifications.
9.3 The Buyer agrees to defend, indemnify and hold harmless ADI from and against all claims, suits, and/or proceedings whatsoever arising from the exclusions identified in clause 9.2.
9.4 At any time after a claim has been made or ADI believes is likely to be made, or a Court of competent jurisdiction hands down a judgment or grants an order from which no appeal can be taken, ADI will have, at its option, the discretion to: (i) procure for the Buyer the right to continue using such goods; (ii) replace or modify such goods so that they become non-infringing; or (iii) accept the return of such goods and refund the purchase price less 20% annual depreciation calculated from the delivery date thereof.
9.5 Any liability of ADI under this clause 9 is subject to the provisions of clause 12. The aforegoing sets out ADI’s entire liability and the Buyer’s exclusive remedy for any actual or alleged infringement of intellectual property rights. This clause 9 is in lieu of and replaces any other expressed, implied, tacit and/or statutory warranty against such infringement.
Software made available to the Buyer to purchase from ADI, either alone or to be installed on or in respect of goods, is governed by the following terms, unless a software licence agreement is included with such software. Software is hereby licensed and not sold. Subject to the Buyer’s compliance with these terms and conditions, ADI grants a personal, limited, restricted, non-exclusive and non-transferable right to the Buyer to use the object code of the software solely for the Buyer’s internal purposes, without right of sublicensing. The licence is limited to such goods and locations as are specified on the Buyer’s purchase order. No other use is permitted. ADI retains for itself (or, if applicable, its suppliers) all title and ownership in and to any software delivered hereunder, all of which contains confidential and proprietary information and which ownership includes, but is not limited to, all rights in patents, copyrights, trademarks and trade secrets in respect of such software. The Buyer will not sell, transfer, sublicense, reverse compile, disassemble, and/or redistribute the software except as expressly permitted herein. Nor will the Buyer copy, disclose, distribute, modify, rent, lease, sublicense, loan, sell, disclose, publish, assign, encumber, transfer and/or display any such software and/or otherwise make it available to others (except as ADI authorises in writing) and/or allow any unauthorised use of the software. If the software is delivered with goods purchased by the Buyer from ADI, the Buyer may only transfer its licence of the software to a third party in conjunction with the sale by the Buyer of such goods to such third party. Authorised transfer of licensed software by the Buyer must be under terms consistent with and no less stringent than the terms contained in this clause 10. ADI may terminate this licence if the Buyer breaches in any way any of the terms and conditions contained herein.
11.1 The Buyer acknowledges that ADI is a distributor, and not the manufacturer, of the goods. As a consequence, and other than as is set out hereunder in clauses 11.2 to 11.4, ADI gives no warranties whatsoever, whether express, tacit and/or implied, in respect of the goods and whether relating to their marketability, quality and/or fitness for purpose and/or any particular use and/or otherwise. The only warranties given in respect of goods are in respect of goods that are manufactured by affiliates of ADI, with such warranties in respect of such goods being strictly limited to those expressly contained in clause 11.2 as read with clauses 11.3 and 11.4, hereunder, ADI will not be liable for any damages whatsoever in respect of any warranty relating to the goods. In respect of goods not manufactured by affiliates of ADI, ADI will make available to the Buyer the published warranties of the manufacturer or supplier thereof to the extent ADI has the right, and is able, to do so.
11.2 The only warranties given by ADI and affiliates of ADI, in respect of goods manufactured by affiliates of ADI, are set out below. All references to ADI hereunder in this clause 11.2 and clause 11.3 hereunder include a reference to the relevant ADI affiliate. These warranties set out below do not apply to accessories to, and/or consumables (such as, but not limited to, batteries, cables and glue) used in and/or by, goods, with ADI giving no warranties and/or guarantees whatsoever in respect of such accessories and/or consumables. Except as otherwise expressly provided herein, ADI warrants that the goods manufactured by it are, in all material respects, free of defective materials and faulty workmanship and conform to their applicable specifications and/or drawings. ADI may, without notice to the Buyer, incorporate changes to goods that do not alter their form, fit and/or function. Commencing with ADI’s date of shipment of goods to the Buyer, ADI's warranty will run for the period specified in writing by ADI in respect thereof or, if none be mentioned, for 12 months from the date of ADI’s invoice in respect thereof. Non-complying goods must be returned to ADI in their original packaging (together with the original or a copy of ADI’s invoice in respect thereof) within 14 calendar days of discovery of non-compliance. Goods returned to ADI will, at ADI’s option, be repaired or replaced, and return-shipped to the Buyer, transportation and freight costs to be prepaid by the Buyer, or, if not repaired or replaced, a credit of the purchase price in respect thereof will be granted in favour of the Buyer. No goods will be accepted for return without being in their original packaging together with the original or a copy of the invoice in respect thereof as well as an authorisation number obtained by the Buyer from ADI in advance of shipment thereof to ADI. Goods subject to contamination, wear and tear and/or burnout through usage shall not be deemed defective because of such contamination, wear and tear and/or burnout. No warranty shall apply if, in the sole opinion of ADI or the manufacturer of the goods concerned (as the case may be), the defect or damage was caused by or related to: (i) maintenance, repair, installation, handling, packaging, transportation, storage and/or operation which is improper and/or otherwise not in compliance with ADI instructions; (ii) combination with other parts and/or products; (iii) alteration, modification to and/or repair of any goods other than by ADI; (iv) resulting from the Buyer’s acts, omissions, misuse and/or negligence; (v) accident, contamination, foreign object damage, abuse and/or negligence after shipment and/or use; (vi) damage caused by failure of any item and/or service not supplied by ADI as part of the Buyer’s purchase order of the goods; and/or (vii) use of counterfeit and/or replacement parts that are not manufactured or approved by ADI for use in respect of the goods and/or (viii) damage caused by insect infestation, lightening, power surges, water, fire and/or heat. For avoidance of doubt and in no way derogating the generality of the above provisions of this clause 11.2, it is the Buyer’s responsibility to ensure that the party attending to any installation of goods has the required technical qualifications and expertise to so install such goods. Repaired or replaced goods will be warranted for the remainder of the unused warranty term or for 90 days from shipment, whichever is the longer. It is the Buyer’s responsibility to ensure that the goods are fit for their intended purposes and/or the application in which they are used. Software listed on the Buyer’s purchase order and/or quotation and/or used within the goods and warranted by the manufacturer thereof, will be furnished on a medium that is free of defect in materials or workmanship under normal use for so long as the hardware and/or system is under warranty. During this period, ADI will replace without charge any such medium it finds defective. As for the quality and/or performance of any software and/or data, they are supplied voetstoots (i.e., “AS IS” WITH NO WARRANTY). If ADI provides any services to the Buyer, including (but not limited to) training and/or assistance, with the configuration and/or installation of goods, ADI will provide such services in accordance with reasonable industry practice at such rates as may be specified by ADI from time to time. ADI accepts no liability to the Buyer arising out of the provision of such services.
11.3 The above warranties and conditions are for the benefit of the Buyer only and are not assignable and/or transferable, which warranties and conditions are sole and exclusive and no other warranties, liabilities and/or obligations of any kind, express, tacit and/or implied, including (but not limited to) those of satisfactory quality and fitness for particular purpose, will apply to the goods. ADI does not represent and/or warrant that the goods may not be compromised and/or circumvented and/or that the goods will prevent any personal injury and/or property loss, burglary, robbery, fire and/or other harm, and/or that the goods will in all cases provide adequate warning and/or protection. The Buyer understands that a properly installed and maintained alarm may only reduce the risk of burglary, robbery, fire and/or other events occurring without providing an alarm, but it is not an insurance and/or guarantee that such will not occur and/or that there will be no personal injury, property loss and/or harm as a result. The Buyer acknowledges that it does not, and will not at any stage in the future, rely on any representations made by ADI in regard to the goods and/or any of their qualities, other than as is specified above in this clause 11. Any other recommendation, formula, advice, dimension, weight, specification, price list, performance figure, advertisement, brochure and/or other technical data and/or information furnished by ADI in respect of goods, is approximate and for information only and will not form part of these terms and conditions in any way, with it being the responsibility of the Buyer to determine that the goods ordered are suitable for the purposes of their intended use. For avoidance of doubt and without derogating from the above provisions of this clause 11.3, any recommendations and/or assistance provided by ADI concerning the use, design, application and/or operation of goods will not be construed as representations and/or warranties of any kind, express, tacit and/or implied, and such information is accepted by the Buyer at the Buyer’s own risk and without ADI incurring any obligation and/or liability in respect thereof. It is the Buyer’s sole responsibility to determine the suitability of the goods for their intended use and/or for use in the Buyer’s application/s. Failure by ADI to make recommendations and/or provide assistance will not give rise to any liability to ADI.
11.4 The Buyer is to ensure that the goods are operated in accordance with all instruction manuals supplied with the goods and, if applicable, is to provide adequate training on the use of the goods to any third party final user of the goods. The Buyer is further to ensure that all warnings displayed on the goods and/or their packaging, at the time of delivery, are not removed, defaced and/or obscured. The Buyer is to contractually pass the above obligations set out in this clause 11.4 onto any third party final user of the goods. The Buyer hereby indemnifies ADI, and holds it harmless, against all losses and/or claims resulting from the Buyer’s breach of this clause.
12.1 In no event will ADI be liable for any: (i) indirect, incidental and/or consequential losses and/or damages; (ii) losses and/or damages arising from business interruption; (iii) loss of profits; (iv) loss of revenue; (v) loss of use of any property and/or capital; (vi) loss of anticipated savings; and/or (vii) loss of data. Furthermore and in no way derogating from the generality of the aforegoing, ADI will not be liable for any losses and/or damages where that liability arises as a result of its knowledge (whether actual or otherwise) of the possibility of any such losses and/or damages.
12.2 ADI’s liability in respect of any goods ordered by the Buyer from it and/or otherwise under these terms and conditions shall in no case exceed the contract price of the specific goods that give rise to and/or are related, directly or indirectly, to the claim.
12.3 These exclusions and limitations on damages shall apply regardless of how the loss and/or damage may be caused and against any theory of liability, whether based in contract, delict, indemnity and/or otherwise.
12.4 Neither party seeks, in this clause 12, to exclude or restrict its liability for: (i) death and/or personal injury resulting from gross negligence or wilful misconduct; (ii) fraud; or (iii) any matter in respect of which, by law, it is not permitted to restrict its liability.
12.5 The Buyer hereby indemnifies ADI, and holds it harmless, against all claims, damages, losses, costs and/or expenses incurred by ADI as a result of claims made against ADI by third parties arising from and/or associated with goods supplied by ADI to the Buyer, including (but not limited to) the use, installation, operation and/or storage of the goods, the combination and/or use of the goods with any incompatible ancillary products that may be connected to the goods, the Buyer’s representations given to third parties in respect of the goods, any third party’s use of the goods and/or any other matter for which ADI would not be liable to the Buyer under these terms and conditions.
13.1 The Buyer will comply with all applicable laws, regulations and ordinances of any Governmental authority in any country having proper jurisdiction, including (but not limited to) those laws of the Republic of South Africa, the United States and/or other countries that regulate the import and/or export of the goods provided by ADI, and the Buyer will obtain all necessary import and export licences in connection with any import, export, re-export, transfer and/or use of all goods, technology and software purchased, licensed by and/or received from ADI. Unless otherwise agreed to in writing by ADI in advance, the Buyer will not use the goods in connection with any activity involving nuclear fission or fusion, any use and/or handling of any nuclear material and/or any nuclear, chemical and/or biological weapons.
13.2 Goods and services delivered by ADI hereunder will be manufactured and supplied in compliance with all applicable laws and regulations in the Republic of South Africa. The Buyer confirms that it will ensure that all goods are properly supplied, installed and used in accordance with the provisions of all applicable laws and regulations, including (but not limited to) the Occupational Health and Safety Act, No. 85 of 1993, and the Consumer Protection Act, No. 68 of 2008, with the Buyer hereby indemnifying ADI, and holding it harmless, against any costs, claims, actions and/or liability arising out of those Acts and/or other applicable laws and regulations (as the case may be), and/or otherwise arising out of the supply by the Buyer and/or use by others of the goods.
The Buyer is not entitled to set-off or recoup any amount due by it to ADI, or any portion thereof, against any amount, or any portion thereof, that is due or may become due by ADI and/or its affiliates to the Buyer.
The Buyer will handle the collection, processing and recycling of the goods in accordance with all applicable laws and regulations, and shall pass on this obligation to the final user of the goods. Failure by the Buyer to comply with these obligations may lead to the application of criminal sanctions in accordance with local laws and regulations.
16.1 If the Buyer breaches any provision of these terms and conditions (all of which are deemed material); and/or ceases to carry on its business or a substantial part thereof; and/or if execution is levied on any of the Buyer’s property; and/or if the Buyer makes and/or offers to make any repayment arrangements and/or composition with any of its creditors and/or commits any act of insolvency; and/or if the Buyer is sequestrated, liquidated or placed under business rescue supervision (whether provisional or final, voluntary or compulsory); and/or if a default judgment for payment of money is granted against the Buyer and the Buyer fails to have such judgment rescinded within 30 days of it being granted, then ADI will, without prejudice to all of its other rights that it has in terms of these terms and conditions and/or in law (including, but not limited to, ADI’s right to claim damages from the Buyer), be entitled forthwith to:-
16.1.1 suspend or cease performance of its obligations to the Buyer in terms of these terms and conditions until the Buyer’s breach has been remedied; and/or
16.1.2 summarily cancel the sale of any goods to the Buyer; and/or
16.1.3 repossess any goods which have not been paid for; and/or
16.1.4 claim immediate payment of all amounts that are owed by the Buyer to it, regardless of whether or not such amounts are due and payable; and/or
16.1.5 summarily cancel these terms and conditions or claim specific performance of all the Buyer’s obligations in terms hereof regardless of whether or not such obligations have fallen due for performance.
16.2 This Agreement, and all transactions between the Buyer and ADI in respect of goods, are in all respects to be governed by and construed in accordance with the laws of the Republic of South Africa; provided that in the event of the Customer’s principal place of business being outside of the Republic of South Africa, then these terms and conditions, and all transactions between the Buyer and ADI in respect of goods, are to be governed by and interpreted in accordance with only the substantive laws of the Republic of South Africa and not the procedural laws thereof, which substantive laws are deemed to include (but are not limited to) the laws of the Republic of South Africa governing the prescription of debts, claims and/or causes of action. These terms and conditions are excluded from the United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto.
16.3 The parties hereby consent, in terms of section 45 of the Magistrates’ Court Act, No. 32 of 1944, to the jurisdiction of any Magistrates’ Court having jurisdiction over their respective persons under section 28 of that Act, notwithstanding that any action or proceeding arising herefrom would otherwise be beyond the jurisdiction of such Court; provided that either party hereto will always have the right (at its election) to institute action in any other competent Court having jurisdiction.
16.4 A certificate issued by any manager or director of ADI, whose designation, authority, appointment and signature it will not be necessary to prove, certifying any indebtedness of the Buyer to ADI, and/or the delivery of goods to the Buyer, and/or which goods delivered to the Buyer are owned by ADI, and/or any other fact shall constitute prima facie proof (i.e., sufficient proof unless proven otherwise) of such indebtedness, delivery, ADI’s ownership and/or any other fact so certified therein, and will be valid as a liquid document for such purposes.
16.5 In the event of ADI having to instruct an attorney to enforce any of its rights against the Buyer in terms of these terms and conditions and/or otherwise, the Buyer will be liable for and will pay to ADI, ADI’s legal costs on an attorney and own client scale incurred in respect thereof, including (but not limited to) Counsel’s fees on brief, tracing agent’s fees and collection commission, wherever applicable.
The Buyer hereby indemnifies ADI, and holds it harmless, against all costs and damages, including (but not limited to) legal costs on the scale as between attorney and own client, suffered by ADI as a result of the Buyer’s actual or threatened breach of these terms and conditions.
The Buyer selects as it chosen domicilium citandi et executandi address (i.e., its address for service and/or delivery of letters, notices and/or Court pleadings and/or documents), for all purposes arising out of these terms and conditions, its physical address specified in the Application Section hereto (Section A above). The Buyer may change its said domicilium address by furnishing ADI with 7 days’ prior written notice of its new physical domicilium address.
19.1 The Buyer hereby consents and grants authority to ADI to conduct credit checks, searches and the like with any credit agency and/or other such party, which ADI may at its discretion consider expedient and/or necessary, amongst other things, for the purpose of ascertaining the creditworthiness of the Buyer and/or in order to trace the Buyer and/or any of its assets.
19.2 The Buyer acknowledges that the application for and existence of any account with ADI may be recorded by credit agencies and/or other such parties, and details of the conduct of the Buyer’s account with ADI may be given to and duly recorded by and shared with other persons for various reasons. ADI will further be entitled to record any adverse credit report in respect of the Buyer with any agencies or persons.
19.3 The Buyer hereby waives any claim and indemnifies and holds ADI harmless against any claim of any nature and howsoever arising from the above described instances.
20.1 The parties may exchange confidential information during the performance and/or fulfilment of any purchase order. All confidential information so exchanged shall remain the property of the disclosing party and shall be kept confidential by the receiving party for a period of 10 years following the date of disclosure. These obligations shall not apply to information which: (a) is publicly known at the time of disclosure and/or becomes publicly known through no fault of the recipient; (b) is known to the recipient at the time of disclosure through no wrongful act of the recipient; (c) is received by the recipient from a third party without restrictions similar to those in this section; and/or (d) is independently developed by the recipient. Each party shall retain ownership of its confidential information, including (but not limited to) all rights in patents, copyrights, trademarks and trade secrets. A recipient of confidential information may not disclose such confidential information without the prior written consent thereto of the disclosing party, provided that ADI may disclose confidential information to its affiliated companies, employees, officers, consultants, agents and contractors.
20.2 These terms and conditions and those stated in the Application Section hereto (being Section A above) constitute the entire agreement between the Buyer and ADI in respect of the subject matter hereof and no alterations and/or additions to and/or consensual cancellation of these terms and conditions will be of any force and effect unless recorded in writing and signed by both the Buyer and ADI. Without derogating from the generality of the aforegoing and in addition thereto, no representation, warranty, course of dealing and/or trade usage not expressly contained herein will be binding on ADI. For the purposes of these terms and conditions, email correspondence between the parties hereto will be deemed not to be in writing or signed by the parties hereto. No party shall be entitled to rely upon any term, warranty, guarantee, condition and/or representation, unless it is contained herein.
20.3 The Buyer may not cede and/or assign any of its rights and/or obligations hereunder without ADI's prior written consent thereto. ADI may cede and/or assign any of its rights and/or obligations hereunder (and any such cessionary will be entitled to enforce its rights hereunder against the Buyer in all respects as if it were ADI) and/or subcontract any of its duties hereunder without the Buyer’s consent thereto.
20.4 Headings hereto are for convenience of reference only and do not alter the meaning or interpretation of these terms and conditions. Unless the context indicates a contrary intention, words herein contained that import the singular include the plural (and vice versa) and words importing any one gender include the other two.
20.5 Any failure by ADI to enforce at any time for any period any of the provisions hereof will not be construed as a waiver of such provisions and/or of the right of ADI to enforce thereafter each and every provision.
20.6 In the event that any provision herein is determined to be illegal, invalid and/or unenforceable, the validity and enforceability of the remaining provisions herein contained shall not be affected and, in lieu of such provision, a provision as similar in terms as may be legal, valid and enforceable will be added hereto.
20.7 Provisions herein which by their very nature are intended to survive termination, cancellation or completion of the Buyer’s order after acceptance by ADI will survive such termination, cancellation or completion. All stenographic and clerical errors are subject to correction. These terms and conditions shall confer no benefit on any third party or the right of any third party to enforce any term or condition contained herein.
20.8 The rule of construction that these terms and conditions be interpreted against the party responsible for drafting these terms and conditions will not apply.
20.9 All tooling, designs, drawings and/or other intellectual property produced and/or delivered hereunder are owned by the manufacturer of the relevant Goods.
