1 DEFINITION
1.1 In this quotation (and in the agreement) the following expressions have the meanings assigned to them hereunder and cognate expressions have corresponding meanings:
1.1.1 “acceptance date” means the date on which client accepts this quotation in accordance with the provisions of clause 3.1 below.
1.1.2 “advance amount” means the amount referred to as such in the quotation document.
1.1.3 “agreement” has the meaning contemplated in clause 5.1 below.
1.1.4 “client” means the person referred to as such in the quotation document.
1.1.5 “client’s e-mail address” means client’s e-mail address set out in the quotation document.
1.1.6 “client’s physical address” means the address at which client’s principal place of business is located as set out in the quotation document.
1.1.7 “defects liability period” means the period contemplated in the Orsco (Pty) Ltd supplier’s warranty in respect of which the Orsco (Pty) Ltd supplier accepts liability for latent defects.
1.1.8 “delivery address” means the physical address referred to as such and as set out in the quotation document.
1.1.9 “goods” means all the items listed in the quotation document (which for the sake clarity includes imported goods, new goods and second-hand goods).
1.1.10 “imported goods” means the items marked with an asterisk (*) or otherwise designated as such in the quotation document.
1.1.11 “latent defect” means any defect in the goods that are a result of faulty parts used and / or poor workmanship in the manufacture of the goods and which a reasonable inspection of the goods, if conducted at the time of the collection or delivery thereof, would not have revealed.
1.1.12 “new goods” means those goods that are designated as being ‘new’ in the quotation document.
1.1.13 “outstanding balance of the quoted amount” means the amount equal to the difference between the quoted amount and the advance amount.
1.1.14 “parties” means client and Orsco (Pty) Ltd (each “a party”).
1.1.15 “patent defect” means ~
1.1.15.1in respect of new goods: any defect in the new goods which a reasonable inspection of the new goods, if conducted at the time of collection or delivery thereof, would have revealed; and
1.1.15.2in respect of second-hand goods: any defect in the second-hand goods which renders the second-hand goods to not be in good working order and which a reasonable inspection of the second-hand goods, if conducted at the time of collection or delivery thereof, would have revealed.
1.1.16 “prescribed rate” means the rate of interest prescribed from time to time by the Minister of Justice for the purposes of section 1(1) of the Prescribed Rate of Interest Act No. 55 of 1975.
1.1.17 “quotation” means the offer, contained in the quotation document as read with and including these terms and conditions, which is made by Orsco (Pty) Ltd to sell the goods to client.
1.1.18 “quotation document” means the document signed and dated by Orsco (Pty) Ltd.
1.1.19 “quotation number” means the document number allotted to this quotation as set out in the quotation document.
1.1.20 “quoted amount” means the amount referred to as such and as set out in the quotation document (and which amount is inclusive of (a) VAT and (b) the quoted delivery charge) and as revised in terms of the provisions of clause 7.3, if applicable.
1.1.21 “quoted delivery charge” means the amount referred to as such and as set out in the quotation document.
1.1.22 “quoted delivery date” means the date set out in the quotation document for delivery or collection of the goods.
1.1.23 “Orsco (Pty) Ltd” means SA LEAK DETECTION DISTRIBUTORS CC, a close corporation incorporated and registered as such in South Africa under registration number 2010/155391/23.
1.1.24 “Orsco (Pty) Ltd.’s banking account” means the banking account of Orsco (Pty) Ltd having the details set out in the quotation document.
1.1.25 “Orsco (Pty) Ltd.’s e-mail address” means both of the following e-mail addresses: legal@saleak.co.za and info@saleak.co.za.
1.1.26 “Orsco (Pty) Ltd.’s physical address” means the physical address at which Orsco (Pty) Ltd.’s principal place of business is located as set out in the quotation document.
1.1.27 “Orsco (Pty) Ltd supplier” means any person who supplies any of the goods to Orsco (Pty) Ltd (and which person may or may not also be the manufacturer of the goods that it supplies to Orsco (Pty) Ltd).
1.1.28 “Orsco (Pty) Ltd supplier’s warranty” means any warranty issued by a Orsco (Pty) Ltd supplier in respect of latent defects in goods manufactured and / or supplied by it.
1.1.29 “second-hand goods” means those goods which are designated as being either used or reconditioned; and
1.1.30 “VAT” means Value Added Tax payable from time to time in terms of the Value Added Tax Act No. 89 of 1991.
2 INTERPRETATIONS
2.1 In this quotation (and in the agreement), unless a contrary intention clearly appears:
2.1.1 Clause headings are for the purpose of convenience and reference only and must not be used in the interpretation of nor modify nor amplify the terms of this quotation (and in the agreement) nor any clause thereof.
2.1.2 Unless the context indicates a contrary intention, an expression which denotes ~
2.1.2.1 any gender includes the other gender.
2.1.2.2 a natural person includes a created entity and vice versa; and
2.1.2.3 the singular includes the plural and vice versa.
2.1.3 Any reference to a statutory enactment is to that enactment as at the acceptance date and as amended or re-enacted or substituted from time to time thereafter and includes all and any statutes, ordinances, regulations and by-laws promulgated in terms thereof from time to time.
2.1.4 A reference to any agreement or other document (including the agreement) includes a reference to such agreements and documents as amended from time to time after the acceptance date.
2.1.5 If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition clause (clause 1), effect must be given to it as if it were a substantive provision in the body of the agreement.
2.1.6 A reference to “days” means calendar days unless qualified by the word “business”, in which instance a “business day” means any day other than a Saturday, Sunday or public holiday officially recognised as such in South Africa.
2.1.7 When a particular time period is expressed in business days, such time period will be reckoned by ~
2.1.7.1 excluding the first business day.
2.1.7.2 including the last business day; and
2.1.7.3 excluding all days that are not business days.
2.1.8 If the due date for performance of any obligation in terms of the agreement is a day which is not a business day, then (unless otherwise stipulated) the due date for performance of the relevant obligation will be the immediately succeeding business day.
2.1.9 If any obligation or act is required to be performed on a particular day it must be performed (unless otherwise stipulated) by 16:30 (local time at the place where the obligation or act is required to be performed) on that day.
2.1.10 Where figures are referred to in numerals and in words, if there is a conflict between the two, the words will prevail.
2.1.11 Where any term is defined within the context of any particular clause in this quotation (and in the agreement), the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, will bear the meaning ascribed to it for all purposes in terms of this quotation (and in the agreement), notwithstanding that such term has not been defined in clause 1.
2.1.12 None of the provisions of this quotation (and the agreement) will be construed against or interpreted to the disadvantage of any party by reason of such party having or being deemed to have structured or drafted such provision.
2.1.13 The eiusdem generis rule (i.e., the rule of construction that provides that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms are to be restricted to that same class) will not apply; accordingly, whenever the word “include” or “including” is used followed by specific examples, such examples will be interpreted to be illustrative only and must not be interpreted so as to limit the meaning of any general word or term to the same genus or class as the examples given.
2.1.14 The words “shall” and “will” and “must” used in the context of any obligation or restriction imposed on a party have the same meaning.
2.1.15 A reference to “law” means any law of general application in South Africa and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local government) statutory or regulatory body which has the force of law.
2.1.16 Any reference to a “person” includes, unless the context indicates a contrary intention, any natural person or individual or any juristic person, association, business, close corporation, company, concern, enterprise, firm, partnership, joint venture, trust, undertaking, voluntary association, body corporate and any similar entity, whether or not having separate legal capacity.
2.1.17 The word “writing” means legible writing and in English and includes printing, typewriting, lithography or any other mechanical process, as well as any electronic communication.
2.1.18 The word “notice” means a notice in writing, and “notify” means to give notice in writing.
2.1.19 The word “signature” includes an electronic signature as defined in Section 1 of the Electronic Communications and Transactions Act No. 25 of 2002 and “sign” includes appending such said electronic signature.
2.1.20 Any reference to “business hours” will be construed as being the hours between 09:00 and 16:30 (South African Standard Time [SAST]) on any business day.
2.1.21 “R” or “Rands” denotes the legal currency of South Africa.
2.1.22 No provision of the agreement will, unless otherwise stipulated, constitute a stipulation for the benefit of any person who is not a party to the Agreement.
2.1.23 References to a party include a reference to that party’s agents, representatives, successors in title, assigns, transferees and substitutes allowed at law.
2.1.24 When any party has a “discretion”, such expression means that the relevant party has the sole, absolute and unfettered discretion, with no requirement to act reasonably or provide reasons unless specifically required under the provisions of the agreement.
2.1.25 The expression “all reasonable efforts”, when used in regard to an obligation of any party, means taking, in good faith and with due diligence no less steps than those that would be taken by a commercially reasonable and prudent person in comparable circumstances.
3 ACCEPTANCES OF QUOTATION
3.1 To accept this quotation, client or client’s representative, as the case may be, must duly (a) sign and date the quotation document in the designated space provided therefor and initial each page thereof at the foot thereof and (b) thereafter deliver the quotation document to Orsco (Pty) Ltd.’s physical address or transmit the quotation by e-mail to Orsco (Pty) Ltd.’s e-mail address.
4 VALIDITIES OF QUOTATION
4.1 The quotation is valid and open for acceptance by client until 16:30 on the 10th (tenth) business day after the day on which it shall have been transmitted to client’s e-mail address, failing which this quotation will lapse and will not be capable of being accepted.
5 BINDING AGREEMENT
5.1 On client’s acceptance of this quotation, in accordance with the provisions of clause 3.1 above, a binding agreement, subject to these terms and conditions as read with and including the quotation document, will automatically come into existence between client and Orsco (Pty) Ltd for the sale by Orsco (Pty) Ltd to client of the goods (“the agreement”).
6 PAYMENTS OF QUOTED AMOUNT
6.1 VAT is payable in respect of the sale of the goods in terms of the agreement.
6.2 In the event of the rate at which VAT is chargeable being amended after the acceptance date, but in circumstances in which the amended rate will apply to the sale of the goods in terms of the agreement, then the quoted amount will be adjusted accordingly, the intention being that Orsco (Pty) Ltd must receive and retain the same amount after payment of VAT regardless of the rate at which VAT is payable.
6.3 Client must pay the amount by no later than the 1st (first) business day after the acceptance date (“the advance amount payment due date”).
6.4 Orsco (Pty) Ltd will issue client with a valid tax invoice for the quoted amount at the time that collection or delivery of the goods takes place.
6.5 Client must pay the outstanding balance of the quoted amount by no later than the day on which collection or delivery of the goods takes place.
6.6 The payment of the advance amount and the outstanding balance of the quoted amount must be made without deduction or set-off by way of an electronic transfer of immediately available funds into Orsco (Pty) Ltd.’s banking account and which payment must reflect the quotation number as a payment reference.
7 CURRENCY EXCHANGE RATE
7.1 The imported goods will be purchased by Orsco (Pty) Ltd from Orsco (Pty) Ltd suppliers based abroad and the purchase price of which will be payable by Orsco (Pty) Ltd in the respective currencies prescribed by the relevant Orsco (Pty) Ltd suppliers (“the relevant currency”).
7.2 The quoted amount in respect of the imported goods is based on the Rand: relevant currency exchange rate prevailing as at the date of Orsco (Pty) Ltd transmitting this quotation to client.
7.3 If, having duly accepted this quotation, client fails to pay the advance amount by the advance amount payment due date and instead pays the advance amount on any day after the said due date (“the later payment date”), regardless of whether or not Orsco (Pty) Ltd shall have consented to such late payment of the advance amount, and if the relevant currency, as at the later payment date, shall have appreciated against the Rand compared to the exchange rate that prevailed on the payment due date, Orsco (Pty) Ltd will revise the quoted amount and notify client of the resultant increase in that portion of the quoted amount attributable to the imported goods and client will be liable for the payment thereof; client must make payment of the resultant increase in that portion of the quoted amount attributable to the imported goods by no later than the 1st (first) business day immediately following the day on which Orsco (Pty) Ltd shall have given client the said notice.
8 DELIVERIES
8.1 Orsco (Pty) Ltd will place an order(s) on its relevant Orsco (Pty) Ltd supplier(s) for the relevant goods within 2 (two) business days after it shall have received payment of the advance amount and, if applicable, the amount equal to the increase in that portion of the quoted amount attributable to the imported goods contemplated in clause 7.3 above.
8.2 The imported goods will be shipped to South Africa via air freight from abroad.
8.3 Unless the parties shall have agreed that Orsco (Pty) Ltd will deliver the goods to client (which will be the case in the event of the quoted delivery charge being nil, client must collect the goods from Orsco (Pty) Ltd.’s physical address.
8.4 Orsco (Pty) Ltd will, subject to the other provisions of this quotation, make the goods available for collection by client or deliver the goods to client, as the case may be, by no later than the quoted delivery date.
8.5 Orsco (Pty) Ltd will not be under any obligation to make the goods available to client for collection or deliver the goods to client, as the case may be, unless and until Orsco (Pty) Ltd shall have received payment in full of the quoted amount.
8.6 Collection of the goods will be completed and deemed to have taken place as soon as the goods are loaded onto the vehicle that is used to collect the goods at Orsco (Pty) Ltd.’s physical address.
8.7 If it shall have been agreed between the parties that Orsco (Pty) Ltd will deliver the goods to client, delivery of the goods will be carried out by Orsco (Pty) Ltd.’s nominated courier for such purpose (“the courier”) and who will be the agent of Orsco (Pty) Ltd for such purpose.
8.8 The cost of delivering the goods to the delivery address is the quoted delivery charge and which cost is borne by client and is included in the quoted amount.
8.9 Delivery will be completed and deemed to have taken place as soon as the goods are off-loaded at the delivery address.
8.10 The signature appearing on Orsco (Pty) Ltd.’s collection / delivery note or the courier’s waybill or delivery note, as the case may be, will be deemed to be the authorised signature of client, client’s employee, representative or agent, notwithstanding the fact that such collection / delivery note or waybill or delivery note, as the case may be, may have been signed by a person not authorised thereto by client.
8.11 Time is not of the essence in regard to the collection or delivery, as the case may be, of any of the goods.
8.12 Orsco (Pty) Ltd will not bear any liability for any delays in regard to the collection by client or the delivery to client, as the case may be, of any of the goods, including any of the imported goods, provided only Orsco (Pty) Ltd shall have timeously performed its obligations contemplated in clause 8.1 above.
8.13 Orsco (Pty) Ltd will, subject to the provisions of this clause 8, be entitled to a revision of the quoted delivery date if a delay in making any of the goods available for collection by client or delivery to client of any of the goods, as the case may be, is caused by any one or more of the following:
8.13.1 the inability of Orsco (Pty) Ltd to procure any of the goods from its relevant Orsco (Pty) Ltd suppliers, provided only that Orsco (Pty) Ltd shall have timeously ordered the relevant goods and used all of its reasonable endeavours to avoid or reduce the delay; or
8.13.2 any event, (a) the happening or cause of which prevents, disrupts or otherwise hampers Orsco (Pty) Ltd in the performance of its delivery obligations, (b) the occurrence of which is beyond the reasonable control of Orsco (Pty) Ltd, (c) the occurrence of which Orsco (Pty) Ltd could not reasonably be expected to have foreseen and taken the effect thereof on its ability to make delivery of the goods into account as at the acceptance date, and (d) that Orsco (Pty) Ltd could not reasonably have avoided or overcome or at least avoided or overcome the effects thereof.
8.14 Orsco (Pty) Ltd will not be entitled to an adjustment of the quoted amount due to a revision of the delivery date arising out of any one or more of the circumstances mentioned in clause 8.13 above.
8.15 Should an event or circumstance mentioned in clause 8.13 above occur and which could, in the opinion of Orsco (Pty) Ltd, cause a delay in the collection or the delivery, as the case may be, of any of the goods by the quoted delivery date, Orsco (Pty) Ltd must ~
8.15.1 give client notice of the occurrence of the relevant event or circumstance within 2 (two) business days after having become aware thereof and in such notice set out the date by when it reasonably determines collection or delivery, as the case may be, of the goods in question will take place (“the revised delivery date”); and
8.15.2 use all of its reasonable endeavours to avoid or reduce the delay in question and any future delays in the collection or the delivery, as the case may be, of the goods so as to achieve collection or delivery, as the case may be, of the goods in question by no later than the revised delivery date.
8.16 Client will not have any claim against Orsco (Pty) Ltd, including a claim for any loss of trade or profit suffered by client, as a result of any delay in regard to making the goods available for collection or the delivery of the goods, as the case may be.
9 HANDOVER DEMONSTRATION
9.1 In the case of client collecting the goods from Orsco (Pty) Ltd.’s physical address, Orsco (Pty) Ltd will, subject to the provisions of clauses 9.2 to 9.6 below (both clauses included) conduct a demonstration in regard to the functionality and use of the goods (“the handover demonstration”).
9.2 The handover demonstration will be nothing more than a simple and basic overview of the functionality and use of the goods lasting no more than 30 (thirty) minutes and must not be construed as being a comprehensive demonstration of the functionality and use of the goods.
9.3 The Orsco (Pty) Ltd technician or representative who performs the handover demonstration must not be regarded as an expert in regard to the functionality and use of or any other aspect of the goods, and Orsco (Pty) Ltd does not warrant that any technical or any other advice furnished by the Orsco (Pty) Ltd technician or representative to client prior to, during or after the handover demonstration is accurate.
9.4 Client must not, for any purpose, rely on any advice furnished or any representations made to it prior to, during or after the handover demonstration by Orsco (Pty) Ltd or any of its technicians, representatives or employees in respect of the goods, including in regard to the suitability of the goods for the purposes for which client intends to use the goods.
9.5 The handover demonstration will be conducted ~
9.5.1 at Orsco (Pty) Ltd.’s physical address; and
9.5.2 at the time of client collecting the goods, provided, however, that, at least 1 (one) business day prior to the quoted delivery date, client shall have notified Orsco (Pty) Ltd of the time and date on which it intends collecting the goods so that Orsco (Pty) Ltd may ensure the availability of its relevant technician or representative to conduct the handover demonstration at such notified time.
9.6 Should client fail to collect the goods within 1 (one) hour after the time for collection notified to Orsco (Pty) Ltd as contemplated in clause 9.5.2 above, Orsco (Pty) Ltd will not be under any obligation to conduct the handover demonstration at whatever time on whatever date client collects the goods.
10 OWNERSHIPS
10.1 Notwithstanding the collection or the delivery of the goods, ownership of the goods will not pass to client until Orsco (Pty) Ltd shall have received payment of the quoted amount in full.
11 RISKS
11.1 All risk in the goods will pass to client on the collection or the delivery, as the case may be, thereof, notwithstanding the fact that ownership in the goods may remain vested in Orsco (Pty) Ltd.
12 NO WARRANTY BY Orsco (Pty) Ltd
12.1 Orsco (Pty) Ltd does not give any warranties to client in regard to the quality, effectiveness or suitability of the goods for the purpose for which they are purchased, whether or not such purpose shall have been disclosed to Orsco (Pty) Ltd.
13 CONDITIONS OF GOODS
13.1 Subject to the warranties contained in clauses 13.2, 13.3 and 14.1 below, Orsco (Pty) Ltd sells the goods to client who purchases the goods in the condition that the goods are in as at the time of the collection or the delivery, as the case may be, thereof.
13.2 Orsco (Pty) Ltd warrants to client that the new goods are new.
13.3 Orsco (Pty) Ltd warrants that the second-hand goods are in good working order.
13.4 Orsco (Pty) Ltd does not give any warranty to client in respect of the second-hand goods other than the warranty contained in clause 13.3 above.
14 PATENT DEFECTS
14.1 Orsco (Pty) Ltd warrants to client that the goods will be free from patent defects.
14.2 Client must conduct a reasonable inspection of the goods at the time of collecting or taking delivery, as the case may be, thereof.
14.3 In the case of client collecting the goods from Orsco (Pty) Ltd.’s physical address ~
14.3.1 Signature of Orsco (Pty) Ltd.’s collection / delivery note by client, client’s employee, representative or agent will be regarded as conclusive acceptance by client that ~
14.3.1.1 Client was afforded a reasonable opportunity to inspect the goods prior to collecting the goods.
14.3.1.2 The goods were free from patent defects; and
14.3.1.3 The goods were properly and completely collected.
14.3.2 Should client fail, refuse and / or neglect to complete and / or sign Orsco (Pty) Ltd.’s collection / delivery note, client will be deemed to have accepted that mentioned in clauses 14.3.1.1, 14.3.1.2 and 14.3.1.3 above.
14.4 In the case of Orsco (Pty) Ltd delivering the goods to client ~
14.4.1 Signature of the courier’s waybill or delivery note by client, client’s employee, representative or agent will be regarded as conclusive acceptance by client that the goods reflected in such waybill or delivery note, were properly and completely delivered.
14.4.2 Should client fail, refuse and / or neglect to complete and / or sign the courier’s waybill or delivery note, client will be deemed to have accepted that the goods reflected in such waybill or delivery note, were properly and completely delivered.
14.4.3 Client must notify Orsco (Pty) Ltd of any patent defects in the goods by no later than the 1st (first) business day after the day on which delivery of the goods shall have taken place, and failing the giving of such notice, it will be deemed that the goods were free of all and any patent defects at the time of delivery thereof.
14.4.4 Should client have given Orsco (Pty) Ltd the notice contemplated in clause 14.4.3 above and by no later than the 1st (first) business day after having taken delivery thereof as mentioned in clause 14.4.3 above, client must, at its own cost and its own risk, return the defective goods in question to Orsco (Pty) Ltd, who, in its discretion, will either ~
14.4.4.1 refund client with the quoted amount that client shall have been paid for the defective goods in question, together with the reasonable delivery costs incurred by client in having returned the defective goods in question to Orsco (Pty) Ltd; Orsco (Pty) Ltd will in such case affect any such refund within 5 (five) business days after Orsco (Pty) Ltd shall have received delivery of the defective goods in question and provided that: the patent defects were not caused by (a) any physical damage for which Orsco (Pty) Ltd is not liable, (b) any improper installation or connection of the goods, (c) any external electrical faults, (d) use under any conditions other than normal working conditions and / or (e) abuse; or
14.4.4.2 replace the defective goods in question, and in which case Orsco (Pty) Ltd must, at its sole cost, deliver the replacement goods to client as soon as it is reasonably possible for Orsco (Pty) Ltd to do so after it receives delivery of the replacement goods from the relevant Orsco (Pty) Ltd supplier.
15 LATENT DEFECTS
15.1 Orsco (Pty) Ltd is not the manufacturer of the goods and does not warrant that any of the goods are free of latent defects.
15.2 The second-hand goods are sold by Orsco (Pty) Ltd and purchased by client on the basis that client will not have any claims or rights of recourse against Orsco (Pty) Ltd in regard to any latent defects in the second-hand goods.
15.3 If any latent defect becomes apparent within the defect liability period, in respect of any new goods ~
15.3.1 Client must, within the defect liability period, notify Orsco (Pty) Ltd of the relevant latent defects in the relevant new goods.
15.3.2 Client must, at its own cost and its own risk, return the defective new goods in question to Orsco (Pty) Ltd.
15.3.3 Orsco (Pty) Ltd will, as soon as it is reasonably possible to do so after having received the defective new goods in question from client, itself inspect the defective new goods in question and for and on behalf of client inform the relevant Orsco (Pty) Ltd supplier (of the defective new goods in question) of the nature and extent of the relevant latent defect; and
15.3.4 If the relevant Orsco (Pty) Ltd supplier of the defective new goods in question accepts liability for the relevant latent defect in terms of the relevant Orsco (Pty) Ltd.’s supplier warranty, Orsco (Pty) Ltd will ~
15.3.4.1 repair the relevant defective new goods if the relevant Orsco (Pty) Ltd supplier, having been entitled in terms of the relevant Orsco (Pty) Ltd.’s supplier warranty to so do, exercised its election to repair the defective new goods in question; or
15.3.4.2 replace the relevant defective new goods if the relevant Orsco (Pty) Ltd supplier, having been entitled in terms of the relevant Orsco (Pty) Ltd.’s supplier warranty to so do, exercised its election to replace the defective new goods question; and
15.3.4.3 within a reasonable period of time after the relevant Orsco (Pty) Ltd supplier shall have notified Orsco (Pty) Ltd of its acceptance of liability for the relevant latent defect, repair or replace, as the case may be, the defective new goods question.
15.4 Subject to the provisions of clause 15, client will not have any claims or rights of recourse against Orsco (Pty) Ltd in respect of any latent defects in respect of any new goods.
15.5 In addition to those rights and claims that client, in its own right, may have against the relevant Orsco (Pty) Ltd supplier in terms of any Orsco (Pty) Ltd supplier warranty and provided that client shall have paid the quoted amount to Orsco (Pty) Ltd for the goods in question, Orsco (Pty) Ltd hereby cedes to client any and all rights that Orsco (Pty) Ltd, in its own right, may have against the relevant Orsco (Pty) Ltd supplier in regard to any latent defects in the goods manufactured and / or sold by the relevant Orsco (Pty) Ltd supplier to Orsco (Pty) Ltd and client hereby accepts such cession.
16 LIMITATIONS OF LIABILITY
16.1 In no circumstances will Orsco (Pty) Ltd be liable to client, regardless of the basis on which client may be entitled to claim damages from Orsco (Pty) Ltd (including breach of any provision of the agreement or a breach of any warranty given in terms of the agreement, negligence, misrepresentation, or other contractual or delicta claim), for any special, incidental, punitive, or indirect damages, or for any economic consequential damages or lost profits or savings, even if foreseeable or even if it has been advised of the possibility of such damages.
17 INTERESTS
17.1 Any amount payable by client to Orsco (Pty) Ltd in terms of the agreement and which is not paid on the due date thereof will bear interest at the prescribed rate from the due date thereof until the date of payment thereof in full, and which interest will be calculated daily and compounded monthly on the last day of each month.
18 BREACHES
18.1 Should any party (“the defaulting party”) commit a breach of any of the provisions of the agreement (other than those provisions which contain their own remedies or limit the remedies in the event of a breach thereof) and fail to remedy such breach within 10 business days after written notice shall have been given to it by the other party (“the aggrieved party”) calling on the defaulting party to remedy such breach [or if it is not reasonably possible to remedy the breach within the said 10 business day period, then within such further period as may be reasonable in the circumstances – the onus of demonstrating such reasonableness being on the defaulting party – provided however, that the defaulting party also furnishes evidence within the said 10 business day period, to the reasonable satisfaction of the aggrieved party, that it has taken whatever steps are available to it to commence remedying the breach], the aggrieved party may, without prejudice to any other rights of action or any other remedies which may be available to it in law, but subject to the provisions of clauses 16.1 ~
18.1.1 claim immediate specific performance of any of the defaulting party’s obligations under the agreement, with or without claiming damages, whether or not such obligation shall have fallen due for performance and to require the defaulting party to provide security to the satisfaction of the aggrieved party for the defaulting party’s obligations, or
18.1.2 cancel the agreement, with or without claiming damages.
19 PRE-ESTIMATE OF DAMAGES
19.1 Should client be the defaulting party contemplated in clause 18.1 above and Orsco (Pty) Ltd, as the aggrieved party contemplated in clause 18.1 above, have cancelled the agreement in accordance with the provisions of clause 18.1 above at any time after having received payment from client of the advance amount and / or, if applicable, the amount equal to the increase in that portion of the quoted amount attributable to the imported goods contemplated in clause 7.3 above, Orsco (Pty) Ltd may, within its discretion and without prejudice to any other rights of action or any other remedies which may be available to it in law either ~
19.1.1 retain the said amount(s) that shall have been received by it prior to the cancellation of the agreement as a genuine pre-estimate of liquidated damages suffered by it (subject, however, to any right that client may have to contest such damages in terms of the Conventional Penalties Act No. 15 of 1963); or
19.1.2 claim from client such damages as Orsco (Pty) Ltd may be able to prove it suffered; Orsco (Pty) Ltd may in such case retain the said amount(s) that it shall have received prior to the cancellation of the agreement until such time as the actual amount of damages shall have been determined by a Court of law, and thereupon set-off the said amount(s) that it shall have received prior to the cancellation of the agreement against the actual amount of damages so determined.
20 LEGAL COSTS
20.1 In the event of Orsco (Pty) Ltd taking any steps against client (including, the institution of legal action) pursuant to a breach or a repudiation of the agreement on client’s part or to otherwise enforce its rights under the agreement or to defend any legal action instituted against it by client, Orsco (Pty) Ltd, if successful, may recover from client all costs incurred by it in regard to taking such steps or defending any such said action brought against it by client, as the case may be, and which costs will include legal costs recoverable in accordance with the relevant tariff of the relevant court of law determined on the scale as between attorney-and-client.
21 WHOLE AGREEMENT
21.1 The agreement contains all the express provisions agreed on by the parties with regard to the sale and purchase of the equipment and the parties hereby waive the right to rely on any alleged and / or express provision (albeit agreements, representations or warranties) not contained herein.
21.2 No party will be bound by any express term, representation, undertaking, warranty, promise or the like not recorded in this quotation (and the agreement), whether or not the same induced the conclusion of the agreement and / or whether or not the same was negligent.
21.3 The agreement will supersede all and any other agreements, discussions and / or understandings relating to the sale and purchase of the equipment, oral or written, that may have been entered into between Orsco (Pty) Ltd and client prior to the acceptance date.
22 NO VARIATION
22.1 No amendment, addition or variation, novation or consensual cancellation of the agreement or any provision or term thereof (including this clause 22.1) or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of the agreement and no settlement of any disputes arising under the agreement will be binding on the parties unless recorded in writing and signed by the parties.
23 NO WAIVER
23.1 No waiver of any of the terms and conditions of the agreement will be binding for any purpose unless expressed in writing and signed by the party giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of a party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege by such party. No relaxation or indulgence which a party may show or grant to any other party will in any way prejudice or be deemed to be a waiver of the first mentioned party’s rights under the agreement and will not preclude or estop the first mentioned party from subsequently exercising any rights enjoyed by it under the agreement.
24 CUMULATIVE RIGHTS AND WAIVER
24.1 No remedy expressly granted in the agreement to a party will be deemed to exclude any other remedy which would otherwise be available in law to such party. The respective rights and remedies of the parties under the agreement are cumulative, may be exercised as often as the parties consider appropriate and are in addition to their respective rights and remedies under common law.
25 SURVIVALS OF PROVISIONS
25.1 The termination of the agreement for any reason will not affect ~
25.1.1 the rights of any of the parties ~
25.1.1.1that may have accrued before the termination of the agreement; or
25.1.1.2that specifically or by its nature survives the termination of the agreement; or
25.1.2 such of the provisions of the agreement which expressly provide that they will operate after any such termination or which of necessity must continue to have effect after such termination, notwithstanding that the clauses themselves do not expressly provide for this.
26 SEVERABILITY
26.1 All provisions and the various clauses of the agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of the agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, will, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of the agreement will remain of full force and effect. The parties declare that it is their intention that the agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.
27 CHOSEN ADDRESSES
27.1 The parties select as their respective addresses for the purpose of citation and service of legal process the following physical addresses:
27.1.1 Orsco (Pty) Ltd: Orsco (Pty) Ltd.’s physical address.
27.1.2 Client: Client’s physical address.
27.2 The parties select as their respective addresses for the purposes of giving or sending any notices, requests, demands, consents, invoices, other documents or communications of whatsoever nature (collectively referred to as “notices”) provided for or necessary in terms of the agreement, the following physical and e-mail addresses:
27.2.1 Orsco (Pty) Ltd – marked “For the attention of The Members”
27.2.1.1Physical address: Orsco (Pty) Ltd.’s physical address.
27.2.1.2E-mail address: Orsco (Pty) Ltd.’s e-mail address.
27.2.2 Client:
27.2.2.1Physical address: Client’s physical address.
27.2.2.2E-mail address: Client’s e-mail’s address.
27.3 A party may by notice to the other party change its chosen physical address to another physical address provided that the same is in South Africa and change its chosen e-mail address to another e-mail address.
28 NOTICES
28.1 Any notice required or permitted to be given or made in terms of the agreement will be valid and effective only if in writing.
28.2 Any notice to a party ~
28.2.1 delivered by hand at its chosen physical address ~
28.2.1.1during business hours will be deemed (unless the contrary is proved) to have been received by that party on the date of delivery thereof; or
28.2.1.2outside of business hours, will be deemed (unless the contrary is proved) to have been received by that party at 09:00 on the first business day following the date of delivery thereof; or
28.2.2 sent by e-mail to its chosen e-mail address ~
28.2.2.1during business hours will be deemed (unless the contrary is proved) to have been received by that party on the date of transmission thereof provided that the addressee either acknowledges receipt or the sender requests, obtains and retains a ‘read receipt’ in confirmation of the successful transmission thereof; or
28.2.2.2outside of business hours will be deemed (unless the contrary is proved) to have been received by that party at 09:00 on the first business day following the date of transmission thereof, provided that the addressee either acknowledges receipt or the sender requests, obtains and retains a ‘read receipt’ in confirmation of the successful transmission thereof.
28.3 Notwithstanding any provision of the agreement to the contrary, a (written) notice actually received by a party will be an adequate notice to it notwithstanding that it was not sent to or delivered at its chosen physical address or chosen e-mail address.
29 CO-OPERATION
29.1 The parties undertake, subject to the other provisions of the agreement, to do all things that may be necessary to give full effect to the provisions of the agreement.
30 GENERAL WARRANTIES BY CLIENT
30.1 Client warrants to Orsco (Pty) Ltd that ~
30.1.1 it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to accept this quotation (and thereby enter into the agreement).
30.1.2 the agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms.
30.1.3 to the best of its knowledge and belief (which knowledge and belief it warrants shall have been arrived by it after having made do and careful enquiry), it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all of its obligations in terms of the agreement.
30.1.4 it is entering into the agreement as principal (and not as agent or in any other capacity); and
30.1.5 it is not relying on any statement or representation by or on behalf of Orsco (Pty) Ltd, except those expressly set forth in the agreement.
30.2 Each of the warranties given by client in terms of clause 30.1 or any other clause of the agreement ~
30.2.1 is a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in the agreement.
30.2.2 continues and will remain in force notwithstanding the completion of any or all the transactions contemplated in the agreement.
30.2.3 insofar as it is promissory or relates to a future event, will be deemed to have been given as at the date of fulfilment of the promise or future happening of the event, as the case may be.
30.2.4 is a representation of fact that is material to the conclusion of the agreement; and
30.2.5 is relied on by Orsco (Pty) Ltd in entering into the agreement.
31 WARRANTIES OF AUTHORITY
31.1 The person who signs the quotation document for and on behalf of client, by doing so, warrants that he or she, as the case may be, is duly authorised to do so.
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