Terms and Conditions of Sale
1. The Customer agrees that :
(a) this Agreement represents the entire Agreement between the Customer and Arrow Altech Distribution (Pty) Ltd (hereinafter called “Arrow Altech Distribution”) and that no alterations or additions to this Agreement may be effected unless agreed to by both parties, reduced to writing and signed by the Customer and a duly authorised representative of Arrow Altech Distribution;
(b) this Agreement will govern all future contractual relationships between the parties;
(c) this Agreement is applicable to all existing debts and future debts between the parties;
(d) this Agreement is final and binding and is not subject to any suspensive or resolutive terms or conditions;
(e) any conflicting conditions stipulated by the Customer are expressly excluded;
(f) these terms supersede all previous conditions of Agreement without prejudice to any securities or guarantees held by Arrow Altech Distribution; and
(g) these terms apply to all subcontractors of Arrow Altech Distribution.
2. The signatory hereby binds himself / herself in his / her personal capacity as Shareholder (in the case of a company), Member (in the case of a close corporation) or Owner or Partner as surety and co-principal debtor jointly and severally for the full amount due to Arrow Altech Distribution and agrees that these Standard Conditions will apply in the exact same way to him / her.
3. The Customer acknowledges that it does not rely on any representations made by Arrow Altech Distribution in regard to the goods and services or any of its qualities leading up to this Agreement other than those contained in this Agreementor any addendum hereto. All specifications, price lists, performance figures, advertisements, brochures, descriptive illustrations, shipping specifications, drawings, dimensions, weights and other technical data furnished by Arrow Altech Distribution in respect of the goods or services orally or in writing are given in good faith and being approximate only and will not form part of the Agreement in any way unless agreed to in writing by Arrow Altech Distribution.
4.1 The Customer agrees that neither Arrow Altech Distribution nor any of its employees will be liable for any negligent (including gross negligence) or innocent misrepresentations made to the Customer.
4.2 It is the sole responsibility of the Customer to determine that the goods or services ordered are suitable for the purposes of intended use. This also applies to goods that Arrow Altech Distribution supplies according to the Customer’s specifications and/or drawings or executing work in accordance with the Customer’s instructions or those of its advisers or representatives, Arrow Altech Distribution shall not be responsible for the operational efficiency or quality of the goods so supplied or the required performance of work so carried out or the suitability of the goods for any purpose or for any other failure or defects in the goods or any aspect related to the works.
4.3 The Customer agrees to pay all additional costs resulting from any acts or omissions by the Customer including suspension of work, modification of requirements, failure or delay in giving particulars required to enable work to proceed on schedule or requirements that work be completed earlier than agreed.
4.4 Arrow Altech Distribution reserves the right at its sole discretion to provide alternative goods of the same quality and quantity at the prevailing prices to those ordered by the Customer should such goods be superseded, replaced or their manufacture terminated. Arrow Altech reserves the right to make any reasonable change to the design or form of any goods ordered during the execution of the contract provided that the stated performance, quality and specifications of the goods remain unaffected.
5.1 All quotations will remain valid for a period of 30 days from the date of the quotation. The price quoted is in South African Rands, free of bank exchange and excludes Value Added Tax, the cost of packaging and delivery.
5.2 All quotations are subject to the availability of the goods or services and subject to correction of good faith errors by Arrow Altech Distribution and the prices quoted shall be subject to variation up to the time of delivery in relation to any increases in the cost price, including currency fluctuations, freight, applicable insurance, coastal and landing charges, customs, dock and import duties, cartage and railage and all other such similar encumbrances.
5.3 If the Customer disputes the amount of increase, the amount of the increase may be certified by any independent auditor appointed by Arrow Altech Distribution and such certificate shall be final and binding on the Customer.
5.4 The Customer hereby confirms that the goods or services on any Tax Invoice issued duly represent the goods or services ordered by the Customer at the prices agreed to by the Customer and, where delivery / performance has already taken place, that the goods or services were inspected and that the Customer is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects.
5.5 The Customer agrees to return any chargeable container to the premises of Arrow Altech Distribution within 30 days from the date of delivery and failure to do so will render the cost or charge thereof.
5.6 Notwithstanding the provisions of clause 1 above, all orders or agreed variations to orders, whether orally or in writing, shall be binding and subject to these Standard Conditions of Agreement and may not be revoked by the Customer.
5.7 Arrow Altech Distribution shall be entitled in its sole discretion to split the delivery / performance of the goods or services ordered in the quantities and on the dates it decides in its sole discretion.
5.8 Arrow Altech Distribution shall be entitled to invoice each delivery / performance actually made separately.
5.9 Any delivery note or waybill (copy or original) signed by the Customer or a third party engaged to transport the goods and held by Arrow Altech Distribution shall be prima facie proof that delivery was made to the Customer.
5.10 Sale and delivery of goods shall be effected ex-works Arrow Altech Distribution’s premises and the risk of damage to, destruction or theft of goods shall pass to the Customer on sale and delivery and the Customer undertakes to comprehensively insure the goods until paid for in full. Arrow Altech Distribution may recover insurance premiums from the Customer for such ordered and unpaid goods.
5.11 If within 7 days of notification by Arrow Altech Distribution that the goods are ready for dispatch, the Customer does not take delivery of the goods, Arrow Altech Distribution shall be entitled to either store the goods at its own warehouse or in another warehouse, at the Standard Rates of Arrow Altech Distribution, (available on request) on the Customer’s behalf and at the sole risk and expense of the Customer and to invoice the Customer immediately for the goods.
5.12 Delivery and performance times quoted or stipulated are merely estimates and are not binding on Arrow Altech Distribution.
5.13 Delivery dates are based on prevailing stock and leadtime situations and on the necessary information supplied by the Customer to enable Arrow Altech Distribution to carry out the order.
5.14 If Arrow Altech Distribution agrees to engage a third party to transport the goods, Arrow Altech Distribution is hereby authorised to engage a third party on the Customer's behalf and on the terms deemed fit by Arrow Altech Distribution.
5.15 The Customer indemnifies Arrow Altech Distribution against any claims against Arrow Altech Distribution that may arise from such agreement in clause 6.14.
5.16 The cost of a Software upgrade given is merely an estimate and is not binding on Arrow Altech Distribution.
5.17 Any item handed in for Software upgrade may be sold by Arrow Altech Distribution to defray the cost of such upgrade if the item remains uncollected within 30 days of the upgrade being completed.
5.18 All goods taken on a consignment basis by the Customer are deemed sold if not returned on demand of Arrow Altech Distribution in the original condition and in the original packaging.
5.19 The Customer acknowledges all copyrights, trademarks, patent, trademark or design and/or other intellectual property of Arrow Altech Distribution and undertakes not to duplicate or otherwise infringe such intellectual property.
5.20 The Customer hereby indemnifies Arrow Altech Distribution against any claims, costs and/or expenses arising out of the infringement of copyright, patent, trademark or design as contemplated in clause 5.19, supplied by Arrow Altech Distribution’s Suppliers.
5.21 The acceptance of any export order is subject to Arrow Altech Distribution obtaining the necessary Export Licence and it is the Customer’s responsibility to obtain the necessary Permit and/or other permission of any required authorities. Any costs which Arrrow Altech may have incurred prior to being advised of the non-availability of any such Permit or alternatively by the date when the goods are ready for dispatch shall be for the Customer’s account and in the event of any Import Permit not being available within 30 days after the goods are ready for dispatch, Arrow Altech Distribution shall be entitled to cancel the contract and apply the conditions of clause 24. Alternatively goods held pending the availability of an Import Permit shall be invoiced by Arrow Altech Distribution 30 days after it became ready for dispatch. If such goods have to be stored the cost will be for the Customer’s account. In this instance packing lists certified by Arrow Altech Distribution’s Quantity Assurance Manager would be acceptable proof that the goods were available for dispatch.
6.1 New goods are guaranteed according to the Manufacturer's product specific warranties only and will be free from defects in material or workmanship, under normal use and service and all other guarantees including common law guarantees are hereby specifically excluded.
6.2 Liability under clause 6.1 is restricted to the cost of repair or replacement of faulty goods or services or granting of a credit at the sole discretion of Arrow Altech Distribution.
6.3 Arrow Altech Distribution’s goods are wherever practicable submitted to strict inspection and standard tests before dispatch, but if further tests are required by the Customer then any and all such costs incurred shall be for the Customer’s account, unless specifically otherwise agreed in writing.
6.4 No claim under this Agreement shall arise unless the Customer has, within 3 (three) days of becoming aware of an alleged breach of contract and/or defect occurring, given Arrow Altech Distribution written notice by prepaid registered post of such breach or defect, and has afforded Arrow Altech Distribution at least 30 (thirty) days to rectify such defect or breach.
6.5 To be valid, claims must be supported by the original Tax Invoice.
6.6 The Customer shall return any defective moveable goods to the premises of Arrow Altech Distribution at the Customer's own cost and packed in the original or suitable packaging. Goods returned and found not to be defective will be returned to the Customer at the Customer’s expense and subject to a charge equal to 20% of the invoice value of such goods to cover the costs of testing and other time spent by Arrow Altech Distribution.
6.7 All guarantees are immediately null and void should any goods be tampered with or should the goods be used or stored outside the Manufacturer's specifications or should the goods be subject to misuse, neglect or accident or should the goods have been repaired or altered by someone other than Arrow Altech Distribution’s designated personnel or authorised representative, unless such repair or alteration was effected pursuant to prior written consent of Arrow Altech Distribution.
6.8 Any item delivered to Arrow Altech Distribution shall serve as pledge in favour of Arrow Altech Distribution for present and past debts and Arrow Altech Distribution shall be entitled to retain or realise such pledges as it deems expedient at the value as determined in clause 15.1. The sworn or realised value of pledged goods will be offset against the Customer’s debts any excess balance will be paid to the Customer.
7.1 Under no circumstances shall Arrow Altech Distribution be liable for any consequential damages including loss of profits or for any delictual liability of any nature whatsoever whether caused negligently (including gross negligence) or innocently.
7.2 Under no circumstances shall Arrow Altech Distribution be liable for any damage arising from any misuse, abuse or neglect of the goods or services.
8. Delivery of the goods or services to the Customer shall take place at the place of business of Arrow Altech Distribution.
9.1 The Customer agrees that the amount contained in a Tax Invoice issued by Arrow Altech Distribution shall be due and payable unconditionally (a) cash on order; or (b) if the Customer is a Credit Approved Customer, within 30 days from the end of the month in which a Tax Invoice has been issued by Arrow Altech Distribution.
9.2 The Customer agrees to pay the amount on the Tax Invoice to Arrow Altech Distribution.
9.3 The risk of payment by cheque through the post rests with the Customer.
10.1 The Customer has no right to withhold payment for any reason whatsoever and agrees that no extension of payment of any nature shall be extended to the Customer and any such extension will not be applicable or enforceable unless agreed to by Arrow Altech Distribution, reduced to writing and signed by the Customer and a duly authorised representative of Arrow Altech Distribution.
10.2 The Customer is not entitled to set off any amount due to the Customer by Arrow Altech Distribution against any debt owing to Arrow Altech Distribution.
10.3 All discounts shall be forfeited if payment in full is not made on the due date.
11.1 The Customer agrees that the amount due and payable to Arrow Altech Distribution may be determined and proven by a certificate issued and signed by any director or manager of Arrow Altech Distribution, whose authority need not be proven or by any independent auditor. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer.
11.2 Any printout of computer evidence tendered by any party shall be admissible evidence and no party shall object to the admissibility of such evidence purely on grounds that such evidence is computer evidence or that the requirements of the Electronic Communications and Transactions Act 25 of 2002 have not been met.
12.1 The Customer agrees that interest shall be payable at the maximum legal interest rate prescribed by the National Credit Act 34 of 2005 if that Act is applicable, or at double the repo-rate as declared by the Reserve Bank from time to time if that Act is not applicable, on any moneys past due date to Arrow Altech Distribution and that interest shall be calculated daily and compounded monthly from the date of acceptance of the order.
12.2 The Customer expressly agrees that no debt owed to Arrow Altech Distribution by the Customer shall become prescribed before the passing of a period of six years from the date the debt falls due.
13.1 The Customer agrees that if an account is not settled in full:
(a) against the Customer’s order; or
(b) within the period agreed in clause 10.1 above in the case of a Credit Approved Customer
Arrow Altech Distribution is entitled to:
(i) immediately institute action against the Customer at the sole expense of the Customer; or
(ii) cancel the Agreement and/or to take possession of any goods delivered to the Customer and claim damages.
13.2 The remedies refered to in 14.1 are without prejudice to any other right Arrow Altech Distribution may be entitled to in terms of this Agreement or in law. Arrow Altech Distribution reserves its right to stop supply to the Customer immediately on cancellation or on non-payment by the Customer.
13.3 A Credit Approved Customer will forthwith lose this approval when payment is not made according to the conditions of clause 10.1(b) and all amounts then outstanding shall immediately become due and payable.
13.4 Arrow Altech Distribution shall be entitled to withdraw credit facilities advanced to the Customer at any time within its sole discretion.
14.1 In the event of cancellation, the Customer shall be liable to pay:
(a) the difference between the selling price and the value of the goods at the time of repossession; and
(b) any and all other costs incurred by Arrow Altech Distribution in the repossession of the goods.
14.2 The value of repossessed or retained pledged goods shall be deemed to be the value placed on them by any sworn valuator after such repossession, and such valuation shall be conclusive proof of the value. If the goods are not recovered for any reason whatsoever, the value shall be deemed to be nil.
14.3 In the event of cancellation of the Agreement by Arrow Altech Distribution, it shall be entitled to repossess any goods that have been delivered to the Customer and remains unpaid by the due date.
14.4 In the event of cancellation of the Agreement by Arrow Altech Distribution, Arrow Altech Distribution is entitled not to produce any unmade balance of any order or contract and to recover any direct and/or indirect loss or damages sustained thereby from the Customer.
15.1 All goods supplied by Arrow Altech Distribution remain the property of Arrow Altech Distribution until such goods have been fully paid for whether such goods are attached to other property or not.
15.2 The Customer is not entitled to sell or dispose of any goods unpaid for without the prior written consent of Arrow Altech Distribution. The Customer undertakes not to allow the goods to become encumbered in any manner prior to the full payment thereof and shall advise third parties of the rights of Arrow Altech Distribution in the goods.
15.3 If any goods supplied to the Customer are of a generic nature and have become the property of the Customer by operation of law (confusio or commixtio) the Customer shall be obliged on notice of cancellation of the Agreement to retransfer the same quantity of goods in ownership to Arrow Altech Distribution.
15.4 The Customer agrees to accept any quantity that does not exceed or fall short of the quantity ordered by no more than 5% as good and complete performance and may request to pay Arrow Altech Distribution only the proportionate contract price for the actual quantity dispatched which request will not be unreasonably refused.
16.1 The Customer shall be liable to Arrow Altech Distribution for all legal expenses on the attorney-and-own-client scale incurred by Arrow Altech Distribution in the event of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement.
16.2 The Customer shall be liable for any tracing, collection or valuation fees incurred as well as for any costsor any form of security that Arrow Altech Distribution may demand.
16. 3The Customer agrees that Arrow Altech Distribution will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate's Courts or in terms of Rule 47 of the Law of the Supreme Court 59 of 1959, as amended, superseded or repealed from time to time.
17. The Customer agrees that no indulgence whatsoever by Arrow Altech Distribution will affect the terms of this Agreement or any of the rights of Arrow Altech Distribution and such indulgence shall not constitute a waiver by Arrow Altech Distribution in respect of any of its rights herein. Under no circumstances will Arrow Altech Distribution be estopped from exercising any of its rights in terms of this Agreement.
18.1. If at any time a dispute arising out of or relating to the contract or a breach thereof should occur between the Customer and Arrow Altech Distribution, such dispute, shall, if so required by the Arrow Altech Distribution be referred to a mutually agreed arbitrator, or failing agreement, to an arbitrator appointed by the President for the time being of the South African Institute of Electrical Engineers. The arbitration will be concluded in accordance with the Arbitration Rules of South Africa. Such arbitrator's decision shall be final and binding on Arrow Altech Distribution and the Customer. This provision is for the benefit of Arrow Altech Distribution only.
18.2 Clause 18.1. shall not preclude any party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator;
18.3 Subject to clause 18.1 the parties hereby consent to the jurisdiction of the Magistrate’s Court in respect of all amounts or causes of action arising out of this agreement notwithstanding the amounts would normally exceed the jurisdiction of such court.
19.1 Any document shall be deemed duly presented to and accepted by the Customer:
(i) within 5 days of prepaid registered mail to any of the Customer's business or postal addresses or to the personal address of any director, member or owner of the Customer; or
(ii) within 24 hours of being faxed to any of the Customer's fax numbers or any director, member's or owner's fax numbers; or
(iii) on being delivered by hand to the Customer or any director, member or owner of the Customer; or
(iv) within 48 hours if sent by overnight courier; or
(v) within 7 days of being sent by surface mail; or (vi) within 24 hours of being e-mailed to any e-mail address provided by the Customer.
19.2 The Customer chooses its address for any notification or service of legal documents or processes as the business address or the physical addresses (domicilium citandi et executandi) of any Director (in the case of a company), Member (in the case of a close corporation) or of the Owner(s) or Partner(s).
19.3 The Customer undertakes to inform Arrow Altech Distribution in writing within 7 days of any change of Director, Member, Shareholder, Owner or Partner or address or 14 days prior to selling or alienating the Customer’s business and failure to do so will constitute a material breach of this Agreement. Upon receipt of such written notification, Arrow Altech Distribution reserves the right, at its sole discretion, to withdraw any credit facility advanced to the Customer.
19.4 The Customer hereby consents to the storage and use by Arrow Altech Distribution of the personal information that it has provided to Arrow Altech Distribution for establishing its credit rating and to Arrow Altech Distribution disclosing such information to credit control companies, banks and other institutions involved in rating credit. The Customer agrees that Arrow Altech Distribution will not be held liable for the good faith disclosure of any of this information to such third parties and that no further specific consent needs to be obtained for the transfer of such information to a specific third party.
19.5 The Customer hereby consents that Arrow Altech Distribution can provide personal information of the Customer to third parties, if the Customer has indicated Arrow Altech Distribution as a trade reference to third parties and the Customer agrees that Arrow Altech Distribution will not be liable for the good faith disclosure of any of this information to such third parties.
19.6 The Customer hereby agrees that the credit facility is a variable credit facility and that Arrow Altech Distribution shall be entitled to increase or decrease its credit limit from time to time.
20. The Customer agrees to the Standard Rates of Arrow Altech Distribution for any goods or services rendered, which rates may be obtained on request.
21. Each provision of this Agreement is severable from the other provisions. Should any provision be found to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall nevertheless remain binding and continue with full force and effect.
22. Any order is subject to cancellation by Arrow Altech Distribution due to acts of God or any circumstance beyond the control of Arrow Altech Distribution, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, war, civil disturbance, riot, state of emergency, strike, lockout, labour disputes, fire, flood, drought or legislation.
23. Any order is subject to cancellation by Arrow Altech Distribution if the Customer breaches any term of this Agreement. Arrow Altech Distribution shall be entitled without prejudice to any other rights which Arrow Altech Distribution may have, to payment of a cancellation fee of 20% of the value of the contract so cancelled plus the sales value and/or direct and/or indirect costs of: (a) all goods delivered; (b) all goods finished and not delivered at the time of such cancellation; (c) all materials ordered by Arrow altech Distribution for such order whether such materials have been received or not; (d) the cost of all labour accumulated on any unfinished goods in process of manufacture; (e) any special engineering and other cost incurred up to the time of cancellation. Alternatively Arrow Altech Distribution shall be entitled to the damages actually suffered in its exclusive discretion.
24. Any order is subject to cancellation by Arrow Altech Distribution if the Customer makes any attempt of compromise, liquidation, sequestration, termination or judgement is recorded against the Customer or any of its principals.
25. Any and all rights of proprietary nature related to the goods is the property of Arrow Altech Distribution and/or its supplier and the Customer shall not in any manner whatsoever use such rights without the written consent of Arrow Altech Distribution.
26. The Customer agrees that Arrow Altech Distribution will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in clause 23, 24 or 25 occur.
27. This Agreement and its interpretation is subject to South African law.