General Terms and Conditions of Sale and Delivery of Emerce Africa (Pty) Ltd’s Online-Shop
Status: April 2020
IN THIS AGREEMENT THERE ARE CERTAIN CLAUSES OF SIMILAR FONT TO THIS TEXT, WHICH CONTAINS PROVISIONS THAT MAY HAVE THE EFFECT OF (I) LIMITING THE RISK OR LIABILITY OF THE COMPANY OR OF ANY OTHER PERSON AND/OR (II) MAY CONSTITUTE AN ASSUMPTION OF RISK OR LIABILITY BY YOU AND/OR (III) MAY IMPOSE AN OBLIGATION ON YOU TO INDEMNIFY THE COMPANY OR ANY OTHER PERSON FOR ANY CAUSE AND/OR (IV) MAY BE AN ACKNOWLEDGEMENT OF ANY FACT BY YOU. THESE PROVISIONS ARE VERY IMPORTANT AND YOU MUST ENSURE THAT YOU READ THEM CAREFULLY AND THAT YOU UNDERSTAND THEM CLEARLY.
Unless such meaning is inconsistent with the context, the following terms shall, throughout this AGREEMENT, have the meanings respectively ascribed to them, namely:
1.1 “AGREEMENT” – shall mean these General Terms and Conditions of Sale and Delivery of COMPANY’S Online-Shop and annexures, if any, attached hereto;
1.2 “COMPANY” – shall mean Emerce Africa (Pty) Ltd, a limited liability company with registration number 2013/218574/07, duly incorporated in accordance with the laws of the Republic of South Africa, having its registered address at the Boulevard Office Park, Block F G, Searle Street, Woodstock, Cape Town, Western Cape, 7925.;
1.3 “CPA” – shall mean the Consumer Protection Act, 86 of 2008, as amended;
1.4 “CUSTOMER” – shall mean the juristic person that has placed a binding order with the COMPANY and has received an ORDER CONFIRMATION from the COMPANY;
1.5 “FORCE MAJEURE” – shall mean any cause beyond the reasonable control of the PARTIES including but not limited to, failure of a supplier to deliver, fire, explosion, accident, strike, lockout, war (declared or undeclared), riot, acts of God or States enemies and actions out of any governmental authority;
1.6 “ONLINE SHOP” shall mean the COMPANY’S online shop available on the website www.emerce-africa.co.za.
1.7 “ORDER CONFIRMATION” – shall mean the email sent by the COMPANY to the designated email address provided by the CUSTOMER, whereby the COMPANY confirms the CUSTOMER’S order.
1.8 “ORDER RECEIPT” – shall mean email sent by the COMPANY to the designated email address provided by the PROSPECTIVE CUSTOMER (indicated in the ONLINE SHOP as the “invoice recipient”), whereby the COMPANY acknowledges receipt of the PROSPECTIVE CUSTOMERS order.
1.9 “PARTY” – shall mean either the COMPANY or the CUSTOMER depending on the context in which it is used;
1.10 “PARTIES” – shall mean the COMPANY and CUSTOMER referred to collectively;
1.11 “PROSPECTIVE CUSTOMER” – shall mean the juristic person that places a binding order with the COMPANY, but has not received an ORDER CONFIRMATION.
In this AGREEMENT, unless the context otherwise requires:
2.1 The singular shall import and include the plural and vice versa;
2.2 Words referring to natural persons shall be regarded as referring to juristic persons;
2.3 The clause headings in this AGREEMENT are used for the sake of convenience only and shall not govern the interpretation of the clauses to which they relate;
2.4 Where any number of days is prescribed in this AGREEMENT, they shall be calculated exclusive of the first day and inclusive of the last day unless the last day falls on a Saturday, Sunday or public holiday. In which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday;
2.5 If any doubt or conflict arises where figures are referred to in numerals and in words, the words shall prevail;
2.6 Should there be any conflict or inconsistency between this AGREEMENT and other individual agreement/s concluded between the PARTIES, then terms and conditions of this AGREEMENT shall be regarded as being subordinate, subject to clause 3.3 below.
2.7 The rights and obligations of any PARTY arising from this AGREEMENT, shall devolve upon and bind its successors-in-title;
2.8 If any provision in a definition contained in this AGREEMENT is a substantive provision conferring rights or imposing obligations on any PARTY, notwithstanding that it only appears in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the AGREEMENT;
2.9 This AGREEMENT shall be governed by and interpreted in accordance with the laws of the Republic of South Africa;
2.10 The rule of construction that this AGREEMENT shall be interpreted against the PARTY responsible for the drafting or preparation of this AGREEMENT shall not apply. The same applies to the schedules or annexures hereto.
3 GENERAL PROVISIONS
3.1 This AGREEMENT, as reissued or revised by the COMPANY from time to time, shall exclusively apply to all transactions and/or orders placed with the COMPANY on its ONLINE SHOP, available on the website www.emerce-africa.co.za. The website and ONLINE SHOP are operated by Emerce Africa (Pty) Ltd.
3.2 Any and all orders placed with are subject to acceptance by the COMPANY and acceptance shall be made subject to this AGREEMENT.
3.3 The COMPANY rejects any and all terms and conditions to the contrary or deviating from this AGREEMENT, unless it has expressly consented to their validity in writing. This requirement of express consent shall also apply when the COMPANY unconditionally delivers to the CUSTOMER despite being aware of the CUSTOMER’S general terms and conditions.
3.4 To the extent that software, service and/or warranty contracts are offered in the ONLINE SHOP, these additional or conditions other than these General Terms shall only apply when these additional or other conditions are displayed and expressly included during the ordering process.
3.5 If, in individual cases for certain Deliveries, particularly service and warranty agreements, specific provisions which deviate from this AGREEMENT are agreed upon in writing, these General Terms shall be regarded as subordinate and supplementary.
3.6 In case of doubt, for the interpretation of trading terms the Incoterms® as applicable at that time shall be binding. Currently, the Incoterms® 2010 are applicable.
3.7 All transactions with the COMPANY are, until further notice, limited to juristic persons with an asset value or annual turnover in excess of ZAR 2 000 000.00. The PROSPECTIVE CUSTOMER and/or CUSTOMER hereby confirms its status as a juristic person as aforesaid.
3.8 Any and all products supplied by the COMPANY are not suitable for use in medical areas, in railway traffic or aviation. In case of doubt, the customer shall consult with the COMPANY prior to any use.
4 APPLICATION OF THE CONSUMER PROTECTION ACT
4.1 If the CPA is applicable to this AGREEMENT, the provisions of the CPA will be applied and take precedence where they contradict any provision of this AGREEMENT.
4.2 Whether the CPA applies to this AGREEMENT depends on whether the asset value or annual turnover (the “Threshold Values”) of the CUSTOMER’S business are above or below the threshold, as contained in the CPA, as amended.
4.3 The Threshold Values are the Customer’s asset value or annual turnover. If either of these values exceed R 2 000 000 (Two Million Rand) on the date that the CUSTOMER receives the ORDER CONFIRMATION, the CPA will not apply to this AGREEMENT.
4.4 The Threshold Values and the Threshold itself will be amended from time to time, in which case the PARTIES agree that the new measurements will apply to this AGREEMENT from the date of amendment.
4.5 The COMPANY’s duties under this AGREEMENT may vary depending on whether the CPA applies to it, and the COMPANY will rely on the information in respect of the CUSTOMER’S Threshold Values as provided to the COMPANY by the CUSTOMER. Consequently:
4.6 The CUSTOMER warrants that any statement made to the COMPANY in respect of its Threshold Values is accurate.
4.7 If the CUSTOMER claims that the Threshold Values are below R 2 000 000.00 (Two Million Rand), alternatively that the CPA applies to this AGREEMENT, the COMPANY may at its instance require the CUSTOMER to provide it with financial statements as proof thereof.
4.8 If the CUSTOMER misstates the Threshold Values as being above the Threshold, such that the COMPANY believes that this AGREEMENT is not subject to the CPA when it in fact is, then the COMPANY may immediately cancel this agreement with notice to the CUSTOMER, and the CUSTOMER shall immediately return any goods and/or services delivered by the COMPANY, or an amount equivalent to the value of such performance. In addition, the COMPANY reserves the right to claim additional damages.
4.9 The CUSTOMER will be liable for any costs, including costs on an attorney and own client scale for damage sustained by the COMPANY resulting from such misstatement.
5 ORDER PROCESS AND CONTRACT CONCLUSION
5.1 Only businesses with an asset value or annual turnover in excess of ZAR 2 000 000.00, which have registered with the ONLINE SHOP may order goods and/or services from the COMPANY.
5.2 In order to register with the ONLINE SHOP, you must submit certain details to the COMPANY, including, but not limited to, a username and password.
5.3 Upon registration, you: –
5.3.1 Acknowledge that you have read and understand the terms of this AGREEMENT;
5.3.2 Warrant that you are willing to be bound by this AGREEMENT and confirm further; and
5.3.3 Warrant that you are duly authorised to enter into this AGREEMENT
5.3.4 Warrant that you are a juristic person with a higher turnover than the threshold as contained in the CPA.
5.4 Any and all goods and/or services advertised and/or appearing on the ONLINE SHOP, from time to time, are for information purposes only and do not constitute binding offers of sale by the COMPANY.
5.5 The PROSPECTIVE CUSTOMER places an order for the COMPANY’S goods and/or services appearing on the ONLINE SHOP, which are added to the shopping cart, by clicking the “Order Now” button.
5.6 The PROSPECTIVE CUSTOMER acknowledges that adding goods and/or services to the shopping cart, without clicking “Order Now” does not constitute an order for such goods and/or services.
5.7 The PROSPECTIVE CUSTOMER acknowledges and agrees further that goods and/or services added to the shopping cart without clicking “Order Now” may be removed from the shopping cart in the event that such goods and/or services are no longer in stock or the price thereof may be altered by the COMPANY without notice to you.
5.8 The COMPANY will not, under any circumstances, be liable for any loss and/or damage by virtue of such lack of availability.
5.9 Once a binding order has been placed with the COMPANY, the PROSPECTIVE CUSTOMER will receive an ORDER RECEIPT.
5.10 The ORDER RECEIPT does not constitute, and will in no way be construed, as acceptance of the order by the COMPANY and the COMPANY reserves the right to refuse any order placed with it.
5.11 Acceptance of an order by the COMPANY, subject to the availability of goods and/or services, shall only be deemed to have occurred upon delivery of a separate ORDER CONFIRMATION or by actual delivery of the goods and/or services and subject to the correct price.
5.12 In respect of orders placed for delivery outside of the Republic of South Africa, additional terms and conditions shall apply. In this regard, the PROSPECTIVE CUSTOMER and/or CUSTOMER shall be required to contact the COMPANY directly.
6 INFORMATION ON GOODS IN THE ONLINE SHOP
6.1 The information provided in the ONLINE SHOP, in respect of any and all goods and/or services, and all information provided by The COMPANY regarding the scope of deliveries and services (including, but not limited to technical data) (hereinafter referred to as “Documentation”) are only an approximation unless the usability for the contractually agreed purpose requires an exact match.
6.2 Unless expressly agreed otherwise, the Documentation neither constitutes agreement on quality nor guaranteed quality characteristics, but rather descriptions or indicators of performance.
6.3 The COMPANY reserves its rights to effect price increases from time to time without notification to the CUSTOMER. The onus shall be on the CUSTOMER to remain informed of the prices of the COMPANY.
6.4 Unless agreed otherwise in writing, the COMPANY retains all rights to the offer documents, including copies thereof. Unless the COMPANY has provided its express written consent, the COMPANY prohibits the reproduction, dissemination, re-issuing, processing or re-designing any Documentation provided by the COMPANY.
6.5 The suggestions in the ONLINE-SHOP regarding the composition of a product portfolio to a kit/bundle are only non-binding suggestions, which may not be complete, accurate or suitable, including the technical functionalities displayed in connection with the suggestion. The COMPANY explicitly states that the display of a portfolio is not meant as advice or recommendation. It shall be the PROSPECTIVE CUSTOMER’S and/or CUSTOMER’S sole responsibility to assess whether the suggestions are suitable and usable for his purposes. In this respect, the COMPANY recommends that the PROSPECTIVE CUSTOMER and/or CUSTOMER must attend to obtaining external professional advice.
7 PROVISION OF GOODS AND SERVICES, TERMS OF DELIVERY, DEFAULT
7.1 Delivery is made in accordance with the Incoterms® clause selected by the PROSPECTIVE CUSTOMER and/or CUSTOMER during the ordering process (currently FCA or CIP). If, pursuant to the selected Incoterms® clause, the PROSPECTIVE CUSTOMER and/or CUSTOMER has to provide the means of transport or the freight carrier (FCA), the PROSPECTIVE CUSTOMER and/or CUSTOMER is responsible for timely collection of the goods ordered. . Any delays have to be communicated to the COMPANY in due time. Any costs resulting from such delay shall be borne exclusively by the PROSPECTIVE CUSTOMER and/or CUSTOMER.
7.2 Whilst every effort will be made to dispatch and deliver the goods and/or services as advised, the COMPANY does not guarantee dispatch and/or delivery on any specific date and shall not be liable for any damages, including consequential damages, that may be suffered by the CUSTOMER as a result of any delays in the delivery of the goods and/or services that may occur.
7.3 If the COMPANY accepts the order of a service and warranty contract, a contract between the CUSTOMER and the COMPANY is concluded through the order confirmation while the exact scope of services and the warranty will be included in the specifications and conditions for these service and warranty contracts.
7.4 Software shall be provided in the manner indicated in the ONLINE SHOP or during the ordering process.
7.5 Delivery periods and delivery dates refer to the date of delivery to the forwarding agent, freight carrier or any other third party commissioned to provide transport services. Any delivery periods and dates specified by the COMPANY shall only be deemed approximations irrespective of any provided fixed period or a fixed date, as the case may be. For purposes of any delivery, the CUSTOMER shall provide all required cooperation, in particular the provision of approvals and releases. Otherwise, the delivery period is deemed extended by an appropriate period of time.
7.6 The COMPANY’S delivery obligations are subject to the condition of full and punctual supply by the COMPANY’S suppliers and are also subject to the condition that necessary export approvals are granted and other documents required for export are obtained.
7.7 Subject to clause 13, any liability for any inability of any delivery or delays of any delivery to the CUSTOMER shall be excluded to the fullest extent permitted by law.
7.8 To the extent that any circumstances make delivery for the COMPANY significantly more difficult or render it legally or practically impossible and the impediments are not only of short, temporary nature, we are entitled to withdraw from or terminate this AGREEMENT by written notice. In such an event, we will refund the CUSTOMER any amount paid in advance and the CUSTOMER acknowledges and agrees that it shall have no further claim against the COMPANY once the refund has been received.
7.9 In the case of impediments of short, temporary nature, the CUSTOMER agrees that the delivery periods shall be extended or the delivery dates shall be postponed by the period during which the impediments exist. To the extent that the CUSTOMER cannot be reasonably expected to perform in terms of this AGREEMENT, the CUSTOMER may withdraw from the contract by written notice to the COMPANY.
7.10 Should the COMPANY be prevented from the performance of any of its obligations as a result of FORCE MAJEURE, or any cause whatsoever beyond the reasonable control of the COMPANY, The COMPANY shall be entitled at its option to cancel the AGREEMENT or to suspend performance of its obligations there under and shall not be liable whatsoever for any loss or damage consequential or otherwise resulting from such inability to perform its obligations, cancellation or suspension.
7.11 The COMPANY shall be entitled to make partial deliveries in particular pursuant to the agreed terms of delivery if the CUSTOMER has made a corresponding selection during the ordering process or if the PARTIES have agreed otherwise. Notwithstanding the above, even if partial deliveries were not agreed upon, the COMPANY is entitled to make partial deliveries.
7.12 In the event that the CUSTOMER is in default of acceptance of the goods and/or services, it is specifically agreed that the COMPANY is entitled to damages resulting therefrom, including reimbursement of additional expenses (e.g. costs for storage/warehousing). As a lump-sum reimbursement for additional expenses, the COMPANY is entitled to charge, in terms of this AGREEMENT, a lump-sum amount of 0.5% of the invoice amount for each full week which passed after the date on which the default of acceptance commenced, however not more than 5% of the invoice amount.
7.13 The COMPANY reserves the right to pursue payment of higher damages and all further rights under statutory law, particularly the right to withdraw from this AGREEMENT. The amount of the lump-sum compensation shall be credited to all our further monetary claims.
7.14 The COMPANY reserves the right to provide services at its reasonable discretion in countries with high security risks if such a risk has occurred after conclusion of this AGREEMENT. In this context, the standards of City/Country Security Assessment Rating (CSAR), risk management IJET® or similar institutions that provide risk estimates for certain regions shall apply. In such a case, the COMPANY is entitled to withdraw from or terminate this AGREEMENT.
7.15 In respect of orders placed for delivery outside of the Republic of South Africa, additional terms and conditions shall apply. In this regard, the PROSPECTIVE CUSTOMER and/or CUSTOMER shall be required to contact the COMPANY directly.
8 CANCELLATION BY THE CUSTOMER
8.1 The CUSTOMER may elect to cancel this AGREEMENT without reason and without penalty on any transaction in respect of goods within 7 (seven) days after the date of the receipt of the COMPANY’S goods. Precondition for such cancelation is the applicability of the Electronic Transactions and Communications Act and the CPA.
8.2 The CUSTOMER acknowledges and agrees that it shall be solely liable for the costs of returning the goods to the COMPANY.
8.3 In the event that the CUSTOMER has effected payment to the COMPANY for the goods, prior to exercising its right in terms of clause 8.1 above, the CUSTOMER will be entitled to receive a full refund of such payment, within 30 days from the date of cancellation.
8.4 Notwithstanding the above, the CUSTOMER may not cancel this AGREEMENT for any other reason, save for the provisions contained in this AGREEMENT.
9 PRICES, INVOICES, TERMS OF PAYMENT
9.1 The prices advertised in the ONLINE SHOP shall include Value Added Tax (VAT), but do not include other taxes, customs duties and/or other levies payable under applicable laws.
9.2 Any taxes, levies and customs duties shall always be borne by the CUSTOMER and increase the final price unless another agreement, including in the form of Incoterms®, has been concluded.
9.3 The price stated in the ONLINE SHOP shall not comprise, inter alia, transport, packaging and insurance costs even if CIP is selected. These costs are calculated separately and invoiced to the CUSTOMER.
9.4 The advertised price for the COMPANY’S goods and/or services may be increased by the COMPANY in the event that the COMPANY incurs any increase in the cost of labour, materials and transport between the date of accepting an order placed by the CUSTOMER and the date of delivery of the goods and/or services concerned.
9.5 The COMPANY’S invoice(s) shall be transmitted to the CUSTOMER via e-mail in a common format (e.g. PDF file) to the e-mail address indicated in the ONLINE SHOP by the CUSTOMER as invoice recipient.
9.6 Notwithstanding the stated price on the invoice, the price so stated shall, at all material times, be subject to any increase of duties, levies, taxes, transport, storage and packing costs and the COMPANY shall endeavour, where reasonably possible, to inform the CUSTOMER in advance of any anticipated increases of the afore-stated.
9.7 Unless otherwise agreed upon between the PARTIES, payment shall be made in full without any deduction or set off in respect of any goods and/or services sold by the COMPANY.
9.8 Payment shall be made by the CUSTOMER in accordance with clause 9.11 below.
9.9 Notwithstanding the above, the COMPANY reserves the right to demand payment from the CUSTOMER prior to any delivery taking place.
9.10 The COMPANY is committed to providing secure online payment facilities to the CUSTOMER.
9.11 Payment by the CUSTOMER for the COMPANY’S goods and/or services may be effected via: –
9.11.1 Accepted payment method is prepayment.
9.11.2 If the CUSTOMER selects a prepayment option, the availability of goods and/or services can only be guaranteed, if such prepayment is effected within seven (7) calendar days of placing the order.
9.11.3 The COMPANY shall not be liable for any loss and/or damage suffered by the CUSTOMER for lack of availability of goods and/or services by virtue of the CUSTOMER’S failure to effect its prepayment timeously.
9.12 It is specifically recorded and agreed that interest on overdue accounts shall be charged at 5.5%. The COMPANY’S right to claim additional damages in the event of default remains reserved.
9.13 The COMPANY shall be entitled to refuse the sale of GOODS to any CUSTOMER in the event of overdue accounts owing by the CUSTOMER to the COMPANY, or in the event that a CUSTOMER is not able to obtain/provide satisfactory guarantees/suretyships.
9.14 It is specifically recorded and agreed that the CUSTOMER waives all claims against the COMPANY for any damages or losses that it may suffer as a result of the refusal of the COMPANY to sell goods and/or services to the CUSTOMER in the event of an overdue account, or in connection with any other dispute whatsoever arising out of payment for the COMPANY’S goods and/or services.
9.15 If the CUSTOMER is in default or if, after conclusion of the contract, facts and reasonable doubts become known that question the CUSTOMER’S creditworthiness, the COMPANY is entitled to declare the entire outstanding amounts immediately payable, to request prepayments or the provision of securities or, after the expiry of an appropriate grace period, to withdraw from the contract, notwithstanding any further rights the COMPANY may have in law.
9.16 The CUSTOMER is not entitled to set-off or to hold back due payments.
10 TRANSFER OF RISK, PLACE OF PERFORMANCE
10.1 In the case of the sale of goods, it is specifically agreed that the risk shall pass to the CUSTOMER immediately upon handover of the goods to the forwarder, freight carrier or to another third party commissioned for carrying out shipment, unless explicitly agreed otherwise. If shipment or handover is delayed due to a circumstance for which the CUSTOMER is responsible, the risk shall pass to the CUSTOMER from the day on which the delivery item is ready for shipment and the COMPANY has notified the CUSTOMER thereof.
10.2 The place of performance for all obligations in terms of this AGREEMENT is the COMPANY’S registered office, except as otherwise specified.
11 RETENTION OF TITLE
11.1 To the extent possible under applicable South African law, the COMPANY shall retain, and the CUSTOMER hereby agrees that the COMPANY retains, title to the goods delivered (goods subject to retention of title) until full payment is received in terms of this AGREEMENT.
11.2 Prior to that the transfer of title to the CUSTOMER, any pledge or assignment as security of the goods is prohibited.
11.3 In addition, where necessary, the COMPANY may register its retention of title with all competent authorities or offices and take any other action necessary or advisable to retain title to the goods delivered.
11.4 Upon request by the COMPANY, the CUSTOMER shall be required, and agrees, to assist the COMPANY to effect such retention of title and all costs associated thereby shall be borne by the CUSTOMER.
11.5 Any machining or processing work carried out in relation to the goods subject to reservation of title is performed for the benefit of the COMPANY without any obligations for the COMPANY arising from such work.
11.6 In the case of processing together with third-party goods that do not belong to the COMPANY, the COMPANY shall be entitled to a co-ownership interest in the new goods based on the ratio of the invoice value of the goods subject to reservation of title relative to the other goods at the date of processing. The same shall apply if the CUSTOMER obtains sole ownership.
11.7 The new goods, which are stored by the CUSTOMER for the COMPANY free of charge, shall be considered goods subject to reservation of title within the meaning of this clause.
11.8 The CUSTOMER is entitled to resell the goods subject to reservation of title in the normal course of business subject to reservation of title.
11.9 The CUSTOMER’S receivables arising from the resale of the goods subject to reservation of title are transferred to the COMPANY in advance. They serve as a security to the same extent as the goods subject to reservation of title.
11.10 If the goods subject to reservation of title are sold by the CUSTOMER together with other goods not supplied by the COMPANY, the assignment of the income from resale shall only apply to the amount of the resale value for the respective goods subject to reservation of title. In the event of the disposal of goods in which we have a co-ownership interest, the assignment of the claim relates to the amount of this co-ownership interest.
11.11 The CUSTOMER is authorised to collect claims arising from resale until our revocation which is admissible at any time. We will only make use of our right of revocation if the CUSTOMER does not meet his payment obligations towards the COMPANY, an application for the opening of insolvency proceedings has been filed or another significant lack of solvency appears. The CUSTOMER may only assign the claims – including the sale of receivables to factoring banks – subject to our prior written consent. Upon our request, the CUSTOMER is obliged to notify its buyers about the assignment made to the COMPANY and to give us the information and documentation, which the COMPANY requires for collection of the claim(s). The COMPANY is entitled to notify the buyers about the assignment to the COMPANY.
11.12 In the case of pledges, seizure or other dispositions or interferences from third parties, the CUSTOMER shall notify the COMPANY without undue delay.
11.13 In case of CUSTOMER’S breach of obligation including, but not limited to, payment default, the COMPANY is entitled, after unsuccessful expiry of an appropriate period for performance granted to CUSTOMER, to withdraw from this AGREEMENT and to reclaim the goods subject to reservation of title.
11.14 If the realisable value of the securities exceeds the COMPANY’S claims by more than 10%, we release securities of our choice upon the CUSTOMER’S request.
12.1 In case of material defects or defects of title, the statutory legal provisions shall apply, unless otherwise set forth in the following.
12.2 The COMPANY’S warranty is excluded in case of the use of products in medical applications, in railway traffic, aviation or similar use. In the case of resale, the CUSTOMER has to explicitly mention such lack of suitability and to impose on the buyer a corresponding obligation applying in the case of a further resale so that each buyer of products is informed about this specific circumstance.
12.3 It is hereby agreed that it shall be the CUSTOMER’S responsibility to check the delivered goods and notify the COMPANY in writing about any defects or false or incomplete deliveries without undue delay, however not later than ten (10) working days after handover or, in the case of hidden defects, within ten (10) working days from the date of obtaining knowledge of the defects or the date on which the defects would have been discovered through the exercise of reasonable investigations. If the CUSTOMER does not notify us in writing in the stipulated time, the delivered goods are deemed fully accepted without qualification.
12.4 The COMPANY shall be entitled to remedy the defects of the delivered goods, at its own discretion, by repairing the delivered goods or by delivering non-defective goods. If the COMPANY fails to remedy the defect, the COMPANY shall, at its option, either reduce the purchase price or withdraw from this AGREEMENT.
12.5 The COMPANY is entitled to make its remedial action subject to the condition that the CUSTOMER pays the remuneration that is due.
12.6 The CUSTOMER has to provide the COMPANY with appropriate time to remedy the defects and, in particular, has to handover, or to make accessible to the COMPANY, the defective goods for the purpose of performing a review. In case of a replacement delivery, the CUSTOMER must return to the COMPANY the defective goods in accordance with the statutory legal provisions, unless the COMPANY waives its rights in this respect. The COMPANY’S obligation to remedy the defects shall neither include the disassembly of the defective good nor the reassembly unless the COMPANY explicitly assumed an obligation to assemble in the AGREEMENT.
12.7 The CUSTOMER’S warranty rights shall lapse if the CUSTOMER, without the COMPANY’S consent, modifies the delivery item or has it modified and, in doing so, makes remediation of the defects impossible or unreasonably more difficult. In any case, the CUSTOMER has to bear the additional costs for remediation of the defects arising from such modification.
12.8 Warranty claims against the COMPANY, shall only be available for 6 (six) months from the delivery date.
12.9 The CUSTOMER’S claims for damages or reimbursement in case of defects shall only be available in accordance with the provisions of clause 13 and are excluded otherwise. clause 12.8 shall remain unaffected which means that, if the requirements of this clause 12.8 are met, claims for damages resulting from defects shall also expire within 6 (six) months.
13 LIMITATION OF LIABILITY, DISCLAIMER, INDEMNITY
13.1 The COMPANY’S liability in connection with or arising out of this AGREEMENT regardless of the ground (contract or delict or otherwise) shall be limited, to the fullest extent permitted by law.
13.2 In no event shall the COMPANY be liable for (i) any form of negligence (including gross negligence to the extent permitted by law) by the COMPANY or by any of the COMPANY’S employees, executives or affiliates; (ii) indirect damage, consequential damage and/or loss of profits or unrealised savings; and (iii) any acts and omissions on the part of auxiliary persons of the COMPANY or the supplier, be this contractual or non-contractual
13.3 Any liability for damages that results from the use of the goods other than for the ordinary and designated use is excluded. Upon the COMPANY’S request, the CUSTOMER agrees that it shall indemnify the COMPANY from any third-party claims that are asserted against the COMPANY in connection with the use of the goods other than for the ordinary and designated use.
13.4 In addition, it is specifically recorded and the CUSTOMER specifically agrees that the COMPANY will not be held liable for and shall be exempt from any damage arising from any mis-handling or improper maintenance of the goods by the CUSTOMER, power fluctuations and/or lightning, or damage caused beyond the reasonable control of the COMPANY.
13.5 In no event shall the COMPANY, its directors, officers, employees or agents be liable for any incidental, consequential, indirect or special damages, including punitive damages or attorneys’ fees, whether foreseeable or unforeseeable, based on claims of the CUSTOMER or its clients (including, but not limited to, claims for loss of business, goodwill, profits, loss of money or use of goods or impairment of other assets), arising out of breach of any express or implied warranty, breach of contract, misrepresentation, negligence, in delict or otherwise in connection with or arising out of the agreement, except in the case of personal injury or property damage where and only to the extent that applicable law requires such liability. The CUSTOMER hereby agrees and assumes responsibility for all personal injury and property damage resulting from handling, possession, use, resale or disposal of the COMPANY’S goods and/or services.
14 MISCELLANEOUS, CHOICE OF LAW, PLACE OF JURISDICTION
14.1 The failure of the COMPANY to enforce any of the provisions of the AGREEMENT or any rights in respect thereto shall in no way be considered as a waiver of such provisions or rights or in any way to affect the validity of this AGREEMENT.
14.2 The waiver of any breach of this AGREEMENT by any PARTY hereto shall not operate to be construed as a waiver of any other prior or subsequent breach.
14.3 Neither this AGREEMENT nor any rights or obligations thereunder shall be assigned by any PARTY, including, but not limited to, a transfer of assets or divestiture, without the prior written consent of the other PARTY.
14.4 The foregoing shall not apply to any rights and claims assigned by the COMPANY as security to its financing sources (or common agent or representative of such financing sources).
14.5 Should any provision of this AGREEMENT is held to be invalid or unenforceable for any reason, it shall be revised rather than rendered void, if possible, in order to achieve the intention of the PARTIES to the fullest extent possible.
14.6 This AGREEMENT, as well as the relationship between the COMPANY and the CUSTOMER is, in all respects, governed by the Law of the Republic of South Africa.
14.7 Any disputes arising out of or in connection with the AGREEMENT shall be submitted to the jurisdiction of the competent courts of the Republic of South Africa. The COMPANY shall also be entitled to institute legal proceedings before any other competent court.
15 NO VARIATION
15.1 This AGREEMENT constitutes the entire agreement between the PARTIES and no representation by either of the PARTIES or their agents, whether made prior or subsequent to the signing of this AGREEMENT, shall be binding on the PARTIES unless done in writing and signed by both PARTIES hereto.
15.2 No variation, alteration or consensual cancellation of this AGREEMENT, or any of the terms thereof, shall be of any force or effect, unless done in writing and signed by the PARTIES hereto.
15.3 No waiver or abandonment by the COMPANY of any of its rights in terms of this AGREEMENT shall be binding on the COMPANY, unless such waiver or abandonment is in writing and signed by the COMPANY.
15.4 No indulgence, extension of time, relaxation or latitude which the COMPANY may show, grant or allow shall constitute a waiver by the COMPANY of any such PARTY’S rights and such PARTY shall not hereby be prejudiced or estopped from exercising any of its rights, which may have arisen in the past or which might arise in the future. Unless the context indicates otherwise, the obligations of the CUSTOMER arising from this AGREEMENT shall devolve upon and bind its successors-in-title.
15.5 The CUSTOMER warrants that it will do all things and sign all documents necessary to give effect to the terms of this AGREEMENT and to all transactions deriving there from.
16 LEGAL ACTION
16.1 All debt collection charges incurred by the COMPANY, including the costs of collection agencies, including collection commission shall solely be borne by the CUSTOMER.
16.2 In the event of the COMPANY instructing attorneys in regard to any breach of the CUSTOMER, of the conditions of this AGREEMENT, then the CUSTOMER agrees to pay all the costs on the scale between Attorney and Client, including any costs incidental to such action instituted against the CUSTOMER.
17.1 THE CUSTOMER HEREBY EXPRESSLY WAIVES ITS RIGHT TO CLAIM PRESCRIPTION UNDER THE RELEVANT PROVISIONS OF THE PRESCRIPTION ACT NO. 68 OF 1969, AS AMENDED FROM TIME TO TIME.
18 COMPANY INFORMATION
18.1 Emerce Africa (Pty) Ltd with registration number 2013/218574/07 is a company with limited liability, incorporated in accordance with the provisions of the Companies Act 71 of 2008, as amended, with its registered office at the Boulevard Office Park, Block F, Searle Street, Woodstock, Cape Town, Western Cape, 7925.
18.4 Please see the COMPANY’S PAIA Manual for more information on access to information (https://www.emerce-africa.co.za/PAIA).
18.5 Sale of photovoltaic solar products, including inverters and accessories.