GENERAL TERMS AND CONDITIONS OF SALE OF PRODUCTS
2. DEFINITIONS
2.1 “The Company” means Associated Chemical Enterprises (Proprietary) Limited
2.2 “Contract” means any contract or agreement arising out of the acceptance of any offer
whether that contract arises out of:-
2.2.1 An offer made by the Company and accepted by the Purchaser;
2.2.2 An offer made by the Purchaser and accepted by the Company;
2.3 “Products” means the subject matter of the contract and shall include the manufacture of
any products to be supplied;
2.4 “Purchaser” means the party who has placed an order with the company or any other
person, close corporation, company, proprietorship and/or partnership which contracts with
the company, and which party will include the purchaser’s representative, agent, successor,
employees and servants.
3. GENERAL
3.1 These terms and conditions shall apply to any Contract in terms of which to Company
agrees to sell any Products, irrespective of the circumstances under which the Contact
arose and he exclusion of any terms and conditions which the Purchaser may seek to make
applicable, and no alteration and/or cancellation and/or variation of these terms and
conditions shall be of any force or effect unless and until recorded in writing and signed by
the Company and the Purchaser.
3.2 The acceptance of all order is subject to availability of the Products at date of acceptance.
4. ACCEPTANCE OF CONTRACT
A Contract shall come into existence when the Company accepts any order for Products
placed by a Purchaser of when a Purchaser accepts any offer to sell Products made by the
Company by conveying such acceptance, whether oral or written, to the Company.
5. PURCHASE PRICE AND PAYMENTS
5.1 The purchase price payable by the Purchaser for the Product shall be the Company’s list
price at the date of the Contract unless otherwise agreed in writing. Where applicable a ton
shall mean a metric ton of 1 000 kilograms.
5.2 The purchase price does not include Value Added Tax which shall be paid by the Purchaser
in addition to the purchase price.
5.3 The purchase price does not include the cost of delivery of the Products to the Purchaser
which shall be for the Purchaser’s account.
5.4 Unless otherwise provided the purchase price of the Products shall be paid in full within
30 (Thirty) days of the date of the relevant statement (“the due date”) sent by the Company
to the Purchaser.
5.5 Should the Purchaser fail to make any payment which is due and owing within the aforesaid
30 (Thirty) day period all amounts outstanding by the Purchaser to the Company from
whatsoever cause, whether or not the date for payment has arrived, will immediately
become due and payable by the Purchaser.
5.6 Any amount not paid on the due date shall bear interest at a rate of 2% (two percent) per
month from the due date until the date of final payment.
5.7 All payments by the Purchaser are to be made free of bank exchange or any other
deduction or set-off at the head office of the Company or at any of its branches and only
receipts and acquaintances from such head office or branch, duly and properly signed,
will be discharge of liability of the Purchaser.
6. RETENTION OF OWNERSHIP
Ownership of the Products sold in terms of the Contract shall remain with the Company and
shall not pass to the Purchaser until the purchase price is paid in full, and until such payment
has been to the aforementioned. Products shall not in any way be hypothecated or pledged.
Where the Products are to be stored at leased premises the Purchaser hereby undertakes
promptly to inform the Lessor thereof that the Company has retained the right of ownership
over all Products which are the subject manner of this Contract.
7. RISK
7.1 Should the Company or tis appointed haulier deliver the Products, risk in and to the
Products shall pass to the Purchaser on delivery of the Products to the Purchaser. If the
Purchaser requires off-loading to be effected and assisted by the Company’s employees
or by the employees of the Company’s appointed haulier then such off-loading shall be at
the risk of the Purchaser who shall be responsible for all damage of whatsoever nature
caused as a result of or during such off-loading.
7.2 Should the Purchaser or its appointed haulier collect the Products from the Company, risk
in and to the Products shall pass to the Purchaser on collection of the Products from the
Company’s premises in which case the haulier shall be deemed to be the agent of the
Purchaser.
8. DELIVERY
8.1 Time is not of the essence of the Contract.
8.2 Any time or date stipulated by the company for delivery is intended as an estimate only
and the Company shall not be liable in any way whatsoever (including consequential loss)
which may result from non delivery of the Products by the time of date so stipulated nor
shall any such delay confer upon the Purchaser any right to rescind the Contract.
8.3 If any of the Company’s obligations in terms of this Contract shall be prevented, hindered
or interfered with by reason of any industrial dispute or by reason of any cause whatsoever
beyond the Company’s reasonable control, the Company shall have the right to recover all
monies owing to the Company as at the date of suspension or cancellation.
8.4 Unless otherwise agreed in writing by the Company, delivery shall be effective by the
Company, delivery shall be effected by the Company or by an independent haulier
appointed by the Company.
8.5 All Products delivered by the Company or its appointed haulier shall be off-loaded by the
Purchaser’s employees.
8.6 Where the Company’s employees or the employees of its appointed haulier assist in the
off-loading of any product’s they shall be deemed to acting on the instructions and with the
authorisation of the Purchaser.
8.7 The Company shall not be liable for any loss or damage, direct or indirect, consequential
or otherwise, sustained by the Purchaser during the off-loading of any products.
9. TANKERS
9.1 In the event that the Products are delivered by bulk liquid tanker the Purchaser shall be
responsible for taking delivery of the entire content of the tanker unless this proves
impossible due to a fault in the tanker in which event such fault must be reported to the
Company at the time of delivery.
9.2 Discharge of bulk liquid tankers is to be effected by the Purchaser’s employees. Products
delivered by the Company or it haulier will not be discharged until such discharge is
authorised by the Purchaser, which authorisation shall not be unreasonably delayed.
9.3 The Company shall not be liable for any loss or damage, direct or indirect, consequential
or otherwise, sustained by the Purchaser during the discharge of the Products.
9.4 Where the Company’s employees assist the Purchaser’s employees in the discharge
of bulk liquid tankers, the Company’s employees shall be deemed to be acting on the
instructions and with the authorisation of the Purchaser.
9.5 The controls of any bulk liquid tanker will on discharge of the Products, be operated by
the Company’s employee or the employee of its appointed haulier under direct supervision
of the Purchaser.
10. DISCLAIMER
The Company shall not be liable under any circumstances whatsoever and howsoever
arising, for loss of profit and/or damages either direct and/or indirect, consequential and/or
otherwise alleged to be sustained by the Purchaser as a result of:-
10.1 The product supplied by the Company being defective in any manner whatsoever; and/or
10.2 Any delay in the delivery of the product by the Company to the Purchaser;
10.3 Any act of negligence and wilful act perpetrated by the Company’s employees, servants,
agents and/or distributors in respect of any act perpetrated by them or any of them which
causes the Purchaser any loss and howsoever such loss occurs.
11. SAMPLING
Where sampling is required, the Products must be sampled at the Company’s premises
before despatch to the Purchaser. All sampling of the Products will be conducted in
accordance with the methods determined by the Company.
12. ACKNOWLEDGEMENT BY THE PURCHASER
12.1 The Purchaser acknowledges, understands and agrees that:-
12.2All specifications, representations and statement of whatsoever nature made by the
the Company to the Purchaser, of and concerning the goods, can only be considered
by the Purchaser to be made by the Company to the Purchaser for information
purposes only, and shall not be binding on the Company; and
12.3 If the goods sold do not conform with the requirements of the Purchaser, the Purchaser
shall not be entitled to re-sell from this agreement and shall not have any claim against
the Company in respect thereof and/or any part thereof;
12.4 This contract has been entered into on the basis that the Company has not given, nor is
able to give, any guarantee/s and/or warranty/ties express and/or implied in regard to the
effectiveness and/or otherwise of the product sold and/or any part thereof;
12.5 The Company has not made nor is able to make, any representations/s of any nature
whatsoever in regard to the fitness, efficiency and/or otherwise, relating and pertaining
to the product sold and/or any part thereof;
12.6 It has not received any warranties and/or representation either written and/or oral and/or
expressed and/or implied in regard to the nature; quality and effectiveness of the product
and such products are hereby sold “voetstoots” and “as is” in the condition as it now
stands;
12.7 Any information given by the Company is given in good faith as to the correctness thereof
and for the guidance of the Purchaser only and the Company does not hold itself liable
for any dispute or discrepancy of any nature in regard thereto and to any part thereof;
12.8 That it has satisfied itself as to the quality, quantity, specification and extent as well as
description of the product purchased in terms thereof.
13. TESTING OF PRODUCT
13.1 The product sold by the Company to the Purchaser must be tested by the Purchaser in
order to ascertain whether or not the specifications and information given therein is
correct, and if not correct, the Purchaser will be entitled to return the product to the
Company for credit. If the Purchaser utilises the product for any purpose whatsoever
prior to carrying out a test in respect thereof to ascertain the veracity of the information
and specifications given, the Purchaser does so as its own risk and will have no claim
against the Company in respect of any defectiveness of the product and/or any part
thereof and/or the fact that the product does not conform with the specifications and
information given expressly and/or impliedly.
13.2 Any dispute and or difference between the parties hereto shall not be a valid reason for
the Purchaser to defer and/or delay payment to the Company of any monies due by the
Purchaser to the Company on any basis whatsoever.
13.3 The purchaser expressly acknowledges and agrees that under no circumstances will it
have any right of set – off and counter-claim against any amounts which are due in terms
of this agreement, and should the Purchaser have any such claim/s and/or any part/s
thereof, they shall form the subject matter of a separateaction to be instituted by the
Purchaser against the Company and such rights to set-off and counter claim are hereby
waived and abandoned by the Purchaser.
13.4 The Purchaser agrees that no agent and/or employees and/or servant and/or distribution
of the Company has any authority to alter, vary and/or quality any of terms and
conditions, save where the terms and conditions have been submitted to writing and
signed by the Company and the Purchaser.
14. ERRORS, SHORTAGES AND RETURNS
14.1 All Products are guaranteed full mass as stated on containers on delivery and the
Company shall not be responsible for any loss of mass of volume of Products by drying
or evaporation thereafter.
14.2 The Company shall not be liable for Products lost as a result of containers being
damaged after delivery.
14.3 The Purchaser shall immediately upon receipt of any Products from the Company,
inform the Company of any errors and/or shortages by way of written notice to be
received by the Company within 10 (ten) days of receipt of the Products by the
Purchaser. Should the Purchaser fail to inform the Company of any such errors of
shortages as aforesaid, then the Purchaser shall have no claim whatsoever against
the Company in regard thereto.
14.4 Any Products delivered by the Company to the Purchaser in error shall be considered
for credit by the Company provided that such Products:-
14.4.1 Are returned undamaged by the Purchaser within 15 (fifteen) days of its receipt
thereof; and
14.4.2 Are in their original packing and have not been unpacked or used in part; and
14.4.3 Are not defaced by price labels or other markings
14.5 Any Products collected by the Purchaser in error shall be considered for credit by the
Company provided that the pre-requisites contained in 14.4.1 and 14.4.2 and 14.4.3
are complied with.
14.6 Should the Purchaser wish to return any Products which are not defective and have not
delivered or collected in error, the Purchaser shall be obliged first to obtain the written
consent of the Company. Should the Company accept the return of such products,
the Company shall be entitled to charge a handling fee in respect thereof.
14.7 The relevant invoice or delivery note number must be quoted in respect of any
Products returned by the Purchaser to the Company for credit.
15. RETURNABLE CONTAINERS
15.1 All Products are sold and delivered inclusive of the returnable containers which shall
be deemed to included pallets.
15.2 All returnable containers supplied by the Company together with any Products shall be
charged for at the Company’s ruling or usual price at the date of the Contact and the
cost thereof shall be listed separately in the relevant statement.
15.3 In order to ensure continuity of supply of certain Products which are packed in
returnable containers, the Company undertakes to refund the price charged, subject
to a discretionary handling fee to the Purchaser for such returnable containers
provided that:-
15.3.1 The returnable containers have not been used by the Purchaser for the clothing of
products of materials other than those delivered to the Purchaser in the said
container; and
15.3.2 The returnable containers are returned at the Purchaser’s cost, in good and usable
condition, without undue delay and in any event by not later than 4 (four) months
after the delivery thereof to the factory or store from which they were dispatched
to the Purchaser; or
15.3.3 If the Company has undertaken to collect such returnable containers, such containers
shall be loaded by the Purchaser or its employees of the Company’s vehicles at the
sole risk of the Purchaser who shall be responsible for damage of whatsoever nature
caused as a result of, or during such loading operations. If the Purchaser requires the
loading of the containers to be effected by the Company’s employees or requires
assistance from the Company’s employees in loading the containers then such
loading shall be at the sole risk of the Purchaser who shall be responsible for all
damage of whatsoever nature caused as result of or during such loading.
15.3.4 Although the Company will endeavour to arrange for the collection of the returnable
containers the onus is on the Purchaser’s to return such containers, at it’s own cost.
16. STANDARD SPECIFICATION
16.1 Unless specifically stated otherwise all Products supplied will be to the Company’s
standard specification.
16.2 Any recommendation, statement of suggestions relating to the use of any Products
supplied by the Company to the Purchaser is given in good faith and no warranty is
given by the Company that the Products will be suitable for the purpose for which they
are intended and any implied warranty of condition (statutory or otherwise) is excluded.
16.3 The Company will not incur liability of any nature whatsoever either to the Purchaser or
any third party for the accuracy and/or efficiency of Purchaser designs or specifications,
either in respect of new or repeat orders.
17. DEFAULT
17.1 Should the Purchaser:-
17.1.1 Fail to make payment upon due date of any amount due and owing; or
17.1.2 Commit any other breach of the terms of any contract and remain in default of such
breach after receipt of 14 (fourteen) days written notice from the Company to the
Purchaser to remedy such breach; or
17.1.3 Being any individual, die or his estate be provisionally or finally sequestrated or
surrendered; or
17.1.4 Being a partnership, the partnership be terminated; or
17.1.5 Being a company, be placed under provisional or final order of liquidation or
judicial management; or
17.1.6 Being a close corporation, be placed under provisional or final order of liquidation
or judicial management; or
17.1.7 Compromise or attempt to compromise generally with the Purchaser’s creditors; or
17.1.8 Have any judgement granted against him/it: then
17.1.9 The Company shall be entitled, at its option and without prejudice to any other right
which it may have included the right to claim damages arising out of the breach or
the termination of the Contract:-
17.1.9.1 to declare all amount owing by the Purchaser to be immediately due and payable;
17.1.9.2 to suspend the carrying out of any of its then uncompleted obligations until payment
is made;
17.1.9.4 to retake possessions of all Products and returnable containers owned by the
Company and in the possession of the Purchaser.
17.2 The Company’s rights in terms of clause 17.1 shall not be exhaustive and shall be in
addition to any other rights it may have whether under any contract or at common law
or otherwise.
17.3 No relaxation which the Company may have permitted on any occasion in regard to the
carrying out of the Purchaser’s obligations shall prejudice or be regarded as a waiver
of the Company’s rights to enforce those obligations on any subsequent occasion.
18. DEBTORS NOTICES
18.1 Any written notices in respect of this Contract shall be delivered by prepaid registered
post or by hand.
18.2 Notices delivered shall be deemed to have been received:-
18.2.1 on the fifth business day after posting, if delivered by prepaid registered post;
18.2.2 on the day of delivery if delivered by hand on a business day.
19. WHOLE AGREEMEN
19.1 This Contract constitutes the whole of the agreement between the parties hereto
relating to the subject matter thereof and save as otherwise provided herein no
amendment, alteration, addition, variation or consensual cancellation will be of any
force or effect unless reduced to writing and signed by the parties hereto or their duly
authorized representatives.
19.2 The parties agree that no other terms or conditions, whether oral or written and
whether express or implied, will apply hereto.
20. WAIVER
No waiver of any of the terms and conditions of this Contract shall be binding or
effectual for any purpose unless expressed in writing and signed by the party hereto
giving the same, and such waiver shall be effective only the specific instance and for
the purpose given. No failure or delay on the part of either party hereto in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege preclude any other of further
exercise of any other right, power of privilege.
21. ASSIGNMENT
The Purchaser shall not be entitled to cede or assign any of its rights or obligations
in terms of the contract of sale without the prior written consent of the Company.
22. DOMICILIUM
The Purchaser chooses domiciliumcitandietexecutandi at the last address given by
the Purchaser to the Company for the delivery of and Products or at such address as it
may advise the Company from time to time.
23. JURISDICTION AND COSTS
23.1 In terms of section 45 of Magistrates Court Act 1944, as amended, the Purchaser
hereby consents to the jurisdiction of the Magistrates Court having jurisdiction in terms
of section 28 of the said Act in respect of any action to be instituted against the
Purchaser by the Company in terms of the Contract. It shall nevertheless be
entirely within the discretion of the Company as to whether to proceed against the
Purchaser in such Magistrates Court or any other court having jurisdiction.
23.2 The Company shall be entitled to recover all charges of whatsoever nature which
may be incurred by the Company in enforcing any of the provision of this Contract
including, without limitation, by virtue of the a foregoing, all legal costs including
costs as between attorney and client; collection commission and tracing agents fees.
24. APPLICABLE LAW
Any contract will be governed and interpreted in accordance with the laws of the
Republic of South Africa.
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