SERVICE PARTS LOGISTICS (PTY) LTD (SPL) TERMS & CONDITIONS OF PURCHASE
- SPL shall be entitled at any time to add to, vary, supplement or amend the terms and conditions referred to herein by written notice to the Applicant.
- SCOPE AND APPLICABILITY OF THESE CONDITIONS – all tenders or quotations and all sales of equipment by SPL to the Applicant and any contracts or sub-contracts entered into by SPL shall be subject to the conditions hereinafter set out, and each condition shall be deemed to be incorporated and to be a condition of any agreement between SPL and the Applicant.
- WITHDRAWAL OF FACILITY – SPL may, at its discretion, terminate the Applicant’s credit facilities in terms hereof by giving the Applicant written notice of termination of the facilities, and such termination shall be effective on receipt of such notice by the Applicant. The Applicant shall be deemed to have received notice on the day of delivery of the notice if it is delivered by hand, seven days after posting if sent by registered mail or within 2 hours of transmission if transmitted via telefacsimile during normal business hours.
- PAYMENT – unless otherwise specifically agreed between the parties :
SPL shall be paid strictly within thirty (30) days from date of invoice and/or notification from SPL that the equipment has been delivered, or if for any cause beyond its control, SPL is unable to dispatch the equipment, then upon presentation of invoices and notification from it that the equipment is ready for dispatch.
The Applicant shall be liable to pay interest on all amounts outstanding to SPL from time to time at the prime rate of interest charged by Standard Bank, plus 3%, which interest shall be calculated on a daily balance and capitalised monthly from the date that the monies fell due to date of payment.
PAYMENT FREE OF DEDUCTION – Such payment shall be made without deduction and shall not be withheld or deferred on account of any claim, counter-claim or set off, in particular with regard to any dispute in respect of the weight and/or quality and/or order and/or price of the equipment delivered.
- ALLOCATION OF PAYMENTS – SPL shall be entitled in its sole and absolute discretion to allocate any amounts received from the Applicant (whether the Applicant has allocated it or not) towards the payment of any cause of debt owing by the Applicant to SPL. Any amounts due to SPL to the Applicant shall be specifically subject to the right of set off.
- Any modification, variation, forbearance or indulgence by SPL in respect of any credit passed, shall be in respect of only a specific order or instruction and as agreed to between SPL and the Applicant and shall not be construed as a regular discount or credit to any subsequent or further orders by the Applicant. In the event of the Applicant not paying any amount/s on due date/s then :-
all outstanding amounts then owing by the Applicant to SPL shall immediately become due and payable, without notice to the Applicant by SPL; and
SPL shall be entitled to discontinue the supply and/or to cancel the delivery of any undelivered portion of the equipment pending payment without prejudice to any other rights which SPL may have against the Applicant, and the Applicant shall remain responsible for completed and partly completed work up to date of such discontinuance or cancellation.
- VAT – The prices quoted by SPL are exclusive of Value Added Tax (VAT) unless otherwise indicated.
- CERTIFICATE OF INDEBTEDNESS – A certificate signed by a director of SPL (or by its financial manager or any one of its directors or managers, whose appointment, qualification and/or authority shall be presumed unless the contrary is proved) as to the amount of the Applicant’s indebtedness hereunder shall be prima facie evidence of the amounts of indebtedness shown in that certificate and shall be binding on the Applicant (unless the Applicant proves the incorrectness thereof) in any proceedings instituted by SPL in any competent Court for the purpose of obtaining provisional sentence or judgment against the Applicant.
- SURETYSHIP – In the event of the Applicant being a juristic person, then the signatory to this Credit Application Form, and such other persons as may be identified or required by SPL, agrees to be bound jointly and severally as surety and co-principal debtor with the Applicant to SPL for the due payment of all amounts owing by the Applicant to SPL from time to time, by completing in full and signing the attached deed of suretyship which is annexure “B” to these terms and conditions.
- CONSENT TO JURISDICTION – If SPL has a claim against the Applicant under or in respect of credit facilities granted by SPL to the Applicant in terms hereof, the Applicant consents to SPL at its option, bringing that claim in the Magistrate’s Court which has jurisdiction over the Applicant even if the amount of the claim exceeds the jurisdiction of the Magistrate’s Court.
- OWNERSHIP – Despite anything to the contrary in any other agreement between SPL and the Applicant, ownership of equipment sold by SPL to the applicant will not pass until the Applicant has paid the purchase price for such equipment in full. The risk of loss or damage to the equipment shall pass on delivery to the Applicant.
- EQUIPMENT TO REMAIN FREE OF ENCUMBRANCE – until ownership of the equipment has passed to the Applicant, the Applicant shall notify each Lessor/Landlord/owner and/or Mortgagee of any premises on which equipment belonging to SPL is delivered. The Applicant shall also furnish SPL with a copy of such notification. SPL shall also be entitled, but not obliged to inform any Lessor/Landlord/Owner/ and/or Mortgagee of such premises of its reservation of ownership of the equipment. The Applicant shall also keep the equipment free of any lien, hypothec or other security interest for so long as ownership thereof remains vested in SPL.
- INSURANCE – The Applicant shall, as soon as is reasonably possible prior to the delivery of the equipment, at its own expense, take out and maintain an insurance policy or policies, covering the equipment against loss, damage or destruction for the replacement value thereof, or where repairable, the costs of repair of such equipment owned by SPL and shall provided SPL with proof thereof, as soon as is reasonably possible.
- In the event of the applicant failing to comply with any of the provisions of paragraph 14 above SPL shall be entitled but not obliged to procure insurance cover in respect of the equipment, the premiums of which shall be paid by the Applicant. At the election of SPL, SPL may pay such premiums as are required thereon, and the Applicant shall reimburse SPL the amount so disbursed to SPL together with interest thereon at the rate of 3% above the prime bank overdraft rate charged by Standard Bank on overdraft facilities, from the date of disbursement to date of payment and upon demand.
16 PRICES – Prices and quotations as appearing on SPL’s invoices shall be regarded as firm and fixed for a period of 7 days from date of quotation and shall constitute prices relevant to the particular invoice or contract unless the Applicant informs SPL in writing and at its offices within four (4) days of the date of such invoice or quotation, of any discrepancy or disagreement in respect of such prices or trade discounts as appears on SPL’s documents.
17. In the event of any doubt or dispute regarding the adjustment of prices in accordance with the aforegoing, a certificate by the auditors of SPL, acting as experts and not as arbitrators as to the amount of any increase or decrease, shall be prima facie proof of such increase or decrease.
18. Notwithstanding the provisions of paragraph 17 above, the prices quoted for the equipment including import and surcharges where applicable, may be affected by a fluctuation in the rate of exchange and/or any import duties and/or taxes and/or freight charges and/or a change in the selling price of the equipment by the suppliers thereof. In the event of such a change, and failing agreement between SPL and the Applicant with regard to such change(s), SPL reserves the right to amend its quotation accordingly.
19 The Applicant shall be obliged to pay the purchase price of any product delivered to it in terms hereof in South African currency at SPL’s domicilium address.
20 STORAGE FEES – SPL shall be entitled at it’s discretion to charge the Applicant reasonable storage fees for goods held by SPL for and on behalf of the Applicant for any period in excess of 3 weeks from the date on which the goods are delivered to SPL by the Supplier. SPL shall advise the Applicant of the rate to be charged prior to charging the storage fee.
- HANDLING FEES – In the event of SPL being charged a handling fee by a supplier in respect of goods ordered for and on behalf of the Applicant and in accordance with this agreement, the Applicant shall be liable for such fees and SPL shall be entitled to invoice the Applicant for same.
- RETURNS – No stock returns are accepted by SPL.
- RETURN OF FAULTY STOCK AND WARRANTY STOCK – Any claim for credit by the Applicant with regard to faulty/ warranty parts, must be accompanied by delivery to SPL of the faulty part .In addition all online authorisations must have been correctly and fully completed together with all relevant documentation as required by SPL. The applicant acknowledges that they are fully aware of Exchange parts as identified by OEM suppliers from time to time which require them to return faulty parts to SPL. Exchange parts will be invoiced at their full selling price and upon receipt of the faulty part from the Applicant, SPL will credit the invoice for the exchange part according to the Returns Material Authorisation (RMA).This process may be amended by SPL from time to time as required based on changes to operating processes.
24. Faulty part and Warranty part returns are always subject to OEM terms and authorisations and the Operational terms and conditions that SPL issue which may be amended by SPL. All such returns must be preauthorised by SPL via its systems from time to time and all documentation must be completed in full. In addition claims must be accompanied by the original invoice as required by SPL. All goods returned by the Applicant to SPL shall be returned at the Applicant’s expense.
25 TRANSPORT AND DELIVERY RISKS – When delivery is made by SPL to the Applicant by carrier (i.e. by means of transportation other than SPL’s own transportation) then, and in such event, all risks in and to the equipment in question shall pass to the Applicant upon collection thereof by the carrier.
26 SPL reserves the right to withhold delivery of any undelivered portion of the equipment until all monies payable for any delivered equipment has been paid.
- Each delivery or part delivery of any order shall be deemed to be sold under a separate agreement and neither failure on the part of SPL to make any delivery or part delivery in accordance with these conditions nor any claim by the Applicant in respect of such delivery or part delivery, shall entitle the Applicant to reject the balance of the order. Any delivery note signed by the Applicant or on its behalf shall be prima facie proof that delivery of the equipment was made to the Applicant.
- All equipment is deemed to be in good working order and exactly to the Applicant’s instructions and specifications, as recorded on the order form or on SPL’s confirmation of an order, unless notified otherwise by the Applicant within 4 days of date of delivery.
- INSTRUCTIONS TO SPL – instructions to SPL shall be valid and binding only if timeously given specifically in relation to the order in question and accepted by SPL.
- Standing or general instructions or instructions given late, even if received by SPL without comment, shall not be binding on SPL unless accepted by SPL.
- In the absence of any instruction by the Applicant timeously given and accepted by SPL, it shall be in the entire discretion of SPL to decide what reasonable time to perform any or all the various acts which may be necessary for the discharge of SPL’s contractual obligations to the Applicant and SPL shall have no liability or responsibility by virtue of the fact that there may be a change in any charges or tariff’s before or after the performance by SPL or of any act involving a less favourable rate, by tariff or charge or by virtue of the fact that a saving might have been effected in some way had any act been performed at a different time.
- ORDERING – SPL shall only supply equipment to the Applicant in accordance with these terms and conditions of sale upon receipt of a written order. Notwithstanding the aforesaid, SPL shall be entitled but not obliged to accept orders communicated telephonically to it by the Applicant, on condition that the Applicant confirms such telephonic order in writing within 24 hours of the placing thereof. All orders placed with SPL are subject in all respects to approval and acceptance by SPL, in its sole and absolute discretion, and SPL shall not be bound to accept any order placed by the Applicant or be liable to the Applicant for any claim of any nature which arises by virtue of its failure to accept any order.
- WARRANTY – Any products supplied in terms hereof by SPL shall carry a warranty that is according to the manufacturers standard warranty terms supplied with the product, unless such warranty is specifically excluded by SPL in writing, and SPL’s liability (if any) shall only be in accordance with the terms and provisions of such warranty.
- LIMITATION OF LIABILITY – SPL shall not be liable under any circumstances whatsoever for :-
34.1 Any loss of profit or other special damage or any consequential damages arising out of any breach by it of any of its obligations under this agreement, or any latent or other defects in the equipment;
34.2 Any damage to equipment that has occurred on the Applicant’s premises subsequent to delivery thereof in any respect whatsoever;
34.3 Any loss or damage arising out of the products or any part thereof being defective in any way or not being suitable for any particular purpose or use.
- Should SPL, notwithstanding the aforegoing, be found by any competent Court of Law in the Republic of South Africa to be liable for any losses, costs, damages or refunds, the Applicant hereby specifically agrees that SPL’s liability will be limited to a maximum of the price received by SPL from the Applicant for the equipment which gave rise to the action, subject to the return of such equipment in good condition, fair wear and tear excepted.
36. VIS MAJOR – SPL shall not be held responsible for failure to perform in terms of this agreement when prevented from doing so by industrial action, breakdown of equipment, war, transport delay, flood, fire, riots, civil disturbance or any other causes beyond its reasonable control.
37. CHANGE OF CIRCUMSTANCES – The applicant undertakes to notify SPL in writing immediately there is any material change in the Applicant’s circumstances, including but not limited to: change in ownership of the Applicant, or in the Applicant’s business, name, address of financial circumstances.
38 SEVERABILITY AND DIVISIBILITY – Each and every provision and/or clause in this agreement is hereby declared to be severable and divisible from the other. Accordingly, in the event that any one or more of the clauses is deleted or found to be invalid or unenforceable for whatever reason, then and in such an event, such deletion, invalidity and or unenforceability shall in no way detract from, limit, inhibit and/or derogate for the enforceability of the remaining clauses.
- COSTS – If SPL takes any action against the Applicant (whether this action includes instituting legal action or not) to recover money owing by the Applicant in terms hereof, the Applicant shall be liable for all SPL ‘s costs of any nature, including legal costs on an attorney and own client basis and collection commission.
- NOTICES AND DOMICILIUM – Each party chooses the address set out in the application form as its domicilium citandi et executandi at which all notices, legal processes and other communications must be delivered for the purposes of these Conditions.
- Any party may by written notice to the other party change its chosen address to another physical address and/or its chosen telefax number to another telefax number, provided that the change shall be in writing and addressed to the other party. Notice shall be deemed to have been received by the other party on the day of delivery of the notice if it is delivered by hand, seven days after posting if sent by registered mail or within 2 hours of transmission if transmitted via telefacsimile during normal business hours.
- Any notice or communication required or permitted to be given in terms of these conditions shall be valid and effective only if in writing but it shall be competent to give notice by telefax.
- ACCELERATION – If the Applicant fails to pay a debt to SPL in terms hereof when it is due then all other amounts owed to SPL by the Applicant from any cause shall become immediately due and payable even if payment of those amounts is only due in the future.
- GENERAL – Any latitude or extension of time, which may be allowed by SPL, shall not under any circumstances whatsoever act as an estoppel or be a waiver of SPL ‘s rights hereunder.
- The applicant specifically acknowledges that any amounts due to the Applicant by SPL will be subject to a set off in order to reduce the amounts due to SPL.
- These terms and conditions of sale shall be in all respects governed by and construed in accordance with the laws of the Republic of South Africa. The Courts of South Africa shall have jurisdiction in all matters pertaining to or arising out of these terms and conditions of sale.
- This Application constitutes the entire contract between the parties relating to the subject matter hereof and no other conditions, warranties, guarantees and representations shall be of any force or effect other than those which are included herein.
- The Applicant shall not be entitled to cede its rights or delegate its obligations under this Application without the prior written consent of SPL.
- For the purposes of this Application unless the context otherwise indicates the word “Application” means this Application for credit facilities together with the information furnished in Annexure A and B attached.
- The Applicant hereby acknowledges that he has read and understood each term of these conditions and accepts them as valid and binding.
- EOL – End of Life products represents products that can no longer be purchased from the Original Equipment Manufacturer
- b. REMARKETED – Remarketed parts includes good part open box, pre inspected , equipment returned part resold, and refurbished parts. All Remarketed parts carry an SPL 180 day warranty powered by Care4it.