1.1 “The Company” as used herein, means Radium (Pty) Ltd. “Customer” as used herein means the person, firm, close corporation or company ordering goods or services from the Company.
1.2 Unless otherwise agreed in writing by the Company, these conditions which supersede any earlier sets of conditions appearing in the Company’s catalogue or elsewhere shall override any terms of conditions stipulated, incorporated or referred to by the Customer, whether in the order or in any negotiations.
1.3 No waiver, alteration or modification of any of the provisions on the face or the reverse hereof shall be binding unless in writing and signed by a Director of the Company.
1.4 Acceptance of delivery by the Customer or his agent of any goods from the Company shall be an express acceptance by the Customer that these conditions apply to the sale notwithstanding any conditions to the contrary which the Customer might seek to impose in its own conditions of purchase.
1.5 In cases where orders are placed and accepted by telephone, acceptance of delivery by the Customer or his agent shall, likewise, be an express acceptance of these conditions.
1.6 The terms and conditions of Quotation, Order and Sale outlined herein take precedence over any conditions of Purchase unless agreed in writing by a Director of the Company.
1.7 All terms and conditions set out herein shall form an integral part of this agreement, the Customer acknowledges that he knows and understands the contents hereof and that all business conducted with the Company shall be concluded thereof and in terms of the conditions contained herein.
1.8 All and any business undertaking, including any advice, information or service provided, whether gratuitously or not by the Company is and shall be subject to the conditions hereinafter set out and each condition shall be deemed to be incorporated in and to be a condition of any agreement between the Company and its Customer.
2.1 Prices quoted are for the quantity mentioned and any reduction may affect price. Quotations are subject to acceptance within one month from the date of the quotation.
2.2 The Company is under no obligation to keep the price list issued to the Customer up to date.
2.3 The quotation price for the goods may be varied by additions upwards by the Company in accordance with market conditions at the date of the actual supply and the Customer shall pay such increases in price in addition to the quoted price. Without prejudice to the generality of the foregoing, “market conditions” shall include any increase in the costs of labour and/or materials, operations, fluctuations in the exchange rate against major overseas currencies and/or transport.
2.4 Prices do not include carriage by normal road freight, railage (Fast Freight) or parcel post. Any requirements for special delivery (overnight or air freight, etc.) will be charged at cost.
2.4.1 All prices quoted are exclusive of VAT
2.4.2 Items offered are in minimum packed quantities as per the Company’s price list and are only supplied in multiples thereof.
2.5 The Company reserves the right to charge 2% interest above Nedbank’s (a division of Nedcor Bank Limited’s) prime rate if interest charged on overdraft facilities, on all sums due to it and unpaid after the date of settlement referred to in Clause 3(1) hereinafter contained, which said interest shall compound and accrue from day to day until payment is received in full.
3.1 The Company’s net monthly account shall be payable on or before the last day of the month following that of the date of the invoice. All payments are to be made on or before the due as a condition precedent to future deliveries.
3.2 The Company issues monthly statements of account. Disputes in connection with payments arising there from must be submitted in writing to the Credit Controller of the Company and received by the Company within thirty days of the date of the invoice.
3.2.1 Any dispute relating to a portion of the purchase to a portion of the purchase price shall be dealt with as follows:
126.96.36.199 The Customer shall pay that portion of the purchase price in dispute into the Company’s nominated Attorneys’ Trust Account, to be held in Trust pending the outcome of the dispute, where the amount shall be invested in an interest bearing trust account as is envisaged by Section 78(2) (A) of the Attorney Act.
188.8.131.52 In the event of the dispute being finally decided in favour of the Company, the Company’s nominated Attorneys are irrevocably authorized to pay the monies (including interest earned thereon) to the Customer.
184.108.40.206 In the event of the dispute being finally decided in favour of the Customer, the Company’s nominated Attorney’s are irrevocably authorized to pay the monies (including interest earned thereon) to the Customer.
220.127.116.11 The difference between that portion of the purchase price in dispute and the total purchase price shall immediately be paid to the Company, and shall not under any circumstances be held by the Customer pending the determination of any dispute.
3.3 The Company reserves the right to suspend deliveries and to revoke any trading benefits for non-compliance with any of the terms and conditions contained herein.
3.4 A statement signed by the Company specifying the amount owing by the Customer shall be prima facie proof of the amount of such indebtedness and fact that the payment thereof is due to the Company and shall be a liquid document, sufficient for all purposes, including obtaining judgment and provisional sentence against the customer.
3.4.1 Notwithstanding the provisions contained in Clause 11 hereinafter, all risk of loss or damage in respect of goods delivered shall pass to the Customer on delivery. The Customer shall hold all unpaid goods fully insured against all loss and damage and shall pay the proceeds of any insurance claim to the Company.
3.4.2 If the Company shall make default in or commit any breach of any of obligations to the Company, or if any judgment by a Court of Law is granted against the Customer, or if he (the Customer) shall make or offer to make any arrangement or composition with creditors, or commit any act of insolvency, or if any order is granted against the Customer for its Provisional or Final Liquidation/Sequestration, or if the Customer shall be a limited company and any resolution or petition to wind up such company’s business shall be passed or presented otherwise than for reconstruction or amalgamation, or if a receiver of such company’s business shall be passed or presented otherwise than thereof shall be appointed, the Company shall have the right forthwith to determine any order then subsisting and upon written notice of such determination being posted by it to the Customer’s last known address, any subsisting order shall be deemed to have determined without prejudice to any claim or right the Company might otherwise make or exercise.
3.5 The Company shall be entitled to recover, in addition to all the aforesaid amounts, all costs disbursed by it to its Attorneys in securing the Customer’s compliance with the provisions hereof which costs may be taxed and recovered on the scale as between attorney and its client and shall include the costs of all necessary attendances, tracings and opinions given, whether action has been instituted or not.
4.1 Any time or date nominated by the Company for delivery is given and intended as an estimate only and the Company shall not be liable to make good any damage and loss whether arising directly or indirectly out of delay in delivery and in no case shall be reason for rejecting goods.
4.2 All offers of goods from stock are subject to the goods remaining unsold at the time of receipt of order.
4.3 Where the Customer specifies period delivery, the final delivery must be due within 12 months of the order being placed. Period deliveries can only be made on orders of a value of R 1000, loss 00 or more and each delivery must be of R250, 00 or more in value.
4.4 Delivery shall be taken by the Customer within the period, if any, named in the quotation or order and such full details as may be necessary (or require by the Company) to enable the Company to complete delivery within such period shall be supplied by the customer. If, for any reason, the customer is unable to accept delivery of the goods at the time when reasonable steps to prevent their deterioration until their actual delivery and the Customer shall be liable to the Company for the reasonable costs (including insurance) of it so doing. This provision shall be in addition to and not in substitution for any payment or damages for which the customer may become liable in respect of his failure to take delivery at the appropriate date.
4.5 Delivery time as quoted by Company will only apply from the date at which all technical and commercial details have been completely clarified and agreed with the Company.
5.1 No goods may be returned unless faulty and only then if the Company has been advised in writing as to the reasons for the request of the goods’ return pursuant to Clause 6 (30) hereinafter contained.
5.2 The Company will only accept for return the goods which comply with Clause 5(1) hereof and which were supplied by the Company.
6.1 The Company warrants that the goods will be free from defects in materials or workmanship and will conform to the Company specifications. The warranty extends only to the repair or replacement at the option of the Company of warranted goods which are returned, carriage prepaid to the Company by the Customer and which have been determined by the Company to be defective or non-conforming provided always that the Company shall be under no liability for:
6.1.1 Any consequential loss or damage of any kind whatsoever.
6.1.2 Any defect or deficiency judged by the Company to be caused by wear and tear or by the improper or unskilled handling of the goods, more specifically:
18.104.22.168 Ground engaging parts;
22.214.171.124 Electronic parts including electronic sensors.
6.2 If the Customer is aware that the goods are not in conformity with specifications and notwithstanding, accepts them, the Company shall have no liability.
6.3 A warranty claim shall not be valid unless received by the Company within thirty days following discovery and shall not in any case be valid unless submitted within three months of the invoice date.
6.4 The Company cannot be held responsible for errors in drawings or samples after they have been approved by the Customer.
6.5 Notwithstanding the aforementioned, all expressed or implemented warranties or conditions statutory of otherwise as to quality or fitness for purpose are hereby expressly excluded.
The Customer shall indemnify the Company against all damages, penalties, costs and expenses to which the company with the Customer’s design, specifications or instructions.
8.1 The Company reserves the right to select methods of packaging and shipment. Any non-standard packaging or shipment insisted on by the Customer will only be done if previously arranged and any extra costs to the Company will be charged for.
8.2 When necessary to use wooden or plastic cases these will be charged at cost and are non-returnable.
8.3 The Company shall not be responsible for non-delivery of the whole of the consignment or any package forming part of a consignment unless the Customer notifies the Company and the carriers within 14 (fourteen) days of the dispatch note or invoice date. In the case of goods damaged in transit or loss from package or unpacked consignment, the Company shall not be responsible unless the Customer notifies the Company and the carries within 7 (seven) days of receipt of consignment.
9.1 The Company shall be entitled, in its discretion to institute any proceedings in terms of this agreement in any Lower Court exercising jurisdiction, notwithstanding that such proceedings would otherwise fall beyond the limits of the jurisdiction of that Court. The clause shall be deemed to constitute the required written consent pursuant to the provisions of the Lower Court Act, (as may be amended from time to time) but nothing herein stated shall preclude the Company from instituting any action arising from this Agreement in any other Court of competent jurisdiction.
9.2 Regardless of the place of execution, performance and domicile of the parties, all deliveries, contracts for sale of goods, services and the relationship between the Company and the Customer shall be governed by and construed under and in accordance with the laws of South Africa exclusively.
The Company shall be relieved of all liability whatsoever to the extent to which fulfillment of its obligations is prevented, frustrated or impeded as a consequence of conforming to any statute or any rule, regulations, order or requisition made there under, force majeure or by any cause beyond its control.
11.1 Title in the goods remains vested in the Company and shall only pass from the Company to the Customer upon full payment being made by the Customer of all sums due. In the event of the goods being sold by the Customer in such manner as to pass to a third party, a valid title to the goods, whilst any sums are due as aforesaid, the Company’s right under the Conditions shall attach to the proceeds of such sale or to the claim for such proceeds and Customer shall place such proceeds in a separate court.
11.2 The Customer agrees that prior to the payment of the whole price of the goods, the Company may, at any time, enter upon the Customer’s premises and remove the goods there from, and that prior to such payment the customer shall keep such goods separate and identifiable for this purpose.
11.3 In the event of the goods becoming constituents of, or being converted into their products, whilst sums are due as provided in sub-condition (1) hereof, the Company shall have ownership of and title to such products as if they were their goods.
12.1 The Customer chooses his/her/its domicilium citandi et executandi for all purposes under this agreement and in addition thereto for the purpose of service of all notices and correspondence, the address given by it for the performance of the Company’s obligations.
12.2 All notices to be given by the Company shall if:
12.2.1 Delivery by hand at either party’s domicilium be deemed have been received at time of delivery.
12.2.2 Posted by pre-paid registered post by the Company be deemed to have been received by the Customer on the fifth day after date of posting.
12.3 Any part shall be entitled to change their domicilium by written notice to the other party.
No addition to variation, or agreed cancellation of this agreement shall be of any force or effect unless the same is reduced to writing and agreed by on all the parties.
Each paragraph clause or sub-clause of this Agreement is severable from the one to the other, and if any paragraph, clause or sub-clause is found to be defective or unenforceable for any reason by any competent Court or Arbitrator, the remaining paragraphs, clauses or sub-clauses (as the case may be) shall be of full force and effect and shall continue to be of full force and effect.
No indulgence which any party may grant to any other shall constitute a waiver of any of the rights of the grantor, who shall not thereby be precluded from exercising any rights the grantee which may have arisen in the past or which might arise in the failure.
The Customer hereby renounces all benefits from the legal exceptions non causa debiti, non numerate pecuniea, errore calculi, revision of accounts and no value received, and all other exceptions which might or could be pleaded in bar to the validity of the said indebtedness or claim under this Credit Agreement, the meaning and effect of which exceptions the Customer or its duly authorized representative declares having been duly explained to it and the Customer or it’s duly authorized representative further declares he/she fully understands the same.