General Terms & Conditions of Contract
1. Scannerds (Pty) Ltd, duly registered in terms of the Companies Act of the Republic of South Africa, with the registration number 2010/008949/07. Hereafter referred to as the “Company” or “Supplier”.
2. “This agreement” means this agreement including the Progress Sheet, Project Brief and all schedules and addenda as may become necessary from time to time.
3. The invalidity of any part of this Agreement shall not affect the validity of any other part.
4. The rule of construction that the contract shall be interpreted against the party responsible for the drafting or preparation of the agreement, shall not apply.
5. When any number of days is prescribed in this agreement, same shall be reckoned exclusively of the first and inclusively 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.
6. In the agreement any reference to natural persons includes legal persons and vice versa and references to any gender includes references to the other gender and vice versa.
7. Any document shall be deemed duly represented to and accepted by the Customer:
i. within (3) three days of prepaid registered mail to any of the Customer’s business or postal addresses or to the personal address of any director, member or owner of the Customer; or
ii. within (24) twenty-four hours of being faxed to any of the Customer’s fax numbers, or any director, member’s or owner’s fax numbers; or
iii. within (24) twenty-four hours of being e-mailed to any of the Customer’s e-mail addresses, or any director, member’s or owner’s e-mail addresses; or
iv. on being delivered by hand to the Customer or any director, member or owner of the Customer; or
v. within (48) forty-eight hours if sent by overnight courier; or
vi. within (7) seven days of being sent by surface mail.
8. The “Commencement date” means the date on which this Agreement comes into force and becomes enforceable. This date is determined by the date on which the client signs the Quotation and in doing so accepts the Quotation as provided by the Supplier.
9. The “Termination date” is the date on which this agreement ends having run its course, and unless terminated in accordance with any other provision in this agreement. Where the Client requires the Supplier to provide once-off ad-hoc products and / or services, this Termination date is the date on which the Supplier completes the products and / or services as referred to in clause 31 in the “Payment terms and conditions” below; and where all the amounts due in respect of the relevant and particular order or project becomes payable. Where the Client requires the Supplier to provide frequently recurring services on a specific periodic basis, this Termination date is the date which fall on the last day of the month immediately following a (30) thirty day notice period, such notice having been given by either party in writing to the other party in accordance with clause 7 of the “General Terms and Conditions of Contract”, below.
10. The Customer agrees that:
i. this Agreement represents the entire Agreement between the Customer and the Supplier and that any alterations or additions to this Agreement may not be effected unless agreed to by both parties, reduced to writing and signed by the Customer and a duly authorized representative of the Supplier;
ii. this Agreement will govern all future contractual relationships between the parties, notwithstanding receipt or acknowledgement of the Customers own order form or conditions;
iii. this Agreement is applicable to all existing debts between the parties;
iv. this Agreement is final and binding and is not subject to any suspensive or resolutive conditions;
v. any conflicting terms, conditions or agreements without prejudice to any securities or guarantees held by the Supplier and;
vi. this Agreement applies to all employees and subcontractors of the Supplier.
11. This Agreement, and any offers, orders, quotes or contracts of sale pursuant thereto, become binding only when accepted by the Supplier at its business address.
12. All orders or contracts of sale, or agreed variations thereto, whether oral or in writing, shall be binding and subject to this agreement and may not be cancelled by the Customer.
13. All quotations are subject to the availability of stock, products, goods and /or services. The prices quoted are subject to any increase in the cost price, including currency fluctuations, to the Supplier before acceptance of the order by the client.
14. The supplier reserves the right, at its sole discretion, to provide alternative products and / or services at the prevailing prices to those ordered by the Customer, should those products and / or services have been superseded, replaced or otherwise become unavailable.
15. The signatory hereby binds himself in his personal capacity as Shareholder (in the case of a Company), Member (in the case of a Close Corporation) or Owner, Partner, or Proprietor, as co-principal debtor jointly and severally for the full amount due to the Supplier and agrees that this Agreement will apply in the same way to him.
16. The Customer chooses its address for legal execution as its physical or business address or the physical address of any Director (in the case of a company), Member (in the case of a close corporation) or of the Owner(s) or Partner(s).
17. The Customer undertakes to inform the Supplier in writing, within (7) seven days of any change of Director, Member, Shareholder, Owner or Partner or address, or (14) fourteen days prior to selling or alienating the Customer’s business. Failure to do so will constitute a material breach of this agreement. Upon receipt of such written notification, the Supplier reserves the right, at its sole discretion, to withdraw any credit facility advanced to the Customer.
18. The Customer agrees that neither the Supplier nor any of its employees, partners or affiliates will be liable for any negligent or innocent misrepresentations made to the Customer.
i. The Customer acknowledges that it does not rely on any representations made by the Supplier in regard to its products and services, or qualities thereof, leading up to this Agreement other than those contained in this Agreement. All specifications, price lists, performance figures, advertisements, brochures and other technical data furnished by the Supplier in respect of its products or services, whether orally or in writing will not form part of this Agreement in any way unless agreed to in writing by the Supplier.
ii. The Customer or any agent acting on its behalf, on whose behalf or at whose instance any services are rendered hereby indemnifies the Supplier and all of its employees against any liability which the Supplier may incur to any other person as a result of the production of any material produced.
19. All quotations will remain valid for a period of (30) thirty days from the date of the quotation, or until the date of issue of any new price list, whichever occurs first, or unless specified in writing by the Supplier.
20. The Supplier provides its products and / or services on the basis that the client:
i. Will not utilise the service, or allow others to do so, for any improper, immoral, or unlawful purpose.
ii. Will comply with all relevant legislation and regulation and all instruction issued by any government authority.
21. The Supplier shall not be liable for any damage arising from any misuse, abuse or neglect of products or services under any circumstances whatsoever.
22. It is the responsibility of the Customer to determine that the products or services ordered by it are suitable for the purposes of intended use. The Supplier gives no warranty, express or implied, concerning the suitability of the products supplied for any purpose whatsoever.
23. The Customer shall return any defective moveable products to the premises of the Supplier at the Customers cost and packed in the original or suitable packaging.
24. If the Supplier agrees to engage a third party to transport products on the Customer’s behalf, it does so on terms deemed fit by the Supplier. The Customer indemnifies the Supplier against any claims arising from such agreement.
25. The risk of damage to, or destruction or theft of its products shall pass to the Customer on delivery of any order placed in terms of this Agreement and the Customer undertakes to comprehensively insure the products until paid for in full. The Supplier may recover insurance premiums from the Customer for products insured on the Customer’s behalf.
26. The risk of damage to, or destruction or theft of its products shall pass to the Customer on delivery of any order placed in terms of this Agreement and the Customer undertakes to comprehensively insure the products until paid for in full. The Supplier may recover insurance premiums from the Customer for products insured on the Customer’s behalf.
27. All products and / or services supplied by the Supplier remain the property and /or intellectual property of the Supplier until such products and / or services have been fully paid.
28. Customer’s property and property supplied to the Supplier will be retained at the Customers risk.
29. The Supplier shall not be liable for any consequential damages including loss of profit or for any delictual liability of any nature whatsoever
30. The Supplier shall be entitled at any time, to suspend the services, in whole or in part without notice to the client and without incurring any liability whatsoever, except in such instances where the Client is paid up in advance, or has a credit balance with the Supplier in excess of the cost or value of the products and / or services to be provided and /or have already been delivered.
31. All Products sold are subject to a 30 day guarantee for latent defects. All other guarantees, including common law guarantees, are hereby specifically excluded. The Supplier will attend to and rectify latent defects subject to the availability of input goods and services, and any other resources the Supplier deems necessary.
32. Liability under clause 28 of the “General Terms and Conditions of Contract” is restricted to the repair or replacement of faulty products or services, or granting of a discount, at the sole discretion of the Supplier.
33. Any complaints and claims on the deliverables will only be considered if such complaints are received in writing within thirty (30) days of final delivery.
34. Any order is subject to cancellation and /or late delivery by the Supplier due to Acts of God, or from any cause beyond the control of the Supplier, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, or by reason of an Act of God, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
35. Any order is subject to cancellation by the Supplier if the Customer breaches any term of this Agreement or makes any attempt of compromise, liquidation, sequestration, termination or if judgment is recorded against the Customer or any of its principals.
36. The Customer agrees that the Supplier will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in clause 34 or clause 35 of the “General Terms and Conditions of Contract” occur.
37. The Customer agrees that any indulgence whatsoever by the Supplier will not affect the terms of this agreement or any of the rights of the Supplier and any such indulgence shall not constitute a waiver by the Supplier in respect of any of its rights herein. The Supplier will not be stopped from exercising its rights in terms of this Agreement under any circumstances whatsoever.
38. The Customer hereby consents that the Supplier shall have the right to institute any legal action in either the Magistrate’s Court or the High Court at its sole discretion in the event of any dispute.
39. The Customer shall be liable to the Supplier for all legal expenses incurred by the Supplier on the attorney-and-own client scale in the event of (a) any default by the Customer or (b) any litigation in regard to the breach, validity or enforceability of this agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs including stamp duties, for any form of security that the Supplier may demand.
40. This Agreement and its interpretation is subject to South African law and the Customer consents to the exclusive jurisdiction of the South African Courts referred to in clause 68.