The “Parties” to an Agreement will be Titamed (PTY) Ltd, or t/a Airwave Engineering, the “Manufacturer” and the “Customer”, including their subsidiaries, affiliates, successors in title and assigns.
a. The Manufacturer is AS9100 (Aerospace), ISO9001 (Quality Management System, QMS) and ISO13485 (Medical Devices) certified.
b. The Customer wishes to engage the Manufacturer to manufacture products/parts per the Customers’ specifications and at an agreed upon price and lead time.
c. The Parties wish to record the basis upon which the Manufacturer has agreed to manufacture products/parts when requested by the Customer.The Manufacturer only manufactures products/parts per the Customers’ request and specifications, and at an agreed upon price and lead time.
d. The terms and conditions herein, but not restricted to, forms the basis upon which the Manufacturer will agree to manufacture products/parts and the manufacturer reserves the right to adapt this agreement to meet with the then situational factors.
a. Customer – means any person or legal entity at whose request or on whose behalf or in respect of whom the Manufacturer manufactures and supplies Products.
b. Manufacturer – means Titamed (PTY) Ltd. Registration number 2000/021595/07 and/or T/A Airwave Engineering.
c. Parties – means both the Customer and the Manufacturer.
d. RFQ – means Request for Quote (document or correspondence containing information of the Products and services required by the Customer requesting the Manufacturer to Quote a price) .
e. PO – means Purchase Order (document or correspondence from the Customer, based on the RFQ and Quote, specifying items, quantities, prices, credit terms and other contractual variables);
f. Product – means the parts manufactured by the Manufacturer to the specifications supplied by the Customer.
g. Quote – means the cost to manufacture Product/s quoted by the Manufacturer according to the Customer supplied RFQ.
h. Terms and Conditions of Supply– means the terms and conditions applicable specific to the Product/s, whether manufactured and supplied for cash or on credit terms.
3. THIS AGREEMENT
a. This Agreement applies to all the manufacture and delivery of all Products and services. The Manufacturer reserves the right to only provide Products and services on credit once the Manufacturer has approved a credit limit in favour of the Customer.
b. The Customer agrees that:
i. this Agreement represents the entire Agreement between the Manufacturer and the Customer;
ii. this Agreement will govern all future contractual relationships between the Parties;
iii. this Agreement is applicable to all existing dealings and future dealings between the Parties;
iv. this Agreement is final and binding and is not subject to any suspensive or resolutive terms or conditions;
v. any conflicting conditions stipulated by the Customer, unless confirmed and agreed in writing by the Manufacturer are expressly excluded;
vi. this Agreement shall in all respects be governed by and construed in accordance with the laws of the Republic of South Africa, and all disputes, actions and other matters in connection herewith shall be determined in accordance with such laws.
vii. these terms supersede all previous conditions of trade without prejudice to any securities or guarantees held by the Manufacturer;
viii. unless otherwise apparent from the context, these terms apply to all agents and subcontractors of both the Manufacturer and the Customer;
ix. Manufacturer may specify additional Special Conditions on an official Quote that shall be valid for that Quote only and shall become binding on the Customer when placing an order with the Manufacturer in respect of that Quote.
x. All and any sales undertaken by the Manufacturer, including without limitation the supply of Products, services, and advice, is and shall be subject to the terms and conditions contained herein, unless otherwise agreed in writing and signed by the Managing Director of the Manufacturer.
xi. The terms and conditions contained herein governs all and any other dealings which the Manufacturer may have with the Customer.
xii. These terms and conditions shall outlive any one transaction and remain in force and effect, even if debts are paid in full.
xiii. Each clause of these terms and conditions is severable, the one from the other and if any one or more clauses are found to be invalid or unenforceable, those clause/s shall not affect the balance of these terms and conditions, which shall remain of full force and effect.
xiv. Any indulgence that may be shown by the Manufacturer to the Customer shall not constitute a waiver of any of the Manufacturer’s rights.
xv. The Customer shall be responsible for and be bound by all acts and omissions of any of its employees or agents and in the course and the scope of their employment with the Customer in respect of any contraventions or implementation of any of the terms of this Agreement. All such acts and omissions by such employees or agents shall be deemed to have been committed or omitted within the course and scope of their employment or mandate with the Customer unless proven to the contrary.
xvi. The Customer cannot cede, assign, delegate, subcontract, or contract with a third Party to fulfil any obligation as provided for in terms of this Agreement, unless with the written consent of the Manufacturer.
a. An RFQ submitted by the Customer shall only be “considered” by the Manufacturer if in writing and supported by technical drawing/s and solid CAD model/s.
b. Any RFQ details or subsequent changes made, which are not in writing, and which are not pre-approved by the Manufacturer, shall, at the discretion of the Manufacturer, be considered non-existent and null and void.
c. The Manufacturer reserves the right to request a Customer to provide proof of their legal authority and intellectual property rights to engage the Manufacturer to produce, reproduce, or replicate a Product.
d. The Manufacturer will refuse to engage and be obliged to disclose to the authorities, any requests for the manufacture of parts or the use of material it suspects to be of a fraudulent, counterfeit and/or possible copyright/intellectual property right infringement.
e. Should the Manufacturer be requested to produce a Product which involves copyright or intellectual property right, then the Manufacturer will only consider such request if authority to produce, reproduce or replicate is specifically and explicitly provided directly to the Manufacturer by the holder of such copyright or intellectual property right.
f. No Product/s ordered or delivered will be on a Sale or Return basis (SOR) or Sale or Exchange basis unless specifically authorised and signed by the Managing Director of the Manufacturer.
g. The Manufacturer reserves the right to impose minimum order quantities.
h. The Manufacturer will not consider R&D requests unless specifically authorised by the Managing Director of the Manufacturer.
a. After consideration of the RFQ and if the Manufacturer can accommodate the Customer’s requirements, then the Manufacturer will supply the Customer with a written Quote. Due to fluctuations in material costs, exchange rates, etc. Quotes will only be supplied bearing the following conditions:
i. The Manufacturer will only Quote for projects which is planned to start within 15 days after acceptance of the quotation and which will not take more than 90 days to complete from commencement date. Any RFQs outside these boundaries will require separate Quotes closer to the required production time.
ii. These conditions are negotiable given specific circumstances but can only be adjusted by written approval from the Manufacturer’s Managing Director.
b. Quotes will not be amended and any requested changes during this phase will result in a new Quote.
c. If a quotation is not accepted in writing within 14 days from date on Quote, it shall be considered non-existent and null and void, without notification.
d. Quotes will exclude delivery fees and any fees associated therewith. These fees will be for the Customer’s account unless otherwise agreed in writing and signed by both Parties.
e. The Manufacturer reserves the right to request upfront full payment, partial payment, incremental payments, a deposit, or a combination of options, before the work will commence.
f. If any changes are requested after production has commenced, then the Customer will be liable for all parts already manufactured as well as for any material already used and all other expenses related thereto.
g. When assembly is required, mating parts must be supplied on order.
h. If Customer supply own material, then it must be supplied on order as well as any required supporting documentation.
i. Part/s and or Product/s will remain the property of the Manufacturer until paid in full.
6. PURCHASE ORDER (PO)
a. A PO must correspond with the current and valid accepted Quote.
b. Any changes to a Quote will thus result in a new Quote and a corresponding new PO.
c. All prior Quotes and/or PO’s will accordingly be considered null and void.
d. The Manufacturer shall use its best endeavours to fulfil an order placed by the Customer, but no penalty shall accrue to the Manufacturer in the event of the Manufacturer being unable to fulfil such order for any reason whatsoever.
7. DELIVERY DATES
a. The delivery date will always be considered as “tentative” due to its dependence on many variables. Any changes to this date will be communicated to the Customer as soon as practical.
b. Indicated delivery dates shall not be a material term to any Agreement between the Manufacturer and the Customer.
c. The Manufacturer will make reasonable efforts to deliver Products at the stated due date and late delivery shall not render the Agreement invalid nor render the Manufacturer liable for any claim for damages.
d. No agent or employee of the Manufacturer has the authority to commit to a delivery date and any such commitment may not be construed as being made by the Manufacturer and will have no force or effect on the Manufacturer, unless approved by the Managing Director of the Manufacturer.
8. DELIVERY AND RISK
a. The Manufacturer conducts a final quality inspection before packing and shipping, as well as takes pictures of the Products before and after packaging, as required by ISO quality standards and as proof of actions and conformity, should the Product or packaging be damaged in transit.
b. Unless otherwise agreed in writing, the Customer shall take delivery of the Products at the Manufacturer’s premises or at such other premises as agreed upon in writing.
c. All risk of loss or damage in and to the Products supplied by the Manufacturer to the Customer shall pass to the Customer when the Customer takes delivery of the Products.
d. All and any costs of delivery, including insurance, import taxes, etc. shall be for the Customer’s account and payable before shipping/release or delivery, unless otherwise agreed in writing.
e. Where delivery/shipping is affected by the Manufacturer: –
i. All risk of loss or damage in and to the Products supplied by the Manufacturer to the Customer shall pass to the Customer when the Customer takes delivery of the Products.
ii. The signature of an employee, representative or agent of the Customer on an official Delivery Note, Invoice, Waybill, or the Waybill of any authorized carrier, will evidence delivery of the Product/s.
iii. The responsibility for unloading rests with the Customer.
iv. The Manufacturer reserves the right to pass on to the Customer any additional charges or any other costs whatsoever, including insurance premiums, storage fees, handling fees, etc. which may be incurred by the Manufacturer because of delayed or protracted unloading of the Products by or on behalf of the Customer.
v. All shipping/delivery fees including any costs related thereto will be billed by the Manufacturer to the Customer in line with the agreed upon payment terms.
f. Where shipping/delivery is affected by the Customer: –
i. All risks in the Products shall pass to the Customer the moment the courier company takes possession thereof.
ii. The Customer will be solely responsible for all risks, costs and fees associated with the shipping and the Manufacturer will not entertain any queries regarding shipping or anything related thereto.
g. The Customer must report an incomplete or short delivery to the Manufacturer within 5 days of delivery failing which the Manufacturer will not entertain an investigation or consideration of such alleged short or incomplete delivery.
h. Where the Customer requests that delivery be suspended or delayed to a date later than that originally requested, the Manufacturer shall be entitled to charge the Customer a reasonable fee for the storage of such Products.
If the Customer:
i. rejects delivery due to an act or omission on its part and not due to an act or omission on the part of the Manufacturer or its representatives;
ii. requests the Manufacturer to postpone delivery; and/or
iii. fails to give the Manufacturer sufficient information to enable it to process any order;
iv. the Customer will be liable for any costs and expenses thereby incurred by the Manufacturer.
j. The Manufacturer is entitled to withhold delivery of Products if the Customer has not made payment of amounts due in respect of previous orders.
k. The Manufacturer is entitled in its sole discretion to split the delivery of Product/s ordered in the quantities and on the dates it decides.
l. The Manufacturer is entitled to invoice each delivery actually made separately.
a. Ownership of all Products delivered shall remain in the Manufacturer until the Manufacturer has received payment of the full purchase price, notwithstanding that the Products may have been purchased for resale, and on cash or credit terms, or whether in the Customer’s possession or not.
b. In the event of the Customer being a tenant and having a landlord, the Customer is obliged to notify the Landlord of the reservation of ownership as set out herein.
c. Prior to effecting payment in full, the Customer shall:-
i. keep the Products fully insured, and if any of the Products are lost, destroyed, or damaged, shall hold the proceeds of insurance for and to the order of the Manufacturer; and
ii. keep, so far as is practicable, the Products separate and clearly identified as the property of the Manufacturer; and
iii. if the Customer sells the Products to a third party, the Customer shall act as the fiduciary agent of the Manufacturer. The Customer shall hold the proceeds of any such sale separate for payment to the Manufacturer, or shall, if the Manufacturer requires, authorize, and direct such third party to pay the Manufacturer directly all sums due to the Customer in respect of the Products sold.
d. The Customer acknowledges the Manufacturer’s rights to enter upon the Customer’s premises, whether rented or owned, without notice and repossess the Products, if the Customer defaults with any payment and/or if the Customer is placed under provisional or final liquidation or sequestration, judicial management or if any other process is levied or enforced upon any of the assets of the Customer or if the Customer ceases or threatens to cease to carry on business or makes any arrangement or composition with its creditors or any equivalent or similar event, then the Customer shall bear the onus of proving that it has not defaulted with any payment and that payment has been made in full to the Manufacturer, and/or that it is not under liquidation, sequestration, judicial management or any of the other circumstances aforementioned.
e. All Customer production tooling/equipment furnished to the Manufacturer or paid for by the Customer in connection with a PO shall be clearly marked as such and remain the personal property of the Customer subject to a lien in favour of the Manufacturer.
i. Unless otherwise agreed, the Customer is responsible for the general and periodic maintenance of their tooling/equipment whilst in use by the Manufacturer.
10. NOTIFICATION OF DEFECTS
a. Within 5 working days after receipt of the Products the Customer shall be required to advise the Manufacturer of any defects, failing which the Products shall be deemed to be complete in all respects and without defects.
b. If the Manufacturer agrees that the Products are defective the Manufacturer’s liability shall be limited to replacing such Products as against return to it of the defective Products.
11. RETURN OF PRODUCTS
a. If the Manufacturer agrees to accept the return of any Products for credit, the Customer shall return the Product/s to the Manufacturer within 7 working days and be liable to pay the Manufacturer a handling charge of not less than 10% (ten percent) of the invoiced price of the Product/s returned.
b. The Manufacturer shall not be obliged to credit the Customer until the Product/s in question is actually received by the Manufacturer and acknowledgement of receipt issued, and the reason for the return stated.
c. Product/s returned by the Customer without pre-authorisation will not be credited.
d. The Manufacturer will only accept the return of defective Product/s subject to the following:
i. the Product/s have not been misused, abused, neglected, contaminated, tampered with, improperly handled, damaged in transit, damaged during unloading, or used or altered in any way and that no foreign material was added to the Product/s.
ii. the cost of return for inspection are initially borne and paid for by the Customer and where the Manufacturer agrees to a credit, refund or replacement, such costs will be reimbursed by the Manufacturer to the Customer.
12. NO WARRANTIES AND LIMITATION OF PRODUCT LIABILITY AND INDEMNITY
a. The Manufacturer does not provide off-the-shelf Product/s and it is thus specifically recorded that the Customer acknowledges that the Manufacturer manufactured the Product/s to the Customer’s specifications.
b. The Customer’s acceptance of the Product/s will be deemed an acceptance that it met with the requested specifications and upon acceptance of the Product/s, the Customer shall from thereon be solely responsible and liable for all and any injury to persons or damage to property or environment, caused by or arising from subsequent utilization of the Products, whether ownership has been transferred or not.
c. The Manufacturer therefore makes no warranties, representations, or guarantees, of any nature, express or implied, regarding its Product’s fitness or suitability for any specific purpose or usage.
d. All Products manufactured by the Manufacturer are supplied on an “as is / voetstoots” basis and the Manufacturer accepts no liability whatsoever arising out of the use of any of its Products.
e. The Customer warrants and undertakes that in the event that it sells any Product/s which are deemed “parallel or grey” Product/s, then the Customer shall clearly mark those Product/s as being “grey” Product/s. The Customer further warrants and undertakes that it shall not represent such Products/s being from the Manufacturer.
f. Neither the Manufacturer nor any of its directors, employees or agents shall be liable for any loss or damage, whether direct, indirect, consequential or otherwise, including any loss of profit, suffered by the Customer or the Customer’s officers, employees or agents (if applicable), arising from any cause in connection with the Products, whether such loss or damage results from any breach of contract, delict, negligence of any degree or any other cause without limitation.
g. All drawings, photographs, illustrations, specifications, dimensions, weights and the like contained in any literature supplied by the Manufacturer under or in connection with any Agreement of sale made between the Manufacturer and the Customer or otherwise communicated to the Customer are provided or made by the Manufacturer in the belief that they are accurate as reasonably possible, that they do not constitute a description of the Products, nor shall they be taken as representations by the Manufacturer nor are they warranted to be true and accurate.
h. The Customer hereby agrees and undertakes to indemnify and keep the Manufacturer indemnified against all and any loss, injury, damage, fine, liability, tax or other physical charges, penalties, and claims (including loss of profit) made by any person of any nature whatsoever and howsoever arising from or in connection with the Product/s delivered and including but not limited to the transport, storage, use and/or sale thereof.
i. Subject to any applicable legislation, the Customer agrees that neither the Manufacturer nor any of its employees, representatives or agents will be liable for any negligent or innocent misrepresentations made to the Customer and the onus rests on the Customer to confirm their authority to make decisions or representations on behalf of the Manufacturer.
j. The Manufacturer will not in any event be liable for indirect, special, or consequential damages arising from this Agreement.
k. The Customer specifically and expressly indemnifies and holds harmless the Manufacturer against any action, which may be instituted or lodged by the Customer’s customer/s against the Customer and/or the Manufacturer for any loss or damages suffered in relation to the Product/s. If the Customer’s customer/s lodges any claim against the Manufacturer, the Customer undertakes to compensate the Manufacturer for such claims and legal costs (including on an attorney own client scale).
l. The Customer warrants and undertakes that it:
i. by virtue of this Agreement, does not obtain or claim any right, title or interest to the Intellectual Property in and to the Product/s;
ii. will not itself or through a third party infringe the Intellectual Property in and to the Product/s in any manner whatsoever.
iii. shall indemnify the Manufacturer against any claims, costs and expenses arising out of the infringement, or alleged infringement of copyright, patent, trademark, or any other Intellectual Property vested in the Product/s.
m. If a Customer sells or disposes of any Products supplied to it by the Manufacturer to a third party or otherwise permits a third party to use such Products, the Customer shall include in the Customer’s agreement with the third party a provision in terms of which the Manufacturer is afforded a similar limitation of liability to that contemplated herein.
n. Notwithstanding any other provisions to the contrary, any claim which a Customer has against the Manufacturer in connection with or arising out of any business shall lapse and become extinguished unless within: –
i. 90 days of such claim arising, the Customer gives written notice thereof to the Manufacturer and at the same time discloses to the Manufacturer in writing the material facts on which the claim is based; and
ii. 3 (three) months of such claim arising, the Customer institutes legal proceedings against the Manufacturer in respect of the claim by issuing summons out of a court of competent jurisdiction and having such summons served on the Manufacturer.
iii. Subject to and without in any way limiting the provisions of any clause herein, the Manufacturer’s liability to the Customer for any damages sustained by the Customer from any cause whatsoever, including any damages arising out of the Manufacturer’s negligence or that of its agents, servants, employees or sub-contractors, shall in any event and under all circumstances be strictly limited to the replacement of the defective Products, provided that in all circumstances the Manufacturer agrees that the Products are defective.
13. HEALTH, SAFETY AND LEGAL COMPLIANCE
a. Upon taking possession of the Product/s, the Customer shall be solely responsible for any health, safety and legal compliance related to the specific Product/s.
b. The Customer shall be responsible for ensuring that it and its customers or third party purchasers comply with all and any obligations, requirements or recommendations relating to the Products delivered hereunder, including but not limited to the storage and use thereof an/or any health and safety or environmental requirements imposed by any law, statute, regulation, directive or requirement in force in or applying to territories, states or other jurisdictions in which the Customer sells or utilises the Product/s.
14. WHERE CREDIT TERMS ARE REQUIRED
a. Declaration: –
i. The Customer warrants and declares that the information supplied under SECTION A is true and correct and that the signatory, if on behalf of a legal entity, is duly authorised to sign the application and this Agreement. International Customers must supply written proof of such delegated authority.
ii. The Customer undertakes to notify the Manufacturer in writing of any change to this information, within 7 (seven) days of such changes.
b. Consent: –
i. The Customer hereby grants permission to the Manufacturer, to make any and all enquiries and to conduct any and all investigations, as deemed necessary, in order to ascertain, determine and monitor the creditworthiness of the Customer and if a registered legal entity, including its Directors, Members/Partners and/or Owners.
ii. The Customer agrees that the Manufacturer may use the services of a registered credit bureau and other suppliers for information required in the original and future assessment of credit facilities.
iii. The Customer agrees that the Manufacturer may record the existence of the Customer’s account with any credit bureau and disclose information regarding the Customer’s credit worthiness and conduct of the account.
iv. The Manufacturer reserves the right to require additional information or documents for the purpose of conducting the credit vetting process.
c. Credit Terms: –
i. Credit will only be considered after building a monthly sales record for a period not less than 6 consecutive months, and until credit is approved, Products will, at the Manufacturer’s discretion, only be released after full payment reflects in the Manufacturer’s bank account.
ii. Credit facilities allowed by the Manufacturer are in the Manufacturer’s discretion and the Manufacturer is entitled, at any time, without notice to the Customer, to vary, curtail or terminate such facilities.
iii. Additional terms and conditions for such credit may be specified at the sole discretion of the Manufacturer.
iv. As already stated at point 5. e. the Manufacturer reserves the right to request upfront full payment, partial payment, incremental payments, a deposit, or a combination of these options combined with credit terms before the work will commence.
v. The Manufacturer reserves the right to require additional security, at its sole discretion, including the signing of “surety” as per the attached suretyship document.
vi. No credit will be considered approved unless in writing by the Manufacturer.
vii. Once, and for as long as credit has been approved by the Manufacturer, it shall form part of this Agreement and amended at the Manufacturer’s discretion from time to time and will be of immediate effect.
viii. Once and for as long as credit has been approved by the Manufacturer the credit terms are, unless amended in writing by the Managing Director of The Manufacturer, 30 (thirty) days from date of statement.
ix. The Customer acknowledges that if the credit facilities are withdrawn, any future purchases after such withdrawal will be on a “cash before release” basis.
x. If the Customer, after credit was granted, does not purchase from the Manufacturer for a period of 6 (six) months or more, the Customer’s account may, at the election of the Manufacturer, be cancelled in which event the Customer will have to re-apply for credit facilities.
d. Payment Terms: –
i. The Customer acknowledges that any amount due shall be paid to the Manufacturer within 30 (thirty) days from the date of statement unless alternative terms have been agreed upon in writing.
ii. Payment shall be made by an electronic bank transfer to the Manufacturer’s bank account designated from time to time in writing.
iii. All payments must be made in full and free of any deductions or set-off, unless specifically agreed to in writing by the Manufacturer.
iv. The Manufacturer reserves the right to prescribe a payment form and/or method and/or place as well as not to release Product/s before the Manufacturer is satisfied with the payment and/or the irrevocability of a payment.
v. The Manufacturer shall be entitled to charge the Customer interest at the rate of 2% per month above the prime bank lending rate of its bankers at the time, subject to the maximum permissible rate that may be levied in terms of the South African law, in respect of all overdue amounts, calculated monthly in arrears from due date of payment until date actual payment is received by the Manufacturer in its bank account.
vi. Should the aforesaid interest not be paid in full within 7 days from date thereof, the same shall be added to the principal sum and the total shall form the principal debt, which shall then bear interest in the manner as set out above.
vii. The Manufacturer shall also have the right to demand and enforce immediate payment of deliveries already made, notwithstanding any earlier agreement for credit.
viii. Should it become necessary for the Manufacturer to take legal recourse to recover outstanding debt, then the whole amount outstanding on the account, including interest, will immediately become due and payable, whether payment is partially due or not.
ix. In the event of any dispute arising between the Manufacturer and the Customer on any aspect of the account or any other dispute or complaint, the Customer shall not be entitled to withhold any payments due and shall continue to pay all amounts due by the Customer to the Manufacturer, who shall be entitled to recover and accept these payments. The acceptance of the payments by the Manufacturer shall be without prejudice to and shall not in any manner whatsoever affect any other rights the Manufacturer may have against the Customer.
x. The Customer specifically agrees that should its account fall into arrears in respect of the agreed terms and conditions, the Manufacturer or its agents or representatives may summarily and without notice repossess the Product/s supplied by the Manufacturer which have not been paid for.
xi. The Customer is obligated and liable to pay to the Manufacturer on demand all charges levied by the Manufacturer’s bankers arising out of dishonour of any of the Customer’s payment methods, including but not limited to, bills of exchange, promissory notes, special clearance thereof and cash deposit fees.
xii. Should any Products or payments be sent to the Manufacturer through the post, then they shall be deemed not to have been received by the Manufacturer unless and until they are physically delivered to the Manufacturer by the postal authorities. In such circumstances, the postal authorities shall be deemed to be the Customer’s agent and not the agent of the Manufacturer.
xiii. Any bill of exchange, promissory note or other negotiable instruments received by the Manufacturer from or on behalf of the Customer shall not be a novation of the debt for which it is given, and the Customer waives presentment, notice of dishonour and protest whenever that may be applicable.
xiv. The Customer shall be entitled to raise any queries on any statement or delivery note within 30 days from the date of the statement, whereafter the statement/invoice/delivery note will be deemed to be correct.
e. Discounts: –
i. All discounts (if applicable) shall be forfeited if payment in full is not made when due.
f. Account Enquiries: –
i. Amounts on statements will be accepted as correct if not queried within 30 days after statement date.
ii. The Customer agrees to pay an admin fee that will be levied for requests for additional or copy documentation after a 30-day period has expired with reference to the date which appears on the document in question. This documentation includes, but is not limited to copies of invoices, credit notes, debit notes and statements. This fee will be charged on a per page basis. The amount of this fee as well as any periodic adjustment thereof will be determined at the sole discretion of the Manufacturer.
15. FORCE MAJEURE
a. If any performance by the Manufacturer is prevented or delayed for any reason beyond the Manufacturer’s control, then the Manufacturer shall have the election either –
i. to cancel the Agreement in question; or
ii. to extend the time for performance until the cause preventing or delaying performance ceases to apply.
b. If the Manufacturer elects to extend the time, then the Customer shall be entitled to cancel the Agreement if the Manufacturer does not perform within a period of 90 days following the original date of performance, by giving written notice to that effect to the Manufacturer.
a. Notwithstanding the acceptance of the cancellation of an Agreement by the Manufacturer, the Manufacturer shall be entitled to recover all damages incurred by it arising from or in connection with such cancellation, including but not being limited to all costs, expenses and loss of profit arising out of or in connection with such cancellation.
b. For cancellation of an order where the Manufacturer already incurred expenses related to such order, the Customer will be liable for:
i. Quoted price for finished Products ;
ii. work in progress (including labour performed);
iii. material on hand which could not be returned or used for other projects;
iv. material on order which could not be cancelled;
v. excess or remaining inventory at the Quoted price;
vi. applicable material suppliers’ restocking or cancellation fees;
vii. handling charges;
viii. tools or equipment specifically related to the order and which cannot be utilized on any other projects, considered a fruitless expense.
17. NOTICES AND DOMICILIA
a. The Parties select domicilium citandi et executandi for all purposes hereunder, as follows:
i. The Manufacturer: 54 Auckland Street, Paarden Eiland, Cape Town, South Africa, 7405;
ii. The Customer: the addresses set as captured in the actual Agreement.
b. All notices to be given in terms of this Agreement shall be in writing and shall be delivered to the above addresses, alternatively, either party can notify the other party via email.
c. Each party shall be entitled at any time to change its domicilium to any other physical address, provided that such change shall take effect only upon delivery or deemed delivery of notice thereof to the other party, and receipt of such notice confirmed by the other Party.
a. If the Customer fails to pay what is due on the due date, or commit a breach of its obligations in terms of this Agreement, or commit an act of insolvency, or being placed under provisional or final liquidation, or judicial management, or if its credit worthiness is compromised in any way, the Manufacturer may at its sole discretion, without prejudice to any other rights, suspend further deliveries and require payment in advance for all or any future deliveries, or terminate this Agreement forthwith and/or repossess the Product/s (if already delivered) and claim such damages from the Customer as it may have suffered.
b. The Manufacturer reserves its right to stop supply immediately on cancellation or on non-payment.
a. No agent or employee of the Manufacturer, other than the Managing Director of the Manufacturer, has the authority to alter or vary any of the conditions stipulated herein.
b. No agreement varying, adding to, deleting from or cancelling any of the conditions, and no waiver of any of the conditions, shall be effective unless reduced to writing and, signed by the Managing Director of the Manufacturer.
c. No indulgence granted by the Manufacturer shall constitute a waiver of any of the Manufacturer’s other rights.
d. If the Manufacturer refers any claim or dispute against the Customer to its attorneys, and whether or not the Manufacturer institutes or defends any legal or arbitration proceedings to enforce or protect its rights, the Manufacturer shall be entitled to recover from the Customer all legal costs (on an attorney and own client basis), tracing charges and collection commission incurred by the Manufacturer in that regard.
e. In the event of the Manufacturer deciding to institute legal proceedings for the enforcement of any of its rights against the Customer, the Customer by signing this Agreement agree that a Magistrate’s Court situated in Cape Town, South African to have full jurisdiction, no matter the monetary amount involved.
f. A certificate signed by the Managing Director of the Manufacturer reflecting particulars of the amount owing by the Customer together with details of all deliveries made to the Customer and the invoices pertaining to such deliveries shall be prima facie proof thereof and of the Customer’s indebtedness to the Manufacturer.
g. The Customer may not cede any of its rights or delegate any of its obligations in terms of the Agreement unless the Managing Director of the Manufacturer gives prior written consent to the Customer to do so.
h. The Customer undertakes to notify the Manufacturer, in writing, within 7 (seven) days of any change in ownership of the Customer’s business, failing which the entire balance owing, whether due or not, will immediately be deemed to be due and payable.
i. the Customer acknowledges that immediately upon any change of ownership any outstanding amount whether due or not, shall be deemed payable and the existing credit terms, if any, will be terminated with immediate effect and is not transferable to the new owner/s.
j. Should the Customer intend to cease trading for whatever reason, the Customer shall be obliged to give written notice to the Manufacturer by courier and whereupon all amounts shall immediately become due, owing, and payable.
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