AUTOMOTIVE TECHNOLOGY SPECIALISTS (PTY) LTD 30 SCHOONGEZICHT ROAD, BERGBRON, JOHANNESBURG PRIVATE BAG X26 AUCKLAND PARK 2006
TEL: +27 (0)11 670 8400
FAX: +27 (0)11 673 5185
STANDARD CONDITIONS OF CONTRACT AND SALE
1 Definitions The following terms when used in these conditions have the meanings reflected below
1.1 "Company' – Automotive Technology Specialists (Pty) Ltd (Company Registration number 81/002671/07), inclusive of its trading divisions ATS Motorsport Supplies, HPC and Static Solutions.
1.2 “Conditions” – unless it is clear from the context shall mean these standard conditions of contract and sale.
1.3 “Contract" - any agreement, arrangement or understanding between the company and the customer that purports to establish a relationship in law between or among them for the supply of goods or services by the company.
1.4 "Customer” - the person or entity that purchases, places an order or otherwise contracts with the company for the supply of goods and services or any person or entity at whose request or on whose behalf the company undertakes to supply any goods, do any business or render any service.
1.5 “Goods" and “products” – specifically the items described on the face hereof and generally the items described in any invoice or quotation of the company (including any part or parts of them).
1.6 “Quotation” includes any offer, pro forma invoice or other written / electronic communication between the company and the customer.
1.7 “Services” - specifically the services described on the face hereof and generally the services described in any invoice or quotation of the company.
1.8 The terms “consumer”, “distributor”, “importer”, “producer”, “supply chain” and “transaction” shall have the meanings set out in Section 1 of the Consumer Protection Act (Act No. 68 of 2008).
2 Variation and Amendment
2.1 All Contracts shall be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 This agreement constitutes the whole agreement between the customer and the company and no amendment, consensual cancellation, waiver or relaxation of any of the provisions or terms hereof or the extension of time will be binding on the company unless recorded in writing and signed by an authorised representative of the company. Nothing in these Conditions excludes or limits the Company's liability for fraudulent misrepresentation.
3 Pricing information, availability and delivery
3.1 The Company's listed prices are subject to alteration at any time without prior notice.
3.2 The prices stated in invoices and quotations of the company are based on the quantities specified therein and the Company reserves the right to revise prices in the event of the quantities being reduced or increased.
3.3 All prices quoted by the Company are calculated at supplier prices, exchange rates, duties, surcharges, freight and transport costs, and clearing agents’ charges ruling at the time. Any subsequent changes will be for the client's account, unless quoted as "fixed" by the company.
3.4 The Company reserves the right to make adjustments to prices and product/service offerings for reasons including, but not limited to, changing market conditions, producer price adjustment, exchange rate fluctuation, product revision and discontinuation, product unavailability and errors in advertisements.
3.5 All quotations and acceptance of orders are subject to availability of goods. Where the company has indicated a date for availability of goods this date has been determined taking into account the expected performance of the various role players in the supply chain. The company does not guarantee that it will be able to fill the customer’s order at the stated time or at all.
3.6 Delivery is deemed to have taken place when the customer (or the employee of the customer who is a legal persona) or an employee of the nominated carrier signs the proof of delivery or invoice. The cost of transport and insurance of the goods whilst in transit shall be borne by the customer. Should the company, at the customer’s request, agree to engage a carrier to transport the goods the company will do so as an agent for the customer and will be entitled to engage the carrier on terms it deems fit. The customer agrees to indemnify the company against claims that may be made against it by the carrier arising out of the transport of the goods.
3.7 The company shall have the right to deliver in instalments and each instalment shall be deemed to be a separate contract subject to these conditions and any non-delivery or delay in delivery shall not affect the balance of the contacts or entitle the customer to cancel the contract.
4 Orders, Deposits, Payment terms and interest
4.1 Customer orders are not binding on the company until accepted. The company reserves the right to refuse to service anyone. Automotive Technology Specialists (Pty) Ltd : Standard Conditions of Contract and Sale Page 2
4.2 The company may, in its sole discretion, require the customer to pay a deposit in respect of the goods or service, which amount shall be determined by the company taking into account the factors of the particular product or order.
4.3 Terms of payment are verifiable electronic transfer of funds, verifiable direct deposit into the company’s nominated banking account or cash prior to dispatch using third party service providers, delivery by an employee of the company or collection from the company’s premises as the case may be.
4.4 The company may in its sole discretion agree to allow customers to purchase on credit or allow payment on other terms in which cases the invoice is due and payable within the time period agreed to and recorded in writing. These payments shall be made without setoff or deduction and shall be made in cash at the company’s offices or by way of verifiable electronic transfer or bank deposit into the company’s nominate banking account.
4.5 In the event that the company agrees to terms of payment other than payment prior to or upon delivery the customer agrees to pay interest on any amount that may be overdue at the prevailing prime overdraft rate publicly quoted by ABSA Bank plus 4% (per centum) per annum, calculated daily and compounded monthly in arrears.
4.6 The customer agrees to abide by the terms and conditions of any credit facility afforded the customer and acknowledges that the company may, at any time, at its sole discretion, vary the terms and limits of such facility and/or withdraw such facility.
5 Reservation of ownership, costs of legal action and choice of law and forum
5.1 Notwithstanding delivery of the goods to the customer or the use thereof by the customer, ownership of the goods shall not pass to the customer until the company has received full payment of the invoice relating to the supply of the specific goods. Notwithstanding the reservation of ownership above, the risk in the goods shall pass to the customer upon delivery or dispatch of the goods as contemplated in 3.6.
5.2 Regardless of the place of execution, addresses of the parties this agreement and the transaction it relates to shall be governed by, construed under and be in terms of the laws and statutes of the Republic of South Africa.
5.3 Notwithstanding that the amount in issue may otherwise exceed its jurisdiction the parties consent to the jurisdiction of the Magistrate’s Court for the District of Roodepoort for legal proceedings. The company may however institute action, at its discretion, in the Southern Gauteng High Court in respect of matter arising out of the purchase and sale reflected by the invoice or quotation to which these conditions are attached.
5.4 Any notice required or permitted to be given by either party to the other shall be in writing and addressed to the other party at its registered office, principal place of business or, where the customer is a consumer, home or such other address as may at the relevant time have been notified to the party giving the notice. Notwithstanding the above the customer hereby selects his physical address on the face hereof as his chosen domicilium citandi et executandi (address for service of all legal process) should the company be obliged to institute legal proceedings where the cause of action relates to unpaid goods and services. Such notice shall be deemed to have been given when delivered if delivered by hand and 7 working days following the date in which the said notice was so posted.
5.5 The customer agrees that it will pay the costs of suit as between attorney and own clients, tracing fees and collection costs should the company institute legal proceedings where the cause of action relates to unpaid goods and services or dishonoured financial instruments. The customer further agrees that information regarding payment of indebtedness due to the company may be disclosed to credit bureaus and other persons or institutions who may enquire about such conduct.
6 Return of Goods, Warranties and Limitation of Liability
6.1 Returns shall be subject to compliance with the administrative procedures of the company, which inter alia require the customer to comply with the provisions of Section 20 of the Consumer Protection Act (Act No. 68 of 2008) and afford the company an opportunity to inspect the goods being returned. Goods so returned shall be subject to a handling fee to be determined taking into account the factors particular to the specific return. The company reserves the right to offset any refund due to the customer to any other indebtedness of the customer, whether such indebtedness is due or not.
6.2 The customer understands and it is recorded that, unless clearly stated to the contrary on the product, product packaging or package insert, invoice or quotation, the company is not the producer of the goods reflected on the face hereof or the quotation to which these conditions are attached. It is further recorded that the company does business as the importer and/or distributor as the case may be of the goods reflected on the face hereof or the quotation to which these conditions are attached. Given the aforesaid role of the company in the supply chain the customer acknowledges that the liability for damage caused by goods (as regulated by Section 61 of the Consumer Protection Act (Act No. 68 of 2008)) specifically and the obligation to honour warranty claims in general lie with the producer of the relevant product. The company undertakes to do all things reasonably possible to assist the customer should it have such a claim but reserves the right to seek the protection afforded it by the provisions of Section 61 of the Consumer Protection Act (Act No. 68 of 2008).
6.3 The company may at its sole discretion (or on the instruction of the producer of the product) credit the customer with the price of, or replace or repair any goods which became defective under normal use and conditions owing to defects in materials or workmanship. In such case the company may adjust the value of the credit by the value of the use the customer has had from the product and may require the customer to reimburse it for such use should the product be replaced in its entirety.
6.4 Due to the nature of the business of the company specifically and the nature of motorsport, motor spares and tyre industries it services, the customer acknowledges that the suitability of the goods for the use contemplated by the client Automotive Technology Specialists (Pty) Ltd : Standard Conditions of Contract and Sale Page 3 is the sole responsibility of the client, and the Company shall in no way be responsible for the suitability of the goods sold for any particular end use. All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues, brochures or on its website are issued, published or displayed for the sole purpose of giving an approximate idea of the goods described in them. They shall not form part of the contract and shall not be treated as constituting any warranty, representation or condition in relation to any of the goods. This is not a sale by sample.
6.5 The customer understands and it is recorded that the producers of the products sold by the company convey restrictions, instructions and information regarding the suitability, fitment, installation, use and care for the products to consumers by way of markings on the products themselves and by way of information booklets and owner’s manuals. The customer understands and it is recorded that company will not accept liability for any damages or loss caused by the customer’s disregard of the aforesaid restrictions, instructions and information.
6.6 The customer understands that motorsport, motorcycles and motor cars, particularly the racing versions thereof, are dangerous and acknowledges that the company has no control over the fitment, installation or usage of the goods purchased. The customer accepts that a clear onus rests upon him to exercise good judgement as to the proper selection, fit, installation, fitment, use and maintenance of the goods.
6.7 Safety products are in particular sold without any form of warranty as to their ability to protect the user from injury and that risk is assumed by the customer.
7 Intellectual property, designs, logos, measurements, patents and trademarks
7.1 The logos, brand names, patents and trade marks of the producers of the products sold by the company are the property of the said producers and can not be used or copied without permission.
7.2 Where the company has been required to make or procure artworks, designs, logos or similar, ownership of the said items shall remain the property of the company until payment has been received for the services rendered. The customer shall be required to approve the artwork, design, dimensions and spelling thereof in writing and the company shall not be liable for any damage that may arise due to an error in the design or artwork not being notified to the company. In such cases the customer shall be obliged to pay the reasonable charges relating to the rectification of such error.
7.3 It is further recorded that the company offers custom made products to the market place. The correctness and suitability of these custom products rely on the submission of correct information by the customer. The company shall not be liable to refund the customer or replace the product if the products were made in accordance with the information supplied and are later found to be unfit for use or installation due to the incorrect information being submitted.
8.1 Should there be conflict between these terms and conditions and those on the face hereof or contained in the quotation of the company the latter shall prevail.
8.2 Severability – If any portion of these conditions are held to be invalid or unenforceable that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties and the remaining portions shall remain in full force and effect.
8.3 Force majeure - The company reserves the right to defer the date of delivery or to cancel the contract or reduce the volume of the goods ordered by the customer (without liability to the customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the company including, without limitation, acts of God, governmental action, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 6 months, the customer shall be entitled to give notice in writing to the company to terminate the contract.
8.4 Each right or remedy of the company under the contract is without prejudice to any other right or remedy of the company whether under the contract or not.
8.5 Failure or delay by the company in enforcing or partially enforcing any provision of the contract shall not be construed as a waiver of any of its rights under the contract. Any waiver by the company of any breach of, or any default under, any provision of the contract by the customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the contract.