Terms & Conditions
- 1.1 In these conditions the words defined shall have the meanings assigned to them hereunder-
- 1.1.1 “GMC” – GMC Powerlines PTY LTD;
- 1.1.2 “the customer” – the person, partnership, firm, association, company or close corporation or other entity applying
- for credit from GMC in terms of this application for credit.
- 1.1.3 “these Conditions” – these Terms and Conditions of Sale.
- 1.1.4 “goods” – all the goods sold by GMC;
- 1.1.5 “SATS” – South African Transport Services;
- 1.1.6 “National Credit Act” – the National Credit Act 34 of 2005, and regulations thereunder, as amended from time to time.
- 1.2 Unless inconsistent with the context, words relating to any gender shall include the other genders, words relating to the singular shall include the plural and vice versa and words relating to natural persons shall include associations of persons having corporate status by statue or common law.
2. CONCLUSION OF CONTRACT
- 2.1 The customer may place an order for goods orally or in writing, which order shall constitute the customer’s offer.
- 2.2 GMC shall be entitled to accept the customer’s order in whole or in part.
- 2.3 Upon acceptance by GMC of the customer’s order a contract of sale upon the terms set forth in these Conditions shall be deemed to have been concluded between the customer and GMC in respect of the goods which GMC has agreed to supply.
- 2.4 Any order form delivered to GMC which reflects the customer’s name shall be deemed to have emanated from the customer, and shall be binding on the customer, notwithstanding that such order may have been given or signed by a person not duly authorised by the customer.
- 2.5 Each order that is accepted by GMC shall constitute a separate and distinct contract of sale in respect of the goods forming the subject of such order.
- 3.1 The delivery of goods shall be by GMC, SATS or private carrier or in such other manner as may be expressly agreed between GMC and the customer.
- 3.2 SATS or any other carrier appointed by GMC shall be the agent of GMC.
- 3.3 GMC shall be liable for any of the delivery charges of SATS or any other carrier appointed by GMC, unless otherwise agree.
- 3.4 GMC shall have the right to deliver the goods in whatever quantities and on however many separate occasions as it in its discretion may decide.
- 3.5 GMC’s delivery note signed or counter-signed by the customer or any person purporting to be an employee or agent of the customer, or any carrier appointed by the customer, shall for all purposes be deemed to be accurate in all respects and binding on the customer.
- 3.6 Insofar as the delivery of goods is concerned, time shall not be of the essence of any contract of sale between GMC and the customer and any delivery or despatch dates mentioned in any quotation, order or any documentation shall be approximate only and not in any contractual effect. In the event of any delay in delivery by GMC, or failure to effect delivery, for any reason whatsoever other than a willful breach by GMC, then-
- 3.6.1 the customer shall not be entitled to cancel the contract and
- 3.6.2 the customer shall have no claim for any loss or damages against GMC as a result thereof.
4. PRICE AND PRICE INCREASES
- 4.1 The price of the goods shall be as stated by GMC at the time of the conclusion of the contract unless varied in accordance with 4.3
- 4.2 It is recorded that such price is based on the cost to GMC of materials, labour, delivery charges, freight, import duty and the rate of exchange operating between the Rand and the currencies in the countries from which materials are purchased.
- 4.3 If prior to delivery of the goods in terms of 3, there is any increase in such cost or change in such rate, or if any taxes or duties are levied or if any laws are promulgated which directly or indirectly increase the cost to GMC of the manufacture of the goods, GMC shall be entitled by written notice to the customer to increase the price of the goods by an amount equal to such increased cost or rate of exchange.
- 4.4 If the customer disputes GMC’s right to increase the price of the goods in a particular case, or disputes the amount of any increases claimed by GMC, then-
- 4.4.1 the customer shall give written notice to that effect to GMC within seven (7) days after receipt of notice of GMC’s intention to increase the price;
- 4.4.2 if the dispute cannot be resolved between the parties, it shall be referred to GMC’s auditor for the time being who shall determine the increase in the price of the relevant goods and whose determination shall be binding on the parties.
- 4.5 if the customer does not dispute GMC’s right to increase the price of the goods or the amount of the proposed increase, in accordance with 4.4.1 that the increased price shall be binding upon the customer.
- 4.6 The forgoing provisions shall not be construed as depriving the customer of any right it may have in terms of the National Credit Act (if applicable) to refer any dispute for alternative dispute resolution in terms of such Act.
- 5.1 In respect of each sale of goods the purchase price shall be payable by the customer to GMC within 30 days after the date of GMC’s monthly statement reflecting such purchase price, unless otherwise agreed in writing.
- 5.2 In the event of GMC accepting any post dated cheque, promissory note or other bill of exchange from the customer in respect of any indebtedness of the customer, then the acceptance by GMC of such post dated cheque, promissory note or bill of exchange shall be without prejudice to GMC’s rights in terms of any contract, or according to law.
- 5.3 If the price of any goods is not paid on due date, the customer shall be obliged to pay interest thereon at the maximum permissible rate of interest prescribed in terms of the National Credit Act from time to time, such interest to be reckoned daily and added to the arrear amount at the end of the month, from due date to date of full and final payment.
- 5.4 All payments shall be made to GMC in South African currency and free of deduction and set-off.
- 5.5 In the event of a customer failing to make payment of any amount on due date, then the full amount then owing by the customer (whether due or not) shall immediately become due and payable, without prior notice to the customer.
- 5.6 A certificate signed by any director of GMC (whose appointment need to be proved) reflecting the amount owing by the customer to GMC, and of the fact that such amount is due, owing and payable, shall be prima facie proof of the fact therein stated for the purpose of any action (whether by way of provisional sentence or otherwise), proof of debt on insolvency or liquidation, or for any purpose where the amount of such claim is required to be established.
6. SUSPENSION OF DELIVERIES
Without prejudice to any other rights that GMC may have in terms of these Conditions, or according to law:-
- 6.1 if any amount due by the customer to GMC is not paid on due date, GMC shall have the right to suspend all further deliveries of goods to the customer and to cancel all sales of goods already concluded.
- 6.2 Notwithstanding anything to the contrary herein contained, GMC shall have the right to suspend any delivery under any contract at any time if in its sole discretion it considers that-
- 6.2.1 the amount owing by the customer (whether due or not) has reached the limit to which it is prepared to allow the customer credit or
- 6.2.2 If it comes to its notice that the customer’s financial position has deteriorated; or
- 6.2.3 If it no longer considers the customer to be creditworthy; or
- 6.2.4 the customer does not acknowledge that any contract is upon the terms set forth in these Conditions
7. PASSING OF OWNERSHIP AND RISK
- 7.1 Until such time as the customer has paid the purchaser price of all goods sold and delivered to it by GMC in full, the ownership of, and all rights in and to all such goods shall remain vested in GMC.
- 7.2 GMC shall be entitled to take possession of any goods which have not been paid for in full and in respect of which payment is overdue, in which event the customer shall be entitled to a credit in respect of the goods so returned, being the price at which the goods were sold, or the market value thereof, whichever amount is the lesser.
- 7.3 The risk in and to the goods shall pass from GMC to the customer on delivery notwithstanding that ownership will not pass to the customer until full payment of the purchase price.
8. CLAIMS AGAINST THE COMPANY AND RETURN OF GOODS
- 8.1 No claim against GMC arising out of a sale of goods shall be capable of being enforced, and GMC shall not be liable in respect of such claim, unless a written notice setting forth the nature of the claim and the amount claimed has been delivered to GMC within fourteen (14) days of the delivery of the goods in respect of which the claim is made.
- 8.2 Goods correctly supplied are not returnable without prior written consent of GMC and in any event shall not be considered unless arranged within fourteen (14) days of delivery and where accepted will be subject to a 25% handling charge.
- 8.3 The customer acknowledges that no returns will be considered of any cable which has been cut to the customer’s specification
- 8.4 Goods supplied for cash may not be returned under any circumstances.
- 9.1 GMC shall not be liable under any circumstances whatsoever for any loss or damages of any nature whatever, whether direct or indirect, consequential or otherwise, sustained as a result of any goods sold by GMC being defective or not conforming to the description thereof, or as a result of any other cause whatsoever, and GMC’s liability in respect of any goods sold by it shall be limited to that provided for in 9.4
- 9.2 The customer acknowledges that-
- 9.2.1 GMC is not the manufacturer of the goods;
- 9.2.2 GMC does not warrant or represent that the goods are fit for any particular purpose (whether or not that particular purpose is known to GMC), and the goods shall be regarded as having been sold voetstoots, and without warranty against latent defects therein:
- 9.2.3 no liability whatsoever shall arise on the part of GMC for any representation or warranty made, or alleged to have been made, at any time in respect of any goods sold by GMC to the customer.
- 9.3 In respect of any goods sold as sub-standard or as reject or as seconds, the customer shall have no claim of any nature whatsoever against GMC, and GMC shall not be liable to the customer in any way whatever for any defect, whether latent or patent, in such goods.
- 9.4 If any goods (other than goods of the type described in 9.3) are latently, patently, or otherwise defective and a claim lies against GMC in respect of such goods, GMC may at its option decide either to –
- 9.4.1 replace the defective goods; or
- 9.4.2 cancel the sale and reimburse the customer in respect of the purchase price paid by the customer for such goods. against return of the goods to GMC; or
- 9.4.3 require the customer to accept the goods at a reduced purchase price to be agreed, provided that if the parties are unable to agree on the amount of the reduction that question shall be submitted to be resolved by an independent suitably qualified expert, agreed upon between GMC and the customer, and failing such agreement, appointed by the President for the time being of the Association of arbitrator, and that expert’s decision (acting as expert and not as arbitrator) shall be final and binding upon GMC and the customer; or
- 9.4.4 cede to the customer all its rights in and to any manufacturer’s warranty in respect of the defective goods to enable the customer to recover directly from the manufacturer, if the relevant warranty does not preclude GMC from ceding its rights to a third party, provided that GMC does not warrant that any claim under the relevant warranty will be met by the manufacturer and GMC shall not be liable to the customer if for any reason the manufacturer fails to pay any claim made against it.
- 9.5 Any decision of GMC in terms of 9.4 shall be notified to the customer in writing
- 9.6 if so required by GMC the customer shall be obliged to re-deliver the defective goods to GMC at the customer’s own cost and expense.
- 9.7 GMC shall not be liable under any circumstances whatever for any loss or damage of any nature whatever whether direct or indirect, consequential or otherwise, arising out of any contract with the customer and/or relating to any goods sold to the customer, GMC’s liability being limited to that provided for in 9.4. The customer accordingly indemnifies and holds GMC harmless against any claim that may be brought against GMC in consequence of any goods being defective and causing any damage whatsoever whether through accident, negligence, gross negligence, or any other cause.
GMC shall be entitled (subject to compliance with the provisions of the National Credit Act where such Act is applicable) without prejudice to any rights that it may have in terms of these Conditions or according to law:-
- 10.1 to cancel any contract and/or any part thereof subsisting with the customer and to claim return of the goods sold thereof; or
- 10.2 to claim from the customer immediate payment of any monies due by the customer to GMC notwithstanding any earlier agreement for credit, whether same is due for payment or not, if:-
- 10.2.1 the customer fails to pay on the due date for payment thereof any amount due to GMC under any contract; or
- 10.2.2 any cheque, promissory note or bill of exchange given to GMC in respect of any indebtedness of the customer under any contract is dishonoured by non-payment; or
- 10.2.3 the customer’s estate is provisionally or finally sequestrated or it is placed in provisional or final liquidation or under provisional or final judicial management; or
- 10.2.4 the customer commits any act of insolvency in terms of Section 8 of the Insolvency Act; or
- 10.2.5 the customer enters into any compromise with its creditors generally; or
- 10.2.6 the customer fails to satisfy any default judgement granted against him within seven (7) days after date of judgement.
if the National Credit Act of application between GMC and the customer in respect of the transactions contemplated in these Conditions, the provisions of this clause 11 shall not apply.
- 11.1 The customer does hereby irrevocably and in rem suam cede, pledge, assign, transfer and make over unto and in favour of GMC all of its right, title, interest, claim and demand in and to all claims, debts, book debts of whatsoever nature and description and however arising which the customer may now or at any time hereafter have against all and any persons, companies, corporations, firms, partnerships, associations, syndicates and other legal personae whomsoever (”the customer’s debtors”) without exception as a continuing covering security for the due payment of every sum of money which may now or at any time hereafter be, or become owing by the customer to GMC from whatsoever cause or obligation howsoever arising which the customer may be or become bound to perform in favour of GMC.
- 11.2 Should it transpire that the customer at any time entered into prior Deeds of Cession or otherwise disposed of any of the right, title and interest in and to any of the debts which will from time to time be subject to this Cession, then this Cession shall operate as a Cession of all the customer’s reversionary rights. Notwithstanding the terms of the aforegoing Cession the customer shall be entitled to institute action against any of its debtors provided that all sums of money which the customer shall be entitled to institute action against any of its debtors provided that all sums of money which the customer collects from its debtors shall be collected on GMC’s behalf provided further that GMC shall at all time be entitled to terminate the customer’s right to collect such monies/debts.
- 11.3 The customer agrees that GMC shall be entitled at any time or times hereafter to give notice of this Cession to all or any of the customer’s debtors.
- 11.4 The customer further agrees that GMC shall at any time be entitled to inspect any of the customer’s books or records and in addition shall be entitled to take possession of such books and records (of whatsoever nature) to give effect in terms of the Cession.
It is agreed that set-off shall operate automatically as a matter of law at the moment reciprocal debts between GMC and the customer come into existence and independently of the will of the parties and it shall not be necessary for either GMC or the customer to specifically raise set-off. Upon the operation of an automatic set-off aforementioned, the debts shall be mutually extinguished to the extent of the lesser debt.
13. ACCEPTANCE OF DELIVERY
Signature by the customer, or by any person purporting to be an employee or representative of the customer, or GMC’s delivery note shall be regarded as acceptance by the customer that the goods reflected in such delivery note have been properly and completely delivered.
GMC shall, at any time, in its sole discretion, be entitled to cede all or any of its rights in terms of this Agreement and Deed of Suretyship to any third party, without prior notice to the customer.
15. RELAXATION INDULGENCES
Any condonation of any breach of any of the provisions hereof of other acts or relaxation Indulgence or grace on the part of GMC shall not in any way operate as or be deemed to be a waiver by GMC of any rights under this Contract or be construed as a novation thereof.
16. CHANGE OF OWNERSHIP OF THE CUSTOMER’S BUSINESS
If at any time there is any change in ownership of the customer’s business, or should the customer be a company or close corporation, any change in shareholding or change of members interests, without the prior approval of GMC then all amounts then owing by the customer, whether due or not, will immediately be deemed to be due and payable by the customer to GMC, and in addition, GMC shall be entitled to exercise the rights accorded to it in terms of 6 and 10 which shall apply mutatis mutandis
17. LEGAL CHARGES
in the event of GMC instructing its attorneys to recover money or goods from the customer, the customer shall be liable for and pay all legal costs incurred by GMC on the attorney and client scale, including any collection commission.
18. INTERPRETATION AND JURISDICTION
- 18.1 This contract shall be interpreted according to the laws of the Republic of South Africa
- 18.2 Notwithstanding the amount which may at any time be owing the customer to GMC, the parties do hereby consent, in terms of Section 45 of the Magistrates Court Act No 32 of 1944 as amended to the jurisdiction of the Magistrates Court having jurisdiction for the determination of any action or proceedings otherwise beyond the jurisdiction of the said Court which may be brought by GMC against the customer arising out of any transaction between the parties it being recorded that GMC shall be entitled, but not obliged, to bring any action or proceeding in the said Court.
- 19.1 All notices by the one party to the other shall be given in writing by prepaid registered post, telegrams, or delivery by hand
- 19.1.1 to GMC at 15 Poplar Crescent, Lords View Industrial Business Park, Chloorkop Midrand
- 19.1.2 to the customer at the trading address referred to in the Application for Credit Facilities which addresses the parties choose as their respective domicilia citandi et executandi.
- 19.2 The parties shall be entitled to change the address as referred to in 19.1 from time to time provided that any address selected by either of them shall be situated in the Republic of South Africa and any such change shall only become effective upon receipt of notice in writing by the other party of such change.
20. NO OTHER CONDITIONS BINDING
- 20.1 GMC shall not be bound by any oral statements, recommendations, figures, advises, formulae, specifications, prices quoted, acceptances or representations unless they are in writing and signed on behalf of GMC by its duly authorised representative.
- 20.2 All sales of goods by GMC are subject to these Conditions, and no other conditions shall be binding on the parties notwithstanding that such conditions may be annexed to, contained in or incorporated by reference in, any documents exchanged between GMC and the customer and purport to regulate the terms of any purchase by the customer.
- 20.3 No variation or consensual cancellation of these Conditions, or any contract referred to in 2.4 shall be binding upon GMC unless it is in writing and signed by a duly authorised representative of GMC.
21. NATIONAL CREDIT ACT
If any of the provisions of the National Credit Act are applicable in relation to any transactions between GMC and the customer pursuant to these Conditions, then:-
- 21.1 any provision of these Conditions which may be rendered unlawful by any applicable provisions of such Act shall be deemed to have been severed from these Conditions;
- 21.2 these Conditions shall not exempt GMC from any liability which may not lawfully be excluded in terms of such Act;
- 21.3 these Conditions shall not be construed as depriving the customer of any right that the customer may have in terms of any applicable provisions of such Act which may not lawfully be excluded.