Conditions of Sales of Conugis Alpha GmbH (formerly Poynting GmbH)
The company and the customer/applicant agree that –
- this contract shall be interpreted according to and governed in all respects by the Law of Germany ;
- the clause headings in these conditions are for convenience and shall not be used in their interpretation;
- unless the context clearly indicates a contrary intention, an expression which denotes –
- any gender includes the other genders;
- a natural person includes an artificial person and vice versa ;
- the singular includes the plural and vice versa .
- These terms shall apply to every agreement between the company and the customer.
- These terms constitute the general terms of each agreement. That agreement will also contain any special terms contained in any application written document. Where any special term varies any of these general terms, it shall only be binding if in writing, and if a director of the company signs the document containing it. Where there is any inconsistency between any of these general terms and any special term, the special term shall prevail.
- Where the company supplies any quotation or tender no agreement will arise until the acceptance of that quotation or the company receives tender in accordance with its terms.
- The customer shall not have the right to cede, assign or transfer any of its rights or delegate any of its obligations arising out of this contract without first obtaining the company’s written consent.
- The customer hereby waives notice of dishonour, and protest (where applicable) in respect of any promissory note, bill of exchange or other negotiable instruments delivered by the customer to the company.
Orders and Delivery
- The delivery date shall not be of the essence of this contract and any such date shall be construed as an estimate. The company shall use its best endeavours to deliver the goods or render the services within a reasonable period of any delivery date but shall not be liable for any loss or damage of whatsoever nature suffered as a result of a delivery date not being met.
- The company shall be entitled in its election to terminate this contact or to a reasonable extension of time to comply with its obligations if delayed by force majeure or by reason of directions of the customer, civil commotion. Local combination of workmen, strikes or lockout and causes beyond the control of the company, and shall not be liable to the customer by reason of such termination or delay. Further, any time limits shall be extended automatically by the length of the period between the date of this contract and receipt by the company from the customer of all documentation required by the company to proceed without interruption to completion of the contract, and/or receipt by the company of all materials necessary for the manufacture of the goods.
- The company shall be entitled to suspend any delivery while the customer is in breach of any of the terms of this or any other contract between it and the customer.
- Unless otherwise agreed to in writing by the company, the company delivers goods or services to the customer. The customer shall before the stipulated delivery date, furnish the company with complete written instructions concerning the packing and transportation of the goods and shall pay all packing and transportation costs and costs incidental thereto. Should the customer fail to do so timeously, the company has the right to appoint a carrier on behalf of the customer to store the goods. The customer shall be liable to the company for a daily storage charge at the rate of 1 % (one percent) of the price per month or part thereof together with all reasonable sums incurred by the company in respect of the storage of the goods including handling charges, cartage and insurance which storage shall be deemed to have commenced on the date on the date which the goods are tendered for delivery by the company. The storage of the goods shall be at the customer’s own risk.
- The company may affect delivery of any of the goods at different times and the customer shall accept delivery in installments as the company may determine.
- The customer shall have the right to inspect the goods at the time and premises of the company before accepting them. This right shall be deemed waived if not exercised before the stipulated or deemed delivery date as the case may be.
- The signature of any employee or agent of the customer on the company’s delivery note or waybill or that of the carrier will constitute conclusive evidence of the receipt of the goods by the customer.
Ownership of Goods and Risk
- Ownership of the goods will, notwithstanding delivery, only pass to the customer against payment of the whole of the contract price. The risk in specific goods shall pass to the customer on delivery.
- For as long as the company retains ownership in the goods delivered –
- The customer shall have no right to dispose of or part with possession of the goods whether by way of sale or pledge or otherwise and in the event of the goods being interfered with by any third party, the customer shall immediately notify the company by way of telephone call, fax or electronic communication. The cost incurred in any action to prevent the interference shall be paid by the customer on demand and the company shall cede its claim for costs against the third party to the customer;
- The customer shall be obliged to insure the goods for the full price against the usual risks and to maintain the goods in good order and condition. Monies received under the insurance policy shall be applied first in payment of the price to the company.
- The customer shall not have any claim whatever against the company –
- if the goods fail to arrive at the destination; or
- for any loss of or damage to the goods, arising from any cause whatever, while they are in transit, irrespective of who is responsible for their delivery.
- In the event of the goods being stored by the customer at the premises which are leased by the customer, the customer undertakes to notify the company of this fact and to notify the landlord of the premises in writing of the fact that the goods are stored at the property of the company and authorizes the company go give notice of ownership in the goods to the landlord.
Contractual Price and Payment thereof
- The price is based on the foreign exchange rates, duties, levies and other imposts ruling affecting the goods or their component parts at the date or preparation of this contract and the cost at this date of every item of expenditure involved in the goods including, without limiting the generality of the foregoing, the costs of materials, labour, transport and insurance of each component part. The price shall take account of any loss or estimated loss or extra cost incurred by the company as a result of a default by the customer causing a delay in delivery of the goods. The auditor of the company shall adjust the price taking into account any change in the basis of the price which occurs between the date of the preparation of this contract and the date of delivery of the goods as if the change were applicable at the former date. For purpose of facilitating the whole or part of the computation of the price adjustment, the auditor shall at his sole discretion be entitled to use a cost price adjustment formula for manufacturing contracts based on a material and labour mix and indices as the auditor may in his discretion determine. The price adjustment as certified by the auditor shall be final and binding on the parties.
- The mass of the goods on which the contract price is calculated shall be at designated by the company’s dispatch department (safe for any manifest error in calculation):
- Shall be paid by the customer at the company’s head office.
in cash against delivery; where the customer will have been granted credit facilities, within the terms given in writing from time to time;
- Shall bear interest calculated on the daily balance thereof at the maximum legal rate chargeable, should the customer not make payment in accordance with the applicable provisions as contractually agreed.
- shall not be deemed to have been paid until the price have been credited to the company’s bank accounts and is unconditionally available to the company.
- Includes the cost of delivery if delivery is to be made by the company (which shall be the customer’s agent for this purpose) but shall not include the cost of delivery if delivery is to be made in any other manner, in which case the customer shall refund to the company the cost of delivery and any other costs incidental thereto which may be paid by the company.
- The customer shall be liable for all costs incurred by the company in collecting or enforcing payment of any amount due to it from the customer, calculated on the attorney and client scale.
- The company shall be entitled to appropriate any payment received by the customer to the debt of the customer, which the company may in its sole election determine, notwithstanding the customer’s stipulation to the contrary. The customer shall not be entitled to withhold any sum payable to the company or to make any deductions there from or to set any such sum off against any sum, which is actually or allegedly owed to the customer by the company.
Goods and Resale thereof
Until goods are paid for in its entirity:
- The customer shall not be entitled to dispose of any goods delivered to it to any third party not to apply or use any goods on behalf of any third party without the prior written consent of the company.
- Where the customer disposes of the goods to any third party without such written consent any warranties given by the company in respect of the goods shall forthwith and ipso facto disposes of any goods cease to be of any force or effect. The customer shall be deemed to have indemnified the company against all claims of any nature whatsoever which may be made against the company by any third party arising directly or indirectly from any such disposal, and against all damages, losses, costs or expenses incurred by the company in respect of any such claim.
- Where the customer disposes of goods to any third party with the written consent of the company, the customer shall only dispose of such goods on the terms contained in these conditions of sale, mutates mutandis.
- If the customer disposes of the goods with the written consent of the company but on terms other than those contained in these conditions of sale, mutates mutandis, the customer shall be deemed to have indemnified the company against any claim of any nature whatsoever which may be made against the company by any third party arising directly or indirectly from such disposal.
Warranties and representations
- Any recommendation, formula, figure, advice, specification, illustration, diagram, price list, dimension, weight or other information and particulars furnished by the company concerning the goods is approximate and for information only and, unless otherwise expressly stated in writing, does not form the basis or any part of the sale.
- The company shall not be liable under any circumstances whatever for any loss or damage arising out of the use by the customer of any material or information whether furnished negligently or otherwise.
- Any model or sample of the company shown to the customer is illustrative of the general type and quality of goods and shall not be construed as a representation that the goods conform to the model or sample.
- The company does not make any representations nor, unless expressly given in writing (whether set out on any product label, data sheet, circular current printed product brochure or otherwise), give any warranty or guarantee of any nature whatever in respect of the goods or their suitability for any purpose, whether that purpose is notified to the company or not.
- If any such warranty or guarantee is given by the company and all or any part of the goods fail for any reason whatever to comply with that warranty or guarantee, then –
- the buyer must notify the company verbally within forty-eight hours, and thereafter in writing within seven days, after the customer becomes aware of the fact that the goods in question do not comply with that warranty or guarantee;
- the company may inspect the goods in question at the customer’s premises;
- at its own expense the customer shall return those goods to the company, should the company so require;
- subject to compliance by the customer with the above, the company shall, in its discretion, either remedy that failure by adjusting, repairing or replacing the goods, or refund the whole or part (as the case may be) of the contract price paid to it by the customer in respect of such goods;
- save for the warranty described herein the customer shall not have any other claim whatever against the company.
Liability and exclusion thereof
- The company shall not be liable for any loss or damage whatever suffered by the customer or any other person as a results of –
- the goods or any part thereof defective in any way or failing to conform wholly or partly, with any warranty or guarantee given by the company;
- any delay in delivering the goods or any part thereof;
- The company shall not be liable to the customer or any other person for any loss of profit or other special damages or any consequential damages whatever arising out of any breach by the company of any of its obligations, including gross negligence under these conditions or out of other cause whatever.
- The customer indemnifies the company against any claim which may be made against the company by any other person in respect of any matter for which the liability of the company is excluded
- Subject to other provisions of these conditions, the customer may not claim any reduction of the contract price for any short delivery of, or defect in, any of the goods unless the company is notified thereof –
- verbally within forty-eight hours; and
- thereafter in writing within seven days, after receipt of goods.
- Subject to the other provisions of these conditions, the customer may not return any goods unless –
- the company has consented in writing to such return;
- the goods and its packaging are in good condition;
- it does so entirely at its own cost and risk, to a destination nominated by the company; and
- if required to do so by the company it pays to the company, a handling fee equal to 5 % of the contract price of the goods.
Breach of contract
- Should the customer –
- commit a breach of any of these conditions; or
- being an individual, dies or surrenders his estate; or
- being a partnership, is dissolved; or
- being a juristic person or trust, is placed under a provisional or final order of liquidation or placed under judicial management; or is provisionally or finally sequestrated or
- commit an act of insolvency as defined in any statute or according to any common law in force in the Republic of South Africa from time to time; or compromise or attempt to compromise generally with its creditors, then in any of those events the company may summarily cancel the contract by giving the customer written notice to that effect, without prejudice to any rights which it may have as a result of that breach or cancellation.
- Upon the cancellation of the contract for any reason whatever the company may repossess the goods if ownership has not been passed to the customer in terms of 2, and or recover all amounts owing by the customer whether or not the amounts are due.
Legal and other costs
- The customer/applicant will be liable for all legal costs, which will include but not be limited to –
Legal costs on the so-called attorney-and-client scale (that is all the disbursement made by the attorney briefed by the Company, including all costs of any Advocate instructed by the Company, as on brief; Costs of the professional services rendered by the Attorney to the Company; Collection charges and tracing fees; and
- Value Added Tax (VAT) thereon, which we may incur in recovering or attempting to recover monies which the customer/ applicant owes the company.
The construction, validity and performance of obligations in terms of this agreement, and any other terms and/or conditions duly agreed between the Company and customer, and the determination of another dispute between those parties arising out of the alleged improper or non-performance thereof, based on any cause of action whatsoever shall be governed in all respects by the Law of Germany and the Courts of that country shall have exclusive jurisdiction over this disputes.
No waiver of any of the terms and conditions of this agreement will be binding or effectual for any purpose unless expressed in writing and signed by the party hereto giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of any party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof; nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
- No variation of these conditions shall be of any force or effect unless it is recorded in writing and signed by the company’s authorized representative.
- No representative, agent or salesman has any authority to waive or vary any of these conditions or make any representations whatever on behalf of the company.
- No indulgence, extension of time, relaxation or latitude which the company may permit at any time in regard to the carrying out of any of the customer’s obligations shall prejudice the company in any manner whatever or be a waiver by the company of any of its rights against the customer.
- The customer consents to the company instituting any proceedings arising out of this contract in any magistrate’s court having jurisdiction over the customer, irrespective of the amount of the claim.