DAIKIN AIR CONDITIONING SOUTH AFRICA (PTY) LTD (DASA)
GENERAL TERMS AND CONDITIONS OF SALE
(Valid as from 15 July 2024 until further notice)
1. Definitions
1.1. Consumer means (i) a natural person or (ii) a legal person (including agency, business establishment, firm, trust, partnership, association, close cooperation, company …) that purchases goods or services primarily for personal, household, or domestic use;
1.2. Conditions mean these General Terms and Conditions of Sale as may be amended from time to time;
1.3. Day means a business day, being any day on which the banks are generally open for normal banking business in the Republic of South Africa;
1.4. Direct Marketing means approaching Consumers or/and Purchasers either in person or by mail or electronic communication for the direct or indirect purpose of promoting or offering to supply the Goods and/or Services by using the information and facts directly from the Manufacturer and Company;
1.5. Goods means the goods, including but not limited to air-conditioners, heating products, the components thereof and spare parts, ordered by the Consumer/Purchaser and to be supplied by the Company subject to these Conditions;
1.6. Manufacturer means the Daikin Group manufacturers including, but not limited to, Daikin Europe N.V., Daikin Industries Ltd., Daikin Industries Thailand, McQuay Italia S.p.A., McQuay China, …
1.7. Party (Parties) means Company and Consumer and/or Purchaser;
1.8. Purchaser means a legal person (including agency, business establishment, firm, trust, partnership, association, close corporation, company…) with an annual Turnover equal to or above a turnover of R2 million purchasing Goods and Services from the Company;
1.9. Company means Daikin Air Conditioning South Africa (PTY) Ltd, with registered office at the Estuaries, Block C, Ground Floor, Century Boulevard, Century City, 7441 Cape Town, REPUBLIC OF SOUTH AFRICA with registration number 1998/000635/07;
1.10 Services means the services (maintenance, after sales services …) rendered or supplied by the Company in relation to the Goods; and
1.11 Turnover means the Consumer/Purchaser’s overall turnover during its previous financial year.
2. Governing Conditions (applicable to Consumer/Purchaser)
2.1. The conditions set forth herein shall apply to all transactions for the supply of Goods and/or Services entered into, or to be entered into between the Company and the Consumer/Purchaser.
2.2. All orders, however made, are accepted only upon these Conditions which shall override any terms or conditions incorporated or referred to by the Consumer/Purchaser in writing, orally or otherwise.
2.3. Any changes by the Company to these Conditions shall be applicable between the Parties 60 Days after the Company has notified the Consumer/Purchaser of such changes in writing. In case that the Consumer/Purchaser objects in writing to the changed Conditions within the above mentioned 60 Days period, the Consumer/Purchaser may terminate the agreement –if any– according to the provisions set forth in clause 13.2.
2.4. Each Consumer/Purchaser will have an account and is responsible for all activities that occur related to this account. Third parties are not allowed to use the account of a Consumer/Purchaser.
2.5. These Conditions may not be amended by the Consumer/Purchaser whether in writing, orally or otherwise.
2.6. The Consumer/Purchaser acknowledges that these Conditions, together with the express terms of the Accepted Order and/or a written agreement entered into by the Parties –if any- constitute and form the entire terms of the agreement between the Parties, and override any antecedent terms and conditions, statements or representations whether oral, written or implied.
2.7. In case of any conflicting terms between these Conditions and a written agreement entered into by the Parties - if any, the terms of the written agreement shall prevail. In case of any conflicting terms between a written agreement –if any- and an Accepted Order, the terms of the Accepted Order shall prevail. In any case, any deviating terms on the Accepted Order shall prevail on these Conditions.
In case of any conflicting terms between these Conditions and any terms contained in the Consumer’s/Purchaser’s Order, these Conditions shall prevail. In case of any conflicting terms between an Accepted Order and any terms contained in the Consumer’s/Purchaser’s Order, the terms in the Accepted Order shall prevail.
3. Placing Orders (applicable to Consumer/Purchaser, except 3.6 and 3.7 only applicable to Consumer/ except 3.5 only applicable to Purchaser)
3.1. ‘Quotation’: The Company's quotation, based upon a request, i.e., a tender, made by the Consumer/Purchaser, is valid for 30 Days from the date thereof (unless previously withdrawn or revised) after which time it shall automatically expire and become null and void. These Conditions shall integrally form part of the Quotation, except where the Company deviates from these Conditions in the Quotation.
3.2. ‘Order’: The receipt by the Company of the Consumer’s/Purchaser’s written order in response to the Quotation shall constitute an order by the Consumer/Purchaser. The Order by the Consumer/Purchaser shall be subject to these Conditions together with the deviating terms and conditions –if any– set forth in the Quotation. Placing an Order presumes knowledge and acceptance of these Conditions. An Order cannot be used under any circumstances to affect any amendment to these Conditions. Any Order deviating from the Quotation –and its included terms and conditions – shall therefore constitute a new request for Quotation.
3.3. ‘Acceptance of Order’: Upon placing an Order the Consumer/Purchaser shall first receive acknowledgement of the Order by the Company. A binding agreement shall only come into existence when the Company accepts the Order (‘Accepted Order’) by means of a written confirmation or by commencing work in response to the Order.
3.4. ‘Conditions of Order’:
3.4.1 All orders placed towards DAIKIN South Africa must be for the full assigned quote of materials that was supplied to the client. No partial ordering of materials on the quote will be allowed.
3.4.2 Any request by the client to change or extend an accepted order shall be treated as a separate request for quotation.
3.4.3 It is the client’s responsibility (via client employee responsible or representative) to notify DAIKIN South Africa’s Customer Satisfaction Department (Orders@daikin.co.za) regarding the date on which all the material/s ordered are required for dispatch.
3.4.4 This date should be reflected on the official purchase order number sent into DAIKIN South Africa’s Customer Satisfaction Department (orders@daikin.co.za). This date will be binding for when the full material/s order will be dispatched from DAIKIN South Africa’s local stock warehouses and dictates when stock is purchased from our external supply factories. This also pertains to orders requiring direct shipment from our external supply factories.
3.4.5 Should the Clients Purchase Order request fail to detail any applicable / valid dispatch date, DAIKIN South Africa reserves the right to move the material/s requirement date to one determined by DAIKIN South Africa. No material/s availability confirmations will be applicable until the client confirms an applicable / valid date/s for dispatch of the material/s.
3.4.6 DAIKIN South Africa will dispatch an order acknowledgement which will confirm the order details as well as indicate the date/s which will be used for final dispatch of the required material/s. It is the client’s responsibility (via client employee responsible or representative) to review the order acknowledgement detail/s and advise DAIKIN South Africa’s Customer Satisfaction Department (orders@daikin.co.za) within 3 Days of any changes / omissions or errors. No feedback will constitute acceptance of order details.
3.4.7 Should DAIKIN South Africa’s Customer Satisfaction Department (orders@daikin.co.za) fail to receive any feedback / response from the client related to changes / updates prior to the initial listed dispatch date noted on the order acknowledgement, a physical delivery of all available materials will be initiated. Should the delivery not be accepted, the client will be subject to all consequential administrative, transport, storage and cancellation charges that may apply as well as not have any guarantee of stock availability.
3.4.8 The client (via client employee responsible or representative) can reschedule the sales order / material order to a maximum of two times. The final dispatch date cannot exceed more than 3 months ahead of the initial advised dispatch date.
3.4.9 Pricing increases will be applicable to all materials re-scheduled into a new pricing period for DAIKIN South Africa (Annual or Interim Price List Increases).
3.4.10 DAIKIN South Africa reserves the right to charge storage fees on rescheduled materials being held in any of its local 3rd Party warehouse facilities. Storage charges are applicable on materials specifically manufactured for client order requirements (Made to Order Products such as Chillers and Applied Equipment) as well as any material order that exceeds a total order volume of twenty cubic meters. Charges will be applied for the period between the date of initial requested dispatch till actual dispatch/delivery date. Please contact DAIKIN South Africa for more details on storage charges.
3.4.11 Any reschedule or change past the initial advised date of material dispatch will also involve a reconfirmation of stock availability by DAIKIN South Africa.
3.5 ‘Cancellation Fees’:
Should the client request a cancellation anywhere during the process, a cancellation fee may apply (see below).
Cancellation Fees Applicable: | |
Cancelled before any stock ordering triggered and no local stock allocated / secured regular products. | 10% of Order Value |
Cancelled after stock is ordered. | 25% of Order Value |
3.6. Purchaser only
Accepted Orders may not be cancelled, in whole, or in part, unless if upon prior written approval by the Company. If such cancellation is approved by the Company, the Purchaser shall be subject to cancellation charges determined at the discretion of the Company but never exceeding the value of the order.
3.7.1 The Consumer may cancel an Accepted Order, in whole, or in part, subject to cancellation charges determined at the discretion of the Company but never exceeding the value of the order.
3.7.2 If the Consumer is a natural person and if the Consumer’s Order results from Direct Marketing, the Consumer may notwithstanding anything to the contrary in these Conditions, cancel that Order on written notice to the Company, within a period of 5 Days from the date of delivery of the Goods.
3.7.3 Catalogues and similar publications provided to the Consumer/Purchaser are only sent by way of information and any technical information provided is an approximate guide. The Company has no liability for any deviations from or mistakes in such information or for any errors of interpretation.
4. Price and Payment (applicable to Consumer/Purchaser except 4.2 and 4.6 only applicable to Consumer / except 4.3 only applicable to Purchaser)
4.1. Unless stated otherwise by the Company, the price indicated in the Quotation (“Quotation Price’) is DAP [i.e., Delivery At Place – curbside) Incoterms®2020], nett and exclusive of VAT. This Quotation Price is based on - without being limited thereto - the price list, the cost of transport and other expenses applicable to the Company at the date of issuance of the Quotation (‘Quotation Date’).
4.2. Consumer only
The Company reserves the right at any time prior to delivery to vary the Quotation Price as a result of – if any– changes in price resulting from causes which are not in DASA’s control, such as but not limited to Government tax, occurring between the Quotation Date and the date of actual delivery/invoicing of the Goods and/or Services.
4.3. Purchaser only
The Company reserves the right at any time prior to delivery to vary the Quotation Price as a result of – if any– changes to among others, without being limited thereto, the price list, costs, exchange rates, any imposition or alteration of Government tax, any increase in the cost of materials, labour or transport or if the cost of supplying the Goods and/or Services is increased by any other factors or circumstances beyond the control of the Company, occurring between the Quotation Date and the date of actual delivery/invoicing of the Goods and/or Services. The quotation price can NOT vary (within the validity period of the Quotation) just as a result of a change in list price. The price can only vary (within the validity period of the Quotation) as a result of events or elements outside of DASA’s control (like price increases or shortages as a result of acts of God, taxes imposed by government etc.).
4.4. Subject to clause 4.6. and 4.7., the price to be paid by the Consumer/Purchaser is the Quotation Price subject to changes set forth in clause 4.2. and 4.3. The total price will be indicated in the invoice.
Subject to clause 4.6 and 4.7., all invoices shall be paid in RAND, through electronic fund transfer, bank guaranteed check or credit/debit payment and shall be free of deduction, set-off or counterclaim, within 60 calendar days from the date of Statement. The Company reserves the right to require payment prior to delivery of the Goods and/or Services.
4.5. Consumer only
Notwithstanding anything to the contrary in these Conditions, the Consumer has the right to reasonably object to any increase in Quotation Price. In such event Parties are entitled to cancel the Order in writing within 10 Days after the invoice date.
4.6. Subject to clause 4.5. and 4.6 and in case the Consumer/Purchaser fails to effect payment of the invoice in accordance with the provisions set forth in 4.5, the amount due and unpaid shall be increased with an interest rate of 1,5 % (one and a half percent) on a monthly basis, calculated as from the due date of the invoice concerned. In addition, the Consumer/Purchaser shall have to pay the reasonable costs of legal proceedings and relevant collection charges.
4.7. The cost of Patterns, Gauges, Tools, and Dies shall be charged separately, and these shall in all cases remain property of the Company.
4.8. Should the Consumer/Purchaser not have made full payment in terms of this clause 4, and should – in case of a resale by the Consumer/Purchaser – any amount be outstanding and due and payable to the Consumer/Purchaser by any third party in respect of the Goods and/or Services, the Consumer/Purchaser undertakes, on request by the Company, to immediately cede to the Company as security for the payment of its debt to the Company all its rights and interests in such payment from such party to the Company and to advise the third party accordingly, to sign all and any documentation to give effect to such cession.
4.9. The Company may restrain any delivery, partly or as a whole, if the Company believes that the payment of the Purchaser is not properly guaranteed.
5. Ownership - Reservation of Title (applicable to Consumer/Purchaser)
5.1. Ownership of the Goods and/or Services shall, always, remain vested in the Company, until the Company has received full payment of the price of all the Goods and/or Services concerned. The Consumer/Purchaser shall keep the Goods in its possession in an unaltered state and free of pledge or other charge or security, until such full payment of the price. In the event the Consumer/Purchaser defaults on full payment of the price, the Company shall, without prejudice to any other rights it may have, be entitled to repossess the Goods wherever they may be found.
5.2. The provisions of clause 5.1 shall survive the termination, for whatever reason, of any agreement.
6. Delivery – Transfer of Risk (applicable to Consumer/Purchaser except 6.5 and 6.8 only applicable to Consumer)
6.1. Risk shall pass to the Consumer/Purchaser on delivery of the Goods and/or Services. Unless Parties agree otherwise in writing, delivery shall be deemed to have taken place when the Goods and/or Services are delivered DDP (Delivery Duties Paid – Incoterms®2010), meaning at the Consumer’s/Purchaser’s premises or at another specified delivery point nominated by the Consumer/Purchaser.
6.2. Delivery of the Goods and/or Services shall take place on date and place agreed between Parties. If delivery does not take place as a result of any reason attributable to the Consumer/Purchaser, then delivery shall be deemed to have taken place and the risk shall pass to the Consumer/Purchaser on the date of the planned delivery. The Consumer/Purchaser shall indemnify the Company in full against any expense, cost or loss incurred by the Company due to the failure of delivery including, without limitation, storage, and transport costs. The Company will not hold the Consumer / Purchaser responsible for the goods if the delivery has failed due to reasons attributable to the Company.
6.3. Save in the circumstances set out in clause 6.5, failure by the Company to make delivery on any particular date shall not entitle the Consumer/Purchaser either to cancel the Order or the delivery of the Goods and/or Services, or to cancel the agreement. The Consumer/Purchaser shall accept delivery as and when the Company can reasonably perform delivery.
6.4. Save to the extent required by law, the Company shall not be liable for any damages, including but not limited to loss of income incurred by the Purchaser/Consumer or any third party, resulting from delay in delivery.
If the Company fails to make delivery on any particular date agreed to between Parties and the delay in effecting such delivery is either due to circumstances beyond the control of the Company or circumstances which cannot be attributable to negligence solely on the part of the Company, the Company shall provide notice to the Consumer of such delay and the Company shall deliver as soon as possible thereafter on a date convenient to Parties. If the Company fails to make delivery of any Goods and/or Services on any particular date expressly agreed to between Parties as a result of negligence solely attributable to the Company, the Consumer shall be entitled to either cancel the Order in respect of those Goods and/or Services which have not been delivered, or to agree to accept the Goods and/or Services at an alternative date and time.
6.6. The Consumer/Purchaser shall immediately examine the Goods and/or Services upon delivery. If the Goods and/or Services or any part thereof are received in a damaged condition or are not received, the Company will accept no responsibility for such damage and or loss, unless the Consumer/Purchaser lodges in this respect a complaint to the Company by way of an immediate endorsement on the ‘proof of delivery’ document in respect of the damaged/missing Goods and/or Services. The Company shall not be liable for any claims in respect of damaged/missing Goods and/or Services occurring after the Consumer/Purchaser has endorsed the ’proof of delivery’ document.
6.7. Save as is set out in clause 6.8, if the Company deems the aforementioned complaint to be valid, it shall remedy the complaint at its sole discretion by repairing or replacing the Goods and/or Services, free of charge, upon which the Company’s liability regarding this complaint terminates.
The Company shall remedy valid complaints lodged by the Consumer in accordance with clause 6.6 by repairing or replacing or refunding the damaged Goods at the Consumer’s direction, upon which, without derogating from any other of the Consumer’s right of return described under clause 7, the Company’s liability regarding such complaints terminates.
7. Returns (applicable to Consumer/Purchaser except 7.4 only applicable to Consumer)
7.1. Claims by the Consumer/Purchaser that (i) there is a discrepancy between ordered and delivered Goods and/or Services, OR by the Consumer that the delivered Goods and/or Services do not meet the particular purposes communicated by the Consumer, hereinafter referred to as “Incorrect Supply”, have to be lodged via the My.daikin.co.za self-service portal within 15 working days after delivery of the Goods and/or Services. In case the online claim is not lodged by the Consumer/Purchaser or Consumer within such period, the Goods and/or Services shall be deemed as duly delivered and accepted by the Consumer/Purchaser or Consumer. Thereafter the Consumer/Purchaser or Consumer cannot make any claim regarding the delivery. In any case, no claim for damages on goods will be accepted in case a clear Proof of Delivery has been signed by the Consumer/Purchaser.
7.2. Requests for Goods returned on the basis of Incorrect Supply - if accepted by the Company (at its sole discretion and upon such terms as it may prescribe) - shall only be credited if the Goods are still in marketable conditions and per guidelines stipulated after clause 7.4 9 titled Returns Guidelines). The crediting shall be subject to a deduction of a minimum handling charge. In case the Goods returned are not in marketable conditions, the Consumer /Purchaser shall not be credited for any amount.
7.3. Lodging of the online claim is subject to certain documentation being uploaded/ conditions verified/ evaluation standards. These include, but are not limited to, original purchase document, advice on state of equipment/ packaging state, product type, threshold value, etc. Subject to all required documents/checks being in place (as advised on shelf service portal), a return delivery reference will be generated, and the goods will be scheduled to be picked up – No drop off of any items are allowed at all. The company reserves the right to reject the return should inspection reports disagree with the conditions accepted online.
7.4. Consumer only
If Goods are requested to be returned to the Company on the basis of Incorrect Supply, the Consumer shall be credited for the price paid by the Consumer without any deduction provided that the Goods are returned to the Company (i) within 10 working days after delivery, (ii) in their original condition, (iii) in their original packaging and (iv) without being disassembled, physically altered or in any way affixed to any other property. In case the Goods do not meet these four conditions, but are still in marketable conditions, then clause 7.2 will be applicable. In case the Goods returned are not in marketable conditions, the Consumer shall not be credited for any amount. No drop off of any goods is allowed, pre-approval for returns need to be arrange with the company. Returns terms and conditions will be available on request.
8. Warranty (applicable to Consumer/Purchaser except 8.2 and 8.4 only applicable to Consumer)
8.1. Without derogating from the rights of a Consumer as set out in clause 8.2, the Goods and/or Services are guaranteed under warranty for a period of 12 months after the date of installation or 15 months after the date of invoicing for chillers, and 36 months after the date of installation or 39 months after the date of invoicing for all other equipment, whichever comes first unless otherwise specified by the Company. The warranty is limited to the repair or replacement (excluding labour costs) –at the Company’s own discretion- of the parts found defective due to manufacturing fault in material and workmanship (during assembling) only (‘Warranty’).
Except to the extent that a Consumer has been expressly informed that the Goods are being offered in a specific condition, the implied warranties set out in section 56(2) of the Consumer Protection Act (“Implied Warranties”) will be applicable in respect of Goods sold to a Consumer only. The Company will, subject to clause 8.4. repair or replace the Goods or refund the Consumer the price paid for Goods, subject to Implied Warranties which are violated within 6 months after delivery of the Goods, in respect of any valid claim made by the Consumer in accordance with section 56 of the Consumer Protection Act. Every part installed during any repair or maintenance work, and fixed labour rates to install it, will be warranted for a minimum period of 3 months and a maximum period as described in clause 8.1.
8.3. To claim under the Warranty, the Consumer/Purchaser shall submit to the Company adequate proof that the Goods and/or Services are defective as specified in clause 8.1 as required by the Company. These claims will only be considered if they are lodged in writing within 1 month after the manufacturing fault and defect having been identified by the Purchaser, and no later than 1 year after delivery of the Goods and/or Services concerned.
8.4. Consumer only
To claim under Implied Warranties, the Consumer shall return to the Company the Goods and/or Services mentioned in clause 8.2, in accordance with the specifications communicated by the Company. These claims will only be considered if they are lodged in writing within 6 months after delivery of the concerned Goods and if the Consumer has specified the basis of its claim. The Consumer may elect whether he/she/it requires a repair, replace or a refund in respect of such Goods.
8.5. The Warranty and the Implied Warranties do not apply if:
8.5.1. the maintenance of the Goods and/or Services has not been carried out in accordance with the Manufacturer’s instructions, by an authorized Daikin Partner.
8.5.2. the Goods and/or Services have been modified by the Consumer/Purchaser or a third party.
8.5.3. the Goods and/or Services have been incorrectly installed by the Consumer/Purchaser or a third party.
8.5.4. defects in the Goods and/or Services have been caused by the act, neglect, omission, or default of the Consumer/Purchaser or any third party, fair wear and tear or abnormal working conditions.
8.5.5. any remedial work in respect of the Goods and/or Services has been carried out by the Consumer/Purchaser or third parties instructed by the Consumer/Purchaser without the prior written approval of the Company including, but not limited to, servicing, alteration and repair of the Goods and/or Services.
8.5.6. if the Company's installation and operation instructions (if any) and any instructions issued by the Manufacturer, are not followed.
8.5.7. the Goods are not serviced and maintained by an Authorized engineer/technician, authorized by a Manufacturer or the Company, in accordance with the applicable Manufacturer’s instructions and recommendations (the minimum service and maintenance interval required is twice a year (every 6 months), unless if stated differently by the Company)
9. Liability (applicable to Consumer/Purchaser except 9.3 and 9.5 only applicable to Consumer / except 9.4 only applicable to Purchaser)
9.1. The Company only acts in its capacity as Company and not as installer or consultant and can therefore not be held liable regarding any consultancy advice and/or the installation of the concerned Goods and/or Services or any installation advice given by the Company’s representatives. The Consumer/Purchaser shall be responsible for ensuring that the Goods and/or Services are sufficient and suitable for the Consumer’s/Purchaser’s purposes and the Company shall have no liability to the Consumer/Purchaser if the Goods and/or Services are not sufficient and suitable for the Consumer’s/Purchaser’s purposes.
9.2. The Consumer/Purchaser shall be responsible for ensuring that the Goods and/or Services are sufficient and suitable for the Consumer’s/Purchaser’s purposes.
9.3. Consumer only
If the Consumer has informed the Company of such particular purposes in the request for Quotation, the Company shall be responsible for ensuring that the Goods and/or Services are sufficient and suitable for those purposes, and if the Goods and/or Services are found to be insufficient and unsuitable, the Consumer may within 10 Days after the date of delivery return the Goods and/or Services to - and according to the conditions set forth by – the Company.
9.4. Purchaser only
Except for damages caused by wilful misconduct of the Company, its employees or co-workers, the Company shall not be liable for any damages, loss or injury to any person or property caused by the Goods and/or Services.
The Company's aggregate liability to the Purchaser shall in no circumstances exceed the price paid by the Purchaser to the Company in respect of the Goods and/or Services that caused the damages and shall never include indirect, consequential or economic loss (howsoever arising) including, but not limited to, loss of profit, loss of production, loss of business.
9.5. Consumer only
The Company shall in accordance with Section 61 of the Consumer Protection Act be liable for (i) death of or injury to any natural person, (ii) illness of any natural person, (iii) any loss of or physical damage to any property and (iv) economic loss resulting from harm resulting from (i),(ii),(iii), caused as a consequence of (i) supplying unsafe Goods, (ii) a product failure, defect or hazard in any Goods, or (iii) providing inadequate instructions or warnings to the Consumer concerning any hazard arising from or associated with the use of the Goods, and the concerned cause existed at the time when the Goods were supplied to that natural person.
Claims regarding the above mentioned shall be valid if issued within 3 years after (i) the death or injury, (ii) the earliest moment when the natural person had knowledge of the illness, (iii) earliest moment when the natural person had knowledge about the loss or physical damage to that property, or (iv) the latest date on which the natural person suffered any economic loss.
9.6. The Consumer/Purchaser shall not be entitled to withhold any payment due under the agreement because of any disputed claim in respect of the Goods and/or Services or with respect to any other alleged breach of the agreement, or to set-off any amount payable to the Company against any amount payable by the Company, unless authorised in writing by the Company.
10. Intellectual Property Rights (applicable to Consumer/Purchaser)
10.1. The Consumer/Purchaser shall not obtain any rights with respect to the intellectual property rights vested with or licensed to the Company. The Consumer/Purchaser shall not allow any trademark or instruction, or warning applied to the Goods and/or Services to be obliterated or obscured.
10.2. All designs, samples, models, experimental equipment, marketing devices, accessories and other items relating to the Goods and/or Services or their development or creation shall remain the Company's property, shall be treated as confidential and shall not be copied, reproduced or disclosed to any person without the Company's prior written consent.
11. Confidentiality (applicable to Consumer/Purchaser)
11.1. The Parties shall keep confidential, whether written or oral, (i) all business and financial information relating to the activities of the other Party, (ii) any information or materials identified by the disclosing Party to be confidential and (iii) any information which, from the circumstances in which it is made available by the disclosing Party in good faith and good conscience, ought to be treated as confidential, unless the other Party provided its prior written consent to disclose such information or materials.
11.2. This confidentiality obligation shall not apply to information that is in the public domain, provided that this information was not disclosed further to a breach of these Conditions, or a similar confidentiality obligation implied on the disclosing party.
11.3. Each Party shall promptly give notice to the other Party of any disclosure required by law and the latter Party may seek an appropriate remedy to prevent such disclosure. Each Party undertakes to fully co-operate with the Party to whom the information relates if it rejects the validity of such a requirement.
12. Force Majeure (applicable to Consumer/Purchaser)
12.1. If one Party is prevented from performing the agreement by any cause beyond its reasonable control, however arising, then it may by written notice to other Party terminate the agreement.
12.2. In such event, the prevented Party shall pay to the other Party all reasonable costs incurred by the Company at the date of such notice in relation to the partial performance of its obligations.
13. Early termination (applicable to Consumer/Purchaser except 13.4 only applicable to Consumer)
13.1. Each Party shall be entitled, without prejudice to any other right or remedy available to the other Party, to forthwith cancel any agreement made pursuant to these Conditions or suspend any further deliveries of the Goods and/or Services in case:
13.1.1 either Party makes any voluntary arrangement with its creditors or becomes subject to an administration order or becomes bankrupt or goes into liquidation (otherwise than bona fide for the purposes of amalgamation or reconstruction); or
13.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of one of the Parties; or
either Party ceases, or threatens to cease, to carry on business; or
13.1.3 any event analogous to any of the foregoing occurs in any jurisdiction in relation to the either Party.
13.1.4 either Party, breaches applicable laws and regulations and cannot cure the breach within 20 Days following the non-breaching Party’s notice of default in respect of such breach.; or
13.1.5 either Party commits any default or breach of the terms of the agreement or of any of its obligations to the other Party and the breaching Party fails to remedy the breach within 20 Days following the non-breaching Party’s notice of default.
13.2. The Consumer/Purchaser shall have the right to terminate the agreement by giving a 60 Days written notice of such termination to the Company, if the Company - according to clause 2.3.- modifies or alters the Conditions in a way, which finally cannot be accepted as such by the Purchaser.
13.3. Neither Party shall be entitled to any damages, compensation or indemnity for any reason whatsoever in respect of any termination pursuant to clause 13.1 and 13.2.
13.4. Consumer only
If the Consumer is a natural person and Parties entered into an agreement for a fixed term, the Consumer has the right cancel the agreement by giving the Company not less than 20 Days’ notice in writing. If the Consumer cancels an Order in terms of this clause, the Consumer shall remain liable for any amounts owed to the Company up to the date of cancellation including a cancellation penalty which shall be calculated as follows the Consumer shall remain liable for any amounts owed to the Company up to the date of cancellation including cancellation charges determined at the discretion of the Company but never exceeding the value of the outstanding orders.
14. Anti-Bribery and Corruption Clause (applicable to Consumer/Purchaser)
The Purchaser represents and warrants that the Purchaser and every natural or legal person, company or other entity acting on behalf of the Purchaser (together referred to as “Representative(s)”), including but not limited to its affiliates, employees, subcontractors, agents, consultants or other third parties (i) are familiar with, (ii) understand and/or (iii) have not violated any of the applicable anti-bribery laws and regulations pertaining to anti-bribery and anti-corruption, including but not limited to the Prevention and Combating of Corrupt Activities Act, 2004 (PRECCA) (hereinafter referred to as the “Anti-Bribery Laws”). The Purchaser represents and warrants not to have been convicted or investigated by, or are involved in any enquiry and proceeding of, law enforcement or other competent authorities for violations of the Anti-Bribery Laws.
The Purchaser shall and shall ensure that every Representative shall, refrain from taking any actions that could cause any violation of Anti-Bribery Laws.
The Purchaser shall not offer, give, receive, or solicit any bribe, kickback, or other improper payment, or authorize the giving or receiving of any such payment. The Purchaser shall promptly report any request or demand for any undue financial or other advantage of any kind received by it.
The Purchaser agrees to fully cooperate with any investigations into alleged breaches of this clause 14 and to maintain adequate records to demonstrate compliance with this clause 14 and shall permit the Company to audit such records upon reasonable notice.
Any breach of this clause 14 shall be deemed a material breach of this Agreement and shall entitle the Company to terminate the agreement immediately, without liability, by giving written notice to the Purchaser.
The Purchaser shall indemnify the Company and hold harmless the other Party from and against any and all liabilities, losses, fines, costs, claims, sanctions, confiscation or other damages resulting from or arising out of any breach by one Party or any of its Representatives of the Anti-Bribery Laws.
Each Party shall ensure that any agent, sub-agent, consultant, sub-contractor, or other Representative used by this Party to fulfil its obligations under this agreement are subject to the same obligations as the Party under this clause 14 and will comply with the Anti-Bribery Laws.
15. General (applicable to Consumer/Purchaser)
15.1. If during the applicability of these Conditions, a competent tribunal is requested to make a finding with regard to the validity, fairness and/or enforceability of any term in these Conditions, and if any of the Parties would likely suffer severe hardship as a result of a finding that a term is invalid, then in such instances the Parties must submit to the relevant tribunal for its consideration alternative clauses with a view to making such adjustments as would appear to be necessary and such revisions as would be justified in order to enable an alternative clause to be inserted in these Conditions, which are valid in law and relieve fully (or if that is not possible, partially) the hardship in question. To the extent that any provision in these Conditions is found by a competent tribunal to be unfair, invalid, or unenforceable, but the remainder of these Conditions remains unaffected, then such alternative clause which the tribunal finds to be most equitable and just will replace that provision.
15.2. The Consumer/Purchaser shall not be entitled, without the prior consent in writing of the Company, to assign its rights under the agreement to any third parties.
15.3. Any notice required or permitted to be given under these Conditions shall be in writing and shall be sent by recorded delivery addressed to that other Party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the Party giving notice. In proving service, it shall be sufficient to prove that the notice was properly addressed and posted.
15.4. No waiver by the Company of any of the terms of these Conditions shall release the Consumer/Purchaser from full performance of the remaining terms, and no waiver by the Company of any breach of the terms of these Conditions shall be a waiver of any subsequent breach of the same or any other term of these Conditions. No failure to exercise, nor delay or omission by the Company in exercising, any right, power, or remedy conferred on it under these Conditions or provided by law shall except with the express written consent of that party affect that right, power or remedy; or operate as a waiver of it.
15.5. These Conditions shall be governed by and construed in accordance with the laws of the Republic of South Africa and any dispute shall be referred to the exclusive jurisdiction of the South African Courts.
Any disputes arising between the Parties in respect of the agreement shall, at the option of the Company, be justifiable in the Magistrates Court and the Consumer/Purchaser consents to such jurisdiction.