TERMS AND CONDITIONS OF SALE
1. THESE TERMS AND CONDITIONS TO PREVAIL
1.1. The customer agrees that the supplier, being Apix Digital Solutions, trading through its division with whom the customer places orders from time to time, is prepared to do business on the basis that, notwithstanding anything in the customer's enquiry, specification, acceptance, order or other documentation (including, without limitation, the customer’s standard terms and conditions) or discussion to the contrary (collectively the “Customer Terms”), the terms and conditions contained in this Agreement (“this Agreement”) read together with the Special Terms and Conditions of Quotation contained in a written Quotation provided by supplier to the customer from time to time (the “Quotation”), shall constitute the sole terms of the agreement between the supplier and the customer.
1.2. To the extent that the provisions hereof conflict with: (a) any provisions of any of the Customer Terms, the provisions of these terms and conditions shall prevail; and (b) any provisions of the Special Terms and Conditions of Quotation, the provisions of the Special Terms and Conditions of Quotation shall prevail.
1.3. The supplier reserves the right to change, on reasonable notice to the customer, these terms and conditions at any time.
2. NO VARIATIONS OR AMENDMENTS
2.1. Subject to the provisions of clause 1, this Agreement constitutes the whole agreement between the customer and the supplier relating to the subject matter hereof.
2.2. No amendment or consensual cancellation of this Agreement or any provision or term of this Agreement or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this Agreement or of any agreement, bill of exchange or other document issued pursuant to or in terms of this Agreement shall be binding, unless recorded in a written document signed by an authorised representative of the supplier (or in the case of an extension of time, waiver or relaxation or suspension, signed by the party granting such extension, waiver or relaxation). Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
2.3. No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against the supplier in respect of its rights under this Agreement, nor shall it operate so as to preclude the supplier thereafter from exercising its rights strictly in accordance with this Agreement.
2.4. The supplier shall not be bound by any express, implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced this Agreement between the supplier and the customer or not.
3. QUOTATIONS
3.1. Any Quotation given is not an offer by the supplier to sell the goods or provide the services but constitutes an invitation by the supplier to the customer to do business with the supplier.
3.2. A contract shall only come into force between the supplier and the customer if after receipt by the supplier of the customer's order or acceptance of the Quotation (such order and/or acceptance of Quotation constituting an offer on the terms and conditions contained in this Agreement), and the supplier accepts such offer including the Special Terms and Conditions of Quotation.
3.3. If the supplier requires any variation to the Quotation, subsequent to the date of the Quotation but prior to date of placing the order, the supplier shall be entitled to adjust the Quotation accordingly.
3.4. The Quotation is based on the designs, quantities, specifications and other information supplied to the supplier by or on behalf of the customer. If the customer requires any modification or addition to any of the aforegoing at any time after the Quotation is given, the supplier shall have the sole and absolute discretion to accept or reject such proposed modification or addition. Any proposed modification or addition by the customer must be furnished to the supplier in writing and agreed to by both parties.
4. PLACING OF ORDERS
4.1. Telephonic orders placed by the customer will only become valid orders once confirmed in writing by the customer, whereafter the supplier may accept it.
4.2. An order may not be withdrawn until accepted or rejected by the supplier save as otherwise agreed to between the parties from time to time. Any such order shall upon acceptance thereof by the supplier be irrevocable.
4.3. Where the goods or any part thereof are to be imported, this Agreement is subject to the condition that the supplier's order is accepted and confirmed by the supplier's own suppliers and that delivery is made thereunder in due course.
5. PURCHASE PRICE AND PAYMENT
5.1. Orders (other than those in respect of which a Quotation was given and was duly accepted or where a Quotation expressly fix the prices for a stated period) are accepted by the supplier only on the basis that the prices in the Quotation based on prices charged to the supplier by its own suppliers are still valid, failing which the supplier may adjust its prices accordingly.
5.2. Unless otherwise expressly stated, prices are exclusive of value-added tax which shall be for the account of the customer unless the customer has given acceptable proof to the supplier that the supply is a zero rated or an exempt supply. The customer shall pay or reimburse to the supplier the amount of any value-added tax simultaneously with the purchase price.
5.3. The customer shall be obliged to pay to the supplier, in addition to the contract price herein, the amount of any tax, duty or other charge of any nature whatsoever imposed by any law, regulation or enactment of whatsoever nature which comes into force on a date after the date on which any price charged is determined.
5.4. In particular, but without limiting the generality of the aforegoing, the supplier shall be entitled to increase the contract price in order to make provision for any increases in cost arising as a result of or during the period of any delay or special request by the customer.
5.5. Any expenses incurred by the supplier at the instance of the customer in modifying or otherwise altering or making additions to the design, quantities or specifications for standard goods, and any expenses arising as a result of suspension of work by the supplier due to instructions given, or a failure to give instructions by the customer, shall be added to the contract prices.
5.6. Unless otherwise specified or agreed to by the supplier in writing, payment is to be effected within 30 (thirty) calendar days from date of statement. The price shall be payable by the customer to the supplier in cash in Namibian Dollars without deduction or set-off and free of any exchange. The supplier shall not accept any payments by cheque. Default interest shall be charged on all overdue amounts at 2% (two percent) per annum above the prime overdraft bank rate charged by the supplier’s bankers from time to time, compounded monthly in arrear, on all overdue amounts from the date upon which such amount became due and payable to the supplier until the date upon which such amount together with all interest accrued on such amount has been paid by the customer to the supplier in full.
6. DELIVERY AND RISK
6.1. Any delivery date indicated by the supplier, whether in the Quotation or otherwise, shall merely be regarded as the estimated date of delivery and shall not bind the supplier to effect delivery on or near such date. The supplier shall use its reasonable endeavours to meet the estimated delivery date – it being agreed that although time is of the essence the supplier will not be held liable for any delay in deliveries from its suppliers for whatever the reason. The supplier will only be bound to specific delivery times if expressly agree thereto in any Special terms and Conditions of a Quotation.
6.2. The customer shall accept delivery when tendered by the supplier or at the agreed scheduled delivery dates and shall not be entitled to cancel the Agreement, nor to withhold or defer any payment, nor to demand a reduction in price, nor to raise or claim any other right or remedy against the supplier, its servants, agents or any other persons for whom it is liable in law (in whose favour this constitutes a stipulatio alteri) whether for losses, costs, damages, expenses, interest or otherwise (including but not limited to eiusdem generis) on account of delays in effecting delivery, partial delivery or non-delivery, whether occasioned by any negligent act or omission on the part of the supplier, its servants, agents or any other persons.
6.3. If delivery of any particular order is to be effected in consignments, the supplier shall not be obliged to deliver any part of the order until the purchase price, which is due in respect of the part of the order which has already been delivered has been fully paid.
6.4. If the goods are delivered:
6.4.1. Ex Works then:
6.4.1.1. delivery of the goods from the supplier to the customer takes place when the supplier makes the goods available to the customer at the customer’s premises or at another place notified by the customer to the supplier in writing (“Customer Premises”); and
6.4.1.2. notwithstanding that the ownership in the goods shall not pass to the customer until the entire contract price (including interest, if applicable) in respect of the goods in question has been paid in full, subject to clause 6.7, all risk in respect of the goods passes from the supplier to the customer when the supplier makes the goods available to the customer at the Customer’s Premises or at another place notified by the customer to the supplier and agreed to by the supplier.
6.5. The customer shall be obliged to inspect all goods upon receipt by it of the goods and shall endorse the delivery note as to any short-delivered or damaged goods. No claims for short-delivered or damaged goods shall be valid unless the delivery note has been endorsed as aforesaid and unless, in addition, the customer notifies the supplier in writing within 7 (seven) business days of receipt by it of the goods in respect of the claim in question, furnishing full details in regard thereto. The customer shall bear the onus of proving that upon receipt by it of the goods, any goods are missing or damaged. If the customer successfully discharges this onus the supplier shall replace the damaged or missing goods free of charge.
6.6. If the supplier is unable to deliver the goods to the customer due to any act or omission on the part of the customer and the supplier is required to store such goods then the customer shall reimburse the supplier, on demand, for all fees and costs incurred by the supplier in respect of such storage.
6.7. Should the customer fail or refuse to take delivery of the goods when delivery is tendered or fail or refuse to furnish the information necessary to enable delivery thereof to be effected, then upon notification by the supplier to the customer that the goods are ready for delivery:
6.7.1 the goods shall be deemed to have been delivered to the customer;
6.7.2 the risk in such goods shall pass to the customer; and
6.7.3 the supplier shall be entitled to invoice the customer and the customer shall be liable to pay the contract price of such goods to the supplier after receipt of the relevant invoice and statement.
6.8 The customer shall be liable for all expenses, losses and/or damage suffered or incurred by the supplier as a direct or indirect result of the failure and/or refusal by the customer to take delivery of the goods when delivery is tendered and/or failure or refusal to furnish the information necessary to enable delivery thereof.
7. WARRANTIES
7.1 The supplier warrants, in respect of any services, that the services will be performed in a professional manner and applying the necessary skill and expertise expected from the supplier. In respect of any goods, the supplier will only provide such warranties (if any) in relation to the goods to the extent that it has been given warranties from its supplier or the manufacturer of such goods. Accordingly, the parties agree that the warranties, and terms and conditions applicable thereto, provided by the supplier or manufacturer of the goods to the supplier shall apply in favour of the customer on a “back-to-back” basis only.
7.2 The warranties provided herein and the obligations of the supplier hereunder are in lieu of, and the customer waives, all other warranties, guarantees, conditions or liabilities, express or implied, arising by law or otherwise, including without limitation, any obligation of the supplier in respect of any injury, loss or damage (direct, indirect or consequential) arising out of the use of, or inability to use, the goods and whether or not occasioned by the supplier's negligence (gross or otherwise) or any act or omission on its part. Without limiting the aforegoing the supplier does not warrant that the goods will be fit for the purposes for which they are to be used by the customer (notwithstanding that the use to which the customer intends to put the goods is known to the supplier). For the purposes hereof, any reference to the supplier shall include its servants, agents or contractors or any other person for whose acts or omissions the supplier may be liable in law. This also constitutes a stipulatio alteri (namely, a benefit in favour of a third party which may be accepted by such third party) in favour of such persons, the benefits of which may be accepted by them at any time.
7.3 The supplier shall be relieved of all obligations under any warranties in terms hereof, if -
7.3.1 repairs or modifications have been made by persons other than the supplier, unless such repairs or modifications are made with the prior written consent of the supplier;
7.3.2 any goods are operated with any accessory, equipment or part not specifically supplied or approved in writing by the supplier;
7.3.3 the goods shall not have been operated or maintained in accordance with the supplier's instructions, manufacturer’s published specifications or under normal use;
7.3.4 the goods shall not have been properly installed; or
7.3.5 the goods have been operated for any purpose other than the purpose for which they are designed to be used.
7.4 If repairs or replacements are effected by the supplier, only the parts actually worked on and not the complete goods shall be subject to new warranties, if any, unless a complete overhaul of the goods is undertaken.
7.5 If the customer acquires the goods for the purpose of on-selling the goods, whether the customer is permitted to do so or not (and nothing herein contained shall be deemed to allow the customer to on-sell goods acquired from the supplier whilst ownership vests in the supplier), the customer shall not advertise or issue or in any other way give or make any warranties, guarantees or representations as to the goods in any form whatsoever or offer to do so, which could result in liability being imposed upon the supplier, its servants, agents or person for whom it may be liable in law. The customer indemnifies the supplier, its servants, agents or person for whom it may be liable in law against any loss, damage or expense, including legal costs, which may be demanded from or sustained by one or more of the supplier, its servants, agents or person for whom it is liable in law, by reason of any claim brought by any third party, arising as a result of breach of this clause 7.5.
8. AVAILABILITY OF IMPORT PERMITS
The supplier's obligations hereunder shall be subject, in those cases where the goods or part thereof are to be imported, to the relevant authority having issued an import permit to the supplier in respect of such goods.
9. OWNERSHIP
9.1 Ownership of the goods shall not pass to the customer until the entire contract price (including interest, if applicable) in respect of the goods in question has been paid in full. The provisions hereof shall apply notwithstanding that the goods may be incorporated into or form part of other goods or change their essential character. All goods, whether fixed to immovable property or not, shall be deemed to remain movable property and be deemed to be severable without injury to other property.
9.2 The supplier reserves the right to inform the owner/landlord of the premises in which the goods are or at any time may be, of the provisions of this clause 9. The customer shall be obliged to advise the supplier of the name and address of the owner/landlord of any such premises and shall promptly advise the supplier of any change in the name and/or the address of any owner/landlord or of any new owner/landlord.
9.3 The customer shall take all such steps as may be necessary to notify interested third parties that ownership of the goods in question has not passed from the supplier. In particular the customer shall inform the owner/landlord of the premises in which the goods are or at any time may be, of the provisions of this clause 9. The customer shall produce written proof of such notices to the supplier on demand.
9.4 Nothing herein contained shall be deemed to permit the sale of goods in respect of which the ownership still vests in the supplier.
10. DESIGN AND MANUFACTURE
10.1 The supplier shall be entitled to claim the usual tolerances customary in the trade on all dimensions.
10.2 If no detailed drawings or specifications are provided by the customer, the requirements shall be agreed between the parties in writing.
10.3 Any change to the design or form of any goods shall be agreed between the parties in writing.
11. DOCUMENTATION
11.1 All specifications, descriptive matter, drawings and other documents furnished by the supplier do not form part of this Agreement and may not be relied upon, unless they are agreed in writing by the supplier to form part of this Agreement. All descriptive matter and specifications, drawings and particulars given by the supplier which form part of this Agreement are approximate only and the supplier cannot be held responsible for loss due to discrepancies therein.
11.2 All drawings, plans, specifications, quotations and other documents furnished by the supplier are confidential and shall remain the property of the supplier and shall be deemed to have been imparted by it in trust to the customer for the sole use of the customer. The copyright in such documents vests in the supplier. Such documents shall be returned to the supplier on demand.
12. INSURANCE
The customer shall at its own expense and prior to taking delivery of the goods, insure the goods and thereafter keep the goods insured until such time as the goods have been paid for in full. Such insurance shall be taken with recognized reputable insurers for such amount and on such terms as may be approved by the supplier in writing. The insurance policy shall record the interest of both the supplier and the customer. The customer shall, if so required by the supplier, cede to the supplier all its rights in terms of such insurance policy.
13. BREACH
If the customer breaches any of the terms or conditions hereof or any other agreement with the supplier or fails to pay any amount payable by the customer on due date or commits any act of insolvency or endeavours to compromise generally with the customer’s creditors or does or causes to be done anything which may prejudice the supplier's rights hereunder or at all, or allows any judgment against the customer to remain unsatisfied for 7 (seven) days or is placed into provisional or final liquidation or enters into business rescue proceedings or is placed under provisional or final sequestration or if the customer’s estate is voluntarily surrendered, the supplier shall have the right, without prejudice to any other right which the supplier may have against the customer (including, without limitation, the supplier’s right to claim damages from the customer), to elect to -
13.1 treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the agreement and to claim such amounts as well as any other amounts in arrear including interest and to cease performance of its obligations hereunder, as well as under any other contract with the customer until the customer has remedied the breach; or
13.2 cancel this Agreement and retake possession of any of the goods sold.
14. NO CESSION
The customer shall not be entitled to cede or assign any rights and/or obligations which the customer may have in terms of this Agreement to any third party without the supplier’s prior written consent.
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Terms and Conditions