Kapico SA Conditions of Sale

“The Company “ Conditions of Sale

1. Definition

1.1 “The Company”=Kapico SA(Pty)Ltd. And any other of its Subsidiaries or Associated companies.

2. Payment

2.1 The purchase price of the goods listed on the face hereof shall be paid by the customer to “THE COMPANY” without deduction or set -off within the period of the agreed credit terms allowed to the customer and as per the statement submitted by “THE COMPANY.”

2.2 If more than one delivery is made then each delivery will be invoiced and shall be paid for separately by otherwise in accordance with 1.1.

2.3 The Company shall be entitled to change interest on all overdue amounts at 3% above prime bank overdraft rate or the maximum rate permissible from time to time, for money lending transaction in the terms of the Usury Act or equivalent legislation as amended. Such interest shall be calculated and payable monthly in advance on the first day of each and every successive month on the on the balance outstanding from time to time by customer in respect of the purchase price of the goods.

2.4 The ownership of all goods supplied by “The Company” until the purchase price in respect thereof has been paid in full, but the customer shall have the right to dispose thereof in the ordinary course of normal business in which event it is hereby expressly agree that the claim of the customer in respect of the purchase price from the ultimate purchaser of the goods is hereby ceded to “The Company” as security for payment of any amount outstanding.

2.5 The contract price is based on the cost of materials, components, accessories, labour, insurance, freight, delivery, railage, delivery, import and rates of exchange prevailing at the date on which the contract is entered into. The contract price shall automatically be varied to take account of these contract price variables. The amount of the variation shall be determined in the absence of agreement, by “The Company” auditors, for the time being acting as experts and not as arbitrators and their decision shall be final and binding.

3. Discount

3.1 The price of the goods sold to the customer is strictly net and not subject to any discount (invoice or settlement or any other) unless otherwise agreed to in writing.

3.2 If any discount is agreed to in writing, it shall only be allowed if payment is received by “The Company” strictly by the due date and shall only apply to the price of the goods themselves and not any value added tax, transport cost, insurance, storage charges or other duties or taxes.

4. Delivery

Delivery shall be completed when goods are offloaded at the destination if the goods are to be transported by means of “The Company” vehicle or when the goods are loaded if they are transported by the customer or a carrier engaged whether by “The Company” or the customer to transport the goods to the customer. This invoice signed by an employee or carrier engaged by the Customer shall be conclusive proof of such delivery.

4.2 Should “The Company” at the customer’s request, agree to engage a carrier to transport the goods to the customer. “The Company” shall engage the carrier on such terms and conditions as it deems fit as agent for the Customer, and the Customer indemnifies the Company against all demands and claims which my be made against it by the carrier so engaged by the and all liability which the Company may incur to the carrier arising out of the transportation of the goods.

4.3 The risk in the goods shall pass to the customer on delivery of the goods.

4.4. “The Company” shall not be liable under any circumstances for any compliant or claim for any alleged shortage in delivery or defect in the goods unless written notice is received by “The Company” within seven days after delivery of the goods to the customer.

4.5 The signature of the employee or agent of the customer which appears on “The Company” official note, invoice or way-bill or the delivery note of any authorized independent carrier shall constitute conclusive evidence of delivery of goods purchased.

4.6 If more than one delivery is to be made then provision of clause 4.3 apply to each delivery.

4.7 Time of delivery shall not be the essence of the contract.

4.8 Any given delivery date is approximate only.

4.9 If “The Company” cannot make any delivery for any reason which either wholly or partly beyond its control, then the obligation to make that delivery shall be suspended until “The Company” can make it.

4.10  “The Company” shall be entitled to suspend any delivery while the customer is in breach of any of these terms and conditions and/or the terms of any other contract between it and the customer.

4.11 “The Company” may effect delivery or any of the goods at different times and the customer shall accept delivery in installment.

4.12 If the customer fails to take delivery or any of the goods where tendered, then risk it shall pass to the customer as soon as delivery is tendered by “The Company” even if the goods have not left “The Company” premises and all costs, directly or indirectly incurred by “The Company” in storing, caring for and involving the goods after such tender shall be paid by the customer to “The Company” on demand.

5. Set-off

5.1 In the event of “The Company” or any holding or subsidiary company or other division of the company of which “The Company” is a division becoming indebted to the customer “The Company” may set off such indebtedness against any monies which may be or become owing by the customer to “The Company”

6. Exclusions

6.1 “The Company” liability to the customer for any damages sustained by the customer from any cause whatsoever including any damages arising out of “The Company” negligence or that of its servant, agents or sub-contractors shall in any vent and under all circumstances, be limited to the replacement at ”The Company” premises of the goods which at the date of delivery thereof are subject to defect arising from defective materials.

6.2 Except as provided in 6.1 above “The Company” shall in no circumstances whatsoever be liable or any loss of profit or any damage direct or indirect, consequential or otherwise sustained by the customer whether or not caused by the negligence of “The Company” or its agents or employees.

6.3 Insofar as any of “The Company” obligations under the contract are carried out by any of its servants, agents, sub-contractors, associates or subsidiaries the provisions of 6.1 and 6.2 above are stipulated for their benefits as well “ The Company” and each of them shall be exempted accordingly.

6.4 The customer shall not have any claim of any nature whatsoever against “The Company” for any by “The Company” to carry out any of its obligations under its contract with the customer as a result of causes beyond “The Company’s” control, including but not limited to  any strike, lockout, shortage of labour, or materials, delays in transport, accidents of any kind, any default or delay by any sub-contractor or supplier of “The Company”, riot, political, or civil disturbances, the elements by an act of State or Government, any delay in securing any permit, consent or approval required by “The Company” for the supply of goods under the contract or any other authority or any cause whatsoever beyond “The Company’s” absolute control.

7. Warranty

7.1 Save as provided for in clause 6.1, all goods are sold voetstoots and without any warranties, whether express or implied.

7.2 Any recommendation, formula, figure, advice, specification, illustration, diagram, price list, dimension, weight or other information furnished “The Company” is approximate and for information only and, unless otherwise expressly stated in writing, not the basis or any part of the sale.

7.3 “The Company” shall not be liable under any circumstances whatsoever for any loss or damage arising out of the use by the customer of any material or information referred to in pages 7.2 whether furnished negligently or otherwise.

7.4 “The Company” does not make any representations nor unless expressly given in writing, give any warranty or guarantee of any nature whatsoever in respect of the goods or their suitability for any purpose or whether that purpose in is notified to “The Company”

8. Default

8.1 Should the customer default in paying his account strictly on delivery or collection or commit a breach of any of the terms of conditions of his contract with “The Company” or; being an individual, die or be provisionally or finally sequestrated or surrender or make application to surrender his/her estate or commit any act of insolvency , or; Being a partnership, the partnership is terminated, or ;

Being a company or close corporation, is placed under a provisional or final order of final order of liquidation or judicial management or;

Has a judgement recorded against which remains unsatisfied for seven days, or;

Comprises or attempts to comprise generally with any of the customer’s creditors; or;

Enters into any transactions which has the effect of a changing the beneficial ownership of the customer’s business or if the customer is a company or close corporation enters into any transaction which has the effect of a change, in the effective control of the company or corporation, then, without prejudice to any other right it might have.

8.1.1 “The Company” shall be entitled, but not compelled, forthwith, to demand that the whole amount outstanding by the customer from whatsoever cause arising be paid immediately and

8.1.2 “The Company” shall furthermore be entitled to cancel any agreement which exist between it and the customer and suspend the carrying out of any of its then uncompleted obligation, in which event the customer shall have no claims whatsoever against “The Company” arising out of such cancellation or the suspension by “The Company” to carry out any obligations.

8.2 “The Company” right in terms of 8.1 above shall be in its common law rights.

8.3 No relaxations which “The Company” may have permitted on any one occasion in one regard to the carrying out of the Customer’s obligations shall prejudice or be regarded as a waiver of “The Company” right to enforce its obligation on any subsequent occasion.

8.4 Upon the cancellation of the contract between “The Company” and the customer for any reason whatsoever, then;

8.4.1 All amounts then owed by the customer to “The Company” From any cause shall become due and payable forthwith; and

8.4.2 “The Company” may retake possession of all goods in respect of which ownership has not yet passed.

9. Jurisdiction

9.1 “The Company” shall be entitled but not obliged to institute legal proceedings against the customer arising out of its contract with the customer for the full balance including current purchases in any Magistrate’s Court having jurisdiction over the Customer, notwithstanding that the claim or the value of the matter in dispute may exceed the jurisdiction of the Magistrate Court. Further the customer agrees to be liable for all legal costs including costs on the scale as between attorney and his own client and collection charges and tracing costs.

9.2 A certificate signed by any director or manager or accountant of “The Company” showing the amount due and owing by the customer to “The Company” at any given time shall be prima facie evidence of the amount due by the customer and such certificate shall be sufficient for purposes of judgement or provisional sentence or other legal proceedings.

10. Domicilium

10.1 The customer nominates its head office address as reflected on the face hereof as its domicilium citandi et executandi for service upon it all notices and process whether in connection with any claim or any sum due to “The Company” or otherwise.

11. Negotiable instrument

11.1 Any promissory note, bill of exchange or other negotiable instrument received by “The Company” from the customer shall not be a novation of the debt for which its given and the customers waivers presentment notice of dishonor and protest where applicable.

12. Return of goods

12.1 If, in the exercise of its discretion “The Company” shall agree, at the request of the Customer to accept the return of any goods for credit, which goods were correctly supplied by “The Company” shall be entitled without the necessity of any further agreement to claim from the customer a handling charge of 10% of the invoice price of the goods so returned.

12.2 The customer is not entitled to return goods without prior authorization from “The Company”

12.3 Where such returns have been agreed by “The Company”, customer shall at his/her own cost arrange to deliver the goods to “The Company” warehouse.

12.4 If the return of goods is agreed upon based on sale return, principle and not due to defective material, the customer shall be responsible to return goods on its original and re-saleable condition. “The Company” judgement shall be final in determining re-saleable condition.

13. Insurance

13.1 The customers shall at all times keep the goods sold to it adequately insured against all forms of loss.

13.2 Pending payment to “The Company” for goods purchased, all benefits in terms of the Insurance Policy relating to the insurance of such goods are hereby ceded to “The Company”

14. Law Applicable

14.1 The contract of sale to which this invoice relates is governed by the laws of the Republic of South Africa.

15. Returnable Crates and Containers

15.1 It is recorder that all crates and containers in which the goods are supplied by “The Company” to the customer shall remain at all times the property of “The Company” and are not to be sold. Notwithstanding the claiming by “The Company” of a deposit in respect of such crates or containers or the payment thereof by the customer, ownership of such crates or containers shall under no circumstances pass from “The Company” to the customer.

15.2 The customer shall be obliged, at its own expense, to return to “The Company” all crates and containers in which goods are supplied to it and if not so returned within a reasonable time and in good order and condition. “The Company” shall be entitled to claim forfeit of the deposit held by it in respect of such crates or containers without in any way affecting the customer’s continuing obligation to return them. The customer is expressly prohibited from using any such crates or containers for any purpose other than the storing and transport or products sold by “The Company” in the event of the customer using or permitting any such crates or containers to be used for any other purpose or to be misused in any other purpose or to be misused in any manner. “The Company” shall be entitled to claim forfeit of the deposits held by it in respect of such crates or containers without prejudice to its rights to claim from the customer any other damages it may have suffered as a result of such misuse.

16 Non Variation

16.1 No variation alteration or consensual cancellation of any of these terms and conditions shall be of any force or effect, unless in writing and signed by the parties hereto.

16.2 No waiver or abandonment by “The Company” of any of its rights in terms and conditions shall be binding on it, unless such waiver or abandonment in writing and signed by “The Company.”

16.3 No indulgence, extension of time, relaxation or latitude which “The Company” may show, grant or allow to the customer, shall constitute a waiver by it of its rights and “The Company” shall not thereby be prejudice or stopped from exercising any of its rights against the customer which may have arisen in the past or which might arise in the future.

16.4 The provisions hereof shall prevail over any terms and conditions which the customer may purport to impose or apply and which are contrary to the terms hereof.

16.5 No representatives, agent or salesmen has any authority to waive or vary any of these conditions or make any representations whatsoever on behalf of “The Company”

17. Replacements

17.1 “The Company” in its sole discretion, may replace any goods which are defective, provided that the defects have not been cause in any way by the customer.

17.2 “The Company” shall not be liable for any loss or expense (including consequential loss) arising out of or in connection with the replacements of the goods including but not limited to transportation cost and loss of profit as a result of the vehicle being rendered immobile during the replacement of the goods.

17.3 “The Company” will not replace any goods, unless accompanied by a copy of an invoice of the goods.