TERMS AND CONDITIONS OF SALE
1. DEFINITIONS
In these Terms and Conditions: –
1.1 “Day” means a day other than a Saturday, Sunday and a public holiday in the Republic of South Africa;
1.2 “the Contract” means the contract between HVA and the Purchaser for the sale and purchase of the Products, which comprises the written quotation from HVA, the Purchase Order and these Terms and Conditions;
1.3 “Delivery Note” means a document signed by the Purchaser reflecting a written record of items which have been purchased by the Purchaser from HVA and received by the Purchaser or his representative;
1.4 “HVA” means Heaton Valves Africa (Proprietary) Limited, a company registered in accordance with the laws of South Africa under registration number 1992/006825/07;
1.5 “Listed Price” means a price for a Product based on HVA’s internal price lists which may vary from time to time;
1.6 “the Products” means all products, services and associated documentation to be supplied or distributed by HVA under the Contract from time to time;
1.7 “the Purchaser” means any customer of HVA to whom Products are supplied and distributed under the Contract;
1.8 “Purchase Order” means the written purchase order document received by HVA from the Purchaser;
1.9 “Quotation” means a written quotation prepared by HVA for the Purchaser in respect of Products requested by the Purchaser;
1.10 “Quoted Price” means a price quoted for a Product by HVA in writing to the Purchaser.
1.11 “VAT” means Value-Added Tax payable in terms of the Value-Added Tax Act 89 of 1991, as amended.
2. GENERAL
2.1 The Purchaser shall be bound by these Terms and Conditions of sale in all transactions for the purchase of the Products. The placing of an order by the Purchaser regarding any Products shall be deemed to constitute acceptance of these Terms and Conditions.
2.2 All other terms, conditions or warranties that are not expressly included herein will not form part of the Contract.
2.3 The clauses and conditions contained in or forming part of the Purchaser’s standard terms and conditions, shall not amend or modify these Terms and Conditions. The Purchaser’s standard terms and conditions shall not be applicable to the Contract between HVA and the Purchaser and HVA shall not be bound thereby.
2.4 In the event of a conflict between these Terms and Conditions and the specific terms and conditions of a quotation, then the latter shall prevail.
2.5 All Quotations provided by HVA are based on the specifications furnished to HVA by the Purchaser.
2.6 It is the Purchaser’s responsibility to ensure that the selection of materials
offered by HVA are suitable for the services required by the Purchaser. In the event that any discrepancies exist between HVA’s quotation and the Purchaser’s requirements, HVA must be advised in writing immediately, failing which HVA shall be deemed to have quoted correctly.
2.7 HVA shall not be held liable for any losses or damages howsoever caused or howsoever arising in respect of the Purchaser’s specific requirements which were not submitted in writing by the Purchaser to HVA and accepted by HVA.
3. ELECTRONIC TRADING
3.1 Electronic orders shall only be valid if all the information as required by HVA is properly set out in the agreed upon format and the order is transmitted by the Purchaser to HVA incorporating the correct identification code and is received by HVA.
3.2 Subject to clause 3.1, each valid electronic order will be deemed accepted by HVA once HVA advises the Purchaser in writing of receipt of the e-mail and acceptance of the order. Acceptance of an order shall constitute a contract of sale and purchase between HVA and the Purchaser which shall be governed by these Terms and Conditions.
4. PRICES
4.1 Unless otherwise agreed in writing all prices are quoted –
4.1.1 ex works and ex stock;
4.1.2 in South African Rands;
4.1.3 excluding VAT.
4.2 Unless otherwise agreed in writing, all quoted prices are valid for 30 (thirty) days.
4.3 All quotations in respect of stock values and/or associated products are subject to
availability at the time of the quotation which may vary thereafter due to the subsequent sale of the stock prior to the purchase order being issued.
4.4 Stock values and associated products may be reserved upon request for an agreed period of no longer than 5 (five) business days.
4.5 HVA shall be entitled at any time on written notice, to make an adjustment to
the price in the event of any alteration in quantity, design or specification requested by the Purchaser.
4.6 HVA reserves the right at any time prior to delivery and on written notice, to increase
the Listed Price and/or Quoted Price if there are any increases in the costs of materials, labour, transport, utilities, foreign currency fluctuations, the imposition of currency regulations or alteration of duties or if the costs of HVA are increased by any other factor beyond the reasonable control of HVA.
5. DELIVERY
5.1 The delivery date will be calculated from the receipt and acceptance by HVA of a correct, signed copy of the Purchase Order.
5.2 The time for delivery is as specified in the Purchase Order, which is based on the quotation given by HVA.
5.3 Delivery as specified in the Purchase Order is quoted in working weeks excluding manufacturer’s shut-downs or any other force majeure event.
5.4 Any additional time for witnessed inspection/witnessed testing is not included
in the delivery time specified in the quotation provided by HVA.
5.5 Delivery is based upon the manufacturer’s capacity at the time of quotation. The delivery times may be affected if there is a delay in receiving the Purchase Order after the quotation has been provided to the Purchaser.
5.6 All dates and periods for delivery are estimated and do not constitute fixed times for
delivery by HVA. The Purchaser shall not be entitled to make, or to purport to make, the time for delivery of products or materials essential to the performance of the Contract unless otherwise agreed to by HVA in writing.
5.7 Although HVA will endeavour to deliver the Products according to the Purchaser’s requirements, HVA will not be bound to such delivery requirements. The Purchaser shall not be entitled to terminate the Contract or cancel any order as a result of a delay in delivery, nor shall HVA be liable to the Purchaser at all for any loss or damage arising from a delay in delivery.
5.8 The date for delivery in all instances shall be dependent upon the timeous receipt of all requisite information, final instructions and approvals from the Purchaser.
5.9 Where the Purchaser requests and HVA agrees to postpone delivery, or where delivery is otherwise postponed in the absence of fault by HVA, the Purchaser shall upon demand, pay all reasonable costs and expenses incurred by HVA, including reasonable storage and transportation costs.
6. TERMS OF PAYMENT
6.1 On delivery of the Product/s, HVA will issue an invoice to the Purchaser for all amounts owing in terms of the order (“the invoiced amount”).
6.2 The total invoiced amount shall be due and payable within 30 (thirty) days from the date of the statement unless otherwise agreed to by HVA in writing.
6.3 No payment shall be deemed to have been paid or received until the cleared payment reflects in HVA’S account.
6.4 Unless HVA agrees otherwise in writing, all payments made by the Purchaser to HVA under any Contract with HVA shall be made free of any restriction or condition and without deduction or withholding on account of any other amount and/or
claim, whether by way of set-off or otherwise and whether such amount and/or claim is connected to any Contract subject to these Terms and Conditions or otherwise.
6.5 Unless agreed to in writing by HVA prior to the placement of the order, retention
bonds and performance bonds shall not be accepted by HVA.
6.6 In the event of default in payment by the Purchaser, HVA shall be entitled (without
prejudice to any other legal right or remedy available to it):-
6.6.1 to suspend without notice all further deliveries on any Contracts between HVA and the Purchaser; and
6.6.2 to charge interest on a daily basis on any amount outstanding at the rate of the prime lending rate reckoned from the due date for payment until the actual date on which payment is received.
6.7 Payment terms will only be afforded by HVA at its sole discretion upon reputable credit references. If the credit references are not acceptable to HVA, then the terms of payment may vary at the discretion of HVA.
7. RETURNS, REFUNDS AND CANCELLATION OF ORDERS
7.1 The terms of cancellation of any order are as stipulated in the quotation provided by HVA to the Purchaser.
7.2 When HVA effects delivery at the Purchaser’s premises, or such other premises as nominated by the Purchaser, the Purchaser shall be responsible for receiving and checking the Products in the presence of the HVA representative making delivery.
7.3 The Purchaser is permitted to return the Product and receive a refund within 10 (ten) days after delivery, provided that the Product is in the same condition as it was received by the Purchaser with all tagging and packaging intact.
7.4 Cancellation, return and refund of bespoke products made to specification for customers will not be permitted.
7.5 Save for Products returned due to defects or damage, HVA reserves the right to charge a 10% handling fee for the return of the Product.
7.6 In the event that the Products are delivered to the Purchaser in a damaged or defective state, the Purchaser shall forthwith upon delivery endorse HVA’s copy of the delivery note detailing the damage or defects in respect of the Products. In addition, the Purchaser must, within 3 (three) days of such delivery, notify HVA in writing of such damage or defects.
7.7 The damaged or defective Products must be returned to HVA within 5 (five) days of delivery of the Products to the Purchaser. HVA will replace the damaged or defective Products. HVA will refund the purchase price only in the event that the Products cannot be replaced due to unavailability.
7.8 Products returned to HVA without HVA’s written consent shall not be accepted for credit.
7.9 All refunds will only be actioned 30 (thirty) days after the return of the Products and will be made by EFT into the Purchaser’s nominated bank account.
7.10 Any incorrect deposit made into HVA’s bank account via eft or cash will only be refunded within 30 (thirty) days after clearance of these deposits.
8. RISK AND TITLE
8.1 Risk of damage to or loss of the Products shall pass to the Purchaser upon delivery of the Products to the Purchaser. Accordingly, the Purchaser will be solely responsible for all loss, damage or deterioration in respect of the delivered Products, notwithstanding that ownership of the Products remains vested in HVA.
8.2 HVA reserves its rights to ownership of the Products, which shall not pass to the Purchaser until either: –
8.2.1 HVA has received the full payment for all invoiced amounts payable to HVA for the Product pursuant to the Contract between the Purchaser and HVA; or
8.2.2 HVA furnishes the Purchaser with written notification stipulating that ownership of the Products or any part thereof has been transferred to the Purchaser.
8.3 Until such time as ownership of the Products has transferred to the Purchaser, the Purchaser shall ensure that the Products are stored and clearly identifiable as belonging to HVA.
9. TESTING AND INSPECTION
9.1 If witnessed testing and/or inspection of the Products are required by the Purchaser, it will be necessary for the Purchaser to fully specify and advise HVA in writing of the scope of such witnessed testing and/ or inspection prior to placing the order.
9.2 If the scope of witnessed testing and/or inspection is not fully specified by the Purchaser in the Purchase Order, HVA reserves the right to review and revise the price and the delivery terms stipulated in the Purchase Order.
9.3 Unless specifically stipulated in the Purchase Order, non-destructive testing shall not be included.
9.4 Pressure testing of valves, if stipulated in the Purchase Order or at the point of the
manufacturer, shall be tested according to the relative standards.
9.5 No other testing shall be performed by HVA, an approved tester or manufacturer unless specifically provided for in the Purchase Order.
10. CUSTOMER’S DRAWINGS
10.1 The Purchaser shall be solely responsible for ensuring that all drawings, information,
advice and recommendations specified or given to HVA by the Purchaser or its agents, servants, consultants or advisers, are accurate.
10.2 HVA shall be entitled to rely upon the accuracy of such drawings, information, advice or recommendations. Should any of these specifications furnished by the Purchaser to HVA be incorrect, HVA shall not accept any liability therefor.
11. DOCUMENTATION & CERTIFICATIONS
11.1 Where applicable, the EN 102043.1 certification will be provided only on the valve body/ies and bonnet/s of the following valves: –
11.1.1 gate;
11.1.2 globe;
11.1.3 check;
11.1.4 ball; and
11.1.5 plug valves.
11.2 If EN102043.2 certification is required by the Purchaser, but is not fully specified by the Purchaser at enquiry stage or in the Purchase Order, HVA reserves the right to review and revise the price and the delivery terms stipulated in the Purchase Order.
11.3 A letter of conformity shall only be provided by HVA on bronze or cast-iron valves. Brand-specific letter of conformity shall be supplied by the manufacturer if available.
11.4 Upon request, a letter of conformity on valve trims as issued by the manufacturer may be provided to the Purchaser by HVA.
11.5 Pressure test certificates shall be provided by HVA in respect of all safety relief and pressure relief valves.
11.6 Material certification for API safety relief and pressure relief valves issued by the valve manufacturer shall be supplied to the Purchaser by HVA.
11.7 If specifically requested in the Purchase Order, material certification for steam traps and associated products may be provided by the manufacturer to the Purchaser.
11.8 HVA shall not be responsible for providing any other documentation or drawings unless specifically agreed upon between the parties and expressly stipulated in the Purchase Order.
12. PAINTING, MARKING AND SPARES
12.1 Only the manufacturer’s standard painting on the Products is offered unless otherwise agreed upon and specified in the Purchase Order.
12.2 In order to rely upon and maintain the Product warranty, all parts, Product/s and/or spares must be purchased from HVA.
13. WARRANTIES
13.1 HVA will use its best endeavours to ensure that the Products are supplied in working order and are compliant with applicable specifications. The Purchaser is solely responsible for confirming the suitability of any Product for the use contemplated by the Purchaser.
13.2 Unless the Purchaser has specifically informed HVA of the intended use of the Product, HVA does not warrant that the Products purchased by the Purchaser will be fit for the intended purpose. Where the Purchaser has ordered any Product, which requires particular modifications to fit such purpose, HVA shall not provide any warranty for this purpose and the Purchaser shall be obliged to rely on the manufacturer’s warranty, if any.
13.3 The obligations of HVA relating to defects in Products are limited to the warranty (if any) which HVA receives from the manufacturer or supplier of the Products.
13.4 Any supplier warranty furnished to the Purchaser by HVA is valid for a period of 12 (twelve) months from delivery, provided that –
13.4.1 the Products have been subject to normal use in a manner which is consistent with the specification, functionality and service standards described in the relevant Product description;
13.4.2 the fault or damage has not been caused intentionally or negligently, or as a result of any accident or placement of the Product in environmentally harmful conditions or by third party software or hardware, which has not been supplied by HVA and/or the relevant manufacturer;
13.4.3 the Product which develops the fault has not been previously modified or repaired by the Purchaser or any third party;
13.4.4 the Products have been stored, operated, installed and maintained in strict accordance with HVA’s and the manufacturer’s operations and maintenance procedures.
13.5 Any claim made by the Purchaser under the warranty is limited to the unit price of the individual Product as specified in the Purchase Order or Delivery Note.
13.6 HVA shall not be liable for and the Purchaser shall indemnify HVA against all costs,
claims, damages, liabilities and expenses incurred by HVA arising from any use by the Purchaser of Products after the Purchaser becomes or ought reasonably to have become aware of a defect in the Product.
14. LIMITATION OF LIABILITY
14.1 HVA shall not be liable to the Purchaser or any third party in contract, delict or otherwise, for any claim, damage, loss or costs in respect of any:-
14.1.1 direct, indirect, special or consequential damages howsoever caused; or
14.1.2 injury or death to any persons of whatsoever nature and howsoever arising as a result of or in connection with the installation, storage, use or disposal of the Product or operation of the Product once it has been delivered to the Purchaser.
14.2 Without prejudice to Clause 14.1, HVA’s maximum aggregate liability for all claims made by the Purchaser in relation to any Contract is limited to the contract price for the Products or R1 000 000 (One Million Rand), whichever is the lesser amount.
14.3 Save as expressly set out herein, HVA shall under no circumstances whatsoever be liable to the Purchaser, including, without limitation, as a result of or in connection with HVA’s negligent (including grossly negligent) acts or omissions or those of its employees, agents or other persons for whom in law it may be liable.
14.4 The Purchaser hereby agrees that it will indemnify HVA without limitation in respect of any claim or demand by any third party against HVA, arising out of or in connection with the supply by HVA of the Products and the performance of its obligations under the Contract.
15. CONFIDENTIAL INFORMATION
15.1 All drawings, documents, records, computer software and other information supplied to the Purchaser by HVA under the Contract and whether produced by HVA or a third party, are supplied on the express understanding that copyright is retained by HVA or the third party, as the case may be, in respect of this confidential information.
15.2 The Purchaser undertakes that it will not, without the written consent of HVA, loan, disclose, exhibit or sell this information or extracts therefrom or make copies thereof or use this confidential information except in connection with the use and operation of the Products in respect of which they are issued.
16. BREACH AND TERMINATION
16.1 In the event that the Purchaser breaches any of these Terms and Conditions and fails to remedy such breach within 7 (seven) days after receiving a written demand to do so and/or causes a notice of surrender of his estate to be published in terms of the Insolvency Act No. 24 of 1936, as amended and/or is placed under provisional or final sequestration, liquidation or business rescue proceedings, then the full amount of the Purchaser’s indebtedness to HVA shall immediately become due, owing and payable and HVA shall be entitled, without prejudice to any other rights that it may have either under these Terms and Conditions or in law to –
16.1.1 suspend performance of any of its obligations (including the suspension of further delivery to the Purchaser) under these Terms and Conditions or any other agreement until such time as payment is received and/or the breach in question is remedied; and/or
16.1.2 enforce payment in full for the balance of the invoiced amount then outstanding together with any accrued interest and all other costs payable; and/or
16.1.3 repossess the supplied Products; and/or
16.1.4 cancel the Contract and claim damages.
17. FORCE MAJEURE
17.1 HVA shall not be liable for any failure to perform any of its obligations under the Contract for any reason whatsoever arising outside of its reasonable control including, without limitation, the following:-
17.1.1 Acts of God;
17.1.2 Strikes;
17.1.3 Riots;
17.1.4 Lock-outs or other industrial action including trade disputes (whether such dispute involves its employees or not);
17.1.5 delays experienced at the point of manufacture or in transport; or
17.1.6 pandemics and statutory lockdowns.
17.2 In the event that HVA does not perform its obligations by reason of any force majeure event within 6 (six) months after the time for performance, either party may, by written notice, terminate the Contract without liability save that
the Purchaser shall be required to pay for any Products delivered and Contracts completed at the time of termination.
18. HEALTH AND SAFETY
The Purchaser agrees to comply with any information and instructions supplied by HVA and take any such steps relating to the installation, use and maintenance of the Products including, but not limited to, any conditions necessary to ensure that the Products will be safe and will not pose any health risk when they are being installed, used, serviced or maintained by any person.
19. MISCELLANEOUS
19.1 This Contract and all other Contracts, Delivery Notes, Quotations and Purchase Orders are governed according to the laws of the Republic of South Africa.
19.2 No variation of any of these terms and conditions will be accepted or form part of the Contract unless reduced to writing and signed by HVA and the Purchaser.
19.3 Any indulgence or extension of time which HVA may grant to the Purchaser or delay or failure by HVA to exercise any rights or remedies afforded to it in these Terms and Conditions, shall not constitute a waiver or variation of any of HVA’s rights or remedies and HVA shall not be precluded from the future exercise of any of its rights against the Purchaser.
19.4 If any provisions in these Terms and Conditions are rendered void, illegal, invalid or unenforceable in whole or in part under any law, this shall not affect the remaining provisions (or part of the provisions, as the case may be), which provisions shall
remain in full force and effect.
19.5 The headings in these Terms and Conditions have been included for convenience purposes only and shall not affect the construction of any of these Terms and Conditions.
19.6 Nothing in these Terms and Conditions shall create a partnership, agency or relationship of employment between the parties.
19.7 The Purchaser shall not be entitled to cede, assign or delegate any of its rights and/or obligations which it may have in respect of these Terms and Conditions or any Contract with HVA to any third party, without the prior written consent of HVA.
19.8 The Purchaser hereby agrees and acknowledges that for all or any purposes whatsoever, including any action instituted by HVA against the Purchaser, either for provisional sentence, summary judgement or otherwise, a certificate of indebtedness signed by a director of HVA (whose authority it shall not be necessary to prove) certifying or purporting to certify that an amount is owing by the Purchaser to HVA, shall be sufficient and satisfactory prima facie proof of the correctness of the amount and facts therein contained.
19.9 If it becomes necessary for HVA to institute legal proceedings against the Purchaser in order to enforce any of its rights, either in terms of these terms and conditions or at common law, the Purchaser shall be liable to pay all legal costs, including collection commission and tracing fees incurred by HVA, on an attorney and own client scale.
19.10 Notwithstanding the amount of its claim, HVA shall be entitled but not obliged to institute action against the Purchaser in any Magistrate’s Court in the Republic of South Africa and the Purchaser shall be deemed hereby to have consented to such jurisdiction.
19.11 Except as otherwise provided for in this Contract, a person who is not a party to this Contract shall have no right to enforce any terms of the Contract.
19.12 Any notices to be given to either party shall be in writing and shall be delivered by hand, electronic mail or by pre-paid registered post to the other party. The Purchaser chooses its domicilium citandi et executandi as the address reflected in its application for credit facilities. The domicilium citandi et executandi of HVA is at HVA’s registered address, being 4 Asset Road, Hughes, Jet Park.