The sale, delivery or installation of any irrigation equipment or other products of Aquasync (Pty) Ltd are subject to the conditions set out hereinafter.
All prices are those ruling at the date of dispatch of the goods and or as per the quotation received by the Purchaser from Aquasync. Aquasync reserves the right to adjust or change any prices at any time and without notice.
All prices shall exclude Value Added Tax.
Unless otherwise agreed to in writing by Aquasync, the Purchaser shall pay the costs of delivery in full.
Aquasync reserves the right to effect handling charges of at least 15% of the selling price of the goods returned by the Purchaser, without prior agreement to defray delivery and other costs.
Unless otherwise agreed to in writing by Aquasync, payment of the purchase price will be due and payable within 30 days after the date of statement.
Credit facilities, if granted at the discretion of Aquasync, may be withdrawn by Aquasync at any time without prior notice, and Aquasync reserves the right to review the extent, nature and duration of such facilities at all times.
Any person who signs the credit application form or order or any document on behalf of the Purchaser. warrants that he or she is duly authorised thereto. The conditions of sale form part of any application and agreement for credit facilities and the signatory or signatories thereto acknowledge that he/she/they have read, agreed and irrevocably accept and understand these conditions of sale. The Purchaser consents to Aquasync making credit enquiries and obtaining credit information from the Purchaser’s bank or from any other source, for the purpose of considering credit facilities to the Purchaser.
After approval of the credit application by Aquasync, the Purchaser shall be entitled to place orders up to the maximum amount stipulated as the Credit Limit.
Orders shall always be reduced to writing even if verbally arranged and transmitted to Aquasync. The Purchaser must provide an order number, which must be indicated on each order.
Aquasync reserves the right, prior to the acceptance or confirmation of any order or prior to the transport or delivery of any goods ordered, to require the Purchaser to make a prepayment deposit in such amount as Aquasync may determine. If Aquasync requires such prepayment or deposit, it will furnish the Purchaser with a pro forma invoice indicating the estimate total amount payable by the Purchaser for Goods ordered and the prepayment amount or deposit required. Any amount so prepaid will be deducted from the amount specified as due on issue of the tax invoice.
Should the Purchaser exceed the Credit Limit at any time, Aquasync shall at its sole discretion and without prejudice to any of its rights or remedies in terms hereof and at law, be entitled to refuse to accept a purchase order, even though any amount in respect of Goods already delivered may not yet be due and payable.
Overdue accounts will be debited monthly with the maximum interest allowed under the Usury Act no 28 of 1968 or any act replacing it. Interest will be calculated monthly from the date that payment became due to Aquasync to the date of payment thereof. Any payment made by the Purchaser shall be allocated first to costs and then to interest and then to the purchase price.
Should the Purchaser fail to pay on due date or commit any other breach of the contract, the total amount on the Purchaser’s account with Aquasync shall become due and payable immediately. All amounts due are payable without any deduction of whatsoever nature and the Purchaser shall not be entitled to apply set-off.
A certificate signed by any director or manager of Aquasync, whose appointment need not be proved, detailing the invoice numbers, invoice dated, invoice amounts due, the interest rate applicable in terms hereof and the interest payable, shall be prima facie proof of the facts stated in such certificate and will be binding upon the Purchaser for purposes of obtaining summary judgement against the Purchaser.
Any indulgence shown to the Purchaser shall not constitute a waiver or novation of Aquasync’s rights.
Risk in respect of products purchased shall pass to the Purchaser upon delivery, but ownership of the products sold shall only pass on payment of the purchase price, together with any interest which may have become due and payable. The installation of any of the products shall not have the effect that such products accede to any immovable property.
Aquasync reserves the right to invoice the client for any additional costs incurred should any installation site not be ready and prepared as agreed upon. These costs will be in addition to any quote received by the Purchaser.
In the event of the Purchaser failing to pay any amount on due date or committing any other breach of this contract, Aquasync shall have the right to:
Institute legal proceedings against the Purchaser for payment of all amounts due and owing; and/or
Apply for a Court for an Order authorising the removal of the products sold from the possession of the Purchaser and to have same valued by a competent and unbiased person designated by Aquasync in which event the Purchaser’s account shall be credited with an amount of the said valuation less any reasonable costs Aquasync may have in respect of the cost of any legal action, the removal of the products and the valuation thereof. In the further event of the Purchaser still being indebted to Aquasync after such valuation Aquasync shall have the right to institute proceedings for the recovery of any such amount.
While the price of the products remains unpaid Aquasync shall be entitled to nominate any person or persons to inspect the products.
In the event of it being necessary for Aquasync to institute legal proceedings against the Purchaser, the Purchaser shall be held liable for costs as between Attorney and Client.
Should the Purchaser (being a Company) be placed in liquidation or under judicial management; or should an application be made against it for such an Order; or should it convene a meeting of shareholders for the purpose of passing a resolution to wind itself up; or should it compromise with its creditors; or should the Purchaser (being an individual) be sequestrated; or should an application be made against him or her for an Order of Sequestration; or should he or she give notice of the intention to apply for the surrender of his or her estate as insolvent; or should any judgment be obtained against the Purchaser and not be satisfied within 7 days; or should the Purchaser make application for assistance under the Agricultural Credit Act no 26 of 1966 or any Act replacing this act; or should the Purchaser commit a breach of any of the items and conditions set out in these Conditions of Sales; then Aquasync without prejudice to any other rights which it may have shall be entitled to cancel this contract and/or refuse to make any further deliveries of products to the Purchaser. The Purchaser (or liquidator or Judicial Manager or the Customer’s trustee as the case may be) will have no claim of any nature whatsoever against Aquasync arising out of such cancellation or refusal to make further deliveries.
Strikes, labour disputes, war, riots, civil commotion, delays of manufacturers, delays in transport to Aquasync or from Aquasync, accidents, orders or regulations of any government or other authority, acts of God, major breakdown of machinery causing lengthy repair time and any other cause beyond Aquasync’s control shall entitle Aquasync to withdraw from the contract especially in cases where delivery may be delayed considerably beyond the date requested in the order or in the contract. Where such cancellation occurs, Aquasync shall not be liable for damage or loss sustained by the Purchaser.
Subject only to the limited guarantee as set out in clause 25 below, Aquasync shall not be liable for any loss of goodwill, profit, opportunity cost or any damages, direct or indirect, special, punitive, incidental, consequential or otherwise, arising from any defect in the products or the installation of such products, or from late delivery, or from defective delivery or non-delivery of any products, whether or such damages may be due to negligence of Aquasync or any of its agents or employees, or any other cause.
All products are sold voetstoots subject only to a limited guarantee for a period of one year from date of delivery. The only liability of Aquasync arising from this limited guarantee is that Aquasync will at its option repair or replace defective products or a defective installation of products and will bear the costs of so doing. Aquasync will not be liable for any loss of profits, damages to person or property, direct or indirect or consequential or however otherwise arising from any effect in the products or the installation thereof. In the event of Aquasync replacing any products in terms of this guarantee the guarantee period of such replacement products shall not extend beyond the original guarantee date. This guarantee (or any other which may be specifically given in writing) shall be null and void if the products are not installed and/or used correctly by the Purchaser, or if they are not be maintained according to specification, or if they are damaged as a result of an accident of malpractice. This limit guarantee lapses if payment for the products is not received within 30 days after date of statement.
Prior to placing an order, or after an order has been placed or goods have been delivered or before or during an installation, Aquasync may from time to time give the Purchaser information, guidance, advice, recommendations, suggestions or opinions relating to the goods (including, without limitation, information, guidance and suggestions regarding the characteristics, purpose, use and application of the goods). To the extent allowed by law, Aquasync does not warrant, represent or guarantee that the information is accurate or suitable for any purpose. The information is given and expressed in good faith and shall not constitute representations of any description and shall not give rise to any claim against Aquasync or such representatives. Descriptions contained in any catalogue, brochure, advertisement of pricelist are representations only as general information and do not constitute representations and do not form part of any tender, quotations, estimate or contract.
Neither Aquasync nor any of its representatives shall be liable in respect of any claim whether arising from contract or delict for any injury, loss or damage caused by any person or property by or arising out of the use of the products supplied to the Purchaser by Aquasync.
Aquasync will under no circumstances be liable for any damages of any kind whatsoever, including, without limitation, direct, indirect, special, punitive or incidental damages, whether foreseeable or whether based on a claim of the Purchaser (including, without limitation, a claim for loss of goodwill, profits, opportunity cost of damage to assets) arising from Aquasync’s breach of contract, breach of the warranty, whether expressed, implied or misrepresentation, negligence, strict liability or any other act or omission of Aquasync, or otherwise whether under this agreement, any order or otherwise.
The parties hereto consent the Cape Provincial Division of the Supreme Court of South Africa having exclusive jurisdiction in respect of any claim of any nature arising out of or in respect of the sale of any products, scheme or system by Aquasync and whether such claim is instituted by the Purchaser or by Aquasync.
Clause 29 notwithstanding, in the event of any dispute being capable of being heard in a Magistrate’s Court by reason of the provisions of sections 45 of Act 32 of 1944 or any Act replacing this Act, it shall be in the sole and absolute discretion of Aquasync whether to proceed in the appropriate Magistrate’s Court or to proceed in the Cape Provincial Division of the Supreme Court.
If the Purchaser is a corporate entity or trust the representative of such entity or trust who signs the order for the products or these Conditions of Sale or any other document pertaining to the sale on these conditions binds himself or herself as surety to Aquasync for the Due payment by and fulfilment of all obligation of the Purchaser to Aquasync.
Any dispute arising out of these Conditions of Sale shall be determined in accordance with the Laws of the Republic of South Africa.
No alternation of, variation of, or addition to the agreement shall be of any force or effect unless reduced to in writing and signed by the parties or their duly authorised representatives.
The parties choose as domicilium citandi et executandi (“domicilium”) and for the delivery of notices arising from this agreement or its termination or cancellation, the addresses set out below:
Aquasync at the physical address that appears on Aquasync’s official letterheads and /or statements.
The Purchaser at the physical address specified in any order or the application for credit facilities.
Any notice given by any party to which is delivered by hand or sent by facsimile or send by email will be deemed to have been received on the day of delivery of sending; and if posted will be deemed to have been received within three working days after date of posting.
No provision of this domicilium clause shall be taken as effecting the validity of any notice which is actually received by any party, whether at its domicilium or not and whether delivered in terms of the express provisions of this domicilium clause or not and any notice which is actually received by any party shall be deemed to be notice validly given.
Each clause of this agreement, and each part of any clause, is separate and separable from the others. To the extent that any clause/s in this agreement or any part of a clause is, becomes or is declared by a court of competent jurisdiction to be unlawful, invalid or unenforceable for any reason, then that clause/s will be severed from this agreement and treated as if it had not been written, without affecting the validity or enforceability of the remainder of such clause/s or the remainder of the agreement.