COMMERCIAL TERMS AND CONDITIONS

Where these conditions are attached to a tender, then the word “Contract” refers to the term of the tender and of the agreement, if the tender is accepted.

  1. These conditions shall apply to all contracts entered into by a company unit of FLOSOLVE (PTY) LTD Group of Companies, hereafter referred to as FLOSOLVE (PTY) LTD for the supply of equipment, provision of services, etc.  Where the work is carried out by Sub-contractors of FLOSOLVE (PTY) LTD, then the words “FLOSOLVE (PTY) LTD personnel” shall refer to both FLOSOLVE (PTY) LTD personnel and Sub-contractors of FLOSOLVE (PTY) LTD and “FLOSOLVE (PTY) LTD workshop” shall refer to both FLOSOLVE (PTY) LTD workshops and the workshops of the Sub-contractors.  Any conditions which the purchaser may seek to impose shall not override the terms hereof, notwithstanding that they may purport to do so, unless expressly agreed to by FLOSOLVE (PTY) LTD in writing.  In such event, the terms hereof shall only be varied to the express extent agreed upon.The following conditions shall apply to all contracts concerning work associated with overhaul, repair, servicing, modification, recommissioning and examination (referred to as “work” hereafter).
  2. Tenders and quotations are open for acceptance for thirty days from date hereof by the addressee.  Any purported acceptance thereafter will be subject to FLOSOLVE (PTY) LTD’ confirmation at the time of purported acceptance, No order shall be binding on FLOSOLVE (PTY) LTD unless it is confirmed in writing and/or accepted by FLOSOLVE (PTY) LTD.
  3. Every quotation and or estimate for the work to be done shall be based on the then cost of materials, the estimated labour time, etc.  This shall also apply to the preparation of technical documentation, examination reports, expertise evaluation of measurements or the like, in connection with the order.Actual variations from the date of the tender or contract in costs of labour, transport, materials, bought-out parts, taxes, rates of exchanges in respect of imported goods, duties, surcharges, etc., or which might arise from the imposition of sanctions, will be for the purchaser’s account.On request, the purchaser will be advised of the results of the examination prior to the commencement of the work.  Any statements concerning the expected costs are estimates and shall not be binding.  Should the purchaser, on the basis of the examination, not wish the work to be executed, the costs incurred for the examination, as well as the dismantling and reassembly of work, shall be charged to him.

    Packing material shall be non-returnable unless otherwise agreed.
    In the event of any materials/spares being purchased direct by the purchaser from sources other than FLOSOLVE (PTY) LTD which are required for the repair/maintenance of the purchaser’s equipment, FLOSOLVE (PTY) LTD reserves the right to charge up to 10% of the equivalent purchase price in South Africa (in Rand) of said materials/spares handled by FLOSOLVE (PTY) LTD to effect repair/maintenance on the purchaser’s equipment, as handling fee.

  4. No claim will be valid against FLOSOLVE (PTY) LTD, if import permits are refused, modified or withdrawn.  If thereby it is not possible to proceed with the contract FLOSOLVE (PTY) LTD shall nevertheless be entitled to payment for the work done and supplied at the date on which it is determined that it is not possible to proceed with the contract.
  5. FLOSOLVE (PTY) LTD shall have the option to select whether the work is to be carried out at the premises of the purchaser or at FLOSOLVE (PTY) LTD workshops, unless prior to entering into the contract the purchaser and FLOSOLVE (PTY) LTD have agreed otherwise.If the work is carried out at the purchaser’s premises, the purchaser shall provide FLOSOLVE (PTY) LTD with suitable workshop facilities including on-site cranes and temporary structures to FLOSOLVE (PTY) LTD’s satisfaction.FLOSOLVE (PTY) LTD shall be entitled to examine and consider the object of the work and the work to be done, and the contract between the purchaser and FLOSOLVE (PTY) LTD shall be based on the same.  If, however, additional labour and/or material are necessary, they will be provided at the purchaser’s cost without further reference to him, unless he has expressly reserved the right to prior approval.
    Unless otherwise agreed, replaced part/s will not be returned.
  6. The purchaser shall place at FLOSOLVE (PTY) LTD’s disposal all available technical documentation relevant and/or necessary for the work and object in question.
    If required by FLOSOLVE (PTY) LTD, spares and parts shall be provided by the purchaser at its expense and placed at the disposal of FLOSOLVE (PTY) LTD.
    If required by FLOSOLVE (PTY) LTD, the purchaser shall be responsible for whenever or whatever storage, carriage and transport is needed by FLOSOLVE (PTY) LTD in connection with works at the purchaser’s cost.
  7. Time shall not be of the essence and no claims for damages, cancellation or right to withhold payment of any amounts due and payable shall arise if delivery of the whole or any part is delayed or prevented for any reason.No liability including claims for damages or cancellation shall arise out of delays, impossibility of performance, default, where such are due to fire, stay-aways or lock-outs, strikes, tempests, acts of God, accidents, malicious acts of third parties, acts of civil or military authorities, embargoes, breakdowns of machinery insurrection, riots or civil disturbances, delays or default on the part of suppliers, or of any other similar cause.
  8. Should completion of this contract be delayed due to the purchaser’s default, FLOSOLVE (PTY) LTD has the right to claim and be reimbursed for all costs incurred due to the prolongation of the contract period, not limited to establishment but, inclusive of extended administration, storage and associated overhead expenses and if these are not paid, to withhold delivery of any goods not yet delivered and performance of services not yet rendered,  In addition FLOSOLVE (PTY) LTD will invoice in accordance with the contract as if progress as required had been achieved and be paid interest in accordance with paragraph 11 should payment against these invoices not be made timeously.
  9. Manufacturer’s guarantees are deemed to be incorporated herein and are the sole guarantee provided by FLOSOLVE (PTY) LTD save as may be stated herein, whether goods are manufactured by FLOSOLVE (PTY) LTD or not.  Any claims under the guarantee will be at FLOSOLVE (PTY) LTD’s discretion and referred to the manufacturer for determination as to whether or not the defect falls within the guarantee and such determination shall be final and binding on all parties.
    FLOSOLVE (PTY) LTD shall either repair or replace at FLOSOLVE (PTY) LTD’s discretion and within a reasonable period of time, any part/s directly supplied by FLOSOLVE (PTY) LTD or spare parts delivered and fitted within the terms of the contract that become defective or unserviceable during the period of warranty if this is proven to be the result of poor workmanship or faulty material supplied by FLOSOLVE (PTY) LTD, provided that these deficiencies are notified to FLOSOLVE (PTY) LTD in writing within the warranty period.  Any cost of transport from and to the purchaser’s premises as well as of dismantling and re-fitting, shall be borne by the purchaser.
    The purchaser shall be responsible to maintain the equipment in accordance with the original equipment suppliers’ instructions or any instructions provided by FLOSOLVE (PTY) LTD for the safe operation of the equipment during the warranty period.
    The warranty period on FLOSOLVE (PTY) LTD supplied workmanship shall be three months commencing with the agreed hand-over date of the FLOSOLVE (PTY) LTD work to the purchaser.
    The warranty period on parts manufactured by FLOSOLVE (PTY) LTD for the contract shall be six months, commencing with the hand-over date of FLOSOLVE (PTY) LTD’s work to the purchaser.
    The warranty conditions as above may be replaced by product specific warranty conditions.
  10. Whilst reasonable care will be taken to ensure that first class materials and workmanship will be used in the execution of the contract, FLOSOLVE (PTY) LTD will not be liable for any loss or damages whatsoever direct or indirect, including penalties or liquidated damages, including consequential damages, due to late or defective delivery, defective, faulty or negligent workmanship or material, or to any act, default or omission of its employees, suppliers or sub-contractors, unless specifically negotiated with FLOSOLVE (PTY) LTD and confirmed in writing.  Any claims shall be limited to the repair or replacement of any defective or deficient parts, it being at the discretion of FLOSOLVE (PTY) LTD whether to repair or replace in every instance.  It is a condition precedent to any such claim that the defective or deficient parts shall be delivered at the purchasers expense to an FLOSOLVE (PTY) LTD workshop or a workshop nominated by FLOSOLVE (PTY) LTD.
    FLOSOLVE (PTY) LTD shall not be liable for any personal injury to anyone and/or any damage to any property arising out of or in connection with the work or the object of the work, including consequential damages or loss of any kind, and the purchaser shall be responsible to take out an appropriate insurance policy covering any such claim that might be made on FLOSOLVE (PTY) LTD and shall absolve and indemnify FLOSOLVE (PTY) LTD for liability in connection therewith.The purchaser shall be responsible for any damage caused by his personnel to the object of the work or FLOSOLVE (PTY) LTD personnel or equipment.  This shall also apply if FLOSOLVE (PTY) LTD personnel are directing or supervising the work, unless it is proven that FLOSOLVE (PTY) LTD personnel had acted with gross negligence in the course of instruction of supervision.  The purchaser shall also be responsible for damage that is sustained due to the use of defective tools, equipment and materials that the purchaser has placed at FLOSOLVE (PTY) LTD ‘s disposal.  This shall also apply if these have been utilised without previous objection by FLOSOLVE (PTY) LTD personnel.
  11. Payment in full shall be made within THIRTY (30) DAYS from date of statement provided that adequate credit insurance is obtainable.  Should such credit insurance not be obtained, payment shall be made in full on a cash on collection basis.  No set-off or deductions for discounts, counter claims or otherwise shall be made.  Payment shall only be deemed to have been effected when received in cash at FLOSOLVE (PTY) LTD’s place of business, alternatively when any cheque sent to FLOSOLVE (PTY) LTD is received, deposited and then been honoured.  The purchaser agrees to pay interest at FNB prime bank overdraft rate plus 2% if payment is not made promptly by the date.  The payment of interest on overdue accounts shall be in addition to and shall not preclude any other remedy with FLOSOLVE (PTY) LTD may have available.
  12. The purchaser will provide all information required by the credit insurers, either directly to the credit insurers or to FLOSOLVE (PTY) LTD, so as to allow a proper credit evaluation.
  13. Prices are based on delivery ex works FLOSOLVE (PTY) LTD’s premises are in Midvaal and include VAT at the rate prevailing as at the date hereof.
  14. Where commissioning forms part of the scope of supply hereof commissioning shall take place under supervision of a FLOSOLVE (PTY) LTD commissioning engineer unless agreed to in writing by FLOSOLVE (PTY) LTD.If commissioning or attempted commissioning takes place contrary to this clause, FLOSOLVE (PTY) LTD shall have no further obligations pursuant to the agreement which shall, however, continue to be binding on the purchaser in all respects.
  15. Risk passes to the purchaser from the date on which goods are notified to the purchaser as being ready for collection unless they are to be delivered to site.  Items delivered to site and signed for shall be deemed to have been delivered in accordance with this contract, in which event risk passes on delivery to site or tender thereof.  In the case of any dispute relating to the receipt of the goods, the onus shall rest on the purchaser to establish that the person/s who actually received the goods was/were not authorised thereto and that the goods were not delivered.  In any event, items delivered to site shall be deemed to have delivered in accordance with the contract unless the purchaser notifies FLOSOLVE (PTY) LTD to the contrary in writing within seven (7) days of such delivery.The purchaser shall bear the risk of damage to or loss of the object concerned during transport to or storage in FLOSOLVE (PTY) LTD’s works.
  16. Goods returned by the purchaser for credit are subject to the Stock Return Policy of FLOSOLVE (PTY) LTD.  A restocking charge of 20% of the net purchase price will be deducted from the credit note for items returned for credit except where the purchaser can prove that FLOSOLVE (PTY) LTD supplied the incorrect product in terms of the contract.
  17. No relaxation or indulgence granted the purchaser and no omission  by FLOSOLVE (PTY) LTD to enforce any right shall be deemed to constitute a waiver of that right not shall any contractual rights contained herein prejudice any rights which FLOSOLVE (PTY) LTD may otherwise have in law.
  18. This contract shall be construed and performed in accordance with the laws of the Republic of South Arica.  The Defendant agrees to the jurisdiction of the appropriate Magistrate’s Court for the determination of all disputes and claims arising out of this agreement.  Notwithstanding the aforegoing FLOSOLVE (PTY) LTD shall in its discretion be entitled to institute action in any appropriate division of the Supreme Court.
  19. All rights to the design and copyright or other intellectual property shall rest exclusively with FLOSOLVE (PTY) LTD, notwithstanding that the use of the same shall be made available to the customer pursuant to the fulfilment of any order conditions.

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