Prime Automation CC
General Terms and Conditions
Status: July 2014
§ 1
General / Scope
(1)
Prime Automation General Terms and Conditions shall apply exclusively.
(2)
These General Terms and Conditions shall apply for all current and future business relations.
(3)
Where the purchaser has his own different, conflicting or additional terms and conditions, these shall not form part of the contract, even when Prime Automation has full knowledge of them, unless their validity is expressly agreed in writing.
(4)
The general terms and conditions of Prime Automation shall still apply when Prime Automation supplies goods to the purchaser without reservation, in full knowledge of the purchaser’s terms and conditions which conflict with or differ from the present terms.
§ 2
Quotation / Quotation documents
(1)
Quotations are non-binding.
(2)
By the time the order is completed, if significant increases in the price of raw materials, wages, taxes, social security contributions and / or difficulties due to laws and / or other forms of statutory regulations have arisen, and these can be shown to affect considerably the calculation on which the quotation from Prime Automation is based, Prime Automation shall be entitled to add an appropriate surcharge.
(3)
We reserve the right to change specifications and make reasonable changes to form, colour and / or weight.
Compliance with technical data or other information / details from catalogues, printed materials, parts lists and / or drawings / sketches etc. shall only be confirmed in so far as specific data, measurements or details are expressly listed in the technical description included with the quotation. A general reference to documents or drawings shall be deemed only to confirm the function.
(4)
Not Applicable
(5)
In the case of obvious errors in the quotation or written order confirmation, Prime Automation reserves the right to withdraw from the contract without prejudice to other rights.
(6)
Completion of the contract is subject to timely delivery to Prime Automation from its suppliers, in keeping with the terms of the contract. This shall apply only in cases where non-delivery is not attributable to Prime Automation, in particular where a congruent hedging transaction is made with Prime Automation’s supplier.
Should Prime Automation still be unable to provide the service, the purchaser shall be immediately informed that the service is unavailable. Any outlay on the part of the purchaser shall be reimbursed.
(7)
Prime Automation reserves property rights and copyright on all illustrations, drawings, drafts, models, samples, calculations, estimates and other documents; they shall not be made available to third parties.
This shall apply in particular to written documents which are marked "confidential". Such data shall not be disclosed to third parties without express written agreement from Prime Automation. These documents shall be returned to us unrequested free of charge when they are no longer required. The purchaser shall be liable for any loss or damage. These items shall be returned to us at any time upon request. The purchaser shall have no right of retention to these items. The items shall be stored securely and may not be copied without prior written agreement from Prime Automation.
The above-named items and their intellectual contents shall be held by the purchaser in strict confidence, unless they are already in the public domain or enter the public domain through no fault of the purchaser.
In the case of items on which we have trademark rights and/or which are protected for us as commercial/company secrets, the purchaser shall only be permitted to use the item in accordance with Prime Automation’s express conditions, unless specific usage methods are permitted to a third party.
3
Scope of supply
(1)
In his order the purchaser shall be obliged to state the individual specification of the respective supply item in accordance with the specific intended application, in consideration of all the relevant technical factors.
If this information from the purchaser is missing or incomplete, Prime Automation general product information shall additionally apply where necessary.
(2)
The written order confirmation from Prime Automation shall be definitive for the scope of supply. Should the contract be concluded by accepting a time-limited quotation from Prime Automation, the contents of the quotation from Prime Automation shall be definitive for the contents of that contract.
Supplementary agreements and changes shall require written confirmation from Prime Automation.
(3)
Prime Automation shall not accept the return of packaging used in shipment or any other packaging, with the exception of pallets. The purchaser shall dispose of the packaging at his own cost.
(4)
During the delivery period we reserve the right to amend the design or form based on technical improvements and / or legal requirements, provided these do not significantly change the supply item or agreed delivery and the amendments are acceptable to the purchaser.
§ 4
Prices / payment terms
(1)
In the absence of any specific agreement, prices shall apply "ex works", but excluding packaging, transport and transport insurance, plus the statutory rate of VAT.
(2)
Unless agreed otherwise, prices for all supplied goods shall be the list prices valid at Prime Automation on the day the invoice is generated (invoice date).
(3)
Discount shall only be offered by specific written agreement.
(4)
Unless stated otherwise in the order confirmation / quotation, the net sales price (before deductions) shall be due for payment within 30 days of the date of invoice. If the purchaser defaults on payment,
Prime Automation shall be entitled to charge interest on the money owed at a rate of 8 percentage points above the annual base interest rate of the South African Reserve Bank. Prime Automation reserves the right to provide evidence of and claim for greater losses resulting from default. For his part the purchaser shall have the right to prove a lower level of loss.
(5)
Prime Automation may issue part invoices for part shipments. Payment terms shall run separately for each part invoice.
(6)
The purchaser shall only be entitled to offsetting rights or rights of retention if his counterclaims are declared legally valid, are undisputed or are recognised by Prime Automation. The purchaser shall only be entitled to exercise a right of retention if his counterclaim applies to the same contractual relationship. Prime Automation shall be entitled to set payments off against the oldest outstanding debt, notwithstanding the purchaser’s settlement terms.
(7)
If there is a significant deterioration in the purchaser's financial situation after the contract is concluded, or should Prime Automation become aware of an earlier deterioration of the financial situation after the contract is concluded, and this gives rise to serious doubts concerning the purchaser's credit worthiness, Prime Automation shall be entitled to demand either payment in advance or a payment bond, at its own choosing. Prime Automation shall be entitled to withdraw from the contract if the purchaser fails to comply with this demand.
(8)
Prices shall apply exclusively to delivery and performance within the Republic of South Africa.
§
5
Call off orders
Call off orders shall be taken within the agreed time scales and/or on the agreed dates.
§ 6
Delivery period / delayed delivery
(1)
At the start of the delivery period specified by Prime Automation it shall be assumed that all technical queries have been clarified and the purchaser’s obligations have been met in timely and proper manner.
In particular this includes any documents to be obtained or produced by the purchaser, such as drawings, descriptions, any permits or approvals to be submitted by the purchaser and any agreed prepayments credited to Prime Automation’s account.
Should any of these prerequisites be missing or should there be any outstanding queries that the purchaser has not yet clarified, the delivery period stated by Prime Automation shall be delayed until the purchaser has resolved the outstanding situation.
(2)
The delivery period shall be deemed to have been met when the supply item has left the factory by the agreed delivery date, or the delivery date stated by Prime Automation, or at the latest by the calendar week following this date, or the purchaser has been notified that the item is ready to ship by the calendar week stated in the order confirmation.
(3)
The delivery period shall be extended appropriately in the event of any unforeseen events beyond Prime Automation’s control, in so far as such circumstances can be shown to affect the completion or delivery of the item under contract. This shall also apply where such events occur at one of Prime Automation’s subcontractors.
This shall apply in particular in the event of circumstances arising from labour disputes, particularly strikes and lockouts.
Delivery delays resulting from the aforementioned circumstances shall not be attributable to Prime Automation even if they arise during an existing delay. Prime Automation shall notify the purchaser as soon as possible regarding the start and end of such situations.
(4)
Prime Automation shall not be deemed to have defaulted on delivery until the purchaser has set an extension time of 2 weeks in writing, and Prime Automation fails to delivery within this extension time.
(5)
Should Prime Automation suffer delivery delays, all compensation claims on the grounds of delayed performance shall be excluded, notwithstanding the purchaser’s other rights in the event of slight negligence.
§ 7
Cancellation costs
Should the purchaser cancel an order without justification, where the purchaser has been set an appropriate fulfilment period, Prime Automation shall be entitled to claim 10 % of the selling price for the costs incurred in processing the order and for loss of profit, without prejudice to any subsequent claim for greater loss.
The purchaser shall reserve the right to prove a lower level of loss.
§ 8
Default / delay in acceptance
(1)
If the purchaser should default in acceptance or breach any other
Co-operation obligation, Prime Automation shall be entitled to claim for any loss incurred, including any additional expenses. In this case, the risk of a random decline or deterioration of the item under contract shall pass to the purchaser at the point at which acceptance was delayed.
(2)
If delivery of the item is delayed at the request of the purchaser, the latter shall be charged for the resulting storage costs from the beginning of the month in which the item was notified as ready for dispatch/delivery, at a minimum rate of 0.5 % of the invoice amount, for each month that is started.
The purchaser shall reserve the right to prove a lower level of loss, and Prime Automation the right to prove a greater loss.
(3)
Additionally, after an appropriate period has passed, of which the purchaser has been notified, Prime Automation shall be entitled to withdraw from the contract or deliver the supply item elsewhere, and also to deliver to the purchaser in keeping with the contract, after an appropriate, extended period.
§ 9
Place of fulfilment
Prime Automation expressly states that for each delivery for which “ex works”
Incoterms 2000 is agreed, the place of fulfilment for the contractual relationship shall be Port Elizabeth, regardless of which Prime Automation subsidiary makes the delivery.
§ 10
Transfer of risk
(1)
Unless stated otherwise in the contract documents, delivery shall be “ex works”
Incoterms 2000.
(2)
This shall still apply if the purchaser is in delay of acceptance.
(3)
The above paragraphs shall also apply where part-shipments are agreed. Prime Automation,
VAT No.: 4420261796
(4)
In so far as Prime Automation has contractually agreed to assume the shipping costs, delivery or assembly of the item under contract, this shall not affect the above paragraphs regarding transfer of risk.
(5)
If shipment of the item under contract is delayed as a result of circumstances attributable to the purchaser, the risk shall be transferred from the day on which the item became ready to ship; however, Prime Automation shall be obliged to arrange insurance at the purchaser’s request and cost.
(6)
Purchasers shall accept delivery of items, including those that show slight defects, without affecting their rights under
§11, Warranty.
(7)
Part shipments shall be permitted.
§ 11
Warranty
(1)
The warranty period shall be 12 months and shall start with the transfer of risk.
(2)
In other respects the warranty and liability of Prime Automation shall be limited to fulfilment of contract, through remedy or replacement, at Prime Automation’s discretion. Where a defect is to be rectified, Prime Automation shall bear the necessary costs, insofar as these do not increase because the item under contract is located somewhere other than the place of fulfilment. Where additional remedial work is necessary on the end product for legal and commercial reasons and this is made within the scope of fulfilment when combining, mixing or processing, or through any other type of damage repair, Prime Automation shall not compensate the cost of this additional work in the proportion which the value of the supplied product bears to the selling price of the end product.
This shall also apply where fulfilment is made on end products on which no mixing, combining or processing with other products has taken place or on products on which further processing has been carried out. If measures taken to fulfil the contract should fail, the purchaser shall be entitled to withdraw from the contract. Where the breach of contract is slight, particularly in the case of minor defects, the purchaser shall have no right of withdrawal. The purchaser shall not be entitled to claim a price reduction.
Remedial work shall be deemed to have failed after the second unsuccessful attempt, unless the nature of the item under contract is such that further remedial attempts are appropriate and acceptable to the purchaser.
(3)
If the purchaser chooses to withdraw from the contract on the grounds of a legal or material defect, following an unsuccessful fulfilment attempt, he shall have no claim to additional damages on account of that defect.
(4)
If a defect cannot be rectified and the customer chooses compensation after non-fulfilment, the goods shall remain with the purchaser, provided this is acceptable to the purchaser.
Compensation shall be limited to the difference between the purchase price and the value of the defective item, after provision of the failed service, or, if the service was provided by a third party, to the price of this service, less any expenses saved. This shall not apply if Prime Automation has maliciously caused the breach of contract. Where items are defective, resulting from the combining, mixing, processing or further processing of a faulty product, Prime Automation shall not compensate this loss in the proportion which the value of the supplied product bears to the selling price that would have been anticipated for the end product, had the delivery been free from defects.
(5)
Product descriptions issued by Prime Automation purely provide details of the product’s composition. Similarly, public statements, promotions or advertisements do not represent details of the product’s composition in accordance with the terms of the contract.
Additionally, product descriptions issued by a manufacturer used by
Prime Automation purely provide details of the product’s composition. Similarly, public statements, promotions or advertisements from the manufacturer do not represent details of the product’s composition in accordance with the terms of the contract.
(6)
Should the purchaser receive insufficient installation instructions, Prime Automation’s only obligation shall be to supply sufficient installation instructions and this only if the inadequacy of the installation instructions could prevent proper installation.
(7)
The purchaser shall only assert a right to damages on grounds of non-fulfilment or withdraw from the contract if Prime Automation, despite setting an appropriate deadline, has failed to either correct the problem or supply a replacement within a reasonable time period, or if a replacement or remedy is unacceptable to the purchaser.
(8)
To make a warranty claim in accordance with paragraphs 1-7, the purchaser must report any obvious defects to Prime Automation within two weeks of receipt of the goods; hidden defects shall be notified in writing within two weeks of the defect being established.
(9)
The purchaser shall be responsible for proving that the defect was notified immediately. The purchaser shall also be responsible for proving that he has not taken any action himself to correct the defect.
(10)
The purchaser shall be obliged to document both the defect and any resulting damage, notwithstanding the aforementioned provisions, in accordance with generally accepted technical standards.
(11)
Prime Automation does not give purchasers any guarantees in the legal sense.
This shall not affect manufacturers’ guarantees from third parties.
§ 12
Limitations of liability
(1)
Liability through Prime Automation presupposes that the purchaser has complied with the operating instructions when using the supply item. The purchaser shall be obliged to provide evidence to this effect.
(2)
In the case of negligent breach of duty, Prime Automation’s liability is limited to the average level of immediate damage that might be anticipated for the type of product and is typical of the type of contract. This shall also apply where the negligent breach of duty is attributable to Prime Automation staff, employees, colleagues, representatives and those assisting with fulfilment.
Liability is excluded where there is a slightly negligent infringement of inconsequential contractual obligations.
(3)
Unless stated otherwise below, further claims from the purchaser are excluded, on whatever legal grounds.
Prime Automation shall therefore not be liable for damages not arising directly from the actual supply item; in particular Prime Automation shall not be liable for loss of profit or damage to any other assets belonging to the purchaser or a third party, including items produced as a result of combining, mixing, processing and / or further processing.
Prime Automation
(4)
The exclusion and limitation of liability stated in paragraphs (1) and (2) Shall not apply to damages resulting from injury to life, body or health, loss of life, intent or gross negligence. Neither shall the exclusion of liability apply where Prime Automation is in breach of an essential obligation (material contractual obligation); in such a case, liability shall be limited to the average level of immediate damage that might be anticipated in a typical contract, in accordance with paragraph (1).
(5)
If Prime Automation is in breach of an essential contractual obligation, Prime Automation’s liability to pay compensation in the case of material damage shall be limited to the amount of cover under its public liability insurance, unless the breach is due to gross negligence as a minimum. Prime Automation shall grant access to the insurance policy on request. Where the liability of Prime Automation is excluded or limited, this shall also apply for the personal liability of salaried personnel, employees, associates, representatives and anyone acting on behalf of Prime Automation.
(6)
Liability of Prime Automation is generally excluded in a case where components other than those manufactured or specified by Prime Automation have been built into the supply item, at the purchaser’s request. The purchaser shall be responsible for proving that such a modification did not cause the defect on the supply item.
(7)
Prime Automation shall not be liable for any installation work carried out by the purchaser himself. The purchaser shall be responsible for proving that the installation is correct.
§ 13
Retention of title
(1)
Goods shall remain the property of Prime Automation until all claims resulting from a current business relationship have been settled in full.
If the purchaser acts in breach of contract, especially in the case of late payment, Prime Automation shall be entitled to reclaim the item under contract. The recovery of an item under contract does not constitute withdrawal from the contract, unless Prime Automation specifically expresses this in writing.
Where Prime Automation files for attachment of the item, this shall always constitute withdrawal from the contract. Prime Automation shall be entitled to realise the value of the item once it has been recovered. The proceeds from realisation shall be credited against the purchaser’s liabilities–less appropriate realisation costs.
(2)
The purchaser shall be obliged to handle the goods with care: in particular he shall be obliged to ensure these, at his own cost, against fire, water and theft, to the sum of the value when new. If maintenance and inspection work is required, the purchaser shall carry this out regularly and punctually, at his own cost.
(3)
The purchaser shall inform Prime Automation immediately in writing of any attachments or seizures by third parties. Where the third party is unable to reimburse Prime Automation the legal and out of court costs of an action, the purchaser shall be liable for any loss incurred by Prime Automation.
The customer shall be further obliged to inform Prime Automation immediately if the goods are destroyed or damaged in any way. The purchaser shall notify Prime Automation immediately of any change in possession of them goods or change in his place of business.
(4)
The customer shall be entitled to resell the goods within the ordinary course of business. However, any receivables due as a result of any subsequent resale of the goods to a purchaser or third party shall be assigned to Prime Automation, to the value of the final invoice amount (including VAT), irrespective of whether or not the goods have been processed prior to the resale. Prime Automation shall accept this assignment.
The purchaser shall still be authorised to collect such receivables after assignment. This shall not affect the authority of Prime Automation to collect the receivables itself. However, Prime Automation shall undertake not to collect the receivables provided the customer meets his payment obligations from the proceeds, does not delay payment and, in particular, is not subject to an application to initiate insolvency proceedings or have payments suspended. If this is the case, Prime Automation may demand that the purchaser provides information on the assigned receivables and debtors, including all the necessary details required in order to collect the receivables, provides the associated documentation and informs debtors (third parties) of the assignment.
(5)
Processing or restructuring of the goods by the purchaser shall always be carried out in the name of and on behalf of Prime Automation. If the goods are processed with other items that are not the property of Prime Automation, Prime Automation shall acquire joint ownership of the new product in the proportion of the value of the goods to that of the other processed items at the time of processing.
For the rest, the resulting product shall be subject to the same provisions applicable to the goods supplied under reservation of title.
(6)
If the goods are mixed with other items that are not the property of Prime Automation, Prime Automation shall acquire joint ownership of the new product in the proportion of the value of the goods to that of the other mixed items at the time of mixing.
If the mixture is such that the purchaser’s product may be viewed as the main component, it shall be taken as agreed that the purchaser grants Prime Automation proportionate joint ownership. The purchaser shall retain the resulting sole/joint property for safekeeping.
(7)
The purchaser shall also assign to Prime Automation any receivables due from a third party with regard to the incorporation of the goods with a fixed plot of land, as security for the receivables owed to Prime Automation.
(8)
At the request of the customer, Prime Automation shall undertake to release such realisable securities as exceed the outstanding amounts due by more than 20 %; Prime Automation shall select which securities are to be released.
§ 14
Special right of termination / embargo regulations / EU anti-terror regulations
(1)
In so far as contractual agreements between Prime Automation and the purchaser mean that Prime Automation’s supply obligations and the purchaser’s payment obligations are in violation of binding national as well as international regulations, Prime Automation shall be entitled to exercise extraordinary termination of the contractual relationship and / or withdraw from the contract.
(2)
In this special case the purchaser shall not be entitled to compensation.
(3)
It is the responsibility of the purchaser to be aware of any relevant statutory regulations which could make it impossible for Prime Automation to fulfil a contract.
§ 15
Final provisions
(1)
All contracts shall be concluded in writing. Supplementary agreements shall only take effect if confirmed by Prime Automation in writing.