GENERAL TERMS & CONDITIONS OF SALE

The conditions set forth herein shall apply to all transactions for the supply of goods and/or services  entered into, or to be entered into, between  Lancs cc t/a SecuPlus, hereinafter referred to as “the Company” and the purchaser being any legal person, firm, partnership, close corporation or company, hereinafter referred to as “the Buyer”:

1. 1. Orders

After acceptances, may not be cancelled, in whole, or in part, or varied in any manner whatsoever, unless confirmed in writing by the Company.

2. 2. Prices

Quoted prices are net and exclusive of VAT, unless otherwise stated. Where quotations are based in foreign currencies the Company reserves the right to change these prices to South African currency at the relevant exchange rate as at the date of the relevant quotation.

3. 3. Payment

3.1 Shall be in South African Currency, without deduction or set-off.

3.2 Shall be made in full, in the form of Bank Guaranteed Cheque or Electronic Fund Transfer (EFT), within 30 days of the date of receipt of the Buyer of the relevant invoice.

In the case where credit is not agreed all payments for goods and/or services will be up front. 

3.3 To the extent that the Buyer has been granted credit facilities by the Company, the Buyer agrees and undertakes to notify the Company immediately of any material factor which could or might have a bearing on the credit facilities extended to the Buyer by the Company, and furthermore undertakes to notify the Company immediately of any material change of or concerning the Buyer, including any change of ownership, shareholding, status, name and address.

4. 4. Delivery

4.1 Lead times are to be kept as short as possible.

4.2 The Company shall deliver the goods ordered at the time and date specified for delivery by the Company or the Buyer, on the relevant purchase order or order acknowledgement, as the case may be.  Failure by the Company to deliver on such date, which failure is not remedied within 7 days of written notice by the Buyer to the Company, shall constitute a material breach of these conditions which shall entitle the Buyer to exercise its rights in terms of clause 10 below, and to exercise any other remedy available to it at law or under a separate agreement entered into between the parties hereto.

4.3 The risk in and to the goods purchased shall pass to the Buyer upon delivery. Such delivery will be deemed to have been effected upon tender of the goods for acceptance by the Buyer within normal business hours, at the Buyer’s place of business or such other place nominated by the Buyer, or the Company’s place of business, if the Buyer elects to collect the goods.

4.4 In the event of the Company, for any reason whatsoever, not being able to effect delivery of all the goods, the Company shall notify the Buyer accordingly and the Buyer may, in its discretion, elect to accept delivery of such goods as it can, in which event the Company shall be obliged to effect such partial delivery of goods, and such delivery shall be deemed to be a sale for such listed quantity of goods, concluded in terms of these terms and conditions.  The Buyer may elect not to accept such partial delivery, in which event the relevant purchase order shall be deemed to be cancelled.

4.5 Should the Buyer elect to accept partial delivery and have any claim whatsoever, arising out of such partial delivery of the goods, the Buyer shall, notify the Company within 24 hours of receiving or tendering of possession of the goods by the Company or the carrier of the goods, where the carrier is the Company’s agent; and endorse the delivery note accordingly.

4.6 Unless the Buyer gives timeous notice of the partial delivery, in terms of the  above, the Buyer shall be deemed to have received the goods as set out in the delivery note and relevant invoices.

4.7 The Company is entitled to engage a third party on its behalf to transport all goods purchased by the Buyer to the delivery address stipulated by the Buyer, and the Company hereby indemnifies the Buyer against any claims of any nature whatsoever that may arise from any such transportation.

5. 5. Reservation of Ownership and Appropriation of Payments

5.1 Notwithstanding  anything herein before or elsewhere contained,  ownership of the goods shall, at all times, remain vested in the Company, until the Buyer has made full payment of the purchase price. No latitude or extension of time given to the buyer shall in any way vitiate or novate the Company’s rights hereunder.

5.2 In the event that the Buyer fails to pay amounts owing on the due date thereof, the Company shall be entitled, at its discretion, to appropriate any payments made towards the reduction of any indebtedness to it by the Buyer as well as interest, 24% per annum calculated over 12 months, calculated from the overdue date until the date of payment. This relates to 2% per month interest on the first day of the month following the overdue status of an outstanding amount.

5.3 The Company is not obliged to accept returned goods where the Buyer has made an error in its order, and the Buyer remains fully liable for the full price of the goods so ordered.

6. 6. Limitation of Company’s Liability

6.1 The Company warrants that all goods are supplied free from defect for a period of 2 years after date of purchase. Defective products will be replaced by The Company and at The Company’s expense.

6.2 Before dealing in any manner with the goods supplied against any order; the Buyer must satisfy itself that the goods are suitable for the purpose for which they are to be used, and are free from any defects of whatsoever nature.  The Company hereby indemnifies the Buyer against any claim brought against the Company by any Third Party arising out of the unsuitability of the goods for any particular purpose whatsoever.

6.3 The Company shall not be liable under any circumstances whatsoever, for any loss of profit or other special damages.

6.4   No   agreement,   warranty,   condition,   representation,   promise,   statement   or undertaking, whether made before/after a sale, shall be binding on the Company unless contained herein or confirmed officially in writing under the Company’s signature.

7. 7. General

7.1 No variation, amendment or alteration of these Conditions of Sale shall be of any force or effect unless reduced to writing and signed by a duly authorised representative of the Company and the Buyer.

7.2 No latitude, relaxation or indulgence that one party may grant the other shall prejudice or be deemed as a waiver of any of the that first party’s rights in terms of these terms and conditions.

7.3 Neither party may assign or transfer this agreement without the prior written consent of the other party.

7.4 This agreement constitutes the entire agreement between the parties and each party acknowledges that in entering into this agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in the Agreement shall limit or exclude any liability for fraud or fraudulent misrepresentation.

7.5 Each of the terms herein shall be separate and divisible terms and if any such term becomes unenforceable for any reason whatsoever, then that term shall be severable and shall not affect the validity of the other terms.

7.6 In the event of any order from the Buyer providing for the delivery of the goods at/in various  stages,  then  each  delivery  shall  be deemed  to  be  a separate  and  divisible contract and the terms and conditions herein contained shall apply to each delivery as if the same were the subject of an independent contract. No dispute arising from any such one delivery shall affect  the balance  of the contract  between  the Company  and the Buyer arising from prior deliveries, subject to the provisions of clause 10 below. The Company shall have the right to claim pro rata payment in respect of each consignment delivered to the Buyer.

7.7 The Buyer agrees that the signature of its employees or any person purporting to represent it on the official delivery note or waybill of the Company, will be sufficient proof of delivery of the goods from time to time.

8. 8. Warranty

8.1 The Company warrants that the goods sold by the Company will be free from defects in  materials  or  workmanship,  for  the  appropriate  warranty  period  (2  Years).  The Company’s sole obligation under this warranty shall be, at its option, to repair or replace, without charge, any defective component part of such product, within a reasonable time period.

8.2 The Company shall not be liable under this warranty for any goods that the Buyer alleges are defective where those goods have been repaired or altered by some other person than the Company’s designated personnel or authorised representative, unless such repair or alteration was effected pursuant to prior written approval of the Company, or where the Buyer fails to notify the Company of any alleged defect within the period of the warranty, or where the goods have been altered in any way which the Company reasonably determines to personally effect the performance and reliability, or where the goods have been subjected to misuse, neglect or accident.

9. 9. Force Majeure

If  the  agreement  becomes  wholly  or  partially  impossible  to  perform by either party due  to  causes beyond the control of such party, such causes to include, but not be limited to; war, civil insurrection, vis maior,  Government  action and industrial  disputes,  such party shall be permitted to rescind the agreement  at its discretion. If deliveries of goods or services  or any other performance under this agreement shall  be  delayed  as  a  result  of  such  causes,  the  relevant party  shall  not  be construed as being in breach of the agreement, provided that if such circumstances exist for a period of longer than 30 days, the other party shall be entitled to terminate the agreement on notice in writing.

10. 10. Breach and Termination

10.1 Where the Buyer, in anyway, breaches the terms of the agreement, and does not remedy  same  within  24  hours  of  verbal  or  written  warning  to  that  effect,  then  the Company, in its discretion may (i) resile from the agreement and claim return of any goods delivered to the Buyer which have not been paid for, or the current market value in Rands of such goods, determinable from the relevant invoice, or (ii) claim specific performance, in each case without prejudice to any claim for damages it may have.

10.2 Where the Company in any way breaches the terms of the agreement and does not remedy same within 24 hours of verbal or written warning to that effect, the Buyer may, in its discretion, immediately on notice to the Company (i) cancel the agreement; and/or (ii) claim specific performance, in each case without prejudice to any claim for damages it may have.

10.3  Notwithstanding any other provision, the Buyer shall be entitled to terminate this agreement without providing reasons therefore at any time, on 30 days’ notice to the Company.

10.4  On termination or cancellation of this agreement for any reason, all rights and obligations of the parties under the agreement will automatically terminate except for rights of action accruing prior to its termination.

11. 11. Costs

If the Buyer is in anyway in breach of the agreement and the Company engages the services of an attorney to collect the whole or portion of the amount owing to it by the Buyer, or to sue for any other damages as a result of breach by the Buyer, the Buyer shall  be  liable  to  pay  all  costs  occasioned  as  a  result  thereof,  including  collection charges and costs on an attorney and own client scale.

12. 12. Domicilium Citandi Et Executandi

12.1 The Company hereby elects  as its domicilium  citandi  et executandi,  at which  it will accept service of any process or notice :

98 Wood Road, Moseley Park, Pinetown, 3610

12.2 The Buyer hereby elects  as its domicilium  citandi  et executandi,  at which  it will accept service of any process or notice, the address set out on the purchase orders provided to the Company from time to time.

13. Jurisdiction and Applicable Law

13.1 The agreement and any non-contractual obligations shall be interpreted according to the laws of the Republic of South Africa and the parties hereby consent and submit to the non-exclusive jurisdiction of the Magistrate’s Court, in any dispute arising from or in connection with this agreement, subject to the provisions of clause 14 below.

14. Dispute Resolution

14.1  Should any dispute (necessitating an independent third party or institution to act in a quasi-judicial capacity) arise between the parties in connection with these conditions or any separate agreement entered into between the parties hereto, then that dispute shall be submitted to the most senior management of the parties who shall endeavour, with or without an independent expert to assist the parties and make recommendations, to resolve the dispute within 10 (ten) working days after it having been referred to them. Should the dispute not be resolved in the aforesaid manner, then it shall be resolved by way of arbitration in accordance with this clause 14.

14.2  This clause shall not preclude any party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.

14.3  Any party to these conditions may demand that a dispute be determined in terms of this clause by written notice given to the other party.

14.4  The arbitrator for arbitration proceedings shall be a practicing advocate or attorney, admitted as such in accordance with the legislation of the law governing these Terms, with at least 10 (ten) years experience, agreed upon by the parties and, failing agreement, nominated by the chair person for the time being of the Cape Law Society.

14.5  The arbitration shall be held:

14.5.1  in Gauteng;

14.5.2  in terms of the Arbitration Act No 42 of 1965 (as amended) subject to the right of the Customer to stipulate a different form of arbitration before an independent arbitration tribunal appointed and functioning in terms of rules and procedures of any existing arbitration body in South Africa (including but not limited to the Arbitration Foundation of South Africa) appropriate to the nature and value of the dispute, it being recorded that the parties shall be entitled to elect the arbitration to be held in a summary manner, that is, immediately and with a view to it being completed within 30 (thirty) calendar days after it is demanded, and without the usual formalities of procedure (e.g. there shall not be any pleadings or discovery) or the strict rules of evidence; and

14.5.3  it being the intention that the arbitration shall be held and completed as soon as possible and that the award of the arbitrator shall be final and binding upon the parties hereto and that the same may be made an order of court.

15. Confidentiality

Each party must treat all confidential information received from the other party as it would treat its own confidential information generally, but with no less than a reasonable degree of care.

16. Warranties and Indemnity

16.1 In addition to, and without prejudice to, any warranties, representations or undertakings given elsewhere herein, each of the Company and the Buyer warrants and represents to and in favour of the other that (i) it is duly incorporated, registered and existing under the company laws of the country from which it originates; (ii) acceptance of these terms and conditions has been duly and fully authorised by it; (iii) these terms and conditions constitutes obligations that are legal, valid, binding and enforceable against it in accordance with its terms; and (iv) the provisions of these terms and conditions are not in conflict with, and will not constitute a breach of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it, or its constitutional documents.

16.2 In addition to, and without prejudice to, any warranties, representations or undertakings given elsewhere herein, the Company warrants, represents and undertakes to and in favour of the Buyer that:

16.2.1 prior to the sale of any goods to the Buyer, the Company has full right of ownership to all such goods and has not given any third party any right over or to such goods, and is able to transfer title to such goods to the Buyer, free of any encumbrances and free of any rights of any third party to such goods;

16.2.2 the goods, and the use of the goods by the Buyer, do not infringe upon or misappropriate any copyrights, trademarks or patents registered or issued to any third party, or any other intellectual property rights of any third party, whether or not registered;

16.2.3 it has complied, and will continue to comply, with all applicable laws in relation to the sale of goods and provision of services contemplated in these terms and conditions.

16.3 In addition to, and without prejudice to, any indemnities provided by the Company elsewhere in this agreement, the Company hereby indemnifies the Buyer and holds it harmless against any and all claims or causes of action for loss or damage, brought against, or any loss, expense, damages or costs suffered or incurred by the Buyer, as a result of (i) the sale of any goods by the Company contemplated in these terms and conditions; and/or (ii) any breach by the Company of this agreement (including but not limited to any breach of warranty or undertaking in this agreement); and/or (iii) the breach by the Company or any of its employees, agents, associates, professional advisors and/or sub-contractors of any law in relation to these terms and conditions; and/or (iv) any intellectual property infringement by the Company.