Standard Terms and Conditions of Sale
- In these Conditions of Sale, words relating to the singular shall include the plural and vice- versa; words relating to any gender shall include the other gender; and words relating to natural persons shall include associations of persons having corporate status by status or common law and vice-versa.
- “The Seller” shall mean Pivotel (Pty) Limited or any of its subsidiaries.
- “The Purchaser” shall mean the party who has placed an order with the Seller, and which order is duly accepted by the Seller. This order and other documentation may be in an electronic format.
- Prices are exclusive of value added tax unless stated differently and are based on Government duties, surcharges and taxes ruling at date of the Sellers quotation. Prices quoted are valid for the period quoted on the Sellers quotation. Any prices contained in the Seller’s quotation shall not be subject to change, other than contained in paragraph 5 hereunder, provided that such quotation is accepted within the validity period described on Sellers quotation.
- Seller’s quotations are subject to price fluctuations due to changes in exchange rates. Should the Purchaser, in writing, requests the Seller to purchase forward cover, then the Purchaser shall be liable for all costs associated with the establishing of the forward cover. Where no forward cover is requested pricing will be re-calculated using the exchange rate ruling on date of invoice, and the purchase price will be adjusted in accordance with the formula as per paragraph 28. The Seller also reserves the right to charge, without prior notice, any additional duties, surcharges or taxes that the Government might change and/or implement on imported products.
- Credit Facilities may only be granted by the Seller upon authorisation of a properly completed credit application form. Should the Purchaser be registered as a private company C.C., Partnership or Sole Proprietor, Suretyship signed by all shareholders or members will be required. Post-dated cheques are not acceptable.
- Notwithstanding acceptance of the application, the nature, extent, duration and existence of any credit facilities, which may be allowed to the Purchaser, shall at all times remain at the sole discretion of the Seller. Credit limits may not be exceeded without prior written consents from a director or the duly authorised agent of the Seller. The Seller reserves the right to change the credit limit at any time without notice and any amount over the credit limit will be supplied on a strictly COD basis.
- Unless otherwise stated on Sellers Quotation, payments for goods supplied or services rendered by the Seller are to be made to the Seller within 30 (thirty) days from invoice date, on which date the amounts owing shall become due and payable. The Purchaser hereby acknowledges that should any amount not be paid on the due date or any payment by cheque unpaid, the entire balance owed by Purchaser to Seller shall immediately become due and payable without any notice. Overdue accounts shall bear interest at the rate of 3 (three) percent per annum above prime overdraft rate of the Seller’s bankers, and in the event of the Seller instructing their Attorneys to collect such overdue amounts, or take any other action as a result of default, all legal fees and collection charges, both as between Attorneys and own client shall be borne by the Purchaser and payments made thereafter shall be allocated firstly towards such legal charges, thereafter interest and finally capital.
- Any certificate issued under the signature of a Director or an Accountant (whose appointment shall not be necessary to prove) of the Seller or its duly authorised Agent that purports to certify the amount due hereunder, shall constitute PRIMA FACIA proof of such indebtedness and shall have sufficient probative value to enable the Seller to obtain summary judgement or provisional sentence against the Purchaser in any competent Court for the amount stated in such certificate, and the Purchaser accepts the onus of disproving the amount so stated as not being the amount owing.
- The Purchaser and all Sureties, accepts that liability shall be IN SOLIDUM and that the Seller shall at all times be at liberty to proceed with collection and excision proceedings against the Purchaser or surety of its choice.
- The Seller shall not be liable, under any circumstances whatsoever, for any loss or damage to person or property, whether direct or indirect, consequential or otherwise, alleged to be sustained by the Purchaser as a result of:a) Any delay in manufacture or delivery of the goods by the Seller;
b) Failure by the Seller to deliver goods or render services as a
result of any cause whatsoever;
c) Any fault or negligence of the Seller or, any representation of our salesman, representatives or agents or due cause
d) Any alleged defect in the merchandise whether patent or latent.
e) Any breach by the Seller of any of the terms contained herein.The Purchaser also indemnifies the Seller against any claims made against it by any third party arising out of these situations.
- And furthermore the seller will not take any responsibility for the loss or damage on equipment due to the following:a) Any equipment e.g. cables, amplifiers, dish, head-end, etc. that has been installed and unlawfully removed,
b) Any natural causes such as water, fire, lightning, etc.
c) Any delays caused due to the work done by subcontractors for example default power points, infrastructure, etc.
d) Abuse or misuse of equipment and/or installation,
e) Attempted burglary or vandalism,
f) Repairs and/or alterations effected by persons other than authorized trained personnel of Pivotel (Pty) Ltd.
- Subject to and without limiting the exclusions contained in paragraph 11, the liability of the Seller for any damages sustained by the Purchaser from any cause whatsoever, including negligence, shall be limited to the value of the Purchaser’s purchase order in question.
- It is agreed that the Purchaser will be deemed to have inspected the merchandise on signing the delivery note. No representations, warranties other than those recorded herein have been made by or on behalf of the Seller.
- The Sellers quotation or proposal and Purchasers confirmation order constitute the entire agreement between the Seller and the Purchaser and no statements, warranties or representations, whether expressed or implied as to the suitability of the goods for any specific purpose, or as to their freedom from defects shall be of any force or effect. The Seller, however, undertakes to refund the purchase price of any goods proved to be defective due to defects in material, bad workmanship, or non-compliance with specification or sample, provided that the conditions referred to in paragraph 16 are met.
- A Return Authorisation Number and a copy of the original invoice must accompany products returned for credit. Full credit will be granted only if the product is returned in the original packing, complete and without damage in any way. Products accepted for return for credit more than 14 days after date of delivery will bear a handling charge determined by the period elapsed, traditionally calculated at a rate of 7.5% per month with a maximum charge of 30% of the invoiced value. Products are warranted against defective materials or workmanship for a period to be agreed subject to the conditions listed below. Should the product prove to be defective within 7 days, the Seller will within reason exchange the product.
- Conditions for return of products:
a) The products are returned properly packed, carriage paid to the Seller at the Purchaser’s risk within stipulated period from the
date of deliver and
b) If the Products have been manufactured to the Purchaser’s design the defects are not a result of design errors of the
Purchaser, or if the materials for the manufacture of the Products have been supplied by the Purchaser the defects are not a result of a defect in such materials and
c) The Purchaser has not modified the Products in any way.
d) The Products have not been used for any purpose other than that for which they were designed or otherwise miss-used.
e) It is specifically understood that the Seller shall under no circumstances be liable for consequential loss.
f) The damage is caused through force majeure, lightning and/or
power surges or negligence on the part of the Purchaser to fully understand and comply with the correct installation procedures.
- Conditions for service calls:
PIVOTEL (PTY) LTD will attend as quickly as possible to all requests for services. Service calls will be at current rates during normal business hours – Mondays to Fridays 08:30 – 16:30 (excluding public holidays). Service requested out of normal hours will be invoiced at higher rates, irrespective of the nature of the fault or the reason for the request of service.
- For the purpose of this quotation/proposal prime shift maintenance or Minimum monthly maintenance charge (MMMC) covers maintenance for the period of 8 consecutive hours between the hours of 08:30 and 16:30 weekdays, excluding public holidays. Maintenance is defined as only the repair or replacement of equipment in order to rectify any hardware or firmware failure. This quotation/proposal outlining the equipment types and quantities will be used as the initial equipment schedule. A detailed schedule will be drawn up after the delivery, acceptance and installation of the equipment has been completed.
- The first maintenance payment will be charged, in terms of the maintenance contract at, the rate ruling on the day after the date on which the relevant warranty period for each product expires.
- The installation prices cover installation for the period of 8 consecutive hours between the hours of 08:30 and 16:30 weekdays, excluding public holidays and are applicable in the metropolitan areas. Installation is defined as only the unpacking and assembly of the equipment as well as a power-on test.
- Additional Services and Support cover is available in accordance with the Seller’s Service Level Agreement for on-site hardware maintenance and support.
- An order shall not, after confirmation by the Seller, be subject to cancellation, withdrawal, termination, or variation by the Purchaser.
- Purchaser’s agent and delivery of such shall be deemed to be delivery to the Purchaser. Insurance coverage with the carrier is the responsibility of the Purchaser.
- After delivery of goods to the Purchaser, the ownership shall remain with the Seller until payment of the full invoice price has been made, but the parties further agree that all risk shall pass to Purchaser immediately on delivery of all or portion of such goods purchased. In all areas where delivery is by carrier, the carrier shall be deemed to be the Purchaser’s agent and delivery of such shall be deemed to be delivered to the Purchaser.
- The Seller will deliver orders to a place of delivery as stipulated by the Purchaser in the Purchaser’s written order to the Seller. In cases where delivery is by carrier, the carrier shall be deemed to be the Purchaser.
- License fees on all hardware and software products from the Seller are compulsory and are payable annually in advance. The first year’s license fees are payable 30 days from invoice date.
- No relaxation or indulgence granted by the Seller to the Purchaser shall be deemed to be a waiver of any of the rights of the Seller and such relaxation or indulgence shall not be deemed a novation of any of these terms and conditions.
- It is agreed that the address of the Purchaser’s principal place of business shall be the domicilium citandi et executandi for all purposes, whether in respect of court process, notices or other documents or communications, of whatever nature.
- The terms and conditions contained herein constitute the entire agreement between the parties and no amendment or variation of consensual cancellation shall be of any force and effect unless reduced to writing and signed by both the Seller and the Purchaser and shall not be capable of rectification by a Court of law. This agreement shall also be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.
- The Purchaser hereby consents to the jurisdiction of the Magistrate’s Court Act No. 32 of 1994, as amended, in respect of all amounts or causes of action arising out of the sale and supply of goods even though the amount involved would normally exceed the jurisdiction of such a court.
Foreign Currency adjustment formula. A = T x P x C – N + T
NA = the amount which is equal to the total amended price; T = the total price of the Quote/Proposal;
P = the percentage of price fluctuation set out on the Quote/Proposal;
C = the foreign currency equivalent of One Rand of the base currency set out on the Quote/Proposal;
N = the foreign currency equivalent of One Rand of the
base currency on the date of delivery;