Any contract for the supply of Goods and Services between Engler Industries and the Client shall be subject to the following terms and conditions:
1. COMMENCEMENT AND TERMINATION
1.1 This Agreement shall commence on the date of Engler Industries informing the Client in writing to its
1.2 Engler Industries shall be entitled to terminate this Agreement immediately upon notice in writing to the Client:
1.2.1If there is no activity in the account for a period of ten months;
1.2.2 If the Client fails to remedy any breach within seven days of the date of Engler Industries notice calling for such remedying of the breach;
1.2.3 If the Client does anything in contemplation of insolvency or a material change occurs in the management or control of the Client's business;
1.2.4 If the Client fails to ensure that its business conforms with reasonable industry standards of business ethics or quality of service;
1.2.5 If the Client suffers any civil judgement to be taken or entered against it.
2. SUPPLY OF GOODS AND SERVICES
2.1 The supply of Goods to the Client may include, but not necessarily be limited to, the provision and supply of articles which Engler Industries supplies ("the "Goods").
2.2 The supply of Services to the Client may include, but not necessarily be limited to:
2.2.1 the ordering and delivery of Goods purchased by the Client;
2.2.2 advice pertaining to the maintenance of the Goods;
(paragraphs 2.2.1 – 2.2.2 are hereafter collectively referred to as the "Services").
3.1 Orders placed by the Client for Engler Industries’ Goods or Services, shall be made in writing to Engler Industries.
3.2 Orders shall constitute irrevocable offers to obtain Engler Industries’ Services at Engler Industries’ prevailing fee and shall be capable of acceptance by Engler Industries through the delivery/supply of Goods and/or provision of the Services or by the written acceptance or confirmation of the order.
3.3 If the Client fails to take delivery of the Goods ordered, then the reasonable costs having made the Goods available and any loss incurred in doing so, shall be borne by the Client.
4. PRICE, PAYMENT AND INTEREST
4.1 Unless otherwise stated, all prices for Goods and/or Services quoted by Engler Industries exclude delivery charges, import duties, levies or like charges, all of which shall be paid by the Client.
4.2 Payment of Goods and/or Services supplied to the Client shall be made immediately into Engler Industries’ banking account.
4.3 The Client agrees that in the event of any portion of an invoiced indebtedness being disputed, then the Client shall nevertheless forthwith pay the undisputed amount of such indebtedness according to the agreed terms of payment.
Ownership of Goods obtained from Engler Industries by the Client shall remain the sole and absolute property of Engler Industries.
6.1 Engler Industries warrants that the Goods and Services supplied to the Client will comply with commercially acceptable standards.
6.2 The warranty in respect of Goods supplied by Engler Industries is limited to the manufacturer's warranty in respect of such Goods.
6.3 All other warranties and representations, including the warranties of merchantability and fitness for a particular
7. LIMITATION OF LIABILITY
7.1 Engler Industries’ liability for any loss or damage, howsoever arising, suffered by the Client as a result of Goods and/or Services supplied by Engler Industries shall at all times
7.2 Engler Industries shall not be liable to the Client or to any other person for any indirect or consequential damages of any nature whatsoever or any loss of profit or special damages of any nature whatsoever and whether in contemplation of the parties or not which the Client may suffer as a result of any breach by Engler Industries of any of its obligations under these terms and conditions, or arising from the supply of Goods and/or Services by Engler Industries hereunder or arising out of any other cause of action whatsoever.
8.1 The parties select as their respective
Engler Industries: 9 Opel Lane, Neave Township, 7 Bennett Street, Neave Industrial Park, Port Elizabeth
The Client:[Its physical and business address, telefax number and email as set out on the completed application form.]
or such other address, telefax number or email address as may be substituted by written notice given as required. Each party will be entitled from time to time to vary its
8.2 Any notice addressed to a party at its
9. FORCE MAJEURE
To the extent that any incident or circumstance beyond Engler Industries’ control (including natural occurrences, war, strikes, lock-outs, shortages of raw materials and energy, obstruction of transportation, breakdown of manufacturing equipment, fire, explosion, acts of Government), reduces the availability of Goods from Engler Industries such that Engler Industries cannot fulfil its obligations under this Agreement, Engler Industries shall:
(i) Be relieved from its obligations under this Agreement to the extent that Engler Industries is prevented from performing such obligations; and
(ii) Have no obligation to procure Goods from other sources. If the aforementioned occurrences last for a period of more than 3 (three) months, Engler Industries is entitled to withdraw from the Agreement without the Client having any right to compensation.
10. NATIONAL CREDIT ACT
In the event that the National Credit Act ("NCA") applies to any transaction between Engler Industries and a Client, then:
10.1 If any provision of this Agreement is in conflict with the NCA, such conflicting terms and conditions shall not apply;
10.2 Engler Industries and the Client shall conclude an agreement in compliance with the NCA and Engler Industries shall not be obliged to deliver any Goods or provide any Services until such agreement is signed.
10.3 The costs and charges which Engler Industries is entitled to recover from the Client shall be the maximum allowed by the NCA and Engler Industries shall be obliged to comply with the NCA before instituting any legal proceedings against the Client.
11. CONSUMER PROTECTION ACT
If any provisions of these Terms and Conditions are in conflict with the Consumer Protection Act such conflicting terms and conditions shall not apply.
12.1 The parties agree that the terms of this Agreement and all confidential and proprietary information of the parties communicated to them in connection with this Agreement will be received in strict confidence and be used only for the purposes of this Agreement. Each party will use the same means as it uses to protect its own confidential information, but in no event less than reasonable means, to prevent the disclosure and to protect the confidentiality of such information. No such information will be disclosed by the recipient party, its agents, representatives or employees without the prior written consent of the other parties.
12.2 These provisions do not apply to information which is
12.2.1 publicly known or becomes publicly known through no unauthorised act of the recipient party(
12.2.2 rightfully received by the recipient party from a third party;
12.2.3 independently developed by the recipient party without the use of the other party(
12.2.4 disclosed by the other party to a third party without similar restrictions;
12.2.5 required to be disclosed pursuant to a requirement of a governmental agency or any applicable law, so long as the party required to disclose the information gives the other party prior notice of such disclosure;
12.3 publicly disclosed with the other party(
12.4 All media releases, public announcements and public disclosures by any party(
13.1 No relaxation or indulgence granted to the Client by Engler Industries shall be deemed to be waiver of any of Engler Industries’ right in terms hereof, and such relaxation or indulgence shall not be deemed to be a novation of any of the terms or conditions set out herein, or create an estoppel against Engler Industries.
13.2 Any printed condition on any of the Client's documents submitted to Engler Industries, even if countersigned by Engler Industries, shall not apply, or be binding upon Engler Industries and the Client agrees that the relationship between Engler Industries and the Client shall be governed by
13.3 These terms and condition constitute the whole of the Agreement between the parties relating to the subject matter
13.4 In the event of Engler Industries instructing attorneys to collect from the Client any amounts due to Engler Industries, or, in respect of any other dispute arising, the Client shall pay all costs on a scale as between attorney and own client including collection commission. The Client acknowledges that in the event should it defend any action instituted by Engler Industries or defended by Engler Industries, as the case may be, Engler Industries shall, in the event of the costs being awarded in favour of Engler Industries, be entitled to recover fees incurred with its attorneys at 80% of the maximum amount permissible in terms of the Non-Litigious Guidelines of the Cape Law Society or its successor in title.
13.5 In these terms and conditions words importing one gender shall include the other two, and words importing the singular, shall include the plural and vice versa.