Terms and Conditions of a sale
1. DEFINITIONS
1.1 Unless the context dictates otherwise, the words and expressions set forth below shall bear the following meanings and cognate expressions shall bear corresponding meanings:
1.1.1 “Business Day” shall mean any day other than a Saturday, Sunday or a public holiday in South Africa
1.1.2 “Delivery Address” shall mean the address specified by the Purchaser on the Purchase Order, for purposes of taking delivery of the Goods
1.1.3 “Delivery Agent” shall mean a courier or transport agent as may be appointed by Hilti from time to time
1.1.4 “Delivery Date” shall mean the date upon which the Goods are delivered to the Purchaser in accordance with clause 5
1.1.5 “Goods” shall mean the tools manufactured and/or marketed by Hilti from time to time, and all related items
1.1.6 “Hilti” shall mean Hilti (South Africa) Proprietary Limited (registration number 1990/002547/07), a private company with limited liability incorporated in accordance with the laws of South Africa
1.1.7 “Intellectual Property” shall mean any patent, copyright, design, trademark, trade name, brand name, domain name, licence or other property of similar nature, whether registered or not, owned or partly owned by Hilti from time to time
1.1.8 “Parties” shall mean Hilti and the Purchaser and “Party” shall, as the context requires be a reference to any one of them
1.1.9 “Purchaser” shall mean the purchaser of the Goods in terms of these Terms and Conditions
1.1.10 ”Purchase Order” shall mean an order by the Purchaser to purchase the Goods in terms of these Terms and Conditions
1.1.11 “Purchase Consideration” shall mean the consideration payable to Hilti in exchange for Goods, including VAT
1.1.12 “Tax Invoice” shall mean the VAT invoice issued by Hilti to the Purchaser on acceptance of a Purchase Order
1.1.13 “Terms and Conditions” shall mean these terms and conditions
1.1.14 “VAT” shall mean value added tax levied in accordance with the Value Added Tax Act, 1991.
1.2 Unless inconsistent with the context or save where the contrary is expressly indicated:
1.2.1 if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it appears only in this clause 1, effect shall be given to it as if it were a substantive provision of these Terms and Conditions;
1.2.2 when any number of days is prescribed in these Terms and Conditions, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day;
1.2.3 in the event that the day for payment of any amount due in terms of these Terms and Conditions should fall on a day which is not a Business Day, the relevant day for payment shall be the subsequent Business Day;
1.2.4 in the event that the day for performance of any obligation to be performed in terms of these Terms and Conditions should fall on a day which is not a Business Day, the relevant day for performance shall be the subsequent Business Day;
1.2.5 any reference in these Terms and Conditions to an enactment is to that enactment as at the Signature Date and as amended or re-enacted from time to time;
1.2.6 any reference in these Terms and Conditions to these Terms and Conditions or any other Terms and Conditions or document shall be construed as a reference to these Terms and Conditions or, as the case may be, such other Terms and Conditions or document as same may have been, or may from time to time be, amended, varied novated or supplemented;
1.2.7 no provision of these Terms and Conditions constitutes a stipulation for the benefit of any person who is not a Party to these Terms and Conditions;
1.2.8 Unless inconsistent with the context, an expression which denotes:
1.2.9.1 any one gender includes the other genders;
1.2.9.2 the singular includes the plural and vice versa.
1.2.9 The schedules or annexures to these Terms and Conditions form an integral part hereof and words and expressions defined in these Terms and Conditions shall bear, unless the context otherwise requires, the same meaning in such schedules or annexures. To the extent that there is any conflict between the schedules or annexures to these Terms and Conditions and the provisions of these Terms and Conditions, the provisions of these Terms and Conditions shall prevail.
1.2.10 Where any term is defined within the context of any particular clause in these Terms and Conditions, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the same meaning as ascribed to it for all purposes in terms of these Terms and Conditions, notwithstanding that that term has not been defined in this clause 1.
1.2.11 The expiration or termination of these Terms and Conditions shall not affect such of the provisions of these Terms and Conditions as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
1.2.12 These Terms and Conditions shall be binding on and enforceable by the estates, heirs, executors, administrators, trustees, permitted assigns or liquidators of the Parties as fully and effectually as if they had signed these Terms and Conditions in the first instance and reference to any Party shall be deemed to include such Party’s estate, heirs, executors, administrators, trustees, permitted assigns or liquidators, as the case may be.
1.2.13 Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
2. INTRODUCTION
The Purchaser agrees that the sale of the Goods as reflected on the Tax Invoice is subject to the Terms and Conditions set out herein, which the Purchaser acknowledges to have read and understood.
3. PURCHASE CONSIDERATION
3.1. The Purchase Consideration for the Goods shall be the price as reflected on the Tax Invoice which amount shall include VAT and no further discounts are allowed.
3.2. The Purchase Consideration referred to in clause 3.1 of these Terms and Conditions may not include the cost of delivery. The cost of delivery may be stipulated and charged separately by Hilti.
4. PAYMENT
4.1. Payment of the Purchase Consideration by the Purchaser to Hilti shall be made within 30 (thirty) days of the date of the Statement.
4.2. The Purchase Consideration shall be paid, free of transfer costs, deduction and set off.
4.3. Hilti may, in its sole discretion, decide not to supply an order without providing reasons to the Purchaser.
4.4. Payment of the Purchase Consideration shall be made into the bank account of Hilti as follows:
4.4.1. Bank Account: Citibank N.A., South Africa
4.4.2. Branch Code: 350005
4.4.3. Account Holder: Hilti South Africa (Pty.) Ltd.
4.4.4. Account Number: 0200584007
4.5. The Purchaser shall be liable for costs incurred by Hilti in respect of the collection of overdue amounts.
4.6. A certificate signed by the accounting officer of Hilti, accompanied by supporting invoices, reflecting the amount due and payable by the Purchaser, shall, on the face of it, be proof of the Purchaser’s indebtedness during any legal proceedings aimed at debt recovery, proof of debt on insolvency or any other purpose.
5. DELIVERY
5.1. Hilti shall arrange for the delivery of the Goods to the Purchaser at the Delivery Address, freight prepaid by the Purchaser.
5.2. Delivery shall take place when the Goods are physically handed over to the Purchaser by the Delivery Agent.
5.3. Where the Delivery Agent delivers the Goods to the Purchaser or any person nominated by the Purchaser, delivery shall be considered to have taken place when the Goods are delivered by such Delivery Agent to such person nominated by the Purchaser, at the Delivery Address.
5.4. If the Purchaser or its agent fails to take delivery of the Goods, or in any way delays the delivery of the Goods, then the risk in the Goods shall immediately pass to the Purchaser, who shall be liable to pay all reasonable costs of storing, insuring, and handling the Goods until delivery takes place.
5.5. The signature of any employee of the Purchaser or its agent shall, on the face of it, be proof of the proper delivery of the Goods. The signature scribed on either the Delivery Agents documentation or any other official documentation bearing the Hilti delivery reference number shall constitute to be proof of proper delivery.
5.6. Whilst Hilti shall make every effort to deliver the Goods within a reasonable time, delivery dates are estimates only and if Hilti cannot make any delivery for any reason which is either wholly or partly beyond its control, then the obligation to make a delivery shall be suspended until Hilti can deliver.
5.7. The Purchaser shall notify Hilti of any discrepancies between the Purchase Order and the quantity of Goods received or damage to goods in transit, within 24 (twenty four) hours of delivery or 7 (seven) in the event of non-delivery.
5.8. Damage to or loss of Goods in transit shall be recorded on the carrier’s delivery freight bill and Hilti shall provide the Purchaser with all reasonable assistance to allow the Purchaser to claim against the carrier. The Purchaser may, however, not withhold payment pending settlement with the carrier.
6. RETURN, EXCHANGE AND REFUND POLICY
6.1. The Goods shall be capable of being exchanged or returned for credit by the Purchaser within 7 (seven) days of Delivery Date after prior arrangement with Hilti.
6.2. All Goods to be returned or exchanged shall be dispatched carriage paid by the Purchaser and shall be subject to a 10% handling fee.
6.3. Hilti shall not accept the return of any Goods unless it has been advised of the prior dispatch thereof and the original Tax Invoice number has been quoted.
7. REPAIRS
7.1. Hilti shall repair all new tools at no cost to the Purchaser within the specified No cost period for that tool.
7.2. Repairs to be made to tools after the No Cost Period shall be charged at a limited fixed amount which is the Repair Cost limit typically a fixed percentage of the then current list price of corresponding or equivalent tool except on Petrol saws, Wall Saws and Grinders.
7.3. Repairs are subject to a 3 month warranty (parts and labour included), except on Petrol saws, wall saws and grinders.
7.4. All tools repaired shall be collected by the Purchaser within 4 (four) weeks from Hilti, failing which Hilti shall be entitled to dispose of the Goods at its discretion.
8. OWNERSHIP AND RISK
Subject to the provisions of clause 5.4, all risk in and to all Goods sold shall pass from Hilti to the Purchaser on delivery in accordance with clause 5 hereof and ownership in the Goods sold and delivered shall remain vested in Hilti until the full purchase price has been paid in accordance with clause 4 of these Terms and Conditions.
9. INTELLECTUAL PROPERTY
9.1. The Seller is the sole proprietor of all Intellectual Property vested in the Goods.
9.2. The sale of the Goods to the Purchaser by Hilti does not constitute an assignment or licence of any rights in the Intellectual Property rights in favour of the Purchaser.
10. NO LIABILITY
10.1. Despite anything to the contrary contained in these Terms and Conditions, Hilti shall not be liable for any loss or damage of any nature, including but not limited to indirect and consequential damages and loss of profits, which arises out of or in connection with these Terms and Conditions or the Goods, irrespective of whether such loss or damage is caused by hidden or manifest defects in the Goods, the use of the Goods, delay and delivery of the Goods, non-suitability of the Goods or otherwise.
10.2. The Purchaser hereby indemnifies Hilti against any and all liability, loss, damage or claim of any nature suffered by any third Party in relation to any act or omission by the Purchaser or the Purchaser’s members, employees, representatives, agents or assigns or any third Party in relation to the Goods and the use thereof and/or arising from the provisions of these Terms and Conditions.
10.3. The Purchaser assumes all responsibility and risk for the use of the Goods and Hilti shall not be liable for any direct or indirect loss, injury or damage resulting from the use of the Goods, irrespective of whether Hilti has been advised of or has knowledge of the possibility of such direct or indirect loss, injury or damage resulting from the use of the Goods.
10.4. Hilti shall not be liable to the Purchaser or any other person or entity associated with the Purchaser for any compensatory, indirect, incidental, special, consequential damages whatsoever, including but not limited to, loss of revenue or profit, commercial or economic loss, even if Hilti has been advised of such damages or loss, or such damage or loss was reasonably foreseeable.
10.5. If, despite the provisions of this clause 10 Hilti is held to be liable to the Purchaser arising from any cause or reason whatsoever, Hilti’s aggregate liability to the Purchaser shall not exceed the Purchase Consideration in respect of each item.
11. FORCE MAJEURE
In the event of any act of God, strike, war, warlike operation, rebellion, riot, civil commotion, lockout, combination of workmen, interference of trade unions, suspension of labour, fire, accident, or (without regard to the foregoing enumeration) of any circumstances arising or action taken beyond or outside the reasonable control of Hilti preventing it from the performance of any obligation hereunder (any such event hereinafter called "Force Majeure") then Hilti shall be relieved of its obligations hereunder during the period that such Force Majeure continues and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damage which the Purchaser may suffer due to or resulting from the Force Majeure, provided always that a written notice shall be promptly given of any such inability by Hilti.
12. ADDRESSES
12.1. Each Party chooses the addresses set out opposite its name below as its addresses to which all notices and other communications must be delivered for the purposes of these Terms and Conditions and its domicilium citandi et executandi (“Domicilium”) at which all documents in legal proceedings in connection with these Terms and Conditions must be served:
Hilti:
Domicilium: 72 Gazelle Avenue, Corporate Park
Midrand, Johannesburg
Postal address: Hilti South Africa (Pty.) Ltd
P.O. Box 5588
Halfway House
1685
Telefax No: 011 237 3059
Purchaser: The addresses set out in the Purchase Order.
12.2. Any notice or communication required or permitted to be given to a Party in accordance with these Terms and Conditions shall be valid and effective only if in writing and sent to a Party’s chosen address, telefax number or e-mail address in accordance with the provisions of clause 12.5, provided that documents in legal proceedings in connection with these Terms and Conditions may only be served at a Party’s Domicilium..
12.3. Any Party may by written notice to the other Party, change its chosen address, telefax number or e-mail address to another address, telefax number or e-mail address, provided that:
12.3.1. the change shall become effective on the 10th (tenth) Business Day after the receipt or deemed receipt of the notice by the addressee in accordance with the provisions of clause 12.4, and
12.3.2. any change in a Party’s Domicilium shall not be a post office box or a poste restante.
12.4. Any notice to a Party contained in a correctly addressed envelope and:
12.4.1. sent by prepaid registered post to it at its chosen address in 12.1; or
12.4.2. delivered by hand to a responsible person during ordinary business hours at its chosen address in 12.1;
12.4.3. shall be considered to have been received in the case of clause 12.4.1 on the fifth Business Day after posting (unless the contrary is proved) and, in the case of clause 12.4.2 on the day of delivery.
12.5. Any notice by telefax or e-mail to a Party at its telefax number or e-mail address shall be considered, unless the contrary is proved, to have been received on the first Business Day after the date of transmission.
12.6. Despite anything to the contrary contained in this clause 14, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it despite the fact that it was not sent to or delivered at its chosen address, telefax number or e-mail address as set out in clause 12.1 on the day of delivery.
13. GOVERNING LAW
The entire provisions of these Terms and Conditions shall be governed by and construed in accordance with the laws of the Republic of South Africa. Furthermore, Hilti shall have the sole right to institute action in a Magistrates’ or High Court, notwithstanding that the amounts claimed may exceed the jurisdiction of the Magistrates’ Court.
14. GENERAL
14.1. The Purchaser shall not have any claim or right of action arising from any express or implied term, undertaking, representation, warranty, promise or the like which is not included or recorded in this document whether it induced the contract and/or whether or not it was negligent.
14.2. No variation, amendment or consensual cancellation of these Terms and Conditions or any provision or term hereof and no settlement of any disputes arising under these Terms and Conditions and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of these Terms and Conditions shall be binding or have any force and effect unless reduced to writing and signed by or on behalf of the Parties. Any such extension, waiver or relaxation or suspension which is so given or made shall be construed as relating strictly to the matter in respect of which it was made or given.
14.3. No extension of time or waiver or relaxation of any of the provisions or terms of these Terms and Conditions shall operate as an estoppel against Hilti in respect of its rights under these Terms and Conditions.
14.4. No failure by Hilti to enforce any provision of these Terms and Conditions shall constitute a waiver of such provision or affect in any way its right to require the performance of such provision at any time in the future, nor shall a waiver of a subsequent breach nullify the effectiveness of the provision itself.
14.5. Except as provided for under these Terms and Conditions, the Purchaser shall not cede any of its rights or delegate any of its obligations under these Terms and Conditions without the prior written consent of Hilti.
14.6. If any clause or term of these Terms and Conditions should be invalid, unenforceable, defective or illegal for any reason whatsoever, then the Parties shall negotiate in good faith to replace such clause with a clause which is valid, enforceable and legal but maintaining the essential provisions of that clause to the extent possible, provided that if the Parties should fail to reach agreement on such replacement clause, then the remaining terms and provisions of these Terms and Conditions shall be deemed to be severable and shall continue in full force and effect unless such invalidity, unenforceability, defect or illegality goes to the root of these Terms and Conditions.
