Terms & Conditions of Sale
| 
| 
Tranter Rock Drills (TRD) Standard Terms and Conditions of Sale
1. Acceptance.
The Purchaser acknowledges and agrees that these Tranter Rock Drills (Pty) Ltd (TRD) Standard Terms and Conditions of Sale (the Standard Terms) are incorporated in, and are a part of, each purchase order or other agreement relating to the provision of goods and/or related services by TRD, whether expressed in written form, by electronic data interchange or otherwise (each referred to as a Contract). These Standard Terms supersede all conflicting or additional terms
pre-printed on any purchase order or otherwise set forth on any release, acknowledgement, confirmation, requisition, work order, shipping instruction, specification and similar document or communication.
2. Payment
a. Unless otherwise agreed in writing, payment for all goods and services for account holders shall be net 30 days from date of TRD invoice without discount for early payment. TRD reserves the right at any time to suspend credit or to change credit terms provided herein when, in TRD’s sole judgement, Purchaser’s financial condition so warrants. Purchaser shall have no right to offset any amounts due or to become due to TRD against any claims, charges, expenses, fees or other payments of any kind whatsoever under any circumstances, including, but not limited to, any liability which may arise due to any breach or alleged breach of any Contract or any provision thereof.
b. If payment is overdue, TRD may charge the Purchaser interest at the prime rate, as published from time to time by the Reserve Bank of South Africa, plus 2% from the date of the default until TRD receives payment in full. TRD may apportion any part payments made by the Purchaser against any outstanding principal or interest as it may decide.
c. If payment is overdue under any Contract between TRD and the Purchaser, TRD may in its sole discretion: (i) suspend or cancel the delivery of goods or performance of services in respect of any other Contract between the parties, (ii) re-allocate goods, components or parts ordered under the applicable Contract to fill other open TRD orders, and/or (iii) refuse to accept any subsequent order from, or enter into any new Contract with the Purchaser.
d. TRD retains a purchase money security interest under applicable law in the goods sold until payment in full has been made. In the event of default by the Purchaser under the Contract, TRD shall have all the rights and remedies of a secured creditor under the applicable law. The Purchaser agrees to execute such financial statements and other documents as TRD may request in order to perfect TRD’s security interest.
3. Taxes and Other Charges.
Any use tax, sales tax, excise tax duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between TRD and the Purchaser shall be paid by the Purchaser in addition to the price quoted or invoiced. In the event TRD is required to pay any such tax, fee or charge, the Purchaser shall reimburse TRD therefore or, in lieu of such payment, the Purchaser shall provide TRD at the time the Contract is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
4. Performance and Delivery.
Shipment of local goods will be made EXW TRD’s facility and CPT (Destination) for international shipments as per INCOTERMS 2000. TRD will use commercially reasonable efforts to insure on time delivery. In no event shall the Purchaser be entitled to damages as a remedy for any delay in delivery by TRD nor shall TRD be liable for any loss, damage or delay incurred by the Purchaser or its customers arising from late or non-delivery of goods. TRD reserves the right to supply an order for goods in any number of instalments. The Purchaser shall pay all insurance costs associated with delivery, and the Purchaser shall be responsible for filing and pursuing claims with carriers for loss or damage in transit. The Purchaser waives any claim for shortage of any goods delivered if a claim in respect of short delivery has not been lodged with TRD within seven (7) days from the date of receipt of goods by the purchaser. TRD is not responsible to the Purchaser or any person claiming through the Purchaser for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not TRD is legally responsible for the person who caused or contributed to that loss or damage). TRD must provide the Purchaser with such assistance as may be necessary to press claim on carriers so long as the Purchaser (a) has notified TRD and the carriers in writing immediately after loss or damage is discovered on receipt of goods, and (b) lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the goods. In the event the Purchaser orders and receives goods which are then deemed incorrect, TRD reserves the right to charge a handling fee of 10% of the value of the goods or a minimum of ZAR500, whichever is the greater of the two, for processing the return of the goods. TRD also reserves the right to refuse the return of delivered goods in these circumstances.
5. Limited Warranty.
(a) Rockdrills, tools and accessories. TRD warrants for a period of 12 months after the date of shipment of the consumable products manufactured by it, or the performance of related services, under the Contract, that such consumable products are free from defects in materials and workmanship and such services are performed in a professional and workmanlike manner; provided, however, with respect to consumable products purchased through an authorized TRD distributor, the warranty period shall commence on the date of purchase by the end-user. Should the Purchaser be found to have utilised non-TRD parts in a TRD machine, the rights and privileges of the warranty become null and void.
(b) General Terms. TRD further warrants that, to the extent applicable, as of the date of shipment or performance, all goods manufactured by it and services performed shall conform to the written specifications agreed between the parties. THIS IS TRD ONLY WARRANTY. TRD MAKES NO OTHER WARRANTY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. As a condition to TRD’s warranty obligations, any goods claimed to be defective under the foregoing warranty must be returned to the facility designated by TRD, which return shall be made promptly upon the Purchaser‘s discovery of the alleged defect. With respect to consumable products purchased through an authorized TRD distributor, the party making the warranty claim must also deliver to TRD reasonable evidence of the date of purchase. TRD shall perform its examination of the goods so returned by Purchaser and shall report the results of its examination to Purchaser within fourteen (14) days following its receipt of such goods from Purchaser, or, if longer time is required to complete such examination, within such time as would be required through the exercise of reasonable diligence. As a further condition to TRD’s obligations hereunder for breach of warranty, the Purchaser shall offer its reasonable cooperation and assist TRD in the course of TRD’s review of any warranty claim. If requested by the Purchaser, TRD will promptly repair or replace at TRD’s expense goods that are non-conforming according to TRD’s warranty as set forth herein. All removal and installation of goods shall be at the Purchaser’s expense. Anything contained herein to the contrary notwithstanding, normal wear and tear; (ii) corrosion, abrasion or erosion; (iii) any goods, components, parts or services which, following delivery or performance by TRD, has been subjected to accident, abuse, misapplication, modification, improper repair, alteration, improper installation or maintenance, neglect, or excessive operating conditions; (iv) defects resulting from the Purchaser’s specifications or designs or those of its contractors or subcontractors other than TRD; (v) defects associated with consumable parts or materials, the lifetime of which is shorter than the warranty period set forth in this Section; (vi) defects resulting from the manufacture, distribution, promotion or sale of Purchaser’s own products; or (vii) accessories or component parts of any kind used by the Purchaser
which are not manufactured by or approved by TRD. (c) Sourced Goods. If the defective parts or components are not manufactured by TRD, the guarantee of the manufacturer of those defective parts or components is accepted by the Purchaser and is the only guarantee given to the Purchaser in respect of the defective parts or components. TRD agrees to assign to the Purchaser on request made by the Purchaser the benefit of any warranty or entitlement to the defective parts or components that the manufacturer has granted to TRD under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
6. Indemnification.
Each party shall indemnify and hold harmless the other party and its agents, employees, officers, directors, successors and assigns, from and against any and all damages, liabilities, losses, expenses, costs or claims (including without limitation reasonable attorneys fees), to the extent that such claims and losses are directly caused by (a) the negligence or wilful misconduct of the indemnifying party or (b) the indemnifying party’s breach of any of its covenants, representation
or warranties set forth herein.
7. Limitation on Liability.
Except as provided for herein, in no event will TRD be liable for any indirect, incidental, special, consequential, punitive or similar damages including, but not limited to, lost profits, loss of data or business interruption losses. In no event will the total, aggregate liability of TRD under the Contract exceed the value of the Contract under which liability is claimed. The liability limitations shall apply even if TRD has been notified of the possibility or likelihood of such damages occurring and regardless of the form of action, whether in contract, negligence, strict liability, tort, products liability or otherwise. The parties agree that these limits of liability shall survive and continue in full force and effect despite any termination or expiration of any Contract. Any action by the Purchaser against TRD must be commenced within one year after the cause of action has accrued. No employee or agent of TRD is authorized to make any warranty other than that which is specifically set forth herein. The provisions in any specification, brochure or chart issued by TRD are descriptive only and are not warranties.
8. Intellectual Property.
(a) Marks. The Purchaser shall have no right to use the corporate name of TRD, or to use any trademark, trade name, brand name or other product identification owned or used by TRD (collectively, the Marks), except as necessary for the performance of the Purchaser’s obligations under the Contract for the exclusive benefit of TRD or as TRD may otherwise approve in writing. The Marks are and shall remain the property of TRD at all times, and the Purchaser shall acquire not property, ownership or other interest whatsoever in the Marks by virtue of the Contract. Unless prior written consent is given by TRD, the Purchaser shall not alter any Mark in any way. Upon the expiration or other termination of the Contract for any reason in any way. Upon the expiration or other termination of the Contract for any reason whatsoever, the Purchaser shall immediately discontinue all use of the Marks, and shall immediately discontinue any and all representations, direct or implied that it is or was a representative of TRD. The Purchaser shall not register, or cause to be registered, in any jurisdiction, any of the Marks or any other trade name, trademark, word, or symbol that is identical or similar to any of the Marks.
(b) Notification of Infringement. The Purchaser shall immediately inform TRD in the event that the Purchaser becomes aware of any infringement of any Mark, patent, servicemark, copyright or other intellectual property right of TRD. The Purchaser shall during the Term, assist TRD in taking such steps as TRD may deem necessary or appropriate to protect the Marks or TRD’s patent, trademark, servicemark, copyright or other intellectual property rights. Nothing herein contained, however, shall be construed as obligating TRD to commence any legal proceedings or take any other steps to protect the Marks or its patents, trademarks, servicemarks, copyrights or other intellectual property rights.
9. Force Majeure.
Failure of TRD to make any delivery (or portions thereof) when due, of occasioned in whole or in part by any act of God or other act beyond the reasonable control of TRD, including without limitation fire, explosion, flood,, drought, war, riots, civil insurrection, sabotage, accident, embargo, governmental priority, requisition, or shortage or failure of supply of materials or labour, or strikes or other labour trouble, shall be excused. TRD shall have no obligation or liability whatsoever arising out of or in connection with any such failure.
10. Severability.
Any provision or provisions of the Contract that in any way contravenes the law of any state or country in which the Contract is effective shall, in such state or country, to the extent of such contravention of law, be deemed separable and shall not affect any other provision of the contract or its validity.
11. Survival.
Any obligations and duties which by their nature extend beyond the expiration or termination of the Contract shall survive any expiration or termination of the Contract. 12. Waiver. Any waiver on the part of either party hereto of any right or interest shall not imply the waiver of any other right or interest, or any subsequent waiver.
13. Amendments.
Any modifications to these Standard Terms, including the incorporation of additional terms, may only be made by written instrument, signed by both parties, specifically identifying and purporting to modify these Standard Terms.
14. Governing Law.
Unless otherwise provided in the Contract, these terms shall be deemed to have been executed and entered into in SA and the Contract, and its formation, operation, and performance shall be governed, construed, performed, and enforced in accordance with the substantive laws of that state without regard to its conflicts of law principles.
1. Acceptance.
The Purchaser acknowledges and agrees that these Tranter Rock Drills (Pty) Ltd (TRD) Standard Terms and Conditions of Sale (the Standard Terms) are incorporated in, and are a part of, each purchase order or other agreement relating to the provision of goods and/or related services by TRD, whether expressed in written form, by electronic data interchange or otherwise (each referred to as a Contract). These Standard Terms supersede all conflicting or additional terms
pre-printed on any purchase order or otherwise set forth on any release, acknowledgement, confirmation, requisition, work order, shipping instruction, specification and similar document or communication.
2. Payment
a. Unless otherwise agreed in writing, payment for all goods and services for account holders shall be net 30 days from date of TRD invoice without discount for early payment. TRD reserves the right at any time to suspend credit or to change credit terms provided herein when, in TRD’s sole judgement, Purchaser’s financial condition so warrants. Purchaser shall have no right to offset any amounts due or to become due to TRD against any claims, charges, expenses, fees or other payments of any kind whatsoever under any circumstances, including, but not limited to, any liability which may arise due to any breach or alleged breach of any Contract or any provision thereof.
b. If payment is overdue, TRD may charge the Purchaser interest at the prime rate, as published from time to time by the Reserve Bank of South Africa, plus 2% from the date of the default until TRD receives payment in full. TRD may apportion any part payments made by the Purchaser against any outstanding principal or interest as it may decide.
c. If payment is overdue under any Contract between TRD and the Purchaser, TRD may in its sole discretion: (i) suspend or cancel the delivery of goods or performance of services in respect of any other Contract between the parties, (ii) re-allocate goods, components or parts ordered under the applicable Contract to fill other open TRD orders, and/or (iii) refuse to accept any subsequent order from, or enter into any new Contract with the Purchaser.
d. TRD retains a purchase money security interest under applicable law in the goods sold until payment in full has been made. In the event of default by the Purchaser under the Contract, TRD shall have all the rights and remedies of a secured creditor under the applicable law. The Purchaser agrees to execute such financial statements and other documents as TRD may request in order to perfect TRD’s security interest.
3. Taxes and Other Charges.
Any use tax, sales tax, excise tax duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between TRD and the Purchaser shall be paid by the Purchaser in addition to the price quoted or invoiced. In the event TRD is required to pay any such tax, fee or charge, the Purchaser shall reimburse TRD therefore or, in lieu of such payment, the Purchaser shall provide TRD at the time the Contract is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
4. Performance and Delivery.
Shipment of local goods will be made EXW TRD’s facility and CPT (Destination) for international shipments as per INCOTERMS 2000. TRD will use commercially reasonable efforts to insure on time delivery. In no event shall the Purchaser be entitled to damages as a remedy for any delay in delivery by TRD nor shall TRD be liable for any loss, damage or delay incurred by the Purchaser or its customers arising from late or non-delivery of goods. TRD reserves the right to supply an order for goods in any number of instalments. The Purchaser shall pay all insurance costs associated with delivery, and the Purchaser shall be responsible for filing and pursuing claims with carriers for loss or damage in transit. The Purchaser waives any claim for shortage of any goods delivered if a claim in respect of short delivery has not been lodged with TRD within seven (7) days from the date of receipt of goods by the purchaser. TRD is not responsible to the Purchaser or any person claiming through the Purchaser for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not TRD is legally responsible for the person who caused or contributed to that loss or damage). TRD must provide the Purchaser with such assistance as may be necessary to press claim on carriers so long as the Purchaser (a) has notified TRD and the carriers in writing immediately after loss or damage is discovered on receipt of goods, and (b) lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the goods. In the event the Purchaser orders and receives goods which are then deemed incorrect, TRD reserves the right to charge a handling fee of 10% of the value of the goods or a minimum of ZAR500, whichever is the greater of the two, for processing the return of the goods. TRD also reserves the right to refuse the return of delivered goods in these circumstances.
5. Limited Warranty.
(a) Rockdrills, tools and accessories. TRD warrants for a period of 12 months after the date of shipment of the consumable products manufactured by it, or the performance of related services, under the Contract, that such consumable products are free from defects in materials and workmanship and such services are performed in a professional and workmanlike manner; provided, however, with respect to consumable products purchased through an authorized TRD distributor, the warranty period shall commence on the date of purchase by the end-user. Should the Purchaser be found to have utilised non-TRD parts in a TRD machine, the rights and privileges of the warranty become null and void.
(b) General Terms. TRD further warrants that, to the extent applicable, as of the date of shipment or performance, all goods manufactured by it and services performed shall conform to the written specifications agreed between the parties. THIS IS TRD ONLY WARRANTY. TRD MAKES NO OTHER WARRANTY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. As a condition to TRD’s warranty obligations, any goods claimed to be defective under the foregoing warranty must be returned to the facility designated by TRD, which return shall be made promptly upon the Purchaser‘s discovery of the alleged defect. With respect to consumable products purchased through an authorized TRD distributor, the party making the warranty claim must also deliver to TRD reasonable evidence of the date of purchase. TRD shall perform its examination of the goods so returned by Purchaser and shall report the results of its examination to Purchaser within fourteen (14) days following its receipt of such goods from Purchaser, or, if longer time is required to complete such examination, within such time as would be required through the exercise of reasonable diligence. As a further condition to TRD’s obligations hereunder for breach of warranty, the Purchaser shall offer its reasonable cooperation and assist TRD in the course of TRD’s review of any warranty claim. If requested by the Purchaser, TRD will promptly repair or replace at TRD’s expense goods that are non-conforming according to TRD’s warranty as set forth herein. All removal and installation of goods shall be at the Purchaser’s expense. Anything contained herein to the contrary notwithstanding, normal wear and tear; (ii) corrosion, abrasion or erosion; (iii) any goods, components, parts or services which, following delivery or performance by TRD, has been subjected to accident, abuse, misapplication, modification, improper repair, alteration, improper installation or maintenance, neglect, or excessive operating conditions; (iv) defects resulting from the Purchaser’s specifications or designs or those of its contractors or subcontractors other than TRD; (v) defects associated with consumable parts or materials, the lifetime of which is shorter than the warranty period set forth in this Section; (vi) defects resulting from the manufacture, distribution, promotion or sale of Purchaser’s own products; or (vii) accessories or component parts of any kind used by the Purchaser
which are not manufactured by or approved by TRD. (c) Sourced Goods. If the defective parts or components are not manufactured by TRD, the guarantee of the manufacturer of those defective parts or components is accepted by the Purchaser and is the only guarantee given to the Purchaser in respect of the defective parts or components. TRD agrees to assign to the Purchaser on request made by the Purchaser the benefit of any warranty or entitlement to the defective parts or components that the manufacturer has granted to TRD under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
6. Indemnification.
Each party shall indemnify and hold harmless the other party and its agents, employees, officers, directors, successors and assigns, from and against any and all damages, liabilities, losses, expenses, costs or claims (including without limitation reasonable attorneys fees), to the extent that such claims and losses are directly caused by (a) the negligence or wilful misconduct of the indemnifying party or (b) the indemnifying party’s breach of any of its covenants, representation
or warranties set forth herein.
7. Limitation on Liability.
Except as provided for herein, in no event will TRD be liable for any indirect, incidental, special, consequential, punitive or similar damages including, but not limited to, lost profits, loss of data or business interruption losses. In no event will the total, aggregate liability of TRD under the Contract exceed the value of the Contract under which liability is claimed. The liability limitations shall apply even if TRD has been notified of the possibility or likelihood of such damages occurring and regardless of the form of action, whether in contract, negligence, strict liability, tort, products liability or otherwise. The parties agree that these limits of liability shall survive and continue in full force and effect despite any termination or expiration of any Contract. Any action by the Purchaser against TRD must be commenced within one year after the cause of action has accrued. No employee or agent of TRD is authorized to make any warranty other than that which is specifically set forth herein. The provisions in any specification, brochure or chart issued by TRD are descriptive only and are not warranties.
8. Intellectual Property.
(a) Marks. The Purchaser shall have no right to use the corporate name of TRD, or to use any trademark, trade name, brand name or other product identification owned or used by TRD (collectively, the Marks), except as necessary for the performance of the Purchaser’s obligations under the Contract for the exclusive benefit of TRD or as TRD may otherwise approve in writing. The Marks are and shall remain the property of TRD at all times, and the Purchaser shall acquire not property, ownership or other interest whatsoever in the Marks by virtue of the Contract. Unless prior written consent is given by TRD, the Purchaser shall not alter any Mark in any way. Upon the expiration or other termination of the Contract for any reason in any way. Upon the expiration or other termination of the Contract for any reason whatsoever, the Purchaser shall immediately discontinue all use of the Marks, and shall immediately discontinue any and all representations, direct or implied that it is or was a representative of TRD. The Purchaser shall not register, or cause to be registered, in any jurisdiction, any of the Marks or any other trade name, trademark, word, or symbol that is identical or similar to any of the Marks.
(b) Notification of Infringement. The Purchaser shall immediately inform TRD in the event that the Purchaser becomes aware of any infringement of any Mark, patent, servicemark, copyright or other intellectual property right of TRD. The Purchaser shall during the Term, assist TRD in taking such steps as TRD may deem necessary or appropriate to protect the Marks or TRD’s patent, trademark, servicemark, copyright or other intellectual property rights. Nothing herein contained, however, shall be construed as obligating TRD to commence any legal proceedings or take any other steps to protect the Marks or its patents, trademarks, servicemarks, copyrights or other intellectual property rights.
9. Force Majeure.
Failure of TRD to make any delivery (or portions thereof) when due, of occasioned in whole or in part by any act of God or other act beyond the reasonable control of TRD, including without limitation fire, explosion, flood,, drought, war, riots, civil insurrection, sabotage, accident, embargo, governmental priority, requisition, or shortage or failure of supply of materials or labour, or strikes or other labour trouble, shall be excused. TRD shall have no obligation or liability whatsoever arising out of or in connection with any such failure.
10. Severability.
Any provision or provisions of the Contract that in any way contravenes the law of any state or country in which the Contract is effective shall, in such state or country, to the extent of such contravention of law, be deemed separable and shall not affect any other provision of the contract or its validity.
11. Survival.
Any obligations and duties which by their nature extend beyond the expiration or termination of the Contract shall survive any expiration or termination of the Contract. 12. Waiver. Any waiver on the part of either party hereto of any right or interest shall not imply the waiver of any other right or interest, or any subsequent waiver.
13. Amendments.
Any modifications to these Standard Terms, including the incorporation of additional terms, may only be made by written instrument, signed by both parties, specifically identifying and purporting to modify these Standard Terms.
14. Governing Law.
Unless otherwise provided in the Contract, these terms shall be deemed to have been executed and entered into in SA and the Contract, and its formation, operation, and performance shall be governed, construed, performed, and enforced in accordance with the substantive laws of that state without regard to its conflicts of law principles.
