STANDARD TRADING TERMS AND CONDITIONS
of e-Qwip Division of Barloworld Transport (Pty) Ltd (“the Company” or “Barloworld”)
A. GENERAL TERMS AND CONDITIONS
1. THE CONDITIONS
1.1. These terms and conditions contained in Part A (these “Conditions”) apply to any contract between Barloworld and its customers (“Customer”), (collectively referred to as the “Parties”). This includes contracts for the sale of,, remanufactured or rebuild, used machinery, .
2. THE CONTRACT
2.1. The Customer may submit to Barloworld a purchase order for the supply of Equipment, and/or other deliverables (“Purchase Order”), as available from Barloworld at the relevant time, in terms of the process below:
2.1.a. the Customer may make a request to Barloworld to provide a written quotation(Pro-forma invoice) and, where Barloworld provides a quotation(Pro-forma), such quotation shall include, inter alia: (i) the quantity and type of requested deliverables and any minimum purchase requirements, if any; (ii) the specification(s); (iii) delivery terms and estimated delivery date(s); (iv) the place for delivery; (v) the price; (vi) if requested by the Customer, details of special packaging; and (vii) any special terms, conditions and limitations imposed by Barloworld and shall be subject to the Conditions and the applicable Specific Terms to the exclusion of all other terms and conditions, whether express or implied, unless Barloworld specifically agrees in writing to accept any variation thereto. Unless expressly stated otherwise in the quotation, all quotations which are provided by Barloworld to the Customer shall be valid for a period of 30 (thirty) days, after which period, the relevant quotation shall automatically expire;
2.1.b. the Customer may, at its sole discretion within the validity period of a quotation and strictly in terms of Barloworld’s quotation only (as contemplated in clause 2.1(a) and without variation, execute and irrevocably place upon Barloworld a Purchase Order, which Purchase Order may include the Customer’s order number (if any) and otherwise reflect and be in accordance with the relevant quotation and be subject to these Conditions and the applicable Specific Terms.
2.2. Barloworld shall be entitled but not obliged, in its sole and absolute discretion, to:
2.2.a. reject the Purchase Order, without giving reasons.
2.2.b. if a Purchase Order does not comply with the provisions of clause 2.1(b), provisionally accept the Purchase Order by notice in writing to the Customer (the “Conditional Acceptance”), provided that the provisions of clause 2.1(b) shall apply in respect of the Conditional Acceptance as if the Conditional Acceptance was a new quotation; or
2.2.c. if a Purchase Order complies with the provisions of clause 2.1(b), accept the Purchase Order by notice in writing to the Customer (the “Acceptance”).
2.3. Each quotation (or, where applicable, the Conditional Acceptance) and Acceptance shall constitute a separate agreement between the Parties subject to these Conditions and the applicable Specific Terms (“Contract”) and shall supersede the Customer’s special or general terms and conditions (if any) incorporated by reference or expressly stated in the Purchase Order. The terms and conditions of the Customer shall not be binding on Barloworld, even if not expressly rejected.
2.4. A Contract shall be deemed to have been entered into, on the earlier of the following:
2.4.a. the issue of the Acceptance.
2.4.b. when Barloworld accepts payment of all or part of any amount which is or will become payable in terms of any Contract (including any advance payment or deposit);
2.4.c. when the Equipment is delivered to, or collected by, the Customer;
(“Commencement Date”), subject to these Conditions and the applicable Specific Terms.
2.5. Any specifications, illustrations, drawings, price lists, dimensions, performance figures and/or other technical data furnished by Barloworld in respect of any Contract, whether in writing or not (collectively the “Additional Information”), is furnished solely for information purposes and shall not form part of the Contract unless expressly agreed to in writing by Barloworld.
2.6. The Customer acknowledges that certain sales are provided and are accessible through the use of a website, computers, and/or mobile devices. The use of the website, computer, and/or mobile device is subject to its own terms and conditions, data governance statement, which may be amended from time to time, and the Customer undertakes to ensure that it complies at all times with the most up to date version of those terms and conditions.
2.7. Should there be any inconsistency between the documents forming part of the Contract, then they shall be read in the following order of precedence:
2.7.a. the Barloworld quotation;
2.7.b. the Acceptance;
2.7.c. these Conditions;
2.7.d. the Specific Terms;
2.7.e. the Conditional Acceptance;
2.7.f. the Instructions (defined in clause 3.6(d));
2.7.g. the Additional Information (if applicable);
2.7.h. the Access to Information Agreement (if applicable); and
3. EXCLUSION AND LIMITATION OF LIABILITY (Please read carefully)
General
3.1. As far as permissible in law, the Customer expressly agrees that, except for any written warranty or guarantee which is signed by both Parties and which Barloworld expressly agrees in writing is part of the Contract:
3.1.a. the Equipment is sold voetstoots (that is as they stand where they stand) without any warranty and/or guarantee, including any implied or common law warranty;
3.1.b. Barloworld is not liable for any latent or patent defect in the Equipment and/or Goods;
3.1.c. Barloworld does not make any representations in respect of the sale of the Equipment, , and/or the fitness of the Equipment, and/or Goods or any part thereof for any particular purpose.
3.2. The Customer must ensure that the Equipment is only operated and maintained by suitably qualified and/or trained and licensed persons, and hereby indemnifies Barloworld, its directors, officers, employees, contractors, agents or other persons acting on behalf of Barloworld (collectively “Indemnified Parties”) and holds them harmless against all claims (whether actual or alleged), demands, actions, suits, and/or proceedings, criminal liability, penalties, expenses, charges, costs (including costs on an attorney and own client scale on a full indemnity basis), liabilities, losses, damages, injury, death, damage, or loss of property of whatsoever nature from any cause of any kind whether in contract, delict, or restitution, or for breach of statutory duty or misrepresentation, or otherwise (collectively “Claims”) incurred or suffered or sustained by the Indemnified Parties, which arises out of or as a result of the operator not being properly trained, qualified and/or licensed.
Exclusions
3.3. As far as permissible in law, none of the Indemnified Parties will be liable for any Claims and whether or not caused by the negligence of the Indemnified Parties, which may be caused to or suffered or sustained by the Customer, its directors, officers or employees (collectively “Indemnifying Parties”) and/or the Indemnifying Parties contractors, agents, customers, invitees, licensees or any other third party, arising out of, incidental to or connected in any way with the Contract (or its cancellation), any Acceptance (or its cancellation), the supply of the Equipment, unless such Claims are caused by the wilful conduct or gross negligence of Barloworld.
3.4. Notwithstanding anything to the contrary contained elsewhere in the Contract, as far as permissible in law, Barloworld shall not be liable to the Indemnifying Parties and/or the Indemnifying Parties contractors, agents, customers, invitees, licensees or any other third party in terms of, arising out of or in connection with the Contract (or its cancellation) and/or any work carried out in terms thereof or otherwise or any Acceptance (or its cancellation) for:
3.4.a. loss of actual or anticipated profit or revenue, loss of use or productivity, loss of production or business interruption, loss of data, loss of goodwill, loss of any contract or business, loss of opportunity, any demurrage or other costs related to the delay of vessels; or
3.4.b. any kind of incidental, special, indirect or consequential loss or damage,
even if Barloworld has been advised, knew or should have known of the possibilities of such loss or damage.
3.5. Notwithstanding anything to the contrary contained elsewhere in the Contract, as far as permissible in law, Barloworld shall not be liable to the Indemnifying Parties and/or the Indemnifying Parties contractors, agents, customers, invitees, licensees or any other third party in terms of, arising out of or in connection with the Contract (or its cancellation) and/or any work carried out in terms thereof or otherwise or any Acceptance (or its cancellation) for:
3.5.a. any short delivery or breakdown of the Equipment and/or Goods, or failure of the Equipment, Goods, unless the Customer notifies Barloworld within 7 (seven) days, in writing, after delivery of the Equipment or Goods providing details of its complaint;
3.5.b. the Customer's failure to collect the Equipment or Goods on the Delivery Date or at all;
3.5.c. Barloworld’s appointment of a carrier for or on behalf of the Customer and/or the carrier’s breach of any of its obligations, including late delivery;
3.5.d. the Customer’s instructions (including the Customer’s drawings and specifications) given in connection with the Contract (“Instructions”), or from Barloworld following such Instructions, and for all consequences of any error, omission, discrepancy or defect in such Instructions;
3.5.e. any delay, defect, breakdown or other failure in any radio, communications, satellite, internet or cellular telecommunications networks;
3.5.f. any failure, delay or interruption, breakdown in the Customer’s, or its authorised users, use of any , application program and/or software including without limitation: system and server crashes; computer malfunctions; unit or software faults; system errors; security breaches; theft; incompatibility issues; international restrictions; and
3.5.g. any incorrect, lost, corrupted or undelivered data or telematics information, regardless of the cause.
Indemnity
3.6. The Customer hereby indemnifies the Indemnified Parties and undertakes to keep each of them indemnified and held harmless against any Claims which may be made against any of them arising out of or in connection with:
3.6.a. the Contract (or its cancellation), any Acceptance (or its cancellation), the supply of the Equipment, , and the delivery of Goods, ;
3.6.b. any alleged violation of any laws, including health, safety and environmental requirements, labour and social security laws and regulations by the Indemnifying Parties;
3.6.c. the Customer’s possession, use, on-selling of Equipment and/or Goods, or ;
3.6.d. the Customer or an authorised user of the Telemetry Device providing false, incomplete or inaccurate information to Barloworld; and/or
Limitation of Liability
3.7. Notwithstanding anything to the contrary contained elsewhere in the Contract, as far as permissible in law the total liability of the Indemnified Parties to the Indemnifying Parties under or in connection with all Contracts and/or any work carried out in terms thereof or otherwise, howsoever arising, including, but not limited to, any liability arising out of contract, delict, statutory duty or otherwise and whether arising by way of penalties, liquidated damages, delay damages, performance liquidated damages, indemnity or otherwise, shall not exceed in aggregate the lesser of R1,000,000 (one million Rand) and:
3.7.a. in the case of the sale of any Equipment, the cost of replacement of the Equipment;
1.2. Notwithstanding the above, Barloworld shall not be liable for any Claims unless the Customer notifies Barloworld in writing within 12 (twelve) months of the earlier of the Customer becoming aware or ought reasonably to have been aware of any circumstance giving rise to a Claim against Barloworld, failing which Barloworld will be released from all liability in connection with the Claim and its subject matter.
1.3. The notice referred to in clause 3.9 above must contain reasonable details of the event or circumstances giving rise to the Claim (including the date on which the Claim arose), the basis upon which the Customer is making a Claim against Barloworld and, if practicable, a reasonable estimate of the total amount of the Claim.
Non-OEM attachments and Exclusions
1.4. If the Customer requests that parts, devices, accessories or consumables manufactured by suppliers other than Caterpillar Inc. or other original Equipment manufacturers of Equipment sold by Barloworld under this Contract (“Non-OEM Parts”), be installed in or onto the Equipment or Goods (whether by Barloworld or any third party), then Barloworld shall:
1.4.a. not be liable in any way whatsoever in respect of any defect in such Non-OEM Parts or any defective workmanship in relation to their installation;
1.4.b. not be responsible for the maintenance of such Non-OEM Parts;
1.4.c. not be liable for any damage caused to the Equipment, Goods and/or the Non-OEM Parts;
1.4.d. cede any warranties applicable to such Non-OEM Parts to the Customer when the Equipment is delivered to the Customer (where the Non-OEM Parts are installed prior to delivery of the Equipment to the Customer).
1.5. Barloworld does not make any representations or recommendations in relation to any Non-OEM Parts or their installation.
1.6. The Customer acknowledges and accepts that the Indemnified Parties shall not be liable under any circumstances for any Claims (including consequential or special damages or loss of profits) which the Customer or any third party may suffer or sustain as a result of the installation, maintenance, operation of, and/or inadequate instructions and warnings in relation to, any Non-OEM Parts installed in or onto the Equipment.
1.7. The Customer hereby indemnifies and holds harmless the Indemnified Parties against any Claims of whatsoever nature which may be made against any of them arising out of, or connected in any way to, the manufacture, installation, maintenance and/or operation of Non-OEM Parts installed in or onto the Equipment and/or Goods and/or inadequate instructions and warnings in relation to them.
General
1.8. The Parties agree that the limitations and exclusions of liability set out in this clause 3 are fair and reasonable and that any liquidated damages agreed upon represent a fair, reasonable and genuine pre-estimate of any and all damage and/or losses likely to be suffered.
1.9. The Customer acknowledges and accepts that the provisions of clause 3 have been brought to its attention, it has read and understood these provisions and agrees to be bound by them.
2. ANTI-CORRUPTION AND SANCTIONS
2.1. The Customer agrees to comply with all relevant and applicable anti-bribery and anti-corruption laws during any transaction with Barloworld and during these transactions shall maintain its own policies and procedures to ensure compliance.
2.2. The Customer shall comply with all laws, regulations and policies relating to economic or trade sanctions or export controls of the Country, the United States of America, the European Union, the United Kingdom, the United Nations or any international governmental organisation (“Sanctions Laws”) and shall protect, defend, indemnify and hold harmless the Indemnified Parties against any Claims, of any governmental authority or any third party as a result of the breach by the Customer of any Sanctions Laws as may be amended from time to time.
2.3. The Customer shall not sell, export or re-export, directly or indirectly, to the Russian Federation or Belarus, or for use in the Russian Federation or Belarus, any Equipment supplied under or in connection with the Contract. The aforementioned restriction shall also apply to the Customer in relation to any other country that has been sanctioned as per the Sanction Laws.
2.4. The Customer shall undertake its best efforts to ensure that the purpose of clause 4.3 is not frustrated by any third parties further down the commercial chain, including by possible resellers. Should the Customer have a reseller that breaches the Sanction Laws, the Customer shall indemnify Barloworld as per clause 4.2 above.
2.5. The Customer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of clause 4.3.
2.6. Any breach of clauses 4.3, 4.4 or 4.5 shall constitute a material breach of the Contract, and Barloworld shall be entitled to seek appropriate remedies, including, but not limited to termination of the Contract.
2.7. The Customer shall immediately inform Barloworld about any problems in applying clauses 4.3, 4.4 or 4.5, including any relevant activities by third parties that could frustrate the purpose of clause 4.3. The Customer shall make available to Barloworld, information concerning compliance with the obligations under clauses 4.3, 4.4 and 4.5 within two weeks of the simple request of such information.
2.8. Where Barloworld has reason to believe that any Equipment has been sold, exported or re-exported directly into the Russian Federation or Belarus or to any other sanctioned country referred to in clause 4.3, Barloworld shall be at liberty to notify the relevant authorities irrespective of any confidentiality agreement between the Parties.
3. GENERAL PAYMENT
3.1. Unless otherwise agreed by the Parties in the Special Terms, the Customer must pay the full amount owing in terms of the Trading Account to Barloworld without deduction before sale and collection of Equipment.
3.2. The Customer shall pay any amount payable by it in terms of the Contract:
3.2.a. in the currency set out in the quotation (Pro-forma/Sales order), read together with the Acceptance (where applicable);
3.2.b. free of bank and other charges and without any deduction or set-off or withholding; and
3.2.c. by way of electronic funds transfer into the bank account specified by Barloworld in the invoice/statement.
3.3. Despite Barloworld giving its approval for a particular method of payment, all risk in and to a particular means of payment shall remain with the Customer. A payment by the Customer is only considered to have been made, once the full amount of that payment is available to Barloworld as freely available funds in its nominated bank account.
3.4. Barloworld shall be entitled, at its discretion, to allocate any monies received from the Customer either to the Customer’s liability in terms of the Contract or any other liability of the Customer arising out of any cause whatsoever. The Customer shall, after having been advised of such allocation by Barloworld, discharge any shortfall in the other payments due by it arising as a result of the allocation.
4. EXCHANGE RATE FLUCTUATIONS
4.1. Where any amount payable under a Contract is based on an exchange rate, that exchange rate shall be set out in the quotation (Pro-forma/Sales order).
4.2. The Customer agrees to bear the risk in any variation in the exchange rate of the South African Rand against the applicable foreign currency in accordance with the terms set out in the quotation(Pro-forma/Sales order), from the date of quotation(Pro-forma/Sales order) until the date of payment, and Barloworld shall be entitled to increase or reduce the amount due by the Customer in respect of the Contract accordingly.
5. CUSTOMER’S FINANCIAL OBLIGATIONS
5.1. The Customer acknowledges that it understands its financial obligations in terms of the Contract and agrees to the breakdown of these financial obligations as set out in the quotation (Pro-forma/Sales order) and confirmed in the Acceptance.
5.2. The Customer warrants that it has the power and capacity and has obtained all necessary authorisations and consents to enter into, and perform its obligations under, the Contract and such other agreements and arrangements referred to in the Contract, and that it enters the Contract voluntarily.
6. TAX
6.1. All amounts payable to Barloworld in terms of the Contract exclude value added tax (“VAT”) and any other tax, levy, duty, excise or charge (collectively “Tax”). The Customer must pay any applicable Tax simultaneously with any payment in respect of which that Tax applies.
6.2. If any Tax is charged after the Contract is concluded and the effect of that Tax is to reduce the net amount payable to Barloworld, the amounts payable to Barloworld in terms of the Contract shall be considered to be adjusted to the extent necessary to enable Barloworld to receive the same amount which it would have received had the Tax not been charged.
6.3. The Customer shall make all payments without any withholding tax deduction, unless a withholding tax deduction is required by applicable law.
6.4. The Customer shall promptly upon becoming aware that it must make a withholding tax deduction (or that there is any change in the rate or the basis of a withholding tax deduction) notify Barloworld accordingly. If a withholding tax deduction is required by applicable law to be made by the Customer from any payment to Barloworld, it shall, subject to clause 8.2, make that withholding tax deduction and any payment required in connection with that withholding tax deduction within the time allowed and in the minimum amount required by applicable law. The Customer shall, as soon as reasonably possible, provide Barloworld with an original withholding tax certificate (or equivalent) and a certified copy of the receipt issued by the relevant Tax authority evidencing that the relevant withholding tax deduction has been made or that any appropriate payment has been made to the relevant Tax authority.
7. NO DISCOUNTS
7.1. No amount payable by the Customer in terms of the Contract is subject to any discounts, unless agreed in writing by Barloworld.
7.2. Any agreed discount:
7.2.a. only applies to, and is calculated on, the price of the Equipment (excluding Tax) does not apply to any other charges included in Barloworld’s invoice; and
7.2.b. does not apply if Barloworld receives late payment of any part of the amount payable.
8. OVERDUE PAYMENTS
8.1. If the Customer fails to pay any amount payable to Barloworld (whether under the Contract or otherwise) by the due date for payment, then all amounts owing to Barloworld by the Customer, from any cause whatsoever, will become immediately payable and Barloworld may:
8.1.a. charge interest on such amount, as far as permissible in law, at the greater of:
8.1.a.i. 2% (two per cent) above the annual prime lending rate, published, from time to time by the bankers of Barloworld (“Prime Rate”), as certified by any manager or accountant of that bank (whose appointment or authority need not be proved) whose certification as to the Prime Rate at any time shall, in the absence of manifest error, be final and binding on the Parties, calculated daily with effect from the date that amount falls due until the date on which it is paid in full, both days included, and compounded monthly in arrears; or
8.1.a.ii. the maximum rate of interest permissible under the applicable law;
8.1.b. withhold delivery of any Equipment sold and not yet delivered to the Customer in terms of any Contract or any Goods held by Barloworld, and the Customer will be liable for any storage and other holding costs incurred by Barloworld in this regard;
8.1.c. stop/deactivate the Equipment and thereby render the Equipment incapable of operation.
8.1.d. suspend the performance of any of its obligations to the Customer in terms of the Contract and any other contract with the Customer;
8.1.e. immediately terminate and/or suspend the Trading Account and/or any other trading facilities granted to the Customer, whether under the Contract or not.
9. DELIVERY
9.1. Time is not of the essence of the Contract.
9.2. Unless agreed otherwise by the Parties in writing, delivery of all Equipment shall be EXW (Barloworld Premises set out in Barloworld’s quotation(Pro-forma/Sales order) issued to the Customer) Incoterms© 2010 (as such term is defined in the International Rules for the Interpretation of Trade Terms of the International Chamber of Commerce) (the “Delivery Address”).
9.3. In the case of:
9.3.a. a sale of Equipment, the Customer shall collect the Equipment from the Delivery Address within 5 (five) days from the date on which Barloworld notifies the Customer in writing that such items are available for collection;
(the “Delivery Date”).
9.4. The Customer must arrange the loading of the Equipment and/or Goods at, and transportation of the Equipment and/or Goods from, the Delivery Address.
9.5. Barloworld is not obliged to provide any Equipment and/or return any Goods to the Customer until:
9.5.a. the Price, together with the applicable interest, is paid in full for the sale of the Equipment;
9.6. Delivery is completed when the Equipment and/or Goods is made available to the Customer for collection, on the Delivery Date at the Delivery Address and before loading commences (“Delivery”). The Customer shall take delivery of the Equipment on the Delivery Date. If the Customer fails to do so, then:
9.6.a. with effect from 16:30 pm on the Delivery Date, all risk of loss of, or damage to or caused by, the Equipment and/or Goods passes from Barloworld to the Customer; and
9.6.b. the Customer shall pay Barloworld, on demand, the full Price as applicable, and all reasonable costs (including storage costs) which Barloworld incurs as a result of that failure; and
9.6.c. Barloworld may sell the Equipment and/or Goods to a third party if the Customer fails to pay the amounts set out in clause 11.6(b) above within 14 (fourteen) days after demand.
9.7. The Customer acknowledges that its authorised representative will be present at the Delivery Address on the Delivery Date. To the extent that an authorised representative is not present at the Delivery Address on the Delivery Date, the Customer acknowledges that all information applicable to the Equipment and handover material will be given to and signed by the person authorised to collect the Equipment on its behalf, and that it is the Customer’s obligation to ensure that such information is effectively communicated to all relevant persons, as necessary.
9.8. Acceptance of Delivery by such representative shall constitute prima facie proof that the Customer has examined the Equipment and has found it to be in good condition, complete and in accordance with the specifications of the operating and maintenance manuals provided by Barloworld. If required by Barloworld, the Customer’s duly authorised representative will sign a receipt confirming such acceptance.
9.9. Barloworld shall have the right to make any changes to the Delivery of Equipment and/or Goods and or which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Equipment and/or Goods, and Barloworld shall notify the Customer in any such event.
9.10. Barloworld may, at the Customer’s request, appoint a carrier on behalf of the Customer, to transport the Equipment and/or Goods for the Customer to the destination specified by the Customer. If it does so, then:
9.10.a. Barloworld is hereby authorised by the Customer to appoint a carrier on such terms and conditions as Barloworld deems fit,
9.10.b. the carrier appointed by Barloworld shall be deemed to be the Customer’s agent.
9.10.c. the Equipment and/or Goods is loaded and transported at the Customer’s risk; and
9.10.d. the Customer is responsible for paying the carrier any amounts due, including relevant insurance cost.
9.11. Despite any other provision of the Contract, Barloworld’s obligation to deliver the Equipment is subject to the following conditions:
9.11.a. Where Barloworld remanufactures or Rebuilds the Equipment or any part thereof, Barloworld’s ability to timeously source, from suppliers who are reasonably and commercially acceptable to it, all required materials and suppliers;
9.11.b. where the Equipment or any part thereof is purchased by Barloworld, the timeous receipt by Barloworld from its suppliers of the Equipment or any components thereof; and
9.11.c. the timeous receipt by Barloworld of any Instructions.
10. PERMITS, CONSENTS AND APPROVALS
10.1. If any permit, consent or approval, including regulatory approval, (collectively “Approval”) is required under any applicable law for, or in connection with, the Equipment, then Barloworld shall not be obliged to provide the Equipment in terms of the Contract until the Customer obtains that Approval and provides Barloworld with written proof, satisfactory to Barloworld, that the Approval has been obtained.
10.2. The Customer shall be responsible to ensure that the required Approval is maintained and retained. In the event that, for any reason whatsoever, the Approval is withdrawn, becomes invalid, is no longer available, and is in any way amended or the Equipment and/or Goods are moved to a destination requiring new Approval, then the Customer must obtain the new Approval. Until such time as the Customer provides Barloworld with written proof, satisfactory to Barloworld, that the Approval has been obtained Barloworld shall be entitled in its sole discretion to suspend, alternatively cancel any Acceptance, with no liability on Barloworld towards the Customer.
11. PROTECTION OF RIGHTS
If the Customer fails to perform any of its obligations under a Contract, Barloworld may perform that obligation (but is not obliged to do so) and recover the cost of doing so from the Customer, who must pay that amount to Barloworld on demand.
12. BREACH AND TERMINATION
12.1. Notwithstanding anything to the contrary contained in the Contract, Barloworld may terminate the Contract for convenience by giving the Customer not less than 14 (fourteen) days’ prior written notice.
12.2. Unless otherwise provided by Barloworld, the Contract shall automatically terminate if:
12.2.a. where the Customer is a natural person, s/he applies for any debt review proceedings or dies, with effect from the date on which s/he dies or the date on which the application is issued; or
12.2.b. where the Customer is a juristic person, it is placed under business rescue, either provisionally or finally by a court or passes a resolution to go into voluntary business rescue; with effect from the date on which the application is issued at court or the resolution is passed, whichever is applicable.
12.3. Without limiting its other rights or remedies, Barloworld shall be entitled forthwith to cancel the Contract (and any other Contract it may have with the Customer) and/or to claim immediate payment and/or performance by the Customer of all of the Customer’s obligations whether or not the due date for payment and/or performance shall have arrived, by giving written notice to the Customer, if the Customer:
12.3.a. breaches any warranty given by it in these Conditions;
12.3.b. breaches any term or condition of the Contract and such breach cannot be remedied or if such breach can be remedied it fails to remedy that breach within 5 (five) days after receipt of a written notice from Barloworld to do so; or
12.3.c. being a natural person, publishes a notice of the voluntary surrender of his estate, or has any application or other proceedings brought against him in terms of which he is sequestrated or placed under curatorship or the whole or a major portion of his assets is alienated or encumbered.
12.3.d. being a partnership, is dissolved; or
12.3.e. being a juristic person,
12.3.e.i. it is, (or admits inability) or becomes unable to pay its debts as they fall due, or it is (or admits to being) insolvent, or files any application or action for relief under any insolvency, reorganisation or moratorium law with the object of it being wound up, liquidated, or placed under curatorship, receivership, administrative receivership or administration, as applicable in its jurisdiction, whether provisionally or finally and whether compulsory or voluntary;
12.3.e.ii. any proceedings are started or steps are taken or instituted against it (but excluding any such steps or proceedings which are frivolous or have no prospect of success), for a liquidation order or provisional liquidation order to be made in relation to it or for its winding-up, dissolution or reorganisation or for the appointment of a judicial manager, trustee, liquidator or similar officer in relation to it or its assets; and/or
12.3.e.iii. it is unable (or admits inability) to pay its debts generally as they fall due, or it is (or admits to being), otherwise insolvent or stops or suspends payment of all or a material part of its debts or convenes a meeting or takes any steps for the purposes of making any arrangement, compromise or composition for the benefit of its creditors or agrees or declares a moratorium or reorganisation in respect of its debts; and/or
12.3.e.iv. any receiver, administrative receiver, administrator, compulsory manager, judicial custodian, liquidator or business rescue practitioner or the like is lawfully appointed in respect of it or any material part of its assets or revenues or it requests any such appointment;
12.3.e.v. suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
12.3.f. repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify Barloworld’s opinion that the Customer’s conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract.
12.4. Without limiting the rights or remedies of Barloworld, on termination or cancellation of the Contract for any reason:
12.4.a. the Customer shall immediately pay to Barloworld:
12.4.a.i. all of Barloworld’s outstanding unpaid invoices and interest and, in respect of Equipment delivered but which have not yet been invoiced, Barloworld shall submit an invoice, which shall be payable by the Customer immediately on receipt;
12.4.a.ii. the cost of any materials, parts, Equipment ordered which cannot be reasonably avoided or cancelled.
12.4.a.iii. the costs or losses incurred by Barloworld as a result of the cancellation of third-party contracts related to the Contract, including any cancellation fees;
12.4.a.iv. any demobilisation cost applicable under the Contract, resulting from the termination or cancellation;
12.4.b. the Customer shall return all of Barloworld’s materials or Equipment which have not been paid for in full by the Customer. If the Customer fails to do so, then Barloworld may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose whatsoever;
12.4.c. Barloworld shall have the right to set-off any amount due in terms of a Contract or any other agreement with the Customer, against any deposit or advance payment paid to Barloworld by the Customer in terms of this Contact and the Customer shall forfeit any deposit or advance payment made to Barloworld prior to the date of termination of the Contract, in the event that the Contract is cancelled pursuant to clause 14.3;
12.4.d. the accrued rights and remedies of Barloworld as at termination and/or cancellation shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
12.5. For the purposes of exercising its rights under clause 14.4(b):
12.5.a. the Customer irrevocably and in rem suam authorises and appoints Barloworld with full power of substitution to sign all and any document/s in the Customer’s name or on the Customer’s behalf, and to do all such things as may be necessary or desirable, to enable Barloworld to give effect to or to enforce its rights under clause 14.4(b);
12.5.b. grants Barloworld and its agent, an irrevocable right to enter the Customer’s premises where the Equipment may be located and take possession of and remove the Equipment without being responsible for any damage caused or without obtaining any court order. All costs and expenses incurred by Barloworld as a result of this action shall form part of the Customer’s indebtedness to Barloworld under the Contract and shall bear interest as contemplated in the Contract.
13. COSTS ARISING FROM A BREACH
The Customer is liable for all legal costs incurred by Barloworld because of a breach of the Contract by the Customer, on an attorney and own client scale and on a full indemnity basis, including any tracing fees and collection commission.
14. NON-DISCLOSURE AND INTELLECTUAL PROPERTY
14.1. For purposes of this Contract, “Intellectual Property” means rights in and to patents, inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, know-how, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
14.2. All right, title and interest in and to the Intellectual Property owned by either Barloworld or the Original Equipment Manufacturer (“OEM”) pertaining to the Equipment, shall vest respectively in either Barloworld or the OEM, as the case may be, and all benefits arising from the use of the Intellectual Property shall inure exclusively for the benefit of Barloworld and/or the OEM, respectively. The Customer acknowledges that it has no rights in or to the Intellectual Property.
14.3. The Customer shall not make any representation or do any act which may be taken to indicate that it has any right, title or interest in or ownership or use of the Intellectual Property.
14.4. The Customer undertakes not to do or permit to be done any act which may impair or prejudice the right, title or interest of Barloworld and/or the OEM in and to the Intellectual Property.
14.5. The Customer shall promptly notify Barloworld of any conduct by any party which constitutes, or which potentially constitutes, an infringement of any of the Intellectual Property rights and which comes to the notice of the Customer.
14.6. If the Customer becomes aware that any other person alleges that the Equipment, infringes any rights of another party or that the Intellectual Property is otherwise threatened or likely to be adversely affected, the Customer shall immediately give written notice thereof to Barloworld and shall make no comment or admission to any third party in respect thereof.
14.7. Barloworld shall conduct all proceedings relating to the Intellectual Property and shall in its sole discretion decide what legal action, if any, to take in respect of any infringement or alleged infringement of the Intellectual Property or passing-off or any other claim or counterclaim brought or threatened in respect of the use or registration of the Intellectual Property, and the Customer undertakes to provide such assistance as Barloworld may require in connection with any such action.
14.8. All written or verbal information supplied by Barloworld to the Customer regarding Intellectual Property, products, services, developments, inventions, processes and procedures, product specifications, plans, customers, pricing and all other data (including the Additional Information) whether of a financial, technical, technological, labour related, marketing, administrative or accounting nature (“Confidential Information”) shall be treated as confidential and shall not be disclosed to third parties without Barloworld's prior written consent. Such information shall be exclusively used for the performance of the Contract.
15. USE OF CUSTOMER’S PERSONAL INFORMATION
15.1. Barloworld processes and manages Personal Information in accordance with the Protection of Personal Information Act No. 4 of 2013 and Barloworld’s Privacy Statement, the current version of which may be accessed from the Company website (https://e-qwip.com/privacy-policy)The Privacy Statement may be changed from time to time, and any updated versions will be published on the Company website.
15.2. The Customer warrants and guarantees that all information supplied to Barloworld by the Customer in the Purchase Order and/or application for a Trading Account (if applicable) and in terms of the Contract is true and correct.
15.3. The Customer agrees to inform Barloworld immediately should there be any changes of whatsoever nature in any of its information, including its physical address, previously supplied to Barloworld.
15.4. In handling any personal information of the Customer, Barloworld will comply with the relevant data protection laws applicable in the country where Barloworld trades, is registered and/or incorporated (“Country”).
15.5. As and when necessary, the Customer undertakes to obtain the consent of all natural and/or juristic persons to whom the personal information relates and herewith consents to Barloworld collecting, holding, using, disseminating, destroying, disclosing and processing such personal information supplied to Barloworld as follows:
15.5.a. to either credit grantors and/or credit bureaux and/or banks and/or other financial institutions in order to ascertain information relating to the Customer’s creditworthiness (before acceptance of the Purchase Order) and for fraud prevention purposes in order to process any payment necessary for and relative to the Contract. The Customer is aware that a credit bureau(x) may provide a credit profile and/or a credit score for the Customer and the Customer may contact that credit bureau(x) to obtain a copy of its credit records and to correct any inaccurate information in those records. The Customer waives any claim it may have against Barloworld relating to any mistaken or inaccurate information disclosed to the credit bureau(x);
15.5.b. to attorneys and/or debt collection agencies in the event that the Customer is in breach of the Contract;
15.5.c. transferring the personal information across the borders of the Country;
15.5.d. to Barloworld’s agents or principals, including:
15.5.d.1. the relevant OEM and/or any of its affiliates or related parties;
15.5.d.ii. consultants;
15.5.d.iii. service providers or suppliers;
but only to the extent necessary for the purposes of the Contract;
15.5.e. to the relevant OEM and/or any of its affiliates or related parties for the purpose of conducting research on improving Barloworld’s Equipment offered to the Customer in terms of the Contract;
15.5.f. for purpose of Barloworld publishing a directory containing the name, address, details and contact numbers of its Customers;
15.5.g. generally for the purposes of:
15.5.g.i. servicing and/or performing warranty work in respect of the Equipment;
15.5.g.ii. providing equipment management services;
15.5.g.iii. internal research by Barloworld to improve its offerings to customers;
15.5.g.iv. accounting, billing and other internal administrative purposes; and
15.5.g.v. identifying and informing the Customer of products and services that may be of interest to it from Barloworld or selected third parties.
15.6 Where personal information of the Customer is used or disclosed, Barloworld shall take such steps as may be reasonable in the circumstances to ensure that the information is relevant to the purpose for which it is to be used or disclosed.
15.7. Furthermore, the Customer accepts that the personal information of all of Barloworld’s customers may in appropriate circumstances reside outside of the Country, and it hereby agrees that Barloworld shall be entitled to transfer the Customer’s personal information to such locations outside of the Country and use the Customer’s personal information in such locations as described above.
15.8. Barloworld will not disclose the Customer’s personal information to any other person or institution other than as stated under clause 17.4 and 17.5, or if Barloworld is compelled to do so in terms of law and/or a court of law. Barloworld hereby undertakes that it will only disclose such information as is required in terms of any law and or a court of law.
16. FORCE MAJEURE
1.1 Barloworld is not liable for any failure or delay in performing any of its obligations under the Contract which is caused by any event or circumstance which:
1.1.a. is beyond its reasonable control; or
1.1.b. it could not reasonably have provided for/against before entering into the Contract; or
1.1.c. having arisen, could not reasonably have been avoided or overcome by Barloworld.
1.2. The events or circumstances described in clause 19.1 will include, but not be limited to, any strike, lock-out, shortage of labour or materials, power failures, delays in transport, accidents of any kind, any default or delay by any sub-contractor or supplier of Barloworld, insurrection, riot, robbery, sabotage, blockade, embargo, coup, economic crisis, international restrictions, any order of an international authority or court, any requirements of any authority or other competent local authority, foreign exchange restrictions, interruption in electricity supply, fire or explosion, revolt, civil commotion, state or government or any other authority, disorder, labour dispute, war, invasion, hostilities, civil war and acts of terrorism, political or civil disturbances, the elements, inclement weather, natural catastrophes such as earthquakes, hurricanes, floods or droughts, unforeseen physical conditions (whether man-made or natural) or any act of any state or government or any other authority.
2. GOVERNING LAW
2.1 The laws of the country where Barloworld is incorporated/registered shall apply to the conclusion, implementation, interpretation and/or enforcement of the Contract.
3. DISPUTE RESOLUTION
3.1. In the event of any dispute arising out of or in relation with these Terms and Conditions (“Dispute”), either Party shall deliver a written notice of dispute to the other Party.
3.2. The Parties shall, within 14 (fourteen) calendar days of delivery of the notice of dispute or such longer period of time as the Parties may agree to in writing, first endeavour to resolve the Dispute by way of good faith negotiations between their respective duly authorised managers or other designated senior officials (“Senior Officials”).
3.3. If the Dispute is resolved by the Senior Officials, the terms of their resolution shall be recorded in writing and shall be final and binding on the Parties upon signature by the Parties’ duly authorized representatives.
3.4. If for any reason, including lack of co-operation by any Party, a Dispute is not resolved in terms of clause 21.2 above within 14 (fourteen) calendar days of delivery of the notice of Dispute or such longer period of time as the Parties may agree to in writing, the Dispute shall be referred to arbitration.
3.5. The Parties shall in good faith attempt to agree on the appointment of a single Arbitrator who shall be a suitably qualified Senior Counsel if the dispute is of a legal nature, alternatively, a suitably qualified Senior Chartered Accountant if the dispute is of an accounting / financial nature, both of whom shall be of no less than 12 (twelve) years standing. Failing agreement within 5 (five) calendar days after the expiry of the period referred to in clause 21.4 above, either Party shall deliver a notice of request for the appointment of a single Arbitrator to the Chairman of the Arbitration Foundation of Southern Africa (“AFSA”).
3.6. The arbitration shall be conducted in terms of the AFSA Rules. The Arbitrator’s award shall be made as expeditiously as possible, and in any event, no later than 90 (ninety) calendar days after conclusion of the arbitration and the Arbitrator shall provide the Parties with a copy of the written award with reasons.
3.7. The Arbitrator’s award in respect of any claims that are below R5 (five) million shall be final and binding.
3.8. The Arbitrator’s award in respect of any claims that are R5 (five) million and above shall be subject to appeal on 14 (fourteen) calendar days’ written notice from the date of the award.
3.9. The notice of appeal shall be delivered by either Party to the other and to the Chairman of the AFSA. The appeal tribunal shall consist of three arbitrators who shall be retired judges or suitably qualified Senior Counsel of no less than 12 (twelve) years standing if the dispute is of a legal nature, alternatively, three suitably qualified Senior Chartered Accountants of no less than 12 (twelve) years standing if the dispute is of an accounting nature. Each Party shall elect on arbitrator and the two appointed arbitrators shall appoint the third who shall be the Chairman of the Appeal Tribunal. Should the two appointed arbitrators fail to agree the appointment of the third arbitrator within 5 (five) calendar days of their appointment, then the Chairman of AFSA shall appoint the third arbitrator.
3.10. The arbitration shall be conducted in the English language.
3.11. The place of the arbitration shall be Johannesburg, South Africa.
3.12. The Parties shall share equally in the cost of the arbitration or the appeal until an award on the issue of costs is made by the Arbitrator or the Appeal Tribunal.
3.13. The parties shall have a right to approach a court of competent jurisdiction in order to have the Arbitrator’s award made an order of court.
3.14. The provisions of this clause:
3.14.a. constitute an irrevocable consent by the Parties to the proceedings contemplated in terms hereof and neither Party shall be entitled to withdraw from the provisions of this clause or claim at any such proceedings that it is not bound by this clause or such proceedings; and
3.14.b. exclude any claim for payment of a liquidated amount or outstanding debt in respect of which either party shall be entitled to directly approach a court of competent jurisdiction without following the procedure set out above.
3.14.c. are severable from the rest of these Terms and Conditions and shall remain in effect despite the termination, cancellation, invalidity or alleged invalidity of these terms and conditions for any reason whatsoever.
4. URGENT RELIEF
4.1. Save for the provisions of clause 22.2 and 22.3 below, the Parties acknowledge and agree to strictly resolve any Dispute arising out of or in relation to these Terms and Conditions through negotiation or arbitration as set out above and without recourse to the Courts.
4.2. A Party seeking urgent relief may do so in a Court of competent jurisdiction where grounds for urgency exist.
4.3. Should a Party have a claim against another Party for a liquidated amount or an amount which arises from a liquid document, such Party shall be entitled to institute action in a Court of law (without following the arbitration process outlined above), notwithstanding the fact that the other Party may dispute such claim or the urgency for any relief sought on an urgent basis.
5. NOTICES AND ADDRESSES FOR SERVICE
5.1. Unless otherwise specified, any notice or other communication to be given to any of the Parties in terms of these Conditions and/or the Contract shall be valid and effective only if it is given in writing, provided that any notice given by electronic mail shall be regarded for this purpose as having been given in writing.
5.2. Any notice or communication shall:
5.2.a. if delivered by hand on a business day for:
5.2.a.i. the Customer, at its address specified for it in the quotation (Pro-forma/Sales order) or the Acceptance; and
5.2.a.ii. Barloworld, to the address specified by Barloworld in the quotation (Pro-forma/Sales order) marked for the attention of the ‘Legal Department’,
which shall be deemed to have been received on the date of delivery and if delivered on any other day, be deemed to have been received on the next business day thereafter, provided it was delivered to a responsible person during ordinary business hours who acknowledged receipt in writing;
5.2.b. if sent by registered post in a correctly addressed envelope to the address specified for it in the quotation (Pro-forma/Sales order) or the Purchase Order shall be deemed to have been received (unless the contrary is proved) within 14 (fourteen) days from the date it was posted; and
5.2.c. not be considered as a valid form of service for the commencement of any formal legal and/or dispute process if sent by electronic mail or any other method of electronic service of notices.
5.3. Either Party may by written notice to the other Party change its address or electronic mail for the purposes of this clause 23 to any other address (other than a post office box number) provided that the change shall become effective on the 7th (seventh) day after the receipt of the notice
5.4. Any written notice or communication which has actually been received by a Party is sufficient notice even if it has not been sent in the manner, or to the address, provided for in this clause 23.
6. INDUCEMENT
6.1. The Customer acknowledges and confirms that neither the Customer nor Barloworld’s directors, officers, employees or agents offered or promised any form of reward to the Customer or any of its employees, officers or agents in order to secure the Contract.
6.2. The Customer shall immediately notify Barloworld, in terms of Barloworld’s whistleblowing policy which can be found at the following website https://www.barloworld.com/pdf/sustainability/global-whistling-policy.pdf or such an address made available at www.barloworld.com, from time to time, if any of the Customer or Barloworld’s directors, officers, employees or agents solicits any payment or any other item of value, whether for the employee or for another party, outside of the normal compensation payable under the Contract.
7. JOINT AND SEVERAL LIABILITY
If the Contract is between Barloworld and two or more Customers; then the liability of those Customers under the Contract shall be joint and several.
8. TRANSFER OF RIGHTS AND OBLIGATIONS
8.1. The Customer may not cede (transfer its rights), delegate (transfer its obligations), assign (transfer its rights and obligations) or subcontract all or any of its rights and/or obligations in terms of a Contract, without Barloworld’s prior written consent, on each occasion.
8.2. The Customer hereby agrees that Barloworld may cede (transfer its rights), delegate (transfer its obligations), assign (transfer its rights and obligations) or subcontract all or any of its rights and/or obligations in terms of a Contract, or appoint an agent to perform any of the Services, without the Customer’s additional consent and without giving notice to the Customer.
9. GENERAL AND INTERPRETATION
9.1. The Parties agree that each Party, its employees, agents or subcontractors shall remain independent from the other Party and that nothing in the Contract shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the Parties.
9.2. References to “writing” or “written” includes any hand-written, typewritten, facsimile or e-mail communications.
9.3. No indulgence granted by either Party to the other shall constitute a waiver of any of that Party’s rights under the Contract; accordingly, that Party shall not be precluded, as a consequence of having granted such indulgence, from exercising any rights against the other Party which may have arisen in the past or which may arise in the future.
9.4. The failure by either Party to enforce any provision of the Contract shall not affect in any way that Party’s right to require performance of the provision at any time in the future, nor shall the waiver of any subsequent breach nullify the effectiveness of the provision itself.
9.5. No variation or termination of the Contract will be valid or effective unless recorded in writing and signed by the Customer and duly authorised signatories of Barloworld.
9.6. The provisions in clauses 3, 4 and 54 shall, by way of stipulatio alteri, constitute a contract for the benefit of each Indemnified Party which shall be capable of acceptance at any time by any such Indemnified Party by written notice to that effect to the Customer. Prior to acceptance, the benefit of the stipulation may not be withdrawn by the Customer without the written consent of Barloworld.
9.7. Termination and/or cancellation of the Contract for any cause shall not release a Party from any liability which at the time of termination and/or cancellation has already accrued to such Party or which thereafter may accrue in respect of any act or omission prior to such termination and/or cancellation.
9.8. No remedy conferred by the Contract is intended to be exclusive of any other remedy which is otherwise available at law, by statute or otherwise. Each remedy shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law, by statute or otherwise. The election of any one or more remedy by either Party shall not constitute a waiver by such Party of the right to pursue any other remedy.
9.9. All clauses in the Contract should be read, as far as possible, in conformity with the applicable law. To the extent that this is not possible, any void, illegal or unenforceable provision of the Contract which is not material to its efficacy as a whole may be severed and the remaining provisions of the Contract will remain of full force and effect and the Parties shall endeavour in good faith to agree an alternative provision to the void, illegal or unenforceable provision. Any provision of the Contract held to be void, invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held void, invalid or unenforceable.
9.10. A reference to the singular includes the plural and vice versa and a reference to any particular gender includes the other gender and the neuter.
9.11. In the Contract, unless the context clearly indicates a contrary intention:
9.11.a. “day” means a calendar day, from 00:00 to 24:00;
9.11.b. “business day” means any day other than a Saturday, Sunday or public holiday in the Country;
9.11.c. “month” means a month calculated from a particular day in one month to the day before the day numerically corresponding to it in the following month;
9.11.d. “calendar month” means one of the 12 (twelve) named months of the year from the 1st to the last day of such month;
9.11.e. “year” means a period of 365 (three hundred and sixty five) consecutive days.
9.12. If any notice period prescribed in the Contract expires on a day which is not a business day, it will be deemed to have expired on the next business day thereafter.
9.13. Any notice period will be calculated by excluding the 1st (first) day and including the last day thereof.
9.14. A reference to any law means that law as it applies on the date a Contract is concluded and as that law is amended or replaced from time to time thereafter.
9.15. All headings in the Contract are inserted for convenience only and must not be taken into account when interpreting the Contract.
9.16. Words or expressions defined in any particular clause in a Contract must bear the meaning so assigned to them throughout the Contract unless the context indicates otherwise.
9.17. Where an expression has been defined in the Contract and that definition contains a provision conferring a right or imposing an obligation on any Party, then notwithstanding that it is contained only in a definition, effect must be given to that provision as if it were a substantive provision.
9.18. The eiusdem generis rule does not apply so that whenever specific words of a particular class are used in conjunction with general words then the specific words must not limit the scope of the general words. If any provision is followed by the word “including” and specific examples, such examples must not be construed so as to limit the general ambit of the provision concerned.
9.19. No provision in the Contract will be interpreted for or against either Party because that party or its legal counsel drafted such provision and the contra proferentem rule of construction shall have no application to the construction, interpretation or adjudication of these Conditions.
9.20. The termination and/or cancellation of a Contract does not affect those of its provisions which expressly provide that they will operate after termination, or which must continue to have effect after termination and/or cancellation, or which must by implication continue to have effect after termination and/or cancellation.
B. SPECIFIC TERMS APPLYING TO THE SALE OF EQUIPMENT
1. SALE OF EQUIPMENT
1.1. The Customer agrees to purchase and Barloworld agrees to sell the Equipment on the terms and conditions specified in a Contract.
2. PURCHASE PRICE
2.1. Subject to clauses 8.2 and 29.2, the purchase price of the Equipment (the “Price”) is the price set out in the latest quotation (Pro-forma/Sales order) delivered by Barloworld to the Customer.
2.2. Notwithstanding anything to the contrary contained in the Contract, the Price does not include, and Barloworld shall be entitled to be reimbursed by the Customer for, the following:
2.2.a. any cost incurred by Barloworld as a result of a change to the delivery terms;
2.2.b. any escalations or increases by third party suppliers, including without limitation, the OEM;
2.2.c. any cost incurred by Barloworld as a result of a change in applicable law (comprising (i) the enactment of any new law, (ii) the modification or repeal of any law, (iii) the commencement of any law which was not in full force and effect at the Commencement Date (except to the extent that such law was enacted prior to the Commencement Date with an intended start date after the Commencement Date and such law takes effect without material amendment) and/or (iv) a change in the interpretation or application of a law by judicial or other authority having the authority to interpret or apply such law);
2.2.d. all taxes, levies, duties (including import and customs duties) royalties, penalties, charges, fines, interest, withholding taxes and imposts, or any similar charges, duties, penalties or levies which may be imposed on Barloworld as a result of the Contract (other than those which are expressly Barloworld’s responsibility in accordance with the relevant delivery terms);
2.2.e. any cost arising as a result of any variation to an Acceptance;
2.2.f. any cost incurred by Barloworld as a result of any delay caused by any third party contracted by the Customer to provide any service and/or goods which may have an impact upon the delivery, installation or commissioning by Barloworld of the Equipment;
2.2.g. any cost incurred by Barloworld as a result of improper or defective performance by such third party; and/or
2.2.h. any costs incurred by Barloworld as a result of the happening of an event for which Barloworld could not have reasonably anticipated at the date of the Contract and which impacts Barloworld’s ability to perform the Contract.
3. PAYMENT
3.1. Barloworld shall issue an invoice to the Customer in respect of any Acceptance before or at the time of Delivery. Such invoice will be paid by the Customer:
3.1.a. on presentation of Barloworld’s invoice(Pro-forma invoice/Sales Order) and before Delivery; or
3.1.b. as otherwise agreed to with the Customer in writing.
3.2. Unless expressly agreed otherwise, all invoices shall be made payable in the currency set out in the invoice.
3.3. Should Barloworld agree to delivery in part, the deliveries will be invoiced separately and must be paid for separately.
4. EXPORTING THE EQUIPMENT
4.1. The Customer undertakes not to transport any Equipment beyond the borders of the country in which they were delivered, without the prior written consent of Barloworld.
5. RISK
5.1. Subject to clause 11, all risk of loss of, or damage to, or caused by, the Equipment purchased by the Customer shall pass to the Customer on Delivery or on expiry of the 5 (five) day period referred to in clause 11.3, whichever is earlier.
6. OWNERSHIP
Despite delivery of any Equipment to the Customer, the Customer does not acquire ownership of, or any other right in and to the Equipment, until Barloworld has received the full Price, together with any other amount (including Tax) which is payable to Barloworld for, or in connection with, that Equipment.
7. REPAIR OF EQUIPMENT UNDER WARRANTY
Where Equipment is sold under warranty by a supplier for whom Barloworld is a repair agent and Barloworld repairs or replaces that Equipment, upon completion by Barloworld of the repair or replacement, the Customer must, on request, sign written confirmation that Barloworld has effected that repair or replacement so as to enable Barloworld to recover payment for its work from the supplier.
C. REPOSSESSED UNITS
1. All Equipment are sold as is.
2. Unless the contrary is displayed or indicated by Barloworld, equipment on sale are by voluntary surrender by their respective owners and bank repossessions are from finance institutions.
3. Some equipment are sold with a reserve price and can be identified where the equipment is marked Subject to Confirmation (STC). Waiting period for Approval or Declining of these (STC) equipment can take up to 24 hours.
4. The Buyer agrees that he/she has acquainted themselves with the condition of the equipment prior to sale and understands these may need repair in order to be in a safe working condition.
5. The Buyer acknowledges that neither the seller of the equipment, nor any Barloworld representative gave any warranties or guarantees, or made any representations with regard to the condition or state of any equipment sold.
6. All equipment descriptions given by BARLOWORLD are a close representation only. BARLOWORLD will not be held liable for errors in description, and no refunds or returns for same will be entertained. The responsibility to verify the exact derivative of each equipment lies with the Buyer. BARLOWORLD does not guarantee , descriptions, make, year models and date of manufacture. Hours/mileage displayed on the Equipment are as read by BARLOWORLD and are not guaranteed. Equipment year models are taken as date of first Registration as it appears on the Natis document.
7. Additional costs for the Buyer's expense and discretion will include: (1) Repairs and sourcing of repairs of equipment(s), (2) Keys, if none at time of sale (3) Removal of Equipment from premises (4) Licensing (5) Police Clearance Fees where applicable.
8. When the catalogue or online screen indicates "Start", it is an indication that the equipment started on first arrival at our BARLOWORLD premises, and does not mean the equipment is in a drivable or working condition. BARLOWORLD does not guarantee the starter status of the equipment on collection. Equipment will only be started on first arrival at our BARLOWORLD premises. No Starting of Equipment will take place during viewing/Releasing (Collection). Batteries are disconnected for fire prevention reasons.
9. Buyers must remove all previous owners’ signage and branding, in particular any company branding, before registration, sale or use of the equipment.
10. By law, equipment(s) bought for export, must first be registered in your name before you may proceed with exportation. Foreign nationals will need a Traffic Register in order to complete change of ownership.
2. FICA
2.1. In accordance with the Financial Intelligence Centre Act (FICA) No. 38 of 2001, no repossessed equipment will be released until all parties to the transaction, including the bank, have been identified and verified in terms of the requirements of the Act. BARLOWORLD will only accept original documents or certified copies not older than 3 months. No photocopied or faxed documents will be accepted. No exceptions will be made.