Terms & Conditions

GUNDLE PLASTICS GROUP OF COMPANIES STANDARD CONDITIONS OF AGREEMENT

Comprising:

      1. The Customer agrees that (a) this contract represents the entire agreement between the Customer and Gundle Plastics Group (Pty) Ltd (hereinafter referred to as “Gundle”), and that no alterations or additions to this contract may be effected unless agreed to by both parties and reduced to writing and signed by the Customer and a duly authorised representative of Gundle; (b) that this agreement will govern all future contractual relationships between the parties; (c) is applicable to all existing debts between the parties; (d) this contract is final and binding and is not subject to any suspensive or dissolutive conditions; (e) any conflicting conditions stipulated by the Customer are expressly excluded; (f) these terms supersede all previous conditions without prejudice to any securities or guarantees held by Gundle and (g) these terms apply to all servants, agents and subcontractors of Gundle.
      2. This contract becomes final and binding on receipt of the acceptance by Gundle at its business address.
    1. The Customer hereby acknowledges that he/she has read and understood each term of this agreement and accepts these as binding.
    2. The Customer warrants that the signatory on the reverse side has been duly authorised to contract on the Customer’s behalf.
    3. The signatory hereby binds himself/herself in his/her personal capacity as surety and co-principal debtor, jointly and severally, for all or any amounts of whatsoever nature and howsoever arising, which the Customer may in the past or may presently or in the future owe to Gundle and which are due and payable by the Customer to Gundle and further-more agrees that these standard conditions will apply mutatis mutandis to him/her. The signatory furthermore renounces the benefits of excussion and division and no value received.
      1. The Customer acknowledges that no representations were made by Gundle in regard to the goods and services or any of its qualities leading up to this contract. All specifications, price lists, performance figures, advertisements, brochures and other technical data furnished by Gundle in respect of the goods orally or in writing will not form part of the contract in anyway.
      2. The Customer agrees that neither Gundle nor any of its employees will be liable for any negligent or innocent misrepresentations made to the Customer.
      3. It is the sole responsibility of the Customer to determine that the goods and services ordered are suitable for the purposes of intended use.
      4. The Customer agrees to pay all costs resulting from any acts or omission of the Customer including suspension of work, modification of requirements, failure or delay in giving particular requisite to enable work to proceed on schedule or requirements that work be completed earlier than agreed.
      1. All quotes and tenders will remain valid for a period of 30 days from the date of the quote or tender or until the date of issue of a new Price List, whichever occurs first.
      2. All quotes and orders are subject to the availability of the goods and services and the prices quoted are subject to any increases in the cost price, including currency fluctuations and subject to bona fide errors by Gundle before dispatch of goods and commencement of services. The prices of goods and services delivered under tender are subject to increases in the prices of the suppliers of the goods and services.
      3. The amount of such increase shall be certified by any independent auditor and such certificate shall be final and binding on the Customer.
      4. The Customer hereby confirms that the goods and services on the Tad Invoice issued duly represent the goods and services ordered by the Customer at the prices agreed to by the Customer and where delivery/performance has already taken place that the goods and services were inspected and that the Customer is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects.
      5. All orders or variations to orders, whether oral or in writing, will be binding and subject to these standard conditions of agreement and may not be cancelled.
      6. Gundle shall be entitled in its sole discretion to split the delivery/performance of the goods and services ordered in the quantities and on the dates it decides.
      7. Gundle shall be entitled to invoice each delivery/performance actually made separately.
      8. Any delivery note (copy or original) signed by the Customer or a third party engaged to transportthe goods and held by Gundle shall be conclusive proof that delivery was made to the Customer.
      9. The risk of damage to, destruction or theft of goods passes to the Customer on conclusion of the agreement of sale and the Customer undertakes to insure the goods fully until paid for.
      10. Delivery, installation and performance times given are merely estimates and are not binding on Gundle.
      11. If Gundle agrees to engage a third party to transport the goods, Gundle is hereby authorised to engage a third party on the Customer’s behalf and on the terms deemed fit by Gundle.
      12. The Customer agrees to indemnify Gundle against any claims that may arise from such agreement in 6.11 against Gundle.
      13. Repair times and repair cost given are merely estimates and are not binding on Gundle.
      14. Any item handed in for repair may be sold by Gundle to defray the cost of such repairs if the item remains uncollected within 30 days of the repairs being completed.
      15. All goods taken on a consignment basis by the Customer is deemed sold if not returned within 30 days of issue in a perfect condition, in the original packaging and with all accessories and manuals intact.
      16. The Customer acknowledges all copyrights and shall not duplicate copyrighted material and that each attempt will immediately render the full prevailing price payable to Gundle fully against any innocent infringement of copyright or patent rights where such infringement resulted from an action taken for or on behalf of the Customer.
      1. New goods are guaranteed according to the Manufacturer’s product specific warranties only and all other guarantees including common law guarantees are hereby specifically excluded. Services carry no guarantee.
      2. Liability under clause 7.1 is restricted to the cost of repair or replacement of faulty goods and services or granting of a credit at the sole discretion of Gundle.
      3. No claim under this contract will arise unless the Customer has, within 3 days of the alleged breach or defect occurring, given Gundle 30 days written notice by prepaid registered post to rectify any defect or breach of contract
      4. To be valid, guarantee claims must be supported by the original Tax Invoice.
      5. It is the duty of the Customer to return any defective goods to the premises of Gundle at the Customer’s own cost and packed in the original packaging of the goods.
      6. All guarantees are immediately null and void should any equipment be tampered with or should the seals on equipment be broken by anyone other than Gundle or should the goods be operated outside the Manufacturer’s specifications.
      7. Any item delivered to Gundle will serve as a pledge in favour of Gundle for present and past debts and Gundle will be entitled to retain or realise such pledges as it deems expedient at the value as determined in 15.1. The sworn or realised value of pledged goods will be offset against the Customer’s debts and any remaining balance will be paid by the Customer.
    4. Under no circumstances will Gundle be liable for any damages or for any delictual liability of any nature whatsoever.
    5. Under no circumstances will Gundle be liable for any damage arising from any misuse or abuse of the goods.
    6. The Customer agrees to pay the amount on the Tax Invoice at the offices of Gundle (a) cash on order, or (b) if the Customer is a credit approved Customer, within the granted credit period as specified on the Credit Application from the end of the month in which a Tax Invoice is issued by Gundle.
      1. The Customer has no right to withhold payment for any reason whatsoever and agrees that no extension of payment of any nature will be extended to the Customer and any such extension will not be applicable or enforceable unless agreed by Gundle, reduced to writing and signed by the Customer and a duly authorised representative of Gundle.
      2. The Customer is not entitled to set off any amount due to the Customer by Gundle against his debt
      3. All discounts will be forfeited if payment in full is not made on the due date.
      1. The Customer agrees that the amount due and payable to Gundle may be determined and proven by certificate issued and signed by any Manager or Director of Gundle or any Company comprising of the Gundle group of Companies. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer.
      2. Any printout of computer evidence tendered by any party shall be admissible evidence and no party shall object to the admissibility of such evidence purely on grounds that such evidence is computer evidence.
      1. The Customer agrees that interest shall be payable on any monies due to Gundle at the maximum legal interest rate prescribed in terms of the Usury Act, from the date they fell due. In the case of late payment interest shall be calculated from the date of order.
      2. The Customer expressly waives all rights to Claim prescription under the relevant provisions of the Prescription Act 58 of 1969 as amended.
      1. The Customer agrees that if an account is not settled in full (a) against order, or (3) within the period agreed in clause 10 above in the case of a Credit Approved Customer, Gundle is: (I) entitled to immediately institute action against the Customer at the sole expense of the Customer; or (ii) entitled to cancel the agreement and take possession of any goods delivered to the Customer and claim damages. These remedies are without prejudice to any other right Gundle may be entitled to in terms of this agreement or in law.
      2. A Credit Approved Customer will forthwith lose this approval when payment is not made according to the conditions of 10(b).
      1. In the event of cancellation, the Customer shall be liable to pay (a) the difference between the selling price and the value of the goods at the time of repossession and (b) all other costs incurred in the repossession of the goods. The value of repossessed goods or retained pledged goods will be deemed to be the value placed on them by any sworn valuator after such repossession and such valuation will be conclusive proof of the value.
      2. The Customer irrevocably authorises Gundle to enter its premises to repossess any goods delivered and indemnifies Gundle completely against any damage whatsoever relating to the removal of repossessed goods.
      3. In the event of cancellation in terms 14.1 by Gundle for goods not yet delivered, the Customer shall be liable for damages to the extent of the difference between the selling price and the cost price of the goods, which may be determined and proven by a certificate issued by any independent auditor. Such certificate shall be prima facie evidence of such damages. This clause does not preclude a claim for any other damages which Gundle may have suffered.
      1. All goods supplied by Gundle remain the property of Gundle until such goods have been fully paid for whether such property is attached to other property or not.
      2. The Customer is not entitled to sell or dispose of any goods unpaid for without the prior written consent of Gundle.
      3. If any goods supplied to the Customer are of a generic nature and have become property of the Customer by operation of law (confusion or commixfio) the Customer shall be obliged on notice of cancellation of the agreement to retransfer the same quantity of goods in ownership to Gundle.
      4. The Customer agrees to accept any bulk quantity that does not exceed or fall short of the quantity ordered by more than 10% as good and complete performance and shall pay the pro rata contract price for the actual quantity dispatched.
      1. The Customer shall be liable to Gundle for all legal expenses on the attorney and own client scale of an attorney and counsel incurred by Gundle in the event of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this agreement. The Customer will also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Gundle may demand.
      2. The Customer shall pay five thousand Rand into court or furnish sufficient security in lieu of costs in any action instituted by or against the Customer.
      3. The Customer agrees that Gundle will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate’s Courts or in terms of Rule 47 of the Law of the Supreme Court 49 of 1959.
    7. The Customer agrees that no indulgence whatsoever by Gundle will affect the terms of this agreement or any of the rights of Gundle and such indulgence shall not constitute a waiver by Gundle in respect of any of its rights herein. Under no circumstances will Gundle be stopped from exercising any of its rights in terms of this contract
    8. Gundle shall have the right to institute any action in either the Magistrate’s Court or the Supreme Court at its sole discretion.
      1. Any document will be deemed duly presented to the Customer within (i) 3 days of prepaid registered mail to any of the Customer’s business or postal addresses or to the personal address of any Director, Member or Owner of the Customer or (ii) within 24 hours of being faxed to any of the Customer’s fax numbers or any Director, Member or Owner’s fax numbers; (iii) on being delivered by and to the Customer or any Director, Member or Owner of the Customer; (iv) within 48 hours if sent by overnight courier, or (v)within 24 hours of being telexed to the Customer’s telex number.
      2. The Customer chooses domiciliumcitandietexecutandi the business address or the physical addresses of any Director (in the case of a company), Member (in the case of close corporations) or of the Owner (s) or partner (s).
      3. The Customer undertakes to inform Gundle in writing within 7 days of any change of Director, Member, Shareholder or Owner, telephone numbers or addresses or 14 days prior to selling or alienating the Customer business and failure to do so will constitute a material breach of this agreement
    9. The Customer agrees to the standard rates of Gundle for any goods and services rendered, which rates may be obtained on request
    10. The invalidity of any part of this contract will not affect the validity of any other part
    11. Any order is subject to cancellation by Gundle due to force majeure from any cause beyond the control of Gundle, including (without restricting this clause to these instances); inability to secure labour, power, materials or supplies, or by reason of an act of God, war, civil disturbance, riot, state of emergency, strike, lockout or other labour disputes, fire, flood, drought or legislation.
    12. Any order is subject to cancellation if the Customer breaches any term of this contract or makes any attempt of compromise, liquidation, sequestration, termination or judgement is recorded against the Customer or any of its principals.
    13. The Customer acknowledges that this contract will be binding in respect of all dealings by the Customer with any one of the Companies comprising and making up Gundle, notwithstanding the fact that each of the Companies comprising Gundle shall provide a separate accounting to the Customer in respect of orders placed with it