1. DEFINITIONS
In these conditions:
"Company" means IMC (Tianjin) International Trading Company (Incorporated in PROC)
"Customer" means the other contracting party;
"Products" means all the goods supplied by the Company under the Contract;
"Services" means all the services supplied by the Company in relation to the Products;
"Order" means the order placed by the Customer with the Company for the Products and/or Services;
"Contract" means an Order accepted by the Company (in writing or verbally);
"Total Contract Price" means the aggregate price of all the Products and/or Services (excluding value added taxes)
supplied by the Company under the Contract;
"Specification" means the Company's Specification for the Products';
"FCA" means Free Carrier (... named place) as such expression is defined in INCOTERMS 1990 published by the
International Chamber of Commerce.
“FOB” means Free on Board as stipulated by carriers for shipping purposes
“PROC” means the Peoples Republic of China
2. QUOTATION
All quotations shall be subject to these conditions and unless otherwise stated or unless withdrawn by the Company,
shall be valid for a period of thirty (30) days from the date of the quotation. The quotation is not an offer to proceed and
the Customer is required to place a written Order with the Company using the same reference as on the quotation.
3. PRECEDENCE OF THESE CONDITIONS
The Customer agrees that the Order fully specifies its requirements for Products and/or Services and unless agreed to by
the Company in writing shall be deemed to be placed subject to these conditions notwithstanding anything to the
contrary contained in or referred to on the Order. The Order shall not be binding on the Company until specifically
accepted in writing.
4. PRICES
Unless otherwise stated, all prices are strictly net, and are for delivery to site (or otherwise stated in the quotation) in the
mainland of Republic of South Africa or FOB South African airport/port for any other destination.
5. PRICE ADJUSTMENT
The Company reserves the right at any time prior to delivery to vary the price quoted for the Products and/or Services if
following the date of the Order there is any change in rates of exchange, any imposition or alteration of Government tax,
any increase in the cost of materials, labour or transport or if the cost of supplying the Products and/or Services is
increased by any other factor beyond the control of the Company.
6. PAYMENT
6.1 RSA Customers
Unless otherwise agreed, payment is to be made against the Company's tax invoice and payment shall be net cash within
thirty (30) days of the date of tax invoice (unless otherwise stated and agreed to in writing on the confirmation of order)
6.2 Overseas Customers
Unless otherwise agreed the Order must be accompanied by a remittance or advise that an irrevocable South African
Rand Letter of Credit has been established with and confirmed by a major SA Clearing Bank in favor of the Company.
This Letter of Credit shall have a validity equal to the full delivery period of the Equipment plus one month and shall
provide for part shipment and trans-shipment with the release of one hundred per cent of the value for each shipment
against presentation of commercial tax invoices, packing list and bill of lading, or forwarding agent's receipt, or airway
bill as evidence of dispatch of the Equipment.
Direct TT transfer to IMC stipulated bank account is acceptable subject to payment terms and conditions and invoice
conditions.
6.3 PAYMENT of INTEREST
Any sums not paid on the due date shall be subject to an interest charge at the rate equal to 4% above prime overdraft
rate of the ABSA Bank of South Africa Limited, per annum compounded monthly on all amounts overdue until
payment thereof such to run from day to day and to accrue after as well as before any judgment.
7. SET-OFF
In the event that either:
(a) the Customer has not paid any sum or sums which are due and payable to the Company;
or
(b) the Company has not paid any sum or sums which are due or about to be due and payable to
the Customer for any reason;
the Company shall have the right at its sole discretion to reduce the Customer's indebtedness referred to in sub-clause (a)
above by setting off against such indebtedness any sums due and payable to the Customer by any Group company or
reduce the Company's indebtedness referred to in sub-clause (b) above by setting-off against such indebtedness any
sums due and payable by the Customer to any Group company.
8. DELIVERY AND RISK
(a) Subject to the following sub-clauses of this clause 8, all risks shall pass to the Customer upon delivery.
(b) Unless otherwise specified, delivery shall be deemed to take place when the Products have been delivered
to the Customer's premises or other specified delivery point in the Republic of South Africa, to the
Customer's carrier if to be collected or FOB airport/port if for dispatch overseas.
(c) All dates and times specified to the Customer for delivery and installation of the Products or the provision
of Services are estimates only and the Company shall not have liability for delay or for any damages or
losses sustained by the Customer as a result of such dates or times not being met. The customer shall not be
entitled to refuse acceptance of the Products or Services as a consequence of such delay.
(d) The Company may in its absolute discretion withhold delivery of the Products and/or supply of the Services
pending payment of any sum due from the Customer either to the Company or to any Group company.
(e) If the Customer does not accept delivery of a consignment of Products in accordance with the Contract
then:
(i) the Company shall be entitled to claim payment in accordance with
clause 6 above for the Products refused; and
(ii) the Products refused shall be in all respects at the Customer's risk; and
(iii) the cost of storing the products shall be borne by the Customer; and
(iv) if such failure to accept delivery continues for more than ten days, the
Company shall have the right to terminate the Contract pursuant to
clause 18 below.
9. DAMAGE OR LOSS IN TRANSIT
The Company will at its discretion either refund the cost or replace or repair free of charge any Products proved to the
Company's satisfaction to have been lost or damaged in transit up to the moment of delivery provided that within three
(3) days of receipt of the Products in the case of damage or within ten (10) days of the date of the invoice or advice note
or equivalent notice whether oral or written in the case of loss, the Customer notifies both the carrier and the Company
in writing of the nature and extent of the damage or loss. The Company accepts no liability for delay in transit. Unless
the Products are checked on receipt, the carriers documentation should be endorsed "unexamined".
10. NOTICES
The Customer chooses domicilium citandi et executandi for all purposes under the Contract at its address stated in the
Contract.
Any notice required to be given hereunder shall be sufficiently given if properly addressed and sent by registered post,
facsimile transmission or telex (and if sent by facsimile transmission or telex, shall be confirmed by an equivalent notice
sent by registered post within 48 hours of the sending of the original notice, or delivered by hand) to in the case of the
Company its registered office and in the case of the
Customer its chosen domicilium address or, failing the giving of such address, its last known address and shall deemed
to have been properly served at the time when in the ordinary course of transmission it would reach its destination.
11. TITLE
(a) The Company shall retain title to the Products as legal and equitable owner until it shall have received all sums
due to it from the Customer whether under the Contract or any other contract between the parties. Subject to
sub-clauses (d) and (e) below, until the Customer has paid the Total Contract Price together with all VAT
payable thereon:-
(i)the Customer shall store the Products in a manner which makes them
readily identifiable as the property of the Company; and
(ii)the relationship of the Customer to the Company shall be fiduciary in
respect of the Products and accordingly the Company shall have the
right to trace any proceeds of sale.
(c)If any event occurs under clause 18 below which would entitle the Company to
terminate any Contract:-
(i) the Customer shall immediately notify the Company of such event; and
(ii)notwithstanding any failure to so notify, all sums due to the Company
shall become immediately payable; and
(iii)the Company by its servant or agents may for the purposes of recovery
of all or any of the Products enter upon any premises where they are
reasonably thought to be stored and may repossess the same.
(d) The Customer is licensed by the Company to agree to sell the Products, subject to the express condition that the
entire proceeds thereof are held in trust for the Company.
(e) The Customer is licensed by the Company to mix the Products with goods not supplied by the Company
subject to the following express conditions, which shall apply unless and until all sums due to the Company
have been paid;
(i) if the Products are incorporated in or fixed or attached to or used as
material for goods owned by the Customer to form new goods such
goods shall be deemed to be the sole and exclusive property of the
Company; or
(ii) if the Products are incorporated in or used as material for goods owned
by a third party to form new goods such goods shall become or shall be
deemed to be owned in common with that third party in proportion to the
value of the Products to the other goods at the date of such
incorporation to use.
The Company's rights hereunder shall extend to those new goods whether under sub-clauses (e)(i) or
(e)(ii) above and in particular the Customer shall hold any proceeds of sale of such new goods on trust for the
Company.
12. SPECIFICATION
(a) The Products will be supplied generally in accordance with the Specification. The Company's policy is one of
continuous development and consequently the Specification may vary from time to time. The Company will
not accept liability for the Products in respect of variations from the Specification except where any variation
from the Specification is material
(b) Descriptions and illustrations contained in Company catalogues shall not form part of the Contract.
(c) All specifications, drawings and technical descriptions submitted with or in connection with any quotation or
acknowledgement of the Company are the Company's copyright.
13. WARRANTY
(a) Any Products which are found to the Company's satisfaction to be
defective as a result of faulty design, manufacture or workmanship will at
the sole discretion of the Company either be replaced free of charge or
repaired free of charge provided that:-
(i) the Products (or samples thereof showing the alleged defects) are
returned properly packed carriage paid to the Company's works in the
Republic of South Africa at the Customer's risk within 12 months from
the date of delivery as defined in clause 8 above, and the Products have not been misused, mishandled,
overloaded,
amended, modified or repaired in any way by the Customer, its servants
or agents, or used for any purpose other than that for which they were
designed, and if the Products have been manufactured to the Customer's design the
defects are not as a result of faulty design of the Customer.
(b) If the products have been bought in as manufactured items (independently working machines) from a third
party manufacturer, the items/machines will carry the warranty/guarantee from and in accordance to the terms
and conditions of that manufacturer. In the case where the company acts as an agent for a manufacturer no
warranty/guarantee will in any way be carried by the company. The entire warranty/guarantee will be carried
by the agents supplier according to the agents suppliers standard clause’s and conditions
(c) Repaired or replaced Products will be returned free of charge to destinations on the mainland of the Republic of
South Africa or delivered FCA South African airport/port for other destinations.
(d) If the Customer wishes to return any Products, the Customer shall notify the Company thereof within 14 days
of delivery of those Products, failing which the Customer shall not be entitled to return any of those Products to
the Company and the Customer shall have no further claim against the Company in respect of those Products.
14. CUSTOMER ACKNOWLEDGEMENT
The Customer acknowledges and agrees that
(a) it is responsible for the operation of the Products and should ensure that they are used safely and that it should
use, maintain, store and keep the Products in accordance with any instructions, user handbook or other form of
guidance relating to them; and
(b) it would be prudent for the Customer to insure against all loss or damage the Customer may suffer as result of
the Company's acts or omissions whether negligent or not on the basis that the Company's potential liability
hereunder might otherwise be disproportionate to the Total Contract Price.
15. LIABILITY
(a) The warranty given in clause 13 above is the only warranty given by the Company and otherwise this clause 15
specifies the entire liability of the Company including liability for negligence and in particular but without
limitation all statutory or other express, implied or collateral terms, conditions or warranties are excluded.
(b) The Company shall not be under any liability (including liability for negligence) for any loss or damage or
injury to the Customer whatsoever, no matter when or how arising, out of the Products or Services or otherwise,
whether direct or indirect, consequential or contingent and whether foreseeable or not and in particular shall not
be liable for financial loss or loss of profits, contracts, business, anticipated savings, use or goodwill.
(c) The Customer will indemnify the Company against any liability (including liability for negligence) no matter
when or how arising out of any claim by any third party against the Company together with all legal costs
relating thereto except that insofar as the claim relates to direct physical damage to or loss of property resulting
from the negligence of the Company this indemnity shall only apply if and to the extent that the claim and/or
legal costs exceed the sum calculated pursuant to clause 15 (d)(i) and (ii) below.
(d) Under no circumstances will the Company's liability, whether in contract or otherwise, exceed in the
aggregate:
(e1) South African Currency is used for purposes of transactions in the republic of South Africa
(i) where the Total Contract Price is R100,000 or less, the sum of R50,000;
or
(ii) where the Total Contract Price exceeds R100,000, fifty percent of the
Total Contract Price.
(e2) Goods purchased outside of the republic of South Africa will be subject to the following US$ amounts.
(i) where the Total Contract Price is US$10,000 or less, the sum of US$5,000;
or
(ii) where the Total Contract Price exceeds US$10,000, fifty percent of the
Total Contract Price.
16. PATENT INDEMNITY
If the Customer is threatened with any action alleging that the Products in the form sold infringe any Patent, Copyright
Registered Design or the intellectual property rights then provided that the Customer promptly informs and fully cooperates
with the Company and in cases where the Company so requests allows the Company to defend any action on
the Customer's behalf and have the sole control of any and all negotiations for settlement, then the Company will
indemnify the Customer against any award of damages and costs against the Customer arising from such action. Further,
if such event occurs the Customer agrees that the Company shall have the option at its own expense either:
(a) to modify the Products so that they do not infringe or
(b) to replace the Products with non-infringing goods or
(c) to procure for the Customer the right for the Customer to continue its use of the Products or
(d) to repurchase the Products from the Customer at the price paid by the Customer less depreciation.
The Company shall have no liability in respect of claims for infringement or alleged infringement of third parties patent
or other proprietary rights arising from the execution of the Order in accordance with the Customer's designs, plans or
specifications and the Customer shall indemnify the Company against all losses, damages, expenses, costs or other
liability arising from such claims.
17. EXCUSABLE EVENTS
The Company shall be under no liability to the Customer for any breach of any provision hereof or failure on its part to
perform any obligation as a result of acts of God, war (whether declared or not), sabotage, riot, explosion, Government
control, restrictions or prohibitions or any other Government act or omission whether local or national, fire, accident,
earthquake, storm, flood, epidemic, drought, or other natural catastrophes, inability to obtain equipment, suitable raw
materials, components, fuel, power or transportation, disputes with workmen, strikes or lockouts, shortage of labour or
any cause beyond the control of the Company and the Company will notify the Customer if affected by any of the
causes referred to in this sub-clause. In the event that the Company is unable to perform its obligations under the
Contract by reason of any of the causes referred to above for a period of six months or more, then either party may at
any time after the expiration of such six month period terminate the Contract by written notice.
18. TERMINATION
Without prejudice or any claim or right it might otherwise make or exercise in terms of the Contract or by law, the
Company shall be entitled forthwith to cancel the Contract upon written notice to the Customer and to claim for any
losses, costs or expenses thereby incurred by it:
(e) the Customer commits any material breach of any of these terms and conditions which goes to the root of the
Contract, or
(f) the Customer commits any other breach of any of these terms or conditions and fails to remedy such breach
within a reasonable period of time after having received due notice from the Company to do so, or
(g) the Customer makes or offers to make any arrangements or composition with its creditors or commits any act of
insolvency, as defined in the Insolvency Act, 1936, as amended or any replacement thereof, or if the Customer, being an
individual or partnership, is sequestrated, whether provisionally or finally, or being a body corporate, is placed in
liquidation, whether provisionally or finally, or if any resolution is passed for the winding up of the Customer, or if the
Customer is placed in judicial management or if a third party seizes or threatens to seize the Products before legal
ownership has passed to the Customer in accordance with clause 11 above.
19. CONSENTS
Where applicable the Company shall endeavor to obtain an export license and all other necessary consents to enable the
Products to be exported from the Republic of South Africa. In the event that the Company is unable to obtain any export
license or visas or consents for personnel required to provide Services outside the Republic of South Africa the
Company shall not be held liable for its failure to perform the Contract. The Customer shall be responsible for obtaining
all consents necessary for the import of the Products to the country of its destination.
20. FORWARDING INSTRUCTIONS
Forwarding instructions where required shall be provided by the Customer not later than seven days after being advised
that the Products are ready for dispatch. If no forwarding instructions are received within this period the Company shall
have the right thereafter to deliver the Products and to charge the Customer in accordance with clause 6 above.
21. SOFTWARE
Where software is incorporated in or forms part of or is supplied with the Products the provision of software is subject
to the Company's Special Software License Conditions. In the event of conflict between these conditions and the Special
Software License Conditions the latter shall take precedence.
22. INSTALLATION AND COMMISSIONING
If the Services required by the Customer are special services such as installation, commissioning, training, development
or management services any additional terms of the Company applicable to such Services will apply except that in the
event of any conflict these conditions shall prevail.
Where the customer chooses to install and commission the items/machines supplied by the company. The company will
accept no liability for such installation and commissioning. The company will not be liable in any way for consequential
losses or damage in any form resulting from the installation and or commissioning undertaken by the customer.
23. AMENDMENTS OR CANCELLATIONS
Once accepted by the Company no Order can be amended or cancelled except with the Company's written approval and
upon terms, which indemnify the Company against any loss of profit or additional costs resulting therefrom.
24. ENTIRE AGREEMENT
These conditions supersede all previous conditions, understandings, commitments, agreements or representations
whatsoever whether oral or written relating to the subject matter hereof and shall not be varied except with the
Company's written consent.
25. TAXES
(a) Orders for Supply within the Republic of South Africa
All prices are exclusive of Value Added Tax which will be shown separately on quotations and invoices and will be
charged at the rate current at the date of invoice.
(b) Orders for Supply outside the Republic of South Africa
All prices are exclusive of all taxes, charges or levies of any kind whether payable on the supply of the Products and/or
Services to destinations outside the Republic of South Africa or otherwise, and these are payable by the Customer.
26. GOVERNING LAW
These conditions and the Contract shall be governed, construed and shall take effect in accordance with the laws of the
PROC, and shall be subject to the jurisdiction of the the prevailing legal courts in China.
27. HEADINGS
The headings in these conditions shall not be deemed to be part hereof or be taken into consideration in the
interpretation or construction hereof or of the Contract.
28. CONSTRUCTION
If any of the words or provisions of these conditions shall be deemed to be invalid for any reason, then the conditions
shall be read as if the invalid provisions had to that extent been deleted therefrom and the validity of the remaining
provisions of the conditions shall not be affected thereby.
Translation of this document from English to Chinese will be effected at the time the contract challenged. The Chinese
document will take preference over the English version.
This is an electronically controlled document
