OCTOPUS ELECTRONICS (PTY) LTD
STANDARD TERMS AND CONDITIONS OF SALE, SERVICE AND REPAIR
The Customer in placing an order upon Octopus Electronics accepts the terms and conditions of sale, service and repair below, as read with any terms recorded on Octopus Electronics’ invoices / delivery notes notwithstanding that the Customer’s order/s and invoices may themselves contain terms and conditions of trade, or that the Customer may have it’s own standard terms and conditions for trade. The Customer acknowledges that the terms and conditions herein contained shall supercede and replace all and any of it’s own said terms and conditions of conduct of business.
Orders for goods ought to be placed upon Octopus Electronics in writing, however Octopus Electronics reserves the right to accept oral orders. Octopus Electronics reserves the right to increase prices to allow for fluctuations in the exchange rate, the cost of labour and/or materials, import tariffs, taxes and imposts, duties and import costs including but not limited to carriage, insurance and international and/or local freight costs without prior notice. Prices quoted are exclusive of value added tax, except where stated to the contrary. The customer acknowledges that the quoted price will thus fluctuate dependent upon inter-alia the factors aforementioned and will only be fixed when payment is tended and/or order placed with supplier.
The purchase price for the goods, plus a handling fee in all instances other than where Octopus Electronics services, maintains and repairs equipment shall be paid by the Customer directly to Octopus Electronics, by way of electronic funds transfer, directly into the banking account of Octopus Electronics without deduction or set-off, upon date of delivery of the goods purchased, or as otherwise agreed in writing, in accordance with these terms and conditions, all of which are material. Should the Customer make payment by way of cheque or any other means, the cheques are to be crossed and marked “Not Transferable”, and payable to Octopus Electronics. Notwithstanding anything to the contrary herein contained, or by virtue of past conduct, payment will only be deemed to have been made once payment is credited and cleared by Octopus Electronics bankers. All risk of whatsoever nature attaching to payment, whether by means of a cheque or otherwise, whether arising from theft, fraud, and/or counterfeiting shall vest with the Customer.
The obligations of Octopus Electronics in respect of any order, whether for the purchase of goods, or servicing and/or repairs of any unit is wholly suspensive upon the payment by the Customer of a deposit to be determined by Octopus Electronics in it’s sole and absolute discretion. Save where otherwise agreed in writing, the customer shall make a 75% deposit payment of the purchase price/service and/or repair fee prior to Octopus Electronics’ release of the goods and/or the serviced and/or repaired unit. Where credit terms are provided to the Customer, payment shall be made strictly within 30 days of date of statement, failing which Octopus Electronics shall be entitled to suspend, delay and/or cancel any outstanding order and suspend all work under and in terms of any order and terminate the Customer’s credit terms, in which event all amounts then outstanding will immediately become due, owing and payable, interest will be charged on all overdue accounts at the rate as Prevailing by the Minister of Finance in terms of the Prevailing Rate of Interest Act per month, compounded monthly in arrears from the date upon which payment fell due, to the date of full and final payment.
Time shall not be of the essence insofar as an accepted order relates to deliveries, and Octopus Electronics does not guarantee delivery of the goods on any specific date. If the Customer defers and/or postpones delivery when Octopus Electronics is ready to deliver or tenders delivery, the Customer shall be liable for payment of the goods as if acceptance had not been deferred or delivery had not been postponed, and in addition thereto the Customer shall be liable for all resultant costs and / or expenses, including where appropriate, storage and insurance costs.
Ownership in and to any goods and/or products sold by Octopus Electronics to the Customer shall remain vested in Octopus Electronics until the full purchase price in respect thereof has been paid in full. All risk of loss and/or damage howsoever caused or arising, including but not limited to loss and/or damages sustained to the goods as a result of fire, theft, pilferage, willful, reckless and/or negligent acts or omissions on the part of Octopus Electronics, it’s agents, and employees or any other person, acts of God, force majeure or accident of any nature, shall pass to the Customer upon tender of delivery at the premises of Octopus Electronics, or in the event that the goods are to be delivered to the customer or its nominee at any address other than that of Octopus Electronics, immediately upon the goods being released from Octopus Electronics stores for loading and dispatch to the Customer or its nominee. Under no circumstances will Octopus Electronics be liable for any loss or damage howsoever caused or arising whilst the goods are being loaded, or whilst the goods are in transit to the Customer or its nominee.
Octopus Electronics shall be entitled to charge an inspection, storage and handling fee for inspecting and assessing the nature and extent of damage sustained to goods and the repair costs thereof in all instances where the Customer declines to place a repair order upon Octopus Electronics equivalent to 10% of the aggregate quoted repair cost. Should the Customer fail , refuse or neglect to collect any goods upon being notified to do so, Octopus Electronics shall be entitled to levy a storage and handling fee of R50,00 (Excl VAT) per day if no response is received on repair estimate during the repair estimate validity period of seven (7) days to the date upon which the goods are collected. Should the Customer cancel any order for goods, Octopus Electronics shall be entitled, without prejudice to any other rights it may have at law, to levy a cancellation fee equivalent to 100% of the purchase value.
If Octopus Electronics cannot deliver some or all the goods for any reason beyond Octopus Electronics’ control, including and without being limited to lack of instruction/s from the purchaser, stock shortage/s, industrial dispute or breakdown, government action, state of war, riot, civil disturbance or any other act of God, Octopus Electronics may in its sole discretion, cancel the whole or any part of any order forthwith. In the event of such cancellation, Octopus Electronics shall not be liable to the Customer for any loss and/or damage whether in contract or in delict, (including, without being limited thereto, any loss of profits) thereby caused. Octopus Electronics shall under no circumstances whatsoever be liable to the Customer for any loss and/or damage [consequential or otherwise] as a result of any act or omission on Octopus Electronics’ behalf howsoever arising.
Octopus Electronics is the appointed distributor of goods which are sold with the manufacturer’s standard warranty against defects. Octopus Electronics warrants its services and repairs will be free of defects for a period of six months, provided that written notice of such defect is provided to Octopus Electronics within three days of the defect arising. In all instances, the warranties aforementioned shall be voided in the event that the customer should tamper with or attempt to repair any goods themselves, or interfere with the services and repairs carried out by Octopus Electronics to the goods, and where such goods have, in the sole and absolute discretion of Octopus Electronics determined to have been used for a purpose other than that intended by the manufacturer or abused in any way. In no instance will Octopus Electronics be liable for any damages suffered or sustained by customer or any third party as a result of any defects, its liability shall be limited, at its sole and absolute discretion, to repairing and/or replacing the defective goods, services or repair. The customer acknowledges that no warranties are made that the goods will be suitable to the purpose intended by the customer. The customer further acknowledges that all descriptive literature and illustrations given are intended as a general guide of the goods described and nothing contained therein shall form part of the order nor shall any provision contained therein be deemed to be a representation or a warranty term, or a condition or constitute a collateral contract.
The Customer hereby indemnifies Octopus Electronics against all or any claims, action, harm, losses and/or damages of whatsoever nature which may be made against Octopus Electronics by any person/s whomsoever whether in contract and/or delict or otherwise and whether for loss of profits, loss and/or damage to person and/or property, injury and/or loss of life and/or limb and/or otherwise arising as a result of the supply of any goods, services, and or repair to any goods, the acts or omissions of its staff whether wilful, reckless or negligent. This indemnity shall include the payment by Octopus Electronics of legal fees to its attorneys on an attorney and client scale in contesting any such action. This indemnity shall extend to cover Octopus Electronics against any loss and/or damage which it may suffer or sustain by virtue of Octopus Electronics supplying goods to any person in the employ of the Customer or purporting to represent the Customer, notwithstanding that the person so acting is without authority to do so.
Octopus Electronics at its sole and absolute discretion shall be entitled, at any time, to revoke, suspend, amend, vary and/or cancel any order placed upon it by the Customer, in which event, subject to the provisions of clause 7 above, all and any amounts paid by the Customer to Octopus Electronics shall immediately be refunded to the customer. The customer shall have no other remedy against Octopus Electronics in such event.
The Customer shall not, without Octopus Electronics prior written consent, disclose any specification, plan, drawing, pattern, sample, or information furnished by and on behalf of Octopus Electronics in connection with the goods. The Customer shall not, without Octopus Electronics’ prior written consent, make use of any document or information disclosed to it by Octopus Electronics or which might relate to the goods. All documents and information to which the Customer becomes privy shall remain the property of Octopus Electronics and the Customer shall acquire no rights thereto.
In the execution of the Agreement, the Customer undertakes to observe the utmost good faith and warrant in its dealings with octopus Electronics that it shall neither do anything nor refrain from doing anything which might prejudice or detract from the rights, assets or interests of Octopus Electronics.
The terms and conditions contained in this credit application form and/or standard terms and conditions of trade, shall constitute the entire agreement between Octopus Electronics and the Customer and no variation, amendment, consensual cancellation or otherwise shall be of any force or effect unless agreed to by both the Customer and Octopus Electronics in writing.
No indulgences, latitude, extension of time or the like granted by Octopus Electronics to the Customer shall in any way whatsoever constitute a novation or waiver of any rights which Octopus Electronics may have against the Customer nor may it operate as an estoppel against Octopus Electronics.
This agreement shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.
The Customer confirms that a certificate signed by a credit manager of Octopus Electronics setting out the amount owing by the Customer to Octopus Electronics shall constitute prima facie proof that the said amount is due, owing and unpaid, and sufficient for the purposes of obtaining summary judgment or provisional sentence. Where the quantum of Octopus Electronics’ claim is thereafter disputed by the Customer, the Customer shall bear the onus of disproving that the said amount is due, owing and payable.
In the event that a dispute should arise between the parties, Octopus Electronics shall be entitled to require, by written notice to the Customer, that the dispute be submitted to arbitration in terms of this clause. Subject to the provisions of this clause, arbitration shall be held under the provisions of the arbitration laws of the time in force in the Republic of South Africa, provided that the arbitrator shall be a practising attorney of not less than 10 (ten) years standing, agreed upon by the parties, or failing agreement within five days after the date on which the arbitration is demanded, appointed by the Chairperson of the Law Society of the Northern Provinces. The arbitration shall be held at Sandton, at a venue and in accordance with formalities and/or procedures determined by the arbitrator, and may be held in an informal and summary manner, on the basis that it shall not be necessary to observe or carry out the usual formalities and/or procedures, pleadings and/or discovery, or strict rules of evidence. The arbitrator shall be entitled:- (i) to investigate or cause to be investigated any matter, fact or thing which he/she considers necessary or desirable in connection with the dispute and for that purpose shall have the widest powers of investigating all the books and records of either party to the dispute, and the right to take copies or make extracts therefrom and the right to have them produced and/or delivered at any reasonable place required by him/her for the aforesaid purpose, (ii) to interview and question under oath, any representative of either of the parties, (iii) to decide the dispute according to what he/she considers just and equitable in the circumstances, (iv) to make such award, including an award for costs, specific performance, an interdict, damages or a penalty or otherwise as he/she in his discretion deems fit and appropriate, provided that should the arbitrator fail to make an award with regard to costs, the costs shall be borne equally by the parties. The arbitration shall be held as quickly as possible after it is demanded with a view to its being completed within thirty days after it has been so demanded. Immediately after the arbitrator has been agreed upon or nominated in terms of this clause either party shall be entitled to call upon the arbitrator to fix a date and place when and where the arbitration proceedings shall be held and to settle the procedure and manner in which the arbitration proceedings will be held. Any award made by the arbitrator: (i) shall be in writing and shall include reasons therefore, (ii) shall be final and binding, (iii) will be carried into effect; and (iv) may be made an order of any Court to whose jurisdiction the parties to the dispute are subject. This clause constitutes an irrevocable consent by the parties to any proceedings in terms hereof and no party shall be entitled to withdraw therefrom or to claim in any such proceedings that it is not bound by this clause.
This clause shall not preclude any party from obtaining relief by way of motion proceedings on an urgent basis from a Court of competent jurisdiction pending the decision of the arbitrator. This clause shall be severable from the rest of this agreement and shall remain effective notwithstanding that this agreement shall for any reason whatsoever, be terminated.
The Customer warrants that the information submitted above is true and correct, and that it has disclosed to Octopus Electronics all information which would reasonably be considered to be material in the consideration of and granting of a credit facility.
The provisions contained in this agreement are severable, the one from the other. In the event that any one or more of the terms contained herein should be found to be invalid or unenforceable, to the extent of the invalidity or unenforceability that term shall be severed from the rest of this agreement which shall continue to be of full force and effect
Octopus Electronics reserves the right to use all recorded materials on site(s) for advertising / social media purposes unless otherwise agreed in writing.
22. PROPERTY DISCLAIMER
You, the client acknowledge that Octopus Electronics is not responsible for and that you, the client will not hold Octopus Electronics Liable for the loss, damage and/or destruction of any property brought onto the Octopus Electronics premises arising from theft, wilful, reckless and/or negligent act or omission on the part of Octopus Electronics’ staff and invitees.
You, the client furthermore waive all and any claims against Octopus Electronics for personal injury and/or death suffered or sustained in or about the Octopus Electronics premises from whatsoever cause arising.
You, the client furthermore agree to indemnify Octopus Electronics and hold it harmless against all and any claims, demands and actions by any person whomsoever as a result of any loss, damage and/or destruction of property, injury and/or death of any person.