1. Scope of Application
The terms and conditions herein set out are applicable to all sales (“sale contract” or “contract*) and are hereby expressly incorporated into the sale contract. Upon signing the Quotation and Order Confirmation (QOC), the Buyer shall be deemed to have accepted these Terms and Conditions.
No representative or agent of the Seller has any authority to add to or vary these Terms and Conditions.
No purchase order or purchase terms and conditions of Buyer or variation and/or amendment to these Terms and Conditions made by the Buyer shall have any force or effect unless specifically agreed in writing by the Seller.
2. Price
The price quoted in Seller’s 00C and/or Price Lists) shall always be understood to be ex-Factory/ex-Works, packing excluded, and all taxes, duties and any other expenses shall be for the account of the Buyer.
The goods ordered shall be invoiced at the price in effect and prevailing at the time of issuance of QOC.
However, if delivery is not completed as per date stipulated in the QOC and as agreed by both Seller and Buyer due to credit approval problems or delay in pick-up or receipt of the goods by the Buyer, any difference between the price of the goods as set out in the QOC and the price of the goods at the date of actual delivery, shall be to the Buyer’s account. In addition to the payment for the price of the goods, the Buyer is responsible for, and the Seller may recover from the Buyer:
(a) The cost of transportation and delivery including, but not limited to, costs relating to long loads, wide loads, drop trailers, crane trucks with unloading activity (including associated personnel), particular dunnage requirements palletizing or crating of materials;
(b) The costs incurred by the Seller should the Buyer change the agreed delivery schedule within a period of less than 5 working days from the agreed delivery schedule, and such costs shall include, but not be limited to, costs of double handling, storage of materials, and re-scheduling of production and delivery;
(c) The costs incurred by the Seller arising out of goods vehicle being held up at Buyer’s premises for an unreasonable amount of time, or the goods vehicle being obliged to return without completing delivery, or if the seller is required to provide additional staff to unload goods at Buyer’s site;
(d) The cost incurred by Seller in providing additional staff for loading Goods on Buyer’s goods vehicle at Seller’s premises;
(e) Storage charges where goods are not collected within 3 days from the date the goods are made available for collection at the Seller’s premises;
(f) The cost of any sampling, testing or inspection of goods required by the Buyer to be used in relation to the manufacture of the goods;
(g) The cost for any Professional Engineering Services and/or chargeable fees for services required by the Buyer to be used in relation to the application of the goods;
(h) All costs, charges, and/or expenses incurred by the Seller with respect to any modification, amendment or change to the terms and specifications of an order by the Buyer.
3. Quotations & Orders
All QOCs issued by the Seller to the Buyer are valid until the date specified on the QOC. In case no validity date is specified, the QOC lapses one week after the date of issue. The Seller may withdraw, revoke or revise a QOC at any time prior to the Buyer submitting an acceptance of the QOC by signing the QOC, due to any modification, amendment, or change to the terms and specifications made by the Buyer. In case goods are supplied with tolerances, these shall apply to quantity, weight, dimension and chemical composition as specified in the relevant order or, if not specified, as consistent with usual industry practice.
To avoid errors) and ensure better processing, orders shall be submitted in writing in accordance with the references and description in Seller’s Price Lists Catalogues/QOC. No order shall be accepted by the Seller without an official purchase order or approved QOC or written Agreement by the Buyer.
All orders shall be firm.
4. Delivery & Safety
Orders shall be processed within delivery terms specified on the QOC unless otherwise agreed in writing by both the Buyer and the Seller. All delivery dates quoted are estimates only. In the absence of sufficient stocks, the delivery date shall be communicated by the Seller.
The Buyer and the Seller understand that the Seller has no control over the movements of the vessel carrying the goods, notwithstanding any language in the QOC with respect to the estimated date of delivery.
The Seller shall not be responsible for delays of the vessel, including but not limited to, bad weather, lack of fuel, mechanical breakdown of the vessel, or any other such reason. Such delays shall not be a basis for the Buyer to declare a breach of contract, for a claim of damages, or for any other similar legal action.
The Seller reserves the right to:
(a) Decline to deliver in the event that there is reasonable cause to believe that delivery would be unsafe, unlawful, unreasonably difficult or in the event that access to the premises as designated by the Buyer for delivery is unsuitable for the goods vehicle;
(b) Charge for redelivery of goods, in case the Buyer does not accept delivery when it is attempted;
(c) Release responsibility for safe loading of goods (size, weight & positioning of goods on vehicle), in case the Buyer is collecting the goods on his vehicle;
(d) Discharge responsibility for any liability or claim arising out of bundling or packaging of the goods, should that be done by the Buyer.
A delivery note given to the Buyer by the Seller stating the quantity, description, date and place of delivery of goods shall be a conclusive document and shall be binding onto them. A signed delivery note shall constitute ‘prima facie’ proof that (i) the goods have been delivered to and received by the Buyer in good condition and, (ii) the possession of the goods is transferred to and accepted by the Buyer.
5. Placement Supervision
The Seller provides limited placement supervision at their discretion and is under no obligation to provide labour for the required placement of products). Seller is under no liability for any pilferage and/or any accident(s) which may occur on Buyer’s site.
6. Payment
All payments shall be made in Cash or in cleared funds upon confirmation of order by Buyer, save and except if the Buyer has a credit approval in writing from the Seller, in which case the Seller’s General Terms & Conditions of Credit shall apply.
In case of any failure to pay any amounts due on their due date, the Seller reserves the right to:
(a) Claim payment with interest in accordance with section 3 of the General Terms & Conditions of Credit. In this case, the Buyer indemnifiesand holds the Seller harmless from all expenses and liabilities that may be incurred directly or indirectly;
(b) Reduce, review or withdraw Credit Approval at any time without notice;
(c) Bring forward due date for payment at any time without notice;
(d) Cancel any discount and/or special price;
(e) Disclaim any right of the Buyer to set off any payment due against any amounts due by the Seller to the Buyer.
7. Warranty
All the Seller’s products), excluding any and all Third Party Products as defined in clause 10, are warranted against defects of workmanship for a period of seven (7) days, subject to specifications of the products) based on structural re-conversion from Buyer’s drawings, proper operating condition of machinery, and the Standard Code of Practice for the storage, handling and installation of the Seller’s products on Buyer’s site as per Seller’s recommendation and/or Standard International Practices.
Details, comments, and or notes on Seller’s Engineering drawings are solely for informational purposes and have no implications, whatsoever, direct, or indirect, on the warranty of the said products.
The warranty shall be null and void in case the Seller’s products have been misused by the Buyer or if any defect is caused as a result of the Seller’s products being inappropriately used in conjunction with other products).
Discoloration and superficial rust due to open-air storage of the Seller’s products) are deemed acceptable so long as products) meets) required applicable standards and is/are accordingly excluded from the warranty.
No warranty is given by the seller as to the fitness or suitability of the goods supplied for any specific purpose, whether notified or otherwise, given that the Buyer has selected on his own will the product to be purchased and that the Seller has no control over the process of manufacture employed by the Buyer.
8. Force Majeure
The Seller shall not be liable for, nor be considered in breach of this contract due to any delay or failure to perform their obligations under this contract as a result of a force majeure. For the purposes of this clause, a force majeure means an event or situation beyond the control of the Seller, that is unforeseeable and irresistible, and its origin is not due to the Seller’s negligence or lack of care. Such events shall include, but not be limited to, outbreaks of epidemics or pandemics, quarantine restrictions, wars or revolutions, fires, embargoes, shipping related delays, strikes, earthquakes, and floods.
9. Third Party Products
All products originating from third party supplies, other than the Seller’s related companies, are sold “as is and without warranty, whether or not the products have been inspected by the Buyer prior to delivery. Any statement, specification, description and/or other information provided by the Seller in respect of such products is given in good faith but the Seller accepts no responsibility for its accuracy.
The Seller shall be under no obligation to replace or make good such products nor be liable for any claim whatsoever in respect of any defects in the products.
10. Specifications
Should the goods be sold based on their weight, the price thereof shall be calculated on the basis of a theoretical weight per meter of each diameter utilized in the QOC.
The Seller reserves the right to make any minor modifications necessary to the products to ensure conformity to any applicable safety or other statutory requirements.
The Seller reserves the right to substitute the material with that of an equal or greater specification and charge any differential cost to the Buyer, subject to the consent of the Buyer.
11. Claims & Returns of goods
No return of goods or claims shall be admitted as from eight (8) days after the reception of the goods by the Buyer. In the event the Seller grants consent to the return of goods, such goods shall be sent to the Seller correctly packed, fit for sale, and with the carriage prepaid to the Seller’s warehouse.
Any return of goods that does not comply with the provisions of this clause shall be rejected, and the associated expenses shall be for the account of the Buyer.
Returns of special orders which comply with the specifications, instructions, and/or drawings received from the Buyer shall not be accepted.
The respective credits for accepted returns of goods may be entered in the accounts and deducted from the next following invoices of the Buyer or the Buyer may be refunded within fifteen (15) days of the return of goods.
12. Cancellation
In the event of the breach of any of the terms set out herein and in the event of partial or total non-payment of supplies that have been duly delivered to the Buyer, the Seller shall by means of official letter notify the Buyer to remedy any such breach that may have occurred, within a period specified therein.
Without prejudice to other claims to which the Seller may be entitled, the Seller reserves the right to cancel any transaction automatically and as of right in the event of failure to remedy the said breach, or if foreclosure proceedings were to be initiated against the Buyer or if the Company were to be declared in temporary receivership or bankrupt.
In the event of cancellation by the Buyer of an order or any part of an order without prior written consent of the Seller, the Buyer shall pay the Seller an indemnification equivalent to 20 % of the value of the goods affected by the said cancellation, without prejudice to the right of the Seller to claim, in addition, damages as a result of the said cancellation.
13. Reservation of ownership
The Seller reserves the ownership of the goods sold until the Buyer has effected payment in full.
14. Intellectual Property Rights
All logos, trademarks, service marks, labels, product names and service names with respect to any orders, these terms and conditions of sale, the goods/materials or any services provided by Seller (collectively
“the Marks”) are owned or licensed by the Seller. The Buyer shall not copy, display or otherwise use any of these Marks without the prior written permission of the Seller. Notwithstanding the foregoing, the Marks may not be used in any manner likely to cause confusion, disparagement, or dilution and/or in connection with any product or service that is not authorized or sponsored by the Seller.
15. Confidentiality
The QOC and the terms and conditions set herein are understood by the Seller and Buyer to be confidential. Neither Party shall disclose such confidential information to any third party without prior written consent of the other, except where such disclosure is required by law.
16. Severability
If any provision of this contract is determined to be invalid, illegal, or unenforceable under the applicable laws, the remaining provisions of this contract shall remain in full force and effect to the extent permitted by law.
17. Entire Agreement
The contract constitutes the entire agreement between the parties concerning the subject matter of the contract and shall supersede any and all prior oral or written communications, emails, telephone calls, discussions, negotiations, agreements, and understandings between the parties.
18. Survival Clause
The provisions of the contract which by their nature are intended to survive, shall survive the termination or expiry of this contract.
19. Governing Law
The contract is governed by and construed in accordance with the laws of the Republic of Mauritius.
20. Jurisdiction
All disputes, controversies, differences, or claims arising out of or in connection with this contract, including any question regarding its existence, breach, validity or termination, shall be amicably settled between the Seller and the Buyer after either party has given notice of the occurrence of the said dispute, controversy, or difference to the other party. In the event the parties fail to reach an amicable settlement, the Courts of Mauritius shall have exclusive jurisdiction to resolve any dispute, controversy, difference, or claim arising out of, relating to, or in connection with this contract, including with respect to its existence, breach, termination, validity, or enforceability thereof.
The Company reserves the right to change, wholly or partially, the characteristics of its products or content of this document at any time at its sole discretion and without prior notice.
