KRONES SOUTHERN AFRICA (PTY) LTD TERMS AND CONDITIONS OF SALE, SUPPLY AND/OR SERVICES RENDERED

1. Introduction

1. These terms and conditions shall form the basis of any contract of sale of goods between Krones Southern Africa (Pty) Ltd (hereinafter referred to as KSA) and the Purchaser. For this purpose, “goods” shall include all goods (such as plant, equipment, parts etc), services (such as installation, repair, equipment audits, advices etc) and ancillary charges (such as travelling, accommodation etc.) arising from the activities and business of KSA in respect of the purchaser.
2. Any variations to these conditions of sale as set out hereunder shall be of no force or affect unless KSA agrees in writing to such variations. The placement of an order or a request for services or failing that, the delivery of goods by KSA, shall be construed as the acceptance by the Purchaser of these conditions.

2. Order

1. The purchaser shall be required to complete an order form detailing the goods which are to be provided by KSA and is to deliver by way of email or hand delivery the order form to KSA , such order form being signed by an employee authorised by the purchaser to do so. In the absence of a purchaser being in a position to furnish a purchase order, KSA shall supply a purchase order form to the purchaser.
2. KSA shall, at the request of the purchaser, supply to the purchaser a quote in respect of the goods detailed in the order form.

3. Pricing

1. Where goods are sourced overseas by KSA, the purchase price indicated by KSA is based on the exchange rates at which South African commercial banks will procure foreign currency of that country, as well as on prevailing freight charges and customs duties ruling on the day on which KSA’s quote is submitted to the purchaser.
2. Where, at the time of receipt of the goods by KSA, exchange rates, freight charges or customs duties have varied, KSA shall be entitled to increase its sales price accordingly.
3. In addition, where KSA is subject to price increases by its suppliers between the date of receiving the purchaser’s enquiry and the date of delivery of the goods, such increases shall be for the purchasers account.
4. All prices are quoted ex works KSA and exclude packaging, carriage, insurance and other incidental related charges or services not usually forming portion of the goods. Where the purchaser requires delivery of the goods to its premises, all relevant costs shall be for the purchaser’s account.
5. All pricing shall be subject to current sales tax and imposts as may be legislated from time to time and quotes are made exclusive of such tax and imposts.

4. Payment

1. Unless agreed to the contrary in writing, or there being a credit facility in place, payment of the purchase price by the purchaser to KSA shall be effected on delivery of the goods and shall be made free of exchange at KSA’s place of business or such other place as KSA may direct from time to time.
2. The purchaser shall not have the right to withhold or defer payment of the purchase price or any portion thereof for any reason whatsoever (even in the event that a dispute is alleged), nor shall the purchaser be entitled to set-off or deduct against the purchase price any amounts due by KSA to the purchaser. Payment shall be made by the purchaser free of any bank exchanges and other charges or commissions.
3. Any amount not paid by the purchaser on due date shall, at KSA’s discretion, and without prejudice to KSA’s rights arising from such failure, bear interest from due date to date of payment at a rate equal to 2% (two per cent per annum) above the prime overdraft rate charged by KSA’s bankers from time to time, calculated daily in arrears on all overdue amounts. A certificate given by the said banker specifying such rate shall be conclusive proof (whether in a court of law or otherwise) of the prime overdraft rate.
4. Any dispute between KSA and the purchaser as to the amount by which the purchase price is to be increased as contemplated in clause 4c hereof shall be referred to KSA’s auditors and their decision shall be final.

5. Return of documents and records

1. All drawings, diagrams, documentation and any other information provided to the purchaser by KSA, shall remain the exclusive property of KSA.
2. KSA may request the purchaser to return any material containing, pertaining to or relating to confidential information disclosed pursuant to the terms of the contract and may, in addition, request the purchaser to furnish a written statement, duly signed by a director / member or in person, to the effect that, upon such return, the purchaser has not retained in its possession or under its control, either directly or indirectly, any such material or copies thereof. As an alternative to the return of the material, the purchaser shall, at the instance of KSA, destroy such material and furnish to KSA a written statement, duly signed by a director / member or in person, to the effect that all such material has been destroyed. The purchaser shall comply with the request in this regard within 7 days of receipt of a request in writing from KSA.

6. Warranties

1. Save for what is set out below in this clause 6, the sale is voetstoets and all warranties, whether express or implied are excluded.
2. KSA warrants its goods and services to be free from defects in material and workmanship under normal use and service, subject to the following:
   
    
   this warranty shall:
    
   1. be limited to the period specified in the quotation/offer given to the purchaser prior to concluding the sale, but shall in any event never exceed the periods granted to KSA by its supplier and/or original equipment manufacturer, and shall commence on the date of delivery of the goods to the purchaser and if deliveries are effected on different dates, shall apply to each item so delivered for the same periods as stated above from date of each delivery;
   2. not extend to cover any loss whether consequential or otherwise suffered by the purchaser or anyone else;
   3. oblige KSA only to make good, repair or replace at its discretion any defective part returned to it at the expense of the Purchaser;
   4. not cover the cost of labour or travelling incurred by either KSA or the purchaser for the purpose of or in connection with giving effect hereto;
   5. not extend to damages or defects which in the opinion of KSA arise from or are caused by fair wear and tear, incorrect or careless handling, excessive or improper use, unsuitable operation methods, or, if the sale relates to change parts, the incorrect or unsuitable composition thereof;
   6. not extend to any components or parts of the goods which may be covered by or are subject to a warranty given by a supplier or manufacturer thereof to KSA, and, where permissible, KSA shall in respect thereof cede all its rights in connection thereto to the purchaser upon its request, provided a suitable indemnity is given by the purchaser to KSA;
   7. be in lieu of any other warranty express or implied;
   8. not apply to any of the goods which have been altered, modified or repaired by anyone other than KSA unless with KSA’s written consent;
   9. apply only to the purchaser itself as the warranties cannot be ceded, alienated or transferred by the purchaser;
   10. be subject to the purchaser complying with all provisions contained in the service and technical manuals of the respective goods and the directions which may be given by KSA, the supplier and/or the manufacturer of any of the components of the goods; and
   11. in any event, not endure for a period of longer than 60 days.
3. The onus of proving that any defect is covered by this warranty shall be on the purchaser.
4. In the event that the purchaser has failed to effect timeously any payment to KSA in terms of this agreement, KSA shall be entitled, without prejudice to any of its rights, to withhold performance in terms of any warranty referred to herein until such time as such payment has been effected. The failure by the purchaser to remedy a breach of the contract shall not in any way alter, suspend, extend or novate the warranty period.
5. No undertakings, warranties or representations given by or on behalf of KSA as to the performance of the goods or the specification thereof or any other matter or thing relating thereto or to any other matter or question arising hereunder shall be effective, unless specifically recorded in writing and signed by an authorized representative of KSA. Insofar as any performance figures and details may have been given by KSA in respect of the goods, these are based on experience and are those KSA would expect to obtain under test conditions. KSA shall consequently not be liable for any failure to obtain such performance figures unless they have been specifically warranted in writing. The purchaser is deemed to have satisfied itself that the performance and capacity of the goods is sufficient for the purpose for which they have been acquired by the purchaser. KSA consequently gives no warranty and makes no representations in respect of the suitability of the goods for any particular purpose, whether or not that purpose is known to KSA.
6. The purchaser in turn warrants that it will perform all its obligations required to enable KSA to perform in terms of the contract and that should it fail to do so, it indemnifies KSA against all damages, losses and cost of whatever nature suffered as a result of its failure. In addition, the purchaser warrants that all information provided to KSA is accurate and up to date and that the person supplying the information is duly authorised to do so and furthermore, that the product supplied by KSA shall not be used or deployed outside of the scope and purpose for which it was supplied and/or designed.

7. Limitation of liability

1. Under no circumstances shall the purchaser have any claim for direct, indirect consequential or special damages or loss of revenue against KSA arising from damages, costs or injury caused by or as a result of defects in the goods, whether such defects are latent or patent or caused by or resulting from accident, fire, flood or lightning, war, state of war, sabotage or any officially declared state of emergency, riots, embargoes, sanctions, boycotts, workmen, stay-aways, strikes, non-availability of materials, authority, or by any force majeure of any description, whether of the nature herein indicated or not. In addition, the purchaser indemnifies KSA against any claims made by any third party whose claims arise from any alleged defect in the goods or in the performance by KSA of its obligations in terms of this contract.
2. In the event that the purchaser can prove that the cause of any damage was due to the gross negligence or willful misconduct of KSA, then the liability of KSA will be limited to the consideration due by the purchaser to KSA for the products delivered in terms of the contract. Damages as limited by this clause are the purchaser’s sole and exclusive remedy.
3. Where goods are manufactured or packed or procured in accordance with the purchaser’s instructions, or where goods are supplied or provided by KSA in accordance with any design required by the purchaser, the purchaser shall accept all responsibility for, and indemnifies KSA against, any claim of whatsoever nature, including but not limited to claims for passing-off, infringement of any patent, copyright, trade mark or otherwise, by reason of the manufacture, packaging or distribution of the goods.

8. Delivery

1. Unless otherwise stated to the contrary in writing, delivery of the goods shall be effected at KSA’s stores, at such time that KSA advises that it is ready and able to deliver. Should KSA be prevented from providing the goods within a reasonable time by circumstances beyond its control, such as Acts of God, trade disputes, hostilities, embargoes, legislation, strikes etc., the contract of sale shall lapse in respect of the goods not delivered, but the purchaser shall be liable for any delivered portion, if any, in terms of the sale.
2. If the goods are to be delivered to the purchaser at a place other than KSA’s stores, the carrier or person effecting such delivery shall be deemed to be the agent of the purchaser, notwithstanding that the carriage or freight or other charges in connection therewith are paid by KSA. Delivery to such carrier or person shall be deemed to be a delivery made to the purchaser. If delivery of goods is effected by KSA itself at a place designated by the purchaser, such delivery, for the purpose of this sale, shall be deemed to have been effected at KSA’s stores as set out above.
3. KSA’s obligation to deliver the goods shall be subject to the availability of the goods from it’s suppliers and equipment manufactures and time shall not be deemed to be of essence in this contract.
4. Any delivery dates advised by KSA to the purchaser are approximate only and whilst every effort will be made by KSA to adhere to such delivery dates, the purchaser shall not be entitled to cancel the contract or to refuse to accept delivery of the goods when they are tendered, nor shall the purchaser have any claims against KSA, whether for damages or otherwise, arising from any late, improper or non-delivery. If no delivery date is specified, KSA will effect delivery as soon as it conveniently able to do so.
5. Should the purchaser fail and/or refuse to take delivery of all or any part of the goods KSA shall, in its sole discretion, be entitled to suspend any further deliveries, but shall nevertheless be entitled to claim payment of the full purchase price.
6. KSA shall be entitled to effect partial delivery of the goods.
7. Upon delivery of the goods to the purchaser, risk therein shall pass to the purchaser. Notwithstanding delivery of the goods to the purchaser, the ownership therein shall remain with KSA until the purchaser has paid the purchase price and all associated costs in full to KSA.

9. Breach

1. Should the purchaser:
   1. fail to pay the amount due in terms of the sale on due date; or
   2. commit any act of insolvency, surrender the purchaser’s estate, cease to carry on business or enter into any compromise or arrangement with its creditors; or
   3. allow any judgement sounding in money against the purchaser to remain unsatisfied for a period of seven days
2. KSA may:
   1. forthwith and without notice cancel this contract and at its sole option
   2. recover any damages which it may have suffered which shall include the difference between the balance outstanding by the purchaser in terms of the sale and the market value of the goods as valued by an appraiser appointed by KSA, when they are recovered by KSA;
   3. recover possession of all goods;
   4. retain as forfeited all amounts paid by the purchaser up to the date of cancellation;
   5. recover any installments which have become due but which remain unpaid; and
   6. suspend further deliveries and/or forthwith recover the amount of the purchase price less any amounts already paid by the purchaser, together with interest (as determined above, calculated from the date of default) and any damages or losses of whatever nature suffered by KSA; and
   7. enforce compliance by the purchaser with the terms of this sale.
3. The exercise of KSA’s rights referred to above, shall be without prejudice to any other rights which KSA may have in terms of this contract or in law.
4. Notwithstanding anything expressed herein, should the Purchaser commit any breach as contemplated in these terms and conditions, all amounts which ordinarily would have become due at a later date by virtue of an arrangement as set out in clause 4. hereof, shall become due and payable immediately.

10. Export and import control and embargo regulations

(1) The parties are aware that the product may be subject to export and import restrictions. In particular, there may be licensing requirements or the use of the product may be subject to restrictions abroad. You undertake to comply with the applicable legal provisions relating to export control and sanctions lists of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. This includes in particular relevant embargo regulations relating to goods, persons and use.

(2) Our performance of the contract is subject to the proviso that there are no impediments to performance due to national and international regulations of export and import law or any other statutory provisions.

(3) Any resale and transfer of the listed delivery item, directly or indirectly, to Russia or Belarus is generally prohibited and requires the prior approval by KRONES. The prohibition also extends to all subsequent or spare part deliveries for the delivery item. If buyer/recipient violates this prohibition, KRONES shall be entitled and obliged to take appropriate remedial action. By way of example only, this may include the following measures, such as claims for damages, notification to the competent authorities and/or termination of the business relationship. Any resulting costs and risks shall be borne by the buyer/recipient.

(4) Furthermore, you confirm that at this point in time

a. there is no knowledge of any future uses of the delivered goods by military customers or customers with military end uses;

b. there is no knowledge of future uses of the delivered goods in connection with NBC weapons and launchers;

c. there is no knowledge of future uses of the delivered goods in connection with the construction or operation of civil nuclear facilities;

d. there is no knowledge of any future uses of the goods supplied in connection with the violation of human rights or in connection with acts supporting terrorism.

(5) We reserve the right to require you to sign end-use statements as part of our own compliance reviews, if required by business policy decisions or legal requirements.

11. General

1. KSA may at any time cede, transfer and assign its rights, title and interest in the contract to any person or company without the consent of the purchaser.
2. The purchaser chooses domicilium citandi et executandi for all purposes arising herefrom at one of its addresses shown in the relevant sales documents. Any notice to be given to the purchaser in terms hereof shall be deemed to have been given three (3) days after posting it per prepaid registered post or on the date of telefaxing by KSA or on receipt if delivered by hand.
3. The purchaser consents to the jurisdiction of a magistrate’s court having jurisdiction for the purpose of any action to be instituted against it by KSA arising out of this agreement, notwithstanding that such action would otherwise have been outside the jurisdiction of the magistrate’s court in view of the amount of the claim. This concession shall not preclude KSA from proceeding in any other competent court having jurisdiction.
4. The laws of the Republic of South Africa shall apply in all respects to and shall govern this contract, its interpretation, construction and enforcement.
5. Any relaxation or indulgence granted by KSA to the purchaser in regard to any of the terms of this contract shall not be deemed as a waiver of any of KSA’s rights. The purchaser shall remain obliged to fulfill all conditions of this contract with due diligence.
6. In the event of KSA instructing its attorneys to take any action or to render any services for the enforcement of its rights in terms of this contract, the purchaser shall be liable for all legal costs incurred by KSA calculated on the attorney and own client scale, whether action has commenced or not. Insofar as KSA may proceed in any court of law, the costs shall be calculated on the highest scale of fees applicable in that court to defend actions, whether the action is defended or not. The purchaser shall furthermore be liable for and shall pay collection commission of 10% (ten per centum) on all amounts collected by KSA’s attorneys on behalf of KSA pursuant hereto and also for all expenses including tracing fees incurred by KSA in effecting its rights in terms of this contract. All amounts recovered shall firstly be allocated towards the aforesaid costs and charges, thereafter to interest and finally to capital.

General Terms and Conditions of KRONES AG Last update: 25/07/2024