GENERAL TERMS AND CONDITIONS OF SALE AND SALE FOR EXPORT
This document contains the terms and conditions of sale and sale for export (“T&C”) on which Cockpit Tyres National (Pty) Ltd (“Cockpit”) provides the goods and services including but not limited to tyres and accessories such as tubes, flaps, valves and services related to the tyres and accessories (“the Products”) to the person, natural or otherwise, who purchases the Products from Cockpit under these T&C (”Customer”). These T&C will be subject to the Consumer Protection Act and the Credit Act.
These T&C represents the entire agreement between the Customer and Cockpit. Except as otherwise agreed in writing, all transactions, quotations, tenders, offers to contract and contracts (whether written or oral) for the supply of the Products by Cockpit, shall be subject to these T&C.
-T&C are deemed read, understood and unconditionally accepted by the Customer upon Customer’s receipt of Cockpit’s order confirmation (or other written acceptance) for the same. Cockpit reserves the right to vary these T&C from time to time by written notice to the Customer.
- These T&C replaces all previous agreements in respect of all transactions which take place after signature of these T&C. Any right, including any rights to securities and guarantees enjoyed prior to the signature of these T&C will not be affected;
- Any form of agreement, franchise or similar agreement between the Customer and Cockpit or any of its affiliates supersedes the clauses of these T&C to the extent of any conflict;
QUOTATIONS, ORDERS AND DELIVERY :
1.1 In placing its order with Cockpit, the Customer has accepted the T&C's as described herein, notwithstanding any proposed change in terms contained in its own purchasing documents. The Customer’s orders are thereafter subject to Cockpit’s written acceptance, and may be reduced or cancelled by Cockpit for any reason, including Cockpit's inability to supply.
1.2 Subject to the Customer’s rights to examine and return Products, as provided for in terms of the Consumer Protection Act, Cockpit reserves the right to offer alternative Products of the same quality and quantity at the prevailing prices to those ordered by the Customer should such Products be superseded, replaced or their manufacture terminated.
1.3 All quotations will remain valid for a period of three (3) days from the date of the quotation and the quotation depends on the stock being available when the order is placed.
1.4 Subject to the Customer’s rights to examine and return Products, as provided for in terms of the Consumer Protection Act, all quotations are subject to the availability of the Products and subject to correction of good faith errors by Cockpit and the prices quoted are subject to any increases in the cost price, including currency fluctuations, of Cockpit before acceptance of the order.
1.5 Despite any other clause in these T&C's, all orders or agreed variations to orders, whether oral or in writing, shall be binding and subject to these T&C's and the Customer may be charged a reasonable fee for cancellation of any order.
1.6 The Customer hereby agrees that by signing any delivery note, waybill or receipt, that he/she has inspected the Products and confirms that the correct Products were received, and that such signed delivery note, waybill or receipt, in absence of evidence to the contrary, will be considered proof that delivery was made to the Customer. In the event of short delivery the Customer shall forthwith upon delivery endorse Cockpit’s copy of the delivery note specifying details of the short delivery and thereafter within four (4) days of such delivery the Customer shall lodge a claim with Cockpit in respect of such short delivery.
1.7 Cockpit may split the delivery or performance of the Products ordered into the quantities and on the dates it decides and the Customer acknowledges that delivery and performance times quoted are merely estimates and are not binding on Cockpit. In this case Cockpit shall be entitled to invoice each delivery / performance actually made separately.
1.8 The risk of damage to, destruction or theft of Products shall pass to the Customer on delivery and the Customer undertakes to comprehensively insure the Products until paid for in full. Cockpit may recover insurance premiums from the Customer for such ordered and uninsured Products.
1.9 Delivery of the Products to the Customer shall take place at the place of business of Cockpit, unless otherwise agreed by the parties on an order for order basis.
1.10 If the Customer requests and Cockpit agrees to engage a third party to transport the Products, Cockpit is hereby authorised to engage a third party on the Customer's behalf and on the terms deemed fit by Cockpit.
1.11 The Customer indemnifies Cockpit against any claims, save to the extent that such claims arise out of gross negligence, that may arise from the agreement mentioned in clause 1.10 against Cockpit.
1.12 Cockpit hereby reserves the right to charge a reasonable handling fee for the return of any Product due to any reason other than the fact that the Product failed, is defective, hazardous or unsafe as defined in the CPA;
2. EXPORT CONTROL :
2.1. Customer shall comply with all applicable laws and regulations with regard to the supply, sale, transfer, export, re-transfer, or re-export of the Products, including: economic sanctions; export controls; and, trade embargoes ("Sanctions").
2.2. Customer shall not cause Cockpit to, either directly or indirectly, risk any potential violation of any applicable Sanctions. Furthermore, Customer will not supply, sell, transfer, export, re-transfer, re-export, otherwise make available or use any Product supplied by Cockpit in order to circumvent, evade or avoid any applicable Sanctions.
2.3. Customer shall only supply, sell, transfer, export, re-transfer, re-export, otherwise make available or use Products as permitted by applicable law and shall not supply, sell, transfer, export, re-transfer, re-export, or otherwise make available, either directly or indirectly, any Products.
-357 a. To any party resident, located, registered, incorporated, domiciled or head-quartered in any jurisdiction subject to Sanctions;
b. To any individual, entity or body either: (i) specifically designated or listed under Sanctions; (ii) owned or controlled by any person specifically designated or listed under Sanctions; or, (iii) acting for or on behalf of any person specifically designated or listed under sanctions ("Restricted Persons"); and
c. For any use, purpose or activity which is prohibited or otherwise restricted under Sanctions,
without Cockpit’s prior written approval.
2.4. Where Cockpit has reasonable cause to suspect that any Product may be or has been supplied, sold, transferred, exported, re-transferred, re-exported, otherwise made available to any jurisdiction subject to Sanctions, or to a Restricted Person, or for any use, purpose or activity which is prohibited or otherwise restricted under Sanctions, Cockpit reserves the right to:
2.4.1 Immediately suspend its performance under the Agreement;
2.4.2 Request further information or documentary evidence from the Customer, including but not limited to:
-a. Any licences, authorisations, permits, or approvals obtained by the Customer with respect to the supply, sale, transfer or export of the Products;
b. Any End User Certificates or Undertakings supplied to the Customer;
c. Any shipping or commercial documentation, including: invoices; or, bills of lading, in order to verify the end use(s) or end user(s) of the Products.
Refuse any future sale, supply, transfer or export of the Products to the Customer.
2.5. Customer shall immediately notify Cockpit if Customer, or any of the Customer’s Group Companies, or any of their respective directors or officers is a Restricted Person. Furthermore, Customer shall immediately inform Cockpit if Customer is aware or has reasonable cause to suspect that either the Customer, or any of the Customer’s Group Companies, or any of their respective directors or officers may become a Restricted Person.
2.6. In the event that any Product supplied by Cockpit is re-supplied, re-sold, re-transferred, re-exported, re-distributed or otherwise made available to any third party, Customer shall take all actions reasonably necessary to ensure that such third parties: (a) Comply with any applicable Sanctions; and, (b) Do not cause Cockpit to violate any applicable Sanctions.
2.7. Customer shall indemnify and hold harmless Cockpit from and against any losses, costs, claims, causes of action, damages, liabilities and expense, including attorneys’ fees, any expense of litigation or settlement, and court costs, arising from any noncompliance with Sanctions by Customer, and Customer shall compensate Cockpit for any losses and expenses resulting thereof. Customer shall be responsible for any act or omission of Customer, its officers, employees, affiliates, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under this clause.
3- Payment, Financial obligations of the Customer and ownership of the Products:
3.1. All Products taken on promotion basis by the Customer are deemed sold if not returned within 14 days of delivery in a perfect condition and in the original packaging. All consignment stock will be deemed sold if a statement reflecting the sales and stock on hand at each calendar month's end is not received by Cockpit on the 2nd of each month and the Customer will be liable for payment of the purchase price of such consignment stock to Cockpit. Consignment agreements can be cancelled by Cockpit or the Customer on 30 days written notice to the other party.
3.2. The Customer agrees to pay the amount on the Tax Invoice at a place Cockpit may designate in writing. The Customer agrees that the amount contained in a Tax Invoice issued by Cockpit shall be due and payable unconditionally as follows:
- cash on order ; or
- If the Customer is a credit approved Customer, within the granted credit period as specified on the credit application, from the date of issue of a Statement by Cockpit.
3.3. Cockpit may at its sole discretion increase the credit limit under the credit facility as per the National Credit Act Once during each year, as measured from the later of-
(i) the date that the credit facility was established; or
(ii) the average monthly purchases or cash advances charged to the credit facility by the consumer; or
(iii) the average monthly payments made by the consumer, during the 12 months immediately preceding the date on which the credit limit is increased.
3.4. The risk of payment by cheque through the post rests with the Customer.
3.5. The Customer may not withhold payment and agrees that no extension of payment of any nature shall be extended to the Customer and any such extension will not be applicable or enforceable unless agreed to by Cockpit in writing and signed by the Customer and a duly authorised representative of Cockpit.
3.6. The Customer agrees that the amount due and payable to Cockpit may be determined and proven by a certificate issued and signed by any director or manager or member or partner of Cockpit, whose authority need not be proven or by any independent auditor. Such certificate shall be binding and shall, in the absence of evidence to the contrary, be considered proof of the indebtedness of the Customer. The Customer is not entitled to set off any amount due to the Customer by Cockpit against this debt.
3.7. All discounts shall be forfeited if payment in full is not made on the due date.
3.8. Subject to the Credit Act, all overdue accounts shall accrue interest at the rate of 2% (two per centum) per month, reckoned from the due date for payment to the date of final payment. The Customer agrees that if an account is not settled in full against order or within the period agreed in clause 3.2 above in the case of a Credit Approved Customer, Cockpit is entitled to immediately institute legal action against the Customer which will include a claim for costs; or to cancel the T&C and claim damages. These remedies are without prejudice to any other right Cockpit may be entitled to in terms of these T&C or in law. Cockpit reserves its right to stop supply immediately on cancellation or on non-payment.
A credit approved customer will forthwith lose this Credit approval when payment is not made according to the conditions of clause 2.2 and all amounts then outstanding shall immediately become due and payable. Cockpit shall be entitled to withdraw credit facilities at any time within its sole discretion.
3.9. The Products supplied by Cockpit remain the property of Cockpit until such Products have been fully paid for whether Products are attached to other property or not. The Customer is not entitled to sell or dispose of any Products unpaid for without the prior written consent of Cockpit. The Customer shall not allow the Products to become encumbered in any manner prior to the full payment thereof and shall advise third parties of the rights of Cockpit in the Products.
3.10. If any Products supplied to the Customer are of a generic nature and have become the property of the Customer by operation of law (confusio or commixtio) the Customer shall be obliged on notice of cancellation of the these T&C to retransfer the same quantity of Products in ownership to Cockpit.
3.11. The Customer shall be liable to Cockpit for all legal expenses on the attorney and client scale incurred by Cockpit in the event of any default by the Customer or any litigation in regard to the validity and enforceability of these T&C. The Customer shall 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 Cockpit may demand.
4- Warranty, repairs and Return of the Products:
4.1. Any item handed in for repair may be sold by Cockpit to defray the cost of such repairs if the item remains uncollected within 30 days of the repairs being completed.
4.2. Subject to the provisions of the Consumer Protection Act, all manufacturers guarantees are immediately null and void should any Products be tampered with or should the Products be used or stored outside the Manufacturer's specifications.
4.3. All Products are supplied with a one month warranty of quality against defects, within the meaning of the Consumer Protection Act. This warranty is in addition to any warranty or other guarantee applicable to the Products provided by the manufacturer thereof ("second warranty") and the second warranty shall be enforceable exclusively against such manufacturer. The Customer shall have no claim against Cockpit for any loss or damage, of any nature, occasioned by any defect in any Products supplied, or any failure to provide adequate instructions in respect of any hazards that might arise from the use or incorrect use of the Products save to the extent that such loss or damage is contemplated in the Consumer Protection Act provided that nothing in these T&C be construed as in any way limiting the rights of Cockpit to raise such defences as may be available to it at common law or in terms of any statue.
Under no circumstances shall Cockpit be liable for any damage arising from any misuse, abuse or neglect of the Products by the Customer. To the extent permitted under the Consumer Protection Act, Cockpit shall not be liable for any consequential damages including loss of profits or for any delictual liability of any nature whatsoever.
4.4. The Customer shall not convey to its Client a greater obligation or benefit than that given to the Customer by Cockpit.
4.5. Save to the extent that the Customer has enquired from Cockpit whether the Products are suitable for the intended use; it is the responsibility of the Customer to determine that the Products ordered are suitable for the purposes of intended use.
5- Risk :
On delivery of the Products to the Customer, the risk in and to the Products shall pass to the Customer notwithstanding that ownership in the Products remain vested in Cockpit.
6- Customer’s Documents
Subject to the CPA, in all transactions with the Customer, any clauses or conditions contained in or forming part of the Customer’s documents shall not amend or modify these T&C and Cockpit shall not be bound thereby. These T&C of sale shall supersede any conflicting clauses or conditions whether verbal or contained in any of the Customer’s documents.
7.1. Without derogating from the generality of any of the provisions hereof, and subject to the CPA, Cockpit shall not at any time be liable for any claims of whatsoever nature and howsoever arising for direct or consequential loss or damage which may be sustained by the Customer or any of the Customer’s clients in connection with the use of the Products and the Customer hereby indemnifies Cockpit against all such claims;
7.2. The Products are sold subject to Cockpit’s specifications and recommendations. Failure to adhere to these may result in damage, injury or harm.
8- Branding, Marking, Remoulding, Retreading or Recapping
Customer shall not alter, treat or otherwise deal with any of the Products (or their packaging) or present any such Products for sale in a group package without in both cases obtaining the prior written consent of Principal. In particular, Customer shall not alter in any way the markings or numbers contained on the Products at the time of delivery, or sell any such altered Products. In the case of tyres which have been retreaded or recapped, Customer shall sell them as such and advice its own customers, particularly on its invoices and other commercial documents. Customer shall leave in position and not cover or erase any notices or other marks (including without limitation details of patents or notices that a trademark, design or copyright relating to the Products is owned by Cockpit or a third party) which Cockpit may place on or affix to the Products.
9- Intellectual Property
The Customer shall not do anything to infringe any rights owned or licensed by Cockpit including but not limited to any form of intellectual property right in respect of the Products.
10- Notice, Jurisdiction and Waiver
10.1. The Customer agrees that no indulgence whatsoever by Cockpit will affect the terms of this
T&C or any of the rights of Cockpit and such indulgence shall not constitute a waiver by Cockpit in respect of any of its rights herein. Under no circumstances will Cockpit be barred, impeded or stopped from exercising any of its rights in terms of this T&C.
10.2. The Customer hereby consents that Cockpit shall have the right to institute any legal action in either the Magistrate's Court or the South Gauteng High Court at its sole discretion.
10.3. Any document shall be deemed duly presented to and accepted by the Customer:
10.3.1. within 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
10.3.2. within 24 hours of being faxed to any of the Customer's fax numbers or any director, member's or owner's fax numbers; or
10.3.3. on being delivered by hand to the Customer or any director, member or owner of the Customer; or
10.3.4. within 48 hours if sent by overnight courier or within 7 days of being sent by surface mail; or
10.3.5. within 24 hours of being e-mailed to any e-mail address provided by the Customer.
10.4. The Customer chooses its address for any notification or service of legal documents or processes as the business address or the physical addresses of any Director (in the case of a company), Member (in the case of a close corporation) or of the Owner(s) or Partner(s).
10.5. The Customer undertakes to inform Cockpit in writing within 7 days of any change of Director, Member, Shareholder, Owner or Partner or address or 14 days prior to selling or alienating the Customer’s business and failure to do so will constitute a material breach of these T&C. Upon receipt of such written notification, Cockpit reserves the right, at its sole discretion, to withdraw any credit facility advanced to the Customer.
10.6. The Customer hereby consents to the storage and use by Cockpit of the personal information that it has provided to Cockpit for establishing its credit rating and to Cockpit disclosing such information for purposes of obtaining credit rating reports. The Customer agrees that Cockpit will not be held liable for the good faith disclosure of any of this information to such third parties and that no further specific consent needs to be obtained for the transfer of such information to a specific third party, for this purpose. Cockpit shall be entitled to store use and process such information for as long as it deems fit.
10.7. The Customer agrees to the Standard Rates of Cockpit for any Products rendered, which rates may be obtained on request.
10.8. The invalidity of any part of this T&C shall not affect the validity of any other part.
10.9. Any order is subject to cancellation by Cockpit due to Acts of God from any cause beyond the control of Cockpit, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation, and in such an event the Customer will have no claim against Cockpit.
10.10. Any order is subject to cancellation by Cockpit if the Customer breaches any term of these T&C or makes any attempt of compromise, liquidation, sequestration, termination or judgement is recorded against the Customer or any of its principals.
10.11. The Customer agrees that Cockpit will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in clause 10.9 or 10.10 occur.
10.12. These T&C and its interpretation are subject to South African law and the Customer consents to the exclusive jurisdiction of the South African Courts referred to in clause 10.2.
Should you require any further information, please contact us on 011 454 0606.