Terms and Conditions
1. Interpretation
1.1 In this agreement –
1.1.1 clause headings are for convenience and shall not be used in its interpretation;
1.1.2 unless the context clearly indicates a contrary intention-
1.2 an expression which denotes –
1.2.1 any gender includes the other genders;
1.2.2 a natural person includes a legal person and vice versa;
1.2.3 the singular includes the plural and vice versa;
1.3 the following expression shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings –
1.3.1 “supplier” – Osiris Technical Systems (Pty) Ltd;
1.3.2 “website” – www.osiris.co.za and all subdomains
1.3.3 “goods” – any items or services of whatsoever nature that are supplied to the customer in terms of this agreement;
1.3.4 “customer” – shall mean the person who purchases goods from Osiris Technical Systems (Pty) Ltd or registers with a user profile on the website.
2. These Terms and Conditions Prevail
2.1 With regards to the ordering, sale and delivery of goods, access to the information and use of this website by a customer
2.2 It is recorded that the only basis upon which the supplier is prepared to do business with the customer is that, notwithstanding anything in the customer’s enquiry, specification, acceptance, order or other documentation or any other documentation or discussion/s to the contrary, the terms and conditions contained herein shall operate in respect of any and all business between the customer and the supplier.
2.3 All and any business undertaken, including any advice, information or service provided whether gratuitously or not by the supplier is and shall be subject to the terms and conditions contained herein and each term and condition shall be deemed to be incorporated in and to be a term and condition of any agreement between the supplier and the customer.
2.4 To the extent that this agreement appears on the reverse of an invoice or any other documentation of the supplier and there is no relevant customer application the customer shall be deemed to be the person to whom the invoice or other document is addressed.
3. No Variations or Amendments
3.1 This agreement constitutes the whole agreement between the customer and the supplier relating to the subject matter hereof. Unless the context indicates otherwise this agreement incorporates, mutates mutandis, all and any customership agreements between the parties extant immediately prior to the date of last signature.
3.2 Subject to what is set out in clause 3.1 above, if there is any conflict between the provisions of this agreement and erstwhile customership agreements (if any), at any time, the provisions of this agreement shall prevail.
3.3 No amendment or consensual cancellation of this agreement or any provision or term thereof or of any agreement, bill or exchange or other document issued or executed pursuant to or in terms of this agreement and no settlement of any disputes arising under this agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this agreement or of any agreement, bill of exchange or other document issued pursuant to or in terms of this agreement shall be binding unless recorded in a written document signed by an authorized representative of the supplier. Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
3.4 No extension of time or waiver or relaxation of any of the provisions or terms of this agreement or any agreement, bill or exchange or other document issued or executed pursuant to or in terms of this agreement, shall operate as an estoppel against the supplier in respect of its rights under this agreement, nor shall it operate so as to preclude the supplier thereafter from exercising its rights strictly in accordance with this agreement.
3.5 The supplier shall not be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract between the supplier and the customer or not.
3.6 No person other than a duly authorized representative of the supplier has any authority to delete, amend or in any respect vary any of these conditions or accept any other conditions or agree to a consensual cancellation hereof.
4. Placing of Orders
4.1 The customer shall purchase goods from the supplier by completing an order form on the website specifying the quantities and particulars of the goods required and, if applicable, the address to which the goods must be delivered.
4.2 No order for any goods shall be binding on the supplier unless and until
4.2.1 full payment has been received and
4.2.2 the supplier has accepted such order in writing
4.3 The supplier shall be entitled in its sole discretion to decline any order placed.
4.4 In the event that an order is declined by the supplier the customer is entitled to a full refund of any monies paid.
4.5 Once an order is accepted by the supplier, it is binding on the customer.
4.6 In the event that the customer cancels the order, the supplier reserves the right to charge the customer a reasonable cancellation fee.
5. Purchase Price and Payment
5.1 The purchase price of the goods shall be the prices quoted on the website on the date which the customer places the order.
5.2 All quoted prices are, unless otherwise stated, exclusive of
5.2.1 value added tax;
5.2.2 installation charges for the goods;
5.2.3 insurance;
5.2.4 delivery;
5.2.5 labour, equipment or facilities required for offloading of goods.
5.3 The customer shall pay or reimburse to the supplier the amount of any value added tax simultaneously with the purchase price.
5.4 The customer shall be obliged to pay to the supplier in addition to the quoted price herein-
5.4.1 the amount of any tax, duty or other charge of any nature whatsoever imposed by any law, regulation or enactment of whatsoever nature which comes into force on the date or after the date on which any price charged is determined;
5.4.2 any other additional costs of any nature whatsoever arising due to factors beyond the control of the supplier.
5.5 The customer has no right to withhold payment for any reason whatsoever. The customer is not entitled to set off any amount due to the customer by the supplier against any debt owed by the customer to the supplier nor shall any payment be withheld by virtue of any alleged counterclaim against the supplier by the customer.
5.6 The supplier reserves the right to change prices for products displayed at any time, and to correct pricing errors that may inadvertently occur.
5.7 The supplier shall take all reasonable efforts to accurately reflect the description, availability, purchase price and delivery charges of goods on the website. Take note that there may be errors on the website. Should such errors be made and it is not due to the gross negligence of the supplier, the supplier will not be held liable and reserves the right to rectify the error.
5.8 Unless otherwise agreed in writing, any amount not paid on due date shall bear interest at a rate of 2% (two percent) above the publicly quoted basic rate of interest, compounded monthly in arrears and calculated on a 365 day year, from time to time published by First National Bank as being its prime overdraft rate, as certified by any representative of that bank whose appointment and designation it will not be necessary to prove, from due date until date of payment, both days included
6. Risk
6.1 The risk of damage to or destruction of any relevant goods passes to the customer on delivery thereof by the supplier to the customer.
6.2 On delivery the customer will be deemed to have accepted the goods ordered by it, which goods will be deemed to be in proper working order and free of defects.
7. Repairs
7.1 Any repair times given by the supplier are merely estimates and the supplier shall not bound thereby.
7.2 In the event that a customer refuses to accept the quotation for the repair of goods that are not covered by warranty, a quotation fee will be charged which may vary from time to time, in the sole discretion of the supplier.
7.3 The supplier shall have the right of retention and lawful lien over goods submitted for repairs until such time as the customer effects payment for the repairs and /or quotation fee in full.
7.4 The customer hereby agrees that any item handed in for repair may be sold by the supplier to defray the cost of such repairs if the item remains uncollected within 30 days of the repair being completed.
8. Imported Goods
8.1 Where the goods or any part thereof are to be imported, this agreement is subject to the condition that the supplier’s order is accepted and confirmed by the supplier’s own suppliers and that delivery is made thereunder in due course.
8.2 The supplier’s obligations hereunder shall be subject, in those cases where the goods or part thereof are to be imported, to the availability of an import permit to the supplier.
9. Delivery
9.1 Any delivery date indicated by the supplier shall merely be regarded as the estimated date of delivery and shall not bind the supplier to effect delivery on or near such date.
9.2 The customer shall accept delivery whenever it is tendered and shall not be entitled to resile from the agreement nor to withhold or defer any payment nor to a reduction in price nor to any other right or remedy against the supplier, its servants, agents or any other persons for whom it is liable in law (in whose favour this constitutes a stipulation alteri) whether for losses, costs, damages, expenses, interest or otherwise (not limited ejusdem generis) on account of delays in effecting delivery, partial delivery or non-delivery, whether occasioned by any negligent (including grossly negligent) act or omission on the part of the supplier, its servants, agents or any other persons for whom it is liable in law, or not.
9.3 If delivery of any particular order is to be effected in consignments, the supplier shall not be obliged to deliver any part of the order until the purchase price which is due in respect of the part of the order which has already been delivered has been paid.
9.4 If the goods are to be delivered by road, the customer shall be obliged to procure that the delivery destination shall be easily accessible to road transport vehicles. The customer shall be responsible for off-loading the goods at the delivery destination.
9.5 The customer shall be obliged to inspect all goods upon delivery and shall endorse the delivery note as to any missing or damaged gods. No claims for missing or damaged goods shall be valid unless the delivery note has been endorsed as aforesaid and unless, in addition, the customer notifies the supplier in writing within 3 business days of the delivery of the goods of the claim question and the goods relating to such claim, furnishing full details in regard thereto. The customer shall bear the onus of proving that upon delivery any goods are missing or damaged or that the customer’s order was in any way not complied with.
9.6 If the supplier is unable to deliver the goods to the customer due to any act or omission on the part of the customer, it shall be entitled to charge the customer for the storage of the goods.
9.7 The customer shall be obliged to furnish information necessary to enable delivery of the relevant goods to be effected and if the customer fails or refuses to do so, or if it fails or refuses to take delivery, the goods shall, without prejudice to the provisions of clause 6. be deemed to have been delivered to the customer upon notification
9.8 If the supplier agrees to engage a third party to transport the goods, the supplier is hereby authorised to engage a third party on the customer’s behalf and on the terms deemed fit by the supplier. The customer hereby indemnifies the supplier against any claims that may arise from such agreement against the supplier. The customer shall reimburse the supplier for any costs incurred in arranging special delivery, including but not restricted to, the costs of necessary disbursements and insurance. Any documentation purporting to evidence the said extra costs will be deemed to be prima facie proof thereof.
10. Warranties and Guarantees
10.1 To the extent that goods supplied by the supplier are in any way defective, the customer shall be entitled, within one year of the delivery of the relevant goods, to claim the replacement or repair of the goods to eliminate any defect in workmanship or materials found to be due exclusively to any acts or omissions on the part of the supplier, in the supplier’s sole opinion (which shall be binding on the customer), of which defects the supplier shall have been notified in writing by the customer within 10 days after the defect arises (which notice shall specify the alleged defect), provided that the supplier shall have been given a reasonable opportunity of inspecting any alleged defect. The supplier’s liability shall be limited on return to the supplier of the goods or parts thereof, to what is set out above in this subparagraph.
10.2 No warranties, guarantees or representations, express or implied or tacit whether by law, contract or otherwise and whether they induced the contract or not, which are not set forth in this agreement shall be binding on the supplier, the customer irrevocably waiving any right (common law or otherwise) it may have to rely thereon, and the goods are purchased on the basis that they are taken voetstoots and with the exclusion of all common law and other remedies including aedilitian remedies, whether as to the suitability of the goods sold for any specific purposes or (without limiting the generality of the aforegoing) otherwise.
10.3 In order to be valid, a claim in terms of the guarantee as set out in clause 10.1 must be in writing, specifying the alleged defect, and supported by the original tax invoice. In addition the goods must be returned by the customer to the supplier at the customer’s expense, packaged in their original undamaged packaging material.
10.4 The parties agree that the supplier shall have no liability in respect of any injury, loss or damage (direct, indirect or consequential) arising out of the use of, or inability to use, the goods and whether or not occasioned by the supplier’s negligence (gross or otherwise) or any act or omission on its part. Without limiting the aforegoing the supplier does not warrant that the goods will be fit for the purposes for which they are to be used by the customer (notwithstanding that the use to which the customer intends to put the goods is known to the supplier). For the purposes hereof, any reference to the supplier shall include its servants, agents, contractors or any other person for whose acts or omissions the supplier may be liable in law. This also constitutes a stipulation alteri in favour of such persons the benefits of which may be accepted by them at any time.
10.5 The Supplier shall be relieved of all obligations in terms of this clause, if –
10.5.1 repairs or modifications have been made by persons other than the supplier, unless such repairs or modifications are made with the prior written consent of the supplier;
10.5.2 any goods are operated with any accessory, equipment or part not specifically supplied or approved in writing by the supplier;
10.5.3 the goods shall not have been operated or maintained in accordance with the supplier’s instruction, or under normal use; the goods shall not have been properly installed.
10.6 If repairs or replacements are effected by the supplier, only the parts actually working on and not the complete goods shall be subject to a new guarantee, if any, hereunder.
10.7 Customers who acquire goods for the purpose of on-selling those goods, whether that customer is permitted to do so or not (and nothing herein contained shall be deemed to allow the customer to on-sell goods acquired from the supplier whilst ownership vests in the supplier), shall not advertise or issue or in any other way give or make any warranties, guarantees or representations as to the goods in any form whatsoever or offer to do so, which could result in liability being imposed upon the supplier.
10.8 The above warranties are subject to the following conditions:
10.8.1 The supplier shall be under no liability to the customer until the customer has paid the full amount due to the supplier in respect of the goods concerned.
10.8.2 The supplier shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the suppliers instructions (whether oral or in writing), improper use outside the suppliers specifications, damage to the goods caused by improper maintenance, service or repair by untrained personnel or technicians, and unauthorized alterations or modifications of the goods.
10.8.3 The supplier shall be under no liability in respect of parts, materials or equipment which are accepted in the industry to have a limited life expectancy or parts, materials or equipment, which need to be replaced at specified and published service intervals (“consumable parts”).
10.8.4 The supplier shall be under no liability in the event that spare parts and consumable parts other than those recommended for use by the supplier are fitted, attached or used on the goods.
10.9 Notwithstanding anything to the contrary in this agreement, the supplier shall not be liable to the customer by reason of any representation or implied warranty, condition or other term or any duty at common law, or under the express terms of this agreement, for any consequential loss or damage (whether for loss or profit or otherwise and whether occasioned by the negligence of the supplier or its employees or agents or otherwise) arising out of or in connection with any act or omission of the supplier relating to the supply of the goods, their resale by the customer or use by any third party.
11. Handling Fee on Return of Goods
The supplier reserves the right to levy a handling fee of 10% of the purchase price of the relevant goods on such goods returned to and accepted by the supplier. The supplier is not obliged to accept the return of any goods and this clause shall not be used to imply that the supplier shall be obliged to accept the return of any goods.
12. Ownership
12.1 Ownership of the goods shall not pass to the customer until the contract price (including interest if any) in respect of the goods in question has been paid. The provisions hereof shall apply notwithstanding the installation of such goods in the customer’s premises or the accession thereof to any of the customer’s goods or that the goods may be incorporated into or form part of other goods or change their essential character. All goods, whether fixed to immovable property or not, shall be deemed to remain movable property and be deemed to be severable without injury to either property.
12.2 The supplier reserves the right to inform the owner/landlord of the premises in which the goods are or at any time may be, of the provisions of this clause. The customer shall be obliged to advise the supplier of the name and address of the landlord of any such premises and shall promptly advise the supplier of any change in the name and/or the address of any landlord or of any new landlord.
12.3 The customer shall take all such steps as may be necessary to notify interested third parties that ownership of the relevant goods has not passed from the supplier to the customer. In particular the customer shall inform the owner/landlord of the premises in which the goods are or at any time may be, of the provisions of this clause. The customer shall produce written proof of such notices to the supplier on demand.
13. Goods or Parts
13.1 Actual products may differ slightly from images shown on the website.
13.2 The supplier shall be entitled to substitute for any goods specified in this agreement such other goods which the supplier in its sole discretion may regard as suitable substitutes therefore.
13.3 The supplier reserves the right to alter specifications as conditions warrant without notice. Should conditions render unavailable any materials or goods specified herein or otherwise required in order to fulfil this agreement, a substitution deemed by the supplier to be suitable for the performance of its obligations will be supplied.
14. Documentation
All specifications, descriptive matter, drawings and other documents furnished by the supplier do not form part of the contract and may not be relied upon, unless they are agreed in writing by the supplier to form part of this contract. All descriptive matter, specifications, drawings and particulars given by the supplier which form part of the contract are approximate only and the supplier cannot be held responsible for loss due to discrepancies therein.
15. Insurance
The supplier shall have the option to require the customer, at its own expense, and prior to taking delivery of the goods, to insure the goods and thereafter keep the goods insured until such time as the goods have been paid for in full. Such insurance shall be taken with such insurers as may be approved by the supplier in writing, for such amount and on such terms as may be approved by the supplier in writing. The insurance policy shall record the interest of both the supplier and the customer in writing. The customer shall, if so required by the supplier, cede to the supplier all its rights in terms of such insurance policy. The supplier shall exercise the said option by giving the customer written notice that it is doing so at any time prior to the delivery of the goods by the supplier to the customer.
16. Breach
16.1 Subject to clause 16.2 if the customer breaches any of the terms or conditions hereof or any other agreement with the supplier or fails to pay any amount payable by it on due date or commits any act of insolvency or endeavors to compromise generally with its creditors or does or causes to be done anything which may prejudice the supplier’s rights hereunder or at all, or allows any judgment against it to remain unsatisfied for 7 days or is placed into provisional or final liquidation or judicial management or under provisional or business rescue or final sequestration or if his estate is voluntarily surrendered, the supplier shall have the right, without prejudice to any other right which it may have against the customer, to elect to –
16.1.1 treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the agreement and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of its obligations hereunder as well as under any other contract with the customer until the customer has remedied the breach;
16.1.2 cancel this agreement and retake possession of any of the goods sold.
16.2 The supplier shall not be obliged to comply with its obligations hereunder in any respect whatsoever for so long as the customer is indebted to the supplier in any amount whatsoever in respect of any cause whatsoever or fails to comply with any other obligations to the supplier, whether arising out of this contract or otherwise. In particular without limiting the generality of the aforegoing, if delivery of any particular order is to take place in stages, the supplier shall not be obliged to deliver any part of the order until the purchase price which is due in respect of the part of the order which has already been delivered, has been paid.
16.3 No claim under this contract will arise against the supplier unless the customer has given the supplier 30 days written notice sent by prepaid registered post to rectify any defect or breach of contract and email.
16.4 The customer agrees that the amount due and payable to the supplier shall be determined and proven by a certificate issued by the supplier and signed on its behalf by any person duly authorised by the supplier, which authority need not be proven. Such certificates shall be binding and shall be prima facie proof of the indebtedness of the customer.
16.5 The customer hereby indemnifies the supplier against any and all damage of whatsoever nature, howsoever and by whomsoever caused in relation to the removal of goods, and without derogating from the generality of the aforegoing, the removal of repossessed goods from the premises of the customer.
16.6 The customer hereby agrees that the supplier shall not be required to furnish security in terms of rule 62 of the Rules of Court of the Magistrate’s Court.
16.7 The supplier shall have the right to institute any action in either the relevant Magistrate’s Court or the High Court at its sole discretion.
17. Domicilium and Notices
7.1 The parties choose domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the payment of any sum, serving of any process and for any other purpose arising from this agreement at their addresses and telefacsimile numbers as set in the customer documentation or order form.
17.2 In the event that the domicilium address reflected differs from that set out in the customer credit application the supplier shall in its sole discretion regard either of the addresses as the customers domicilium.
17.3 Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address which is not a post office box or poste restante.
17.4 Any notice given and any payment made by any party to any other (“the addressee”) shall be in writing and if –
17.4.1 delivered by hand during the normal business hours of the addressee at the addressee’s domicilium for the time
being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery;
17.4.2 posted by prepaid registered post from an address to the addressee at the addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the fourth day after the date of posting;
17.4.3 transmitted by telefacsimile or email from an address to the addressee’s at the addresse’s telefacsimile or email address for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the first business day after the date of transmission.
17.5 No notices, cheques, cash or other documents sent to the supplier through the standard (nonregistered) post shall be deemed to have been received unless and until actually received by the supplier
18. General
18.1 This Agreement is personal to the customer, which may not without the written consent of the supplier assign, mortgage, charge or dispose of any of its rights hereunder, or subcontract or otherwise delegate any of its obligations hereunder.
18.2 The customer shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this agreement to any third party.
18.3 The Customer is an independent contractor and nothing in this Agreement shall create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between the parties.
18.4 The Customer acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provisions except as expressly provided herein, and all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.
19. Costs
The customer shall be liable for all costs incurred by the supplier in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale and costs of counsel as on brief whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
20. Suretyship and Warranty of Authority
20.1 The signatory, by his signature on any invoices or delivery notes accompanying goods or this document, binds himself in favour of the supplier, its successors-in-title and assigns as surety for the co-principal debtor in solidum with the customer for the due and punctual performance by the customer of all its obligations to the supplier in terms of this
agreement.
20.2 The suretyship in 20.1 shall remain of full force and effect notwithstanding –
20.2.1 any indulgence, concession, leniency or extension of time which may be shown or given by the supplier to the customer.
20.2.2 any amendment/s to this agreement and/or other agreement for the time being subsisting between the parties.
20.3 The signatory hereby renounces the benefits of the legal exceptions “non causa debiti”, “errore calculi”,”excussion”, “division”,” de duobus vel pluribus reis debendi”,”no value received” and “revision of accounts”, with the meaning and effect of all of which he declares himself to be fully acquainted.
20.4 The signatory and the customer hereby warrant that the signatory to any tax invoice, delivery note or other
documentation of the supplier made out in the name of, or to the customer is duly authorised to bind the customer in
respect of the relevant transaction.
20.5 The signatory shall be bound by the provisions of this agreement as if he were the customer, mutates mutandis,
particularly, but without limitation thereto, insofar as the agreement provides for proof of facts, costs of proceedings,
service of process, limitations of defenses and jurisdiction..
21. Exemption and Indemnity
The customer shall have no claim of any nature whatsoever for damages, a remission of the purchase price, cancellation or otherwise, against the supplier, its servants, agents or others on whose behalf the supplier would be liable, in respect of any loss or damage sustained by the customer of any nature whatsoever or any damage caused to the assets of the customer or assets kept on its premises by any third parties or in regard to the customer’s business or sustained by any of its customers, howsoever caused including the negligent acts or omissions of the supplier, its servants, agents or others for whom it may be liable in law. This constitutes also a stipulatio alteri in favour of such person the benefits of which may be accepted by them at any time.
22. Consequential Loss
Under no circumstances whatsoever including as a result of its negligent (including grossly negligent) acts or omissions or those of its servants, agents or contractors or other persons for whom in law it may be liable, shall the supplier be liable for any consequential loss sustained by the customer. This also constitutes a stipulation alteri in favour of such persons and benefits of which may be accepted by them at any time.
23. Severability
Each paragraph or clause in this agreement is severable the one from the other and if any paragraph or clause is found by any competent court to be defective or unenforceable for any reason whatever, the remaining paragraphs or clauses shall be of full force and effect and continue to be of full force and effect.
24. Force Majeure
Any transaction is subject to cancellation by the supplier due to force majeure from any cause beyond the control of the supplier, including, without restricting the generality of the aforegoing, inability to secure labour, power, materials or supplies, or by reason of an act of God, war, civil disturbances, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
25. Furnishing of Information by Customer
The customer shall forthwith after the conclusion of the contract, furnish the supplier with all information reasonably required by the supplier to enable it to comply with its obligations.
26. Law and Jurisdiction
This agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa and the parties hereby submit to the non-exclusive jurisdiction of the courts.
27. Contact Information
© 2020 – Osiris Technical Systems (Pty) Ltd.
24 Herbert Baker St., Groenkloof, 0181
www.osiris.co.za
0861 674 747
info@osiris.co.za