TRADING TERMS AND CONDITIONS
DEFINITIONS
In these terms and conditions of contract which shall be applicable to all transactions between the Company and the customer:
The Company means specifically Legacy Marine (Pty) Ltd t/a Ocean Legacy Marine Engineering (OLM).
The customer means the person, firm, company, partnership, Close Corporations, association, trust, or any local, regional provisional or central authority or any utility or other corporation purchasing from the Company, subject to these terms and conditions of contract, and which customer so specified is the signatory to these terms and conditions of contract.
1. INSTRUCTIONS
a) As all our accounts are maintained on a accounting mainframe any purchase orders, site instructions or project directives forwarded to any OLM division will be recorded in writing and kept on record should you require a copy please request these from our finance department to eliminate any misunderstandings that may arise.
b) If any OLM division has not recorded the customers instructions accurately either verbally or in quoted format, please notify us immediately. Whilst all care and attention will be taken in the interpretation of customers requirements OLM may not be held responsible if any service, work or product is supplied as per quoted specification or alternatively the relevant applicable industry specification issued by a recognized entity will be deemed as the ruling guideline.
2. RESPONSIBLE PROJECT MANAGER OF DIRECTOR
a) All projects will be concluded under the supervision of a director responsible for the management of the division performing the work. The name of your service provider and the responsible Director will be communicated to you when you authorize OLM to start with any of our project services.
b) During the course of your relationship with OLM, it is possible that you will engage the services of other divisions or professionals at OLM. In such event :
c) The cost negotiated and agreed directly with the professional involved or relevant division will be the accepted cost offered. In the absence of an established sales agreement, the standard cost or fee will be raised in relation to the conditions as per 1.b service provided. Please satisfy yourself that the relevant tender or quote that has been submitted to you is issued by a suitably mandated OLM staff member.
3. CHARGES - RATES
a) The costs or charges levied in respect of advisory services and design will vary from project to project and will be determined by the nature, complexity, and degree of risk involved. These costs whether Labor, Consulting, Design etc... Will be depicted in the relevant quotation or will be deemed as a standard rate in the relevant industry if not pre negotiated.
b) OLM reserves the right to adjust the hourly labor rates of its technical staff and technical professionals in line with their relevant qualifications and in line with confirmed South African market fluctuations and forex rates as agreed upon during tender or quote prequalification.
4. VAT
a) All charges to be levied are quoted exclusive of VAT unless otherwise stated.
b) An official tax invoices clearly displaying the relevant entities VAT number must be supplied and signed off prior to payment.
c) Account queries
i) If you have any queries in relation to any of your accounts please direct such enquiries to the Professional handling your matter, or to our accounts department.
Telephone number +27-41- 586-1400 or e-mail query to carl@olm.bz for further attention.
5. PAYMENT
a) For security reasons, we prefer that all our accounts be paid by EFT, Irrevocable Letter of Credit from a Financial Institution recognized by our South African commercial bank, Bank Guaranteed cheque or by way of an inter-bank Swift credit transfer.
b) If you wish to settle outstanding Amounts in cash, please insist on a receipt issued to you by an authorized staff member reflecting said payment to avoid any possible misunderstanding.
c) If you remit by way of an inter-bank credit transfer, please note that all bank fees, finance costs, transfer costs and commissions are for the clients account. Upon affecting payment please fax a copy of the deposit, reference or tracking numbers to us to assist us in identifying the payment.
d) Any payment made and not cleared into our commercial current or CFC account will not deemed as settlement or discharge any debts until funds are cleared and our customers are advised to ensure that funds are tracked until final clearance and authorization has been affected by our financial institution.
6. DISCOUNTS
a) The contract price is strictly net and not subject to any discounts unless otherwise agreed in writing and signed by an authorised representative of the Company.
b) If any discount is agreed to in writing it shall only be allowed if payment is received by the Company on or before the due date and shall only apply to the actual price of the goods themselves.
7. DELIVERY
a) Unless arrangements are made to the contrary, delivery shall be made to the customer at the Company's premises.
b) Delivery shall be completed when the goods are set aside for the customer or its agents or the carriers referred to in clause 7(c) hereunder at the Companies premises.
c) Should the Company at the customers request agree to engage a carrier to transport the goods for the purchaser then
c.1 the company is authorized to engage a carrier on such terms and conditions as it deems fit,
c.2 the Customer indemnifies the Company against all demands and claims which may be made against it by the carrier so engaged and all liability which the company may incur to the carrier arising out of the transportation of goods.
c.3 the risk shall pass to the customer when the goods leave the Company's premises or on delivery to the customer whichever is sooner.
d) If the customer fails to take delivery of the goods on due date then
d.1) the risk shall immediately pass from the Company to the customer.
d.2) the customer shall refund to the Company on demand the reasonable costs (including storage and insurance) of keeping the goods during the period of that delay.
d.3) The Company shall be exempted from and shall not be liable under any circumstances for any claim for any alleged shortage in delivery or failure of the goods to comply with the contract, unless written notice of the claim is received by the Company within 7 days after receipt of the goods by the customer.
e. Notwithstanding any other provision in the contract to the contrary the Company's obligation to deliver the goods shall in all cases be subject to the condition precedent that it has sufficient stocks of goods on hand.
e.1) Time shall not be of the essence of the contract.
e.2) if more than one delivery is to be made then the provisions of clause 5 shall apply to each delivery.
8. INTELLECTUAL PROPERTY
a) By virtue of the fact that by the very nature of our specialist divisions services it need be recorded that whilst providing these services OLM divisions efforts may result in the creation of intellectual property, Unless pre arranged in writing and agreed to by both parties, such intellectual property shall remain the property of OLM and will be made available to the client for use in relation to the purpose for which it was acquired.
b) All proprietary and moral rights in relation to the intellectual property shall remain with the relevant Company our clients utilize.
9. FINANCIAL INTELLIGENCE CENTRE ACT 38 OF 2001 (FICA)
a) OLM is bound to keep records of the business relationship with all our clients and will adhere to FICA as referred to above.
10. LIMITATION OF LIABILITY
a) In order to protect and secure the interests of our clients, OLM has affected insurance cover which is offered to its customers of OLM and its associate companies as protection against any claim that may arise due to the business relationship with our customers. Should any customer wish to be notified of professional and performance securities please ensure that the relevant information is to your satisfaction prior to entering into any supply or service contracts.
b) The extent of this cover as supplied in respect of claims arising out of the provision of services or products supplied shall be limited to the amount recoverable by our customers in terms of our relevant insurance cover.
c) Details of our insurers and the extent and nature of our insurance coverage will be made available on request to qualifying customers.
d) OLM reserves the right to change the level of insurance cover that is held without prior notice to any customer if the limits on the relevant stated cover are increased. Should any project be active at time of the proposed changes then the ruling cover at date of contract finalization and acceptance will be the ruling limit in the event of any dispute.
11. OWNERSHIP
a) Notwithstanding the delivery of any goods to the customer, ownership thereof shall not pass until the Company has received payment of the full contract price unless such goods have been sold by the customer to a third party.
b) In the event of any of the goods having been sold by the customer on credit, the customer shall be deemed to have ceded its claim for the purchase price of such goods to the Company. In the event of non payment OLM reserves the right to ownership of goods as supplied and will be entitled to take any necessary steps to limit its damages.
b)The customer undertakes, forthwith on being requested to do so, to deliver up to the Company a list of such credit sales containing full details of each purchaser and each sale.
12 EXCLUSIONS
a) All specifications, illustrations, drawings, diagrams, price lists, dimensions, performance figures, advertisements, brochures and other technical data furnished by the Company in respect of the goods, and whether in writing or not, are furnished only on the basis that they not form part of the contract or be relied upon by the customer for any purpose, unless and to the extent that they are expressly warranted or guaranteed in writing by the Company and are, as such, expressly stated by the Company to form part of the Contract.
b) The Company shall in no circumstances whatsoever be liable for any loss of profit or any damage direct or indirect, consequential or otherwise, sustained by the customer.
c) Subject to and without any limiting the provisions of 10(b) the Company's liability to the customer for any damages sustained by the customer from any cause whatever,
including any damages, arising out of the Company's negligence or that of its servant, agents or sub-contractors, shall in any event and under all circumstances be limited to the replacement of defective goods.
d) Insofar as any of the Company's obligations under the contract are carried out by any of its servants, agents or sub-contractors, the provisions of 10(b) and 10(b) are stipulated for their benefit as well as the Company and each of them shall be exempted accordingly.
e) The customer shall not have any claim of any nature whatever against the Company for any failure by the Company to carry out any of its obligations under the contract as a result of vis major, including but without being limited to any strike, lock-out, shortage of labour or materials, delays in transport, accidents of any kind, any default or delay by any
Sub-contractor or supplier of the Company, riot, political or civil disturbances, the elements, any act of any State or Government, any delay in securing any permit, consent or approval required by the Company for the supply of goods under the contract, or any other authority or any other cause whatever beyond the Company's control.
13. WARRANTY
The company warrants to the customer that all goods manufactured by the Company will be free of defects in material and workmanship, subject to the following limitations:
a) The Company's liability under this warranty shall be limited to repairing or replacing any goods or parts thereof failing to comply therewith, with reasonable promptness, at such place as the Company may elect. Providing it receives written notice of the alleged defect within 7 days from date of receipt of the goods.
b) The Company shall not be liable for any expenses, apart from the cost of the parts themselves, which may be incurred in returning, repairing, replacing or rejecting the parts.
14. SUSPENSION OF COMPANY'S OBLIGATIONS
If any amount owed by the Customer is not paid on due date, then without prejudice to any other right it may have, the Company may immediately suspend the carrying out of any of its then uncompleted obligations until the payment is made.
15. CANCELLATION
a) The company may cancel the contract or any uncompleted part of it if the customer commits a breach of any of the terms and conditions of this contract; or being an individual or Close Corporation, is provisionally sequestrated or surrenders or makes application to surrenders or makes application to surrender his/its estate, or being a partnership, the partnership is terminated, or being a company, is placed under a provisional order of liquidation or judicial management; or has a judgment recorded against it, or compromises or attempts to compromise generally with any of its creditors.
b) The Company's rights in terms of 14(a) shall not be exhaustive and shall be in addition to its common law rights.
c) No relaxation which the Company may have permitted on any one occasion in regard to carrying out of the customer's obligations shall be prejudice or be regarded as a waiver of the Company's rights to enforce those obligations on any subsequent occasion.
d) Upon the cancellation of this contract for any reason whatever:
All amounts then owed by the customer to the Company in terms of this contract shall become due and payable forthwith;
e) The Company may forthwith retake possession of any goods in respect of which ownership has not passed.
16. JURISDICTION
The Company shall be entitled to institute any proceedings against the customer arising out of this contract, for the full balance outstanding including current purchases in the Eastern Cape Magistrate's Court having jurisdiction over the customer notwithstanding that the claim or the value of the matter in dispute may exceed the jurisdiction of the Magistrate's Court. Further the customer agrees to be liable for all legal costs of such proceedings on the scale as between the attorney and own client including collection charges and tracing costs.
17. PROOF OF INDEBTEDNESS
A certificate signed by any director or other authorized official of the Company showing the amount due and owing by the customer to the Company at any given time shall be conclusive proof of the facts therein stated for the purpose of all legal proceedings against the customer for recovery of the said amount
18. DOMICILIUM
The customer nominates its business address as reflected on page 1 hereof as its domicilium citandi et executandi for service upon it of all notices and processes in connection with any claim for any sum due to the Company.
19. NEGOTIABLE INSTRUMENTS
Any promissory note, bill of exchange, or other negotiable instruments received by the Company from the customer shall not be a novation of the debt for which it is given and the customer waives presentment, notice of dishonor and protest where applicable.
20. RETURN OF GOODS
If in the exercise of its discretion the Company shall agree, at the request of the customer, to accept the return of any goods for credit, which goods were correctly supplied by the Company and not faulty or subject to any claim, then the customer shall automatically and without the necessity for any further agreement be liable to pay the Company a handling charge of 15% on the invoice price of the goods returned.
This contract constitutes the entire contract between the parties and no presentation by any person, or variations or amendments to any of the terms and conditions hereof shall be valid and binding on the Company unless reduced to writing and signed by both parties.
No extension of time or any other relaxation or indulgence granted by the Company to the customer shall operate as or be deemed to be a waiver by the Company of any of its rights under this contract or a novation of any of the terms and conditions of this contract.
Complaints shall be in writing. No complaint will be recognized unless the said written complaint is received within 7 days of receipt of the goods.
21. INTERPRETATION
The headings in these conditions are for convenience only and are not to be taken into account for the purpose of interpreting the contract.
22. This contract is governed by the laws of the Republic of South Africa.
23. COMPLAINTS
a) If you are dissatisfied with any of our services please inform us immediately by e-mail at geoff@olm.bz. .
b) If any legitimate problem is not resolved to your satisfaction, you please contact any of our Directors under on our executive board who are committed to investigating and resolving the complaint.
This document is downloadable off our platform if hardcopy is required. Please contact mailto:kevin@olm.bz. for a direct download link or alternatively a faxed copy can be forwarded to you.