Standard Terms and Conditions of Sale
These Standard Terms and Conditions of Sale (“T&Cs”) contain assumptions of risk and/or liability by you and/or the entity you represent (“Customer”) and may limit and exclude liabilities, obligations and legal responsibilities, which ArkChem (Pty) Ltd and its affiliates (collectively, “ArkChem”) will have towards the Customer. No provision in these T&Cs is intended to contravene the applicable provisions of the Consumer Protection Act, 2008 or similar legislation in the applicable jurisdiction (the “CPA”) and these T&Cs must be treated as being qualified, to the extent necessary, to ensure compliance with all applicable laws, including the CPA.
1. SCOPE OF APPLICATION
The supply of all products and services (collectively, the “Goods”) by ArkChem to the Customer shall be governed by these T&Cs.
2. PRODUCT QUALITY, SPECIMENS & SAMPLES
2.1 The quality of the Goods shall be determined strictly and exclusively in accordance with ArkChem’s product specifications (in effect at delivery of the Goods and available on request).
2.2 The properties of specimens and samples (including any descriptions and compositions) constitute examples only and shall not constitute a representation by or create any binding obligations on ArkChem.
2.3 ArkChem does not warrant the suitability of the Goods for any specific purpose and gives no express or implied warranties in respect of the Goods.
3. PRICE
3.1 The purchase price of the Goods: (a) shall be the price reflected in ArkChem’s acknowledgment of order or in instances ArkChem’s standard price list (as provided by ArkChem to the Customer and valid only period indicated thereon); and (b) excludes all VAT (if applicable) and costs and expenses that may be incurred by ArkChem in provision of the Goods.
3.2 ArkChem reserves the right to change its prices from time to time at its discretion. Any price changes shall not apply to already Accepted Orders (as defined in clause 4.3).
4. OFFERS AND ACCEPTANCE OF ORDERS
4.1 ArkChem’s quotations are not binding offers but merely invitations.
4.2 All orders for Goods (“Order”) need to be placed by the Customer in writing, in accordance with ArkChem’s standard processes.
4.3 A binding agreement for the provision of any Goods (“Accepted Order”) only comes into existence on placement of the Order in writing and provided that the Customer’s account is in good standing.
5. PAYMENT OF AN ACCEPTED ORDER
5.1 Payment shall be made in full to ArkChem and without any setoff, deduction or withholding within 30 days of the date of ArkChem’s initial statement relating to an Accepted Order, unless expressly otherwise stated on ArkChem’s official tax invoice.
5.2 Should the Customer fail to pay any invoice timeously, then:
5.2.1 the amount outstanding will attract interest of 2% above the prevailing prime overdraft rate charged by Nedbank from time to time, compounded monthly, from the due date of payment to the actual date of payment;
5.2.2 all amounts payable by the Customer for Goods delivered to Customer shall immediately become due, owing and payable irrespective of the dates when the Goods were purchased or delivered; and
5.2.3 ArkChem will be entitled to withhold delivery of Goods pursuant to any Accepted Order until date of payment.
5.3 A certificate issued and signed by a representative of ArkChem, whose authority need not be proved, in respect of any indebtedness of the Customer to ArkChem shall be prima facie evidence of the Customer’s indebtedness to ArkChem.
5.4 Subject to applicable law, ArkChem may allocate payments made by the Customer at its discretion.
5.5 The Customer shall make all payments net of any applicable tax (direct or indirect), duties or other charges. Without limiting the foregoing, if any amount is withheld in the form of withholding tax, the Customer shall pay ArkChem such amount as would be necessary to ensure that the net amount actually received by ArkChem would be equal to the full amount ArkChem would have received had no such withholding been required.
6. OWNERSHIP & RISK
6.1 All risk in and to the Goods shall pass to the Customer on delivery and each party shall take out insurance as
per the agreed Incoterms®.
6.2 Ownership in all Goods shall remain vested in ArkChem until the purchase price of such Goods has been paid in full.
7. DELIVERY
7.1 Delivery shall be affected as per the Parties’ agreed Incoterms®.
7.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. ArkChem shall not be liable for any delay in delivery.
7.3 If ArkChem delivers up to and including 5% more or less than the quantity of Goods ordered, the Customer may not reject them.
7.4 If the Customer fails to take delivery, without good cause, of the Goods ordered then the risk in the goods shall immediately pass to the Customer and, the Customer shall be liable to pay ArkChem the reasonable costs of storing, insuring and the handling of such Goods.
8. DAMAGE IN TRANSIT
Notice of claims arising out of damage in transit must be lodged and carried out in accordance with the agreed Incoterms®. The Customer shall co-operate and assist ArkChem where it is required to lodge or defend any claims.
9. LIMITATION OF LIABILITY AND INDEMNITY
As far as is legally permissible:
9.1 ArkChem’s aggregate cumulative liability, howsoever arising, to the Customer under these T&Cs shall be limited to the received purchase price of the Goods to which the liability relates.
9.2 ArkChem and its directors, officers, employees, contractors and agents (“Representatives”) shall not be liable for, and the Customer irrevocably and unconditionally indemnifies and holds ArkChem and its Representative harmless against any and all claims, actions, damages, losses, demands, liability, costs and expenses of whatsoever nature (“Loss”) to the extent that (i) the Goods comply with ArkChem’s standard specification (ii) ArkChem’s liability exceeds the limitation of liability referred to above (iii) if the Loss arises out of or is related to any act or omission of the Customer or its Representatives (including any inadequate instructions or warnings), and/or (iv) the Loss is elated to any non-compliance/breach with these T&Cs or any local legal requirements by the Customer or its Representatives.
9.3 ArkChem shall not be liable for any consequential, incidental, punitive or any other indirect damages.
10. CUSTOMER’S RIGHTS REGARDING ALLEGEDLY DEFECTIVE GOODS
10.1 The Customer shall inspect the Goods immediately following delivery of the Goods for quantity variances and defects. Any complaints shall then be made in writing to ArkChem at the address stipulated in clause 18.1 below:
10.1.1 immediately, in the case of patent defects; or
10.1.2 no later than three days after receipt of goods, in the case of latent defects. The Goods supplied shall otherwise be considered free of defects.
10.2 Where Goods are found to be defective by ArkChem after the Customer has complied with clause 10.1, then ArkChem has the right to elect to remedy the defect or to supply the Customer with non-defective replacement Goods. This clause 10.2 constitutes the Customer’s exclusive remedy and ArkChem’s only liability in respect of defects in the Goods and, for the avoidance of doubt, is subject to clause 9.
11. RETURNS AND CANCELLATIONS
The Customer may not cancel any Accepted Order or reject delivery of or return any Goods without the prior written consent of ArkChem (which remains at ArkChem’s sole discretion). ArkChem shall be entitled to impose reasonable terms and conditions (including charging a reasonable fee) when consenting to the cancellation of any Accepted Order or the return of any Goods.
12. BREACH AND TERMINATION
If the Customer commits a breach of any provision of these T&Cs (all of which are deemed to be material) or commits an act of insolvency or otherwise become bankrupt or insolvent, or allows a judgment to be entered against it, or is provisionally or finally liquidated or sequestrated, or becomes subject to business rescue, administration or similar proceedings (“Default”), and fails to remedy such Default within five business days of written notice by ArkChem calling for such Default to be remedied, then, without prejudice to and in addition to its other legal remedies and any rights under these T&Cs, ArkChem shall be entitled to:
12.1 immediately cancel these T&Cs or any Accepted Order(s) under these T&Cs on written notice to the Customer; and/or
12.2 claim specific performance or recover any damages which it would otherwise be entitled to recover (which may include payment of the full price of any Accepted Orders or the balance thereof).
13. GOVERNING LAW
These T&C’s (including their existence, validity, interpretation, implementation, termination and enforcement) shall be governed by and decided upon and constructed and interpreted under and in accordance with the laws of the Republic of South Africa.
14. LEGAL PROCEEDINGS & DISPUTE RESOLUTION
14.1 Nothing in this clause 14 shall preclude either party from seeking urgent interim relief or summary judgement (or any analogous relief in any other jurisdiction) from any court of competent jurisdiction.
14.2 In the event of any dispute arising out of or in connection with these T&Cs including the breach, termination or invalidity thereof, then the parties agree that upon written notice either of them may refer the matter to be settled by arbitration.
14.3 The parties may agree on the arbitration procedure and, failing agreement within 10 business days of the notice referred to in clause 14.2, the arbitration shall be conducted in accordance with the UNCITRAL Arbitration Rules in force at the date of notice. The arbitration shall be administered by the parties.
14.4 The notice referred to in clause 14.2 shall include all information required by the UNCITRAL Arbitration Rules to stand as a ‘notice of arbitration’ and a ‘statement of claim’ and shall constitute such documents for the purposes of the proceedings. Similarly, the defendant’s ‘response to the notice of arbitration’ shall include all information required by the UNCITRAL Arbitration Rules to stand as its statement of defence’ and shall constitute such a document for the purposes of the proceedings.
14.5 The number of arbitrators shall be one and shall be a South African qualified advocate or attorney of at least ten years’ experience, as agreed to between the Parties or, failing agreement, appointed by the Association of Arbitrators (Southern Africa) (which shall be the appointing authority in terms of the UNCITRAL Arbitration Rules).
14.6 The arbitration shall be held in Sandton, Johannesburg and in English at the offices of Arbitration Foundation of South Africa.
14.7 The arbitration award shall be final and binding on the parties and shall not be subject to appeal.
14.8 The Customer shall be liable for all costs incurred by ArkChem in the enforcement of any rights which it has under these T&C’s, including collection charges and costs, on an attorney and own client scale to the extent permissible and failing this attorney and client scale whether incurred prior to or during the institution of legal proceedings (whether in court or by way of arbitration) or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
14.9 This clause shall survive termination of these T&C’s.
15. GENERAL
15.1 In implementing these T&Cs and any Accepted Order, the Customer shall comply with all applicable laws and regulations (including but not limited to import, use, storage, anti-trust and anti-corruption laws).
15.2 Any Accepted Order together with these T&Cs shall constitute the entire agreement between the Parties. ArkChem shall not be bound by any express or implied verbal or written term, representation, warranty or promise not recorded herein. These T&Cs shall supersede and take precedence over any terms or conditions stipulated by the Customer.
15.3 No amendment, addition, waiver and/or cancellation of these T&Cs shall be of any force or effect unless reduced to writing and signed by, the Customer, and a director of ArkChem. For the purposes of this clause 15.3, “writing” shall not include email or other data messages and “signed” shall not include electronic signature, as defined in the Electronic Communications and Transactions Act, 2002.
15.4 No relaxation or indulgence which ArkChem may give at any time in regard to the carrying out of the Customer’s obligations in terms of any Accepted Order or other agreement between the parties shall prejudice or be regarded as a waiver of any of ArkChem’s right in terms of these T&Cs.
15.5 The Customer shall not cede its rights nor delegate its obligations in terms hereof without ArkChem’s prior written consent thereto. ArkChem shall at any time in its sole discretion be entitled to cede all or any of its rights or delegate its obligations, to any third party with prior notice to the Customer.
15.6 The Customer undertakes to notify ArkChem in writing within a period of seven days of any change of address, name change or any changes in information as set out in any Order.
15.7 Each of the provisions herein shall be a separate and divisible term and if any such provision becomes unenforceable for any reason whatsoever, then the provision shall be severable and shall not affect the validity of the other provisions. In such case, the provision shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
15.8 No remedy hereunder is intended to be exclusive of any other remedy that is otherwise or may in future be available under any law.
16. FORCE MAJEURE
To the extent any incident or circumstance beyond ArkChem’s control (including natural occurrences, war, strikes, lock-outs, shortages of raw materials and energy, obstruction of transportation, breakdown of manufacturing equipment, fire, explosion, or acts of government or other authority), prevents or delays ArkChem from fulfilling its obligations under any Accepted Order, ArkChem shall inform the Customer as soon as reasonably possible and shall: (i) not be liable and shall be relieved from its obligations; (ii) be entitled to extend the time for performance of its obligations by a period at least equivalent to that during which performance has been prevented or delayed; and (iii) have no obligation to procure Goods from other sources. If ArkChem is so prevented or delayed for a period of more than 3 (three) months, ArkChem may terminate the applicable Accepted Order(s) on notice to the Customer without the Customer having any right to compensation.
17. PERSONAL INFORMATION
The Customer:
17.1 in submitting any information to ArkChem unconditionally and voluntarily consents to the processing its personal information for any and all purposes related to these T&Cs which may include, but is not limited to: (i) assessing it’s financial position and ability to adhere to these T&Cs or any related obligations; (ii) providing it with goods and/or services; (iii) evaluating, developing or improving ArkChem’s goods and/or services; (iv) keeping it informed about relevant goods and/or services and/or (v) providing it with an efficient and smooth customer experience;
17.2 agrees, in the absence of any written objection received from the Customer, that such processing consent shall be indefinite (until withdrawn in writing by the Customer) or for the period otherwise required in terms of any applicable law;
17.3 confirms that the information it provided is accurate and complete and agrees to maintain and update such information when necessary. Failing which ArkChem shall not be liable for any loss, damage or injury as a result of any inaccuracies or lack of completeness and indemnifies ArkChem against any such loss, damage or injury as well as any unintentional disclosures;
17.4 authorises ArkChem to share its personal information with any third parties (including but not limited to other ArkChem group companies) for the purposes of providing the Goods hereunder and/or any other legitimate interests of ArkChem;
17.5 agrees that ArkChem may transfer its personal information to foreign countries in accordance with applicable law;
17.6 consents to ArkChem contacting and request information from any third party, credit bureau or business, to obtain any information relevant to this Agreement; and
17.7 agrees and acknowledges that, to the extent permitted by applicable law, if it believe that ArkChem has utilized its personal information contrary to applicable law, that it will first resolve any concerns with ArkChem. Thereafter, if it is not satisfied that it has the right to lodge a complaint with the relevant authorities (once or if established).
17.8 This Agreement is subject to the provisions of ArkChem’s Privacy Statement which may be accessed on ArkChem’s website, www.arkchem.co.za via the “Company Compliance” icon.
18. NOTICES
18.1 The Customer chooses as its address for receipt of notices, communications, legal processes and other documents, the Customer’s physical address as given on the Goods Application Form. ArkChem chooses as its address for those purposes the following: 13 Keurboom Crescent, Extension 3, Dowerglen, Edenvale, Johannesburg. A party may by written notice change its address for the purposes of this clause 18.1 to any other address (other than a post office box number) provided that the change shall become effective on the 7th day after the receipt of such written notice.
18.2 Any notice or communication shall be valid and effective only if in writing and if received or deemed to be received in terms of clauses 18.3 and 18.4 below.
18.3 Any notice to a party sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to its address specified in clause 18.1 (“Address”), shall be deemed to have been received on the 7th business day after posting (unless the contrary is proved).
18.4 Any notice to a party delivered by hand to a responsible person during ordinary business hours at its Address shall be deemed to have been received on the day of delivery.