terms and conditions
1. Definitions
1.1 "Seller" means Operational Marketing (Pty) Ltd and/or OMSA Valves and Instrumentation (Pty) Ltd and/or OMSA Pewag (Pty) Ltd.
1.2"Customer" means the person or organisation that has placed an Order with the Seller.
1.3"Order" means the order placed by the Customer on the Seller for the purchase of the goods and includes a written purchase order document, approved drawings, any relevant technical information as well as any other specifications that might be related to the Order.
1.4"Special Terms and Conditions" means all other terms and conditions that have been agreed upon by the Seller and the Customer and that have not been addressed in the General Terms and Conditions herein and that also might be relevant to any specific Order from time to time.
1.5"Goods" means any and all equipment, products, materials and / or services that the Seller might offer, supply or manufacture from time to time.
2. Responsibilities
2.1The Seller is responsible for the execution of the Order as per the agreed terms and conditions between the Seller and the Customer, which shall include these general terms and conditions, the relevant specifications, drawing schedules, any other documents referred to in the Order as well as any special conditions that might have been negotiated between the Seller and the Customer with regard to the Order.
2.2The Customer shall be obliged to accept and pay for Goods delivered by the Seller in accordance with the terms and conditions as set out herein.
3. Material and Workmanship
3.1All material and workmanship supplied by the Seller shall be of first class quality in every respect and shall be in accordance with the Order.
3.2Although the material and workmanship allocations to the Order have been meticulously calculated in accordance with the Order, approved drawings and other available information, any discrepancies in such allocations will be dealt with in terms of the specifications in paragraph 8 hereto.
4. Inspection and Testing
4.1The Seller shall endeavour to test and inspect all Goods that are ready for delivery to the Customer and to provide the Customer with a test certificate confirming that all Goods supplied are in accordance with the specifications of the Order and are also in proper working condition.
4.2The test and / or inspection performed by the Seller as per paragraph 4.1 shall be done in accordance with the Seller's standard test procedures and specifications. Should the Customer require the testing and inspection to be done in accordance with any other type of standard or specification, the costs associated with such testing shall be borne by the Customer.
4.3The Customer shall also have the right to inspect and / or test or to arrange for the inspection and / or testing of any Goods in conjunction with the specifications of paragraph 4.1, before the Seller dispatches such Goods.
4.4The Customer agrees to undertake the necessary inspection, testing and release of the Goods within 7 days of being notified by the Seller that the Goods are ready for such inspection and / or testing.
4.5Should the Customer not inspect or test of any of the Goods in terms hereof the test certificate as supplied by the Seller shall be sufficient proof that the Goods have been supplied in accordance with the specifications of the Order and are in proper working condition.
5. Delivery
5.1All deliveries are Ex Factory as per the Seller's manufacturing premises unless otherwise agreed between the Seller and the Customer.
5.2The risk of loss and / or damage shall pass to the Customer upon delivery as per paragraph 5.1.
5.3All Goods, crates and packages delivered against the Order will be clearly marked by the Seller as detailed in the Order.
5.4Should the Customer request the Seller to deliver the Goods to an alternative specified address the cost of such a delivery shall be borne by the Customer.
5.5A detailed delivery schedule shall be provided by the Seller and will form part of the Special Terms and Conditions of the Order.
5.6All deliveries schedules are dependent on the receipt of approved drawings and QCPs from the Customer within the allotted time frame, as manufacturing can only commence once approved drawings and QCPs have been received from the Customer. Should the Customer not return the approved drawings and / or QCPs within the specified period, the manufacturing and delivery schedules will be adjusted accordingly and the Seller shall not accept any responsibility for late deliveries in such instances.
5.7The Seller does not accept responsibility for any late deliveries where such late deliveries have been caused by changes of any nature whatsoever, to the original scope of the Order, non-compliance by the Customer of any terms and conditions as set out herein or any other reason whatsoever that may not be under the direct control and / or influence of the Seller at any given time.
5.8The Seller's Waybill, Delivery Note, Invoice or any other official documentation thereto shall be deemed as proof enough for deliveries as well as quantities provided.
6. Price Invoice and Payment
6.1All prices quoted by the Seller to the Customer are nett, ex factory, excluding VAT and are only valid for a period of 60 days from the date of quotation.
6.2All payments are strictly 30 days from date of Invoice and the Seller shall issue Invoices to the Customer as per the following intervals:
6.2.130% of the total contract value on presentation of drawings and QCP by the Seller;
6.2.240% of the total contract value on inspection of the fabricated components;
6.2.330% of the total contract value on final inspection testing and release of the Goods in accordance with paragraph 4 herein.
6.3The Customer agrees that the final payment as per paragraph 6.2.3. will be released in accordance with the provisions as set out in paragraph 4 hereto and that there will be no undue delays with regard thereto.
6.4The Customer agrees to pay the Seller by no later than the last day of each month in accordance with the provisions set out herein.
6.5The Seller reserves the right to stop any further progress on the Order should the Customer not make payment in terms of paragraph 6.2. Any and all delays that might occur due to such termination will be added to the agreed delivery schedules and the Seller shall not be liable for any losses, damages and / or late deliveries due to such delays.
6.6All prices are subject to currency fluctuations and would therefore be dependent on the import content of the Order. Some of the proprietary equipment on the Order could be imported from either Europe or the United Sates of America and would therefore be dependent on the Rand / Dollar exchange rate at any given time as well as the Rand / Euro exchange rate at any given time. The Import content as well as the applicable exchange rate will be determined in the Special Terms and Conditions of each Order.
7. Risk
The risk of delivery will be borne by either the Customer or the Seller as dictated to by and in accordance with each Party's responsibilities under the INCOTERMS 2000 (as amended from time to time) options that the Parties might have agreed to in the Special Terms and Conditions of the Order.
8. Variations
8.1Should the Customer require a variation in the scope of supply at any given time, the Customer is obliged to give the Seller timely written notice to that effect.
8.2If the Seller is of the view that the requested variation will lead to additional costs or labour, the Seller shall notify the Customer as to the additional costs within a reasonable time.
8.3Once the quantum of the variation in scope has been determined by the Seller, the Seller shall, within a reasonable time, provide the Customer with a detailed schedule of such additional costs as well as additional time that will be required to execute the variation request.
8.4Only once the Customer has provided the Seller with an authorised variation order will the Seller be obliged to proceed with the execution of the variation request. No variation requests will be executed by the Seller if the Customer is not able or willing to provide the Seller with an authorised variation order
to that effect.
9. Warranty
9.1The Goods provided by the Seller carry a 12 month warranty against bad workmanship and / or latent defects.
9.2The 12 month warranty period is calculated from the date of delivery or from the date of commissioning provided the commissioning takes place within 6 months of date of delivery.
9.3The warranty as stipulated herein shall not be valid under the following conditions:
9.3.1the installation and / or commissioning of the Goods have to be performed by the Seller. Should any party other than the Seller or the Seller's representative install and / or commission the Goods, the warranty will expire immediately upon such commissioning and / or installation;
9.3.2where the Goods are not properly or suitably stored by the Customer prior to commissioning and / or installation. The storage facilities should be covered, dry and protected from all the elements, as well as free of dust;
9.3.3where the Customer makes use of non-original spare parts that are supplied by any party other than the Seller or the Seller's representative;
9.3.4where the Customer uses any party other than the Seller or the Seller's representative to install original and / or non-original spare parts;
9.3.5where the Customer uses any party other than the Seller or the Seller's representative to perform any kind of work on the Goods of whatsoever nature;
9.3.6where any impurities in the Customer's system may have contaminated the Seller's Goods;
9.3.7where the Customer does not maintain an acceptable level of oil cleanliness as may be prescribed by the Seller from time to time;
9.3.8where the Goods start to indicate wear and tear problems and the Customer continues to operate such Goods to a point of failure and / ordestruction.
9.4The Customer cannot raise a warranty claim against the Seller until the Seller has had an opportunity to investigate the cause of the failure and therewith the validity of such a claim and also not until the actual cause of such a failure has been properly determined.
9.5The costs of such an investigation shall be borne by the Customer.
9.6The Customer agrees to not withhold the payment of any money that may be due to the Seller while the warranty claim is being investigated.
9.7Should the cause of the failure of the Goods be proven to be due to bad workmanship and / or latent defects in the Goods, the Seller shall be obliged to replace the affected Goods at no extra cost to the Customer. All labour, travel and / or other related costs associated with the replacement of the affected Goods shall, however, be borne by the Customer.
9.8The Seller does not accept any liability for any consequential losses or damages of whatsoever nature that may be caused by the above-mentioned failure of
the Goods.
10. Consequential Damages
Notwithstanding any other provisions to the contrary contained herein, the Seller shall not be liable, whether arising in contract or delict or otherwise, for any loss of anticipated profits, loss by reason of plant shutdown, non-operational or increased expense of operation, service interruptions, cost of purchased or replacement power, special, incidental or consequential loss or damage regardless of the sole, joint and / or concurrent negligence of the Seller, and the Customer releases the Seller fully in this regard.
11. Special Requirements
11.1Any and all additional costs that might be incurred by the Seller in providing the Customer with any special drawings over and above the Seller's normal scope of supply shall be borne by the Customer. The standard drawings in terms of the Seller's normal scope of supply include drawings in AutoCAD format, general arrangement drawings (3-D Inventor), schematic drawings with ISO hydraulic symbols and instrument termination drawings with wire and tag numbers.
11.2Should the Customer require any outsourced quality assurance or inspection services the costs of such services will be borne by the Customer.
11.3The Seller shall provide the Customer with one Colour Operating and Maintenance Manual as well as one CD-ROM containing such a manual. Should the Customer require the Seller to provide more than one copy of such a manual, the additional costs associated with providing those additional manuals will be borne by the Customer.
12. Installation and Commissioning
12.1The Customer agrees that the Seller will undertake all installation and / or commissioning activities that might be associated with the Goods that have been provided by the Seller. The Customer also agrees that all spare parts will be provided by the Seller.
12.2All costs associated with the installation and / or commissioning of the Goods by the Seller shall be borne by the Customer, which includes any additional parts, materials or components that might be required on site to complete such an installation and / or commissioning job and that the Seller may not have foreseen while compiling the original scope of supply.
12.3The installation and / or commissioning costs are based on an uninterrupted sequence of work (45 hours per person Monday to Friday) as well as the assumption that there will be no undue delays caused by the Customer and / or any other external 3rd Party. Should the sequence of work be interrupted or should there be any undue delays of whatsoever nature that prevent the Seller from completing the installation and / or commissioning of the Goods as
per the scope of supply, those additional costs and / or time that might be associated with such an interruption and / or delay shall be borne by the Customer.
12.4The Customer hereby accepts that the following products, services and / or amenities are not included in the Seller's normal scope of supply. Should any of
these amenities, products and / or services be required by the Seller to facilitate the commissioning and or installation of the Goods, the Customer agrees to provide or to ensure the provision of such amenities, products and / or services:
12.4.1the supply, installation and the connection of all site motor and instrument electric cables;
12.4.2the supply of all local control panels, PLCs or similar programmable devices;
12.4.3the supply of first fill of lubricants required for the initial fill to test, flush and commission the lubrication systems;
12.4.4the supply of compressed air (clean and water-free) required to operate pneumatic equipment, must be brought to within 1 metre of such equipment;
12.4.5the supply of site piping layout isometric or as-built CAD drawings;
12.4.6the supply of site inter-connecting piping, fittings, flexible hoses, fasteners and bracketing material required to complete the installation between
the lubrication unit and consumer / friction point;
12.4.7the cleaning of inter-connecting piping, painting and sealing prior to delivery of Goods to site;
12.4.8the supply, installation and connection of pipe thermal lagging / trace heating for sites with ambient temperatures of less than 15 degrees C at any
given time; this would also be applicable to sites where the wind-chill factor may be less than 15 degrees C at any given time;
12.4.9the supply and installation of numbered stainless steel tags on equipment;
12.4.10any paintwork other than the standard manufacturer's coating or Seller's paint specification;
12.4.11any alterations / modifications to parent equipment to accommodate the lubrication system and its performance;
12.4.12all other painting on site;
12.4.13all site cleaning of working and / or installation areas from oils, grease and other dirt, prior to commencement of installation;
12.4.14delivery to site / freight agents / sea ports, etc.;
12.4.15supervision on site;
12.4.16site specific medicals and induction costs;
12.4.17crating / packing / rigging / loading and off-loading, etc.;
12.4.18commissioning and / or operational spares;
12.4.19the supply, erection, breakdown and safety accreditation of scaffolding, if and when required;
12.4.20all civils;
12.4.21site storage and / or site office;
12.4.22provision of a site safety officer;
12.4.23the supply of compressed air and electric power (380 / 220 V AC) required to operate the Seller's hand tools;
12.4.24safe accessibility to the installation and / or commissioning area at all times during the period of installation;
12.4.25access to change-rooms, washing and canteen facilities for Seller's staff and / or representatives.
12.5In the event that the Seller has to provide for any of the amenities, products and / or services as set out in paragraph the costs associated with the provision thereof will be borne by the Customer.
13. Arbitration
13.1It is agreed that in the event of any controversy of claim arising out of or in relation to this agreement or with respect to an alleged breach of this agreement, the parties shall seek to solve the matter amicably through discussions between the parties. Only if the parties fail to resolve the same within thirty (30) days by amicable arrangement may the aggrieved party seek arbitration as set out below.
13.2Any dispute between the parties arising out of or connected with this agreement shall be referred to and determined by arbitration in accordance with the rules for the time being of the Arbitration Foundation of South Africa.
13.3However, no power accorded to the Arbitrator or Arbitrators under such rules shall entitle the Arbitrator or Arbitrators to overrule or supplement or amend or vary any term of this Agreement (unless the written consent of all the parties is first obtained). Further the parties agree that the right to appeal within the terms of such rules shall be available to them and that it will also be permissible for either party to institute urgent proceedings within the meaning of such rules without any further consent of the other party being required.
13.4In the event of:
13.4.1the Arbitration Foundation of South Africa ceasing to exist; the dispute shall be referred to and determined in accordance with the Arbitration Act, 1965, as amended, or re-enacted in some form, from time to time;
13.4.2the Arbitration Foundation of South Africa refuses to arbitrate in terms of Article 5 of the Rules; the dispute shall be referred to and determined in accordance with the Arbitration Act, 1965, as amended, or re-enacted in some form, from time to time;
13.4.3the venue for the arbitration proceedings, as well as any appeal against the arbitrator/s award, shall be Randburg;
13.4.4this agreement will be interpreted in terms of the laws of the Republic of South Africa;
13.4.5this agreement will continue in full force and effect in the event of it being necessary to make use of the aforesaid dispute procedure;
13.4.6the final award of the arbitrator/s can be made an order of the High Court of South Africa, having competent jurisdiction.
14. Miscellaneous Legal Provisions
14.1In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
14.2No variation of or addition to this Agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the Parties.
14.3If any provision of this Agreement is found or held to be invalid or unenforceable, the validity of all the other provisions hereof will not be affected thereby and the Parties agree to meet and review the matter and if any valid and enforceable means is reasonably available to achieve the same objective as the
invalid or unenforceable provision, to adopt such means by way of variation of this Agreement.
14.4No waiver on the part of any Party of any rights arising from a breach of any provision of this Agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.
15. Force Majeure
15.1In the event of any act of God, war, warlike operation, rebellion, riot, civil war, operation disaster or (without regard to the aforegoing enumeration) of any like circumstances arising or action taken beyond or outside the reasonable control of the Parties hereto preventing them or any of them from the performance of any obligation hereunder (any such event hereinafter called "force majeure") then the Party affected by such force majeure shall be relieved of its obligations hereunder during the period that such force majeure continues but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damage which the other Party may suffer due to or resulting from the force majeure, provided always that a written notice shall be promptly given to the other Party of any such inability by the affected Party.
15.2The Party invoking force majeure shall upon termination of such force majeure give prompt written notice thereof to the other Party.
15.3Should force majeure continue for a period of more than 90 (ninety) days, then the Parties shall be entitled forthwith to terminate.
16. Indemnity
The Customer indemnifies the Seller and holds the Seller harmless against all expenses incurred and / or damages incurred of whatsoever nature, sustained by the Customer as a result of any defect in / or damage to the Goods or by reason of any accident, injury or damage to persons and / or property occasioned by the use of such Goods and contributed to wholly or in part by the defective conditions of such Goods.
17. General
17.1The terms and conditions herein as well as the Special Terms and Conditions as per the Order, supersede any prior written and / or verbal arrangements between the Seller and the Customer.
17.2The terms and conditions herein as well as the Special Terms and Conditions as per the Order are material terms and any breach thereof shall be a material breach.
17.3Unless otherwise specifically agreed to in writing by the Seller and the Customer, the Seller's General Terms and Conditions as set out herein shall apply.
17.4Should there be any inconsistency between the Seller's terms and conditions as set out herein and the terms and conditions of the Customer, the Seller's terms and conditions shall prevail.
17.5The Seller hereby chooses as its domicilium et executandi for all purposes under any order, the physical address as stipulated on such an order.