Terms and Conditions

STANDARD CONDITIONS OF AGREEMENT (hereinafter the “Agreement”)

1. The Customer agrees that:

1.1. this Agreement represents the entire Agreement between the Customer and Burkert South Africa (Pty) Ltd (Pty) Ltd (hereinafter called Burkert South Africa (Pty) Ltd) and that no alterations or additions to this Agreement may be affected unless agreed to by both parties, reduced to writing and signed by the Customer and a duly authorised representative of Burkert South Africa (Pty) Ltd.

1.2. this Agreement will govern all future contractual relationships between the parties.

1.3. this Agreement is applicable to all existing debts and future debts between the parties.

1.4. this Agreement is final and binding and is not subject to any suspensive or resolutive terms or conditions.

1.5. any conflicting conditions stipulated by the Customer are expressly excluded.

1.6. these terms supersede all previous conditions of Agreement without prejudice to any securities or guarantees held by Burkert South Africa (Pty) Ltd. and

1.7. these terms apply to all servants and subcontractors of Burkert South Africa (Pty) Ltd unless special project conditions are agreed upon and reduced to written form.

2.     

2.1. The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof.

2.2. In this Agreement, unless a contrary intention clearly appears,

2.2.1.   words importing

2.2.1.1.       any one gender includes all other genders.

2.2.2.   the singular includes the plural and vice versa, and

2.2.3.   natural persons include created entities (corporate or non-corporate) and vice versa.

2.3. The following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:

2.4. “Customer” means the natural or juristic person so defined in the cover page to this Agreement.

2.5. “Burkert South Africa (Pty) Ltd” means the supplier of all valve, flow, level, pressure, analytics, temperature, recording and digital communications, optimizing processes in terms of economic efficiency, safety and environmental impact products and service including its directors, managers, employees and consultants.

2.6. “goods” means all valve, flow, level, pressure, analytics, temperature, recording and digital communications, optimizing processes in terms of economic efficiency, safety and environmental impact products provided to the Customer in terms of the order.

2.7. “service/s” means any valve, flow, level, pressure, analytics, temperature, recording and digital communications, optimizing processes in terms of economic efficiency, safety and environmental impact service provided to the Customer in terms of the order.

3.     

3.1. This Agreement only becomes final and binding on receipt and acceptance of this signed Agreement by Burkert South Africa (Pty) Ltd at its business addresses in South Africa.

3.2. Any order only becomes final and binding on receipt and acceptance of such order by Burkert South Africa (Pty) Ltd at its business address per clause 2.1. This Agreement will commence on the acceptance by Burkert South Africa (Pty) Ltd of the first order.

4.    The Customer acknowledges that it does not rely on any representations made by Burkert South Africa (Pty) Ltd regarding the goods and services or any of its qualities leading up to this Agreement other than those contained in this Agreement. All specifications, price lists, performance figures, advertisements, brochures and other technical data furnished by Burkert South Africa (Pty) Ltd in respect of the goods or services verbally or in writing will not form part of the Agreement in any way unless agreed to in writing by Burkert South Africa (Pty) Ltd.

5.     

5.1. The Customer agrees that neither Burkert South Africa (Pty) Ltd nor any of its employees will be liable for any negligent or innocent misrepresentations made to the Customer.

5.2. It is the sole responsibility of the Customer to determine that the goods or services ordered are suitable for the purposes of intended use.

5.3. The Customer agrees to pay all additional costs resulting from any acts or omissions by the Customer including suspension of work, modification of requirements, failure or delay in giving particulars required to enable work to proceed on schedule or requirements that work be completed earlier than agreed.

5.4. The charges for Services shall be on a time and materials basis as agreed between the Customer and Burkert South Africa (Pty) Ltd prior to any Services being provided:

5.4.1.   the charges shall be calculated in accordance with Burkert South Africa (Pty) Ltd’s standard daily fee rates, as per the Standard Rates of Burkert South Africa (Pty) Ltd (available on request).

5.4.2.   the number of hours in one working day shall be agreed between the Customer and Burkert South Africa (Pty) Ltd.

5.4.3.   if the number of agreed hours is exceeded, Burkert South Africa (Pty) Ltd shall be entitled to charge overtime rates on a pro-rata basis for each day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.4.2 as follows:

5.4.3.1.       1.5 times normal rates after normal office hours. or

5.4.3.2.       2 times normal rates on Weekends and Public Holidays6.4.4. Burkert South Africa (Pty) Ltd shall be entitled to charge the Customer for any expenses incurred by the individuals whom Burkert South Africa (Pty) Ltd engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and other associated expenses, (these costs will be as per the Standard Rates of Burkert South Africa (Pty) Ltd, available on request) and for the cost of services provided by third parties and required by Burkert South Africa (Pty) Ltd for the performance of the Services, and for the cost of any material.

5.5. Burkert South Africa (Pty) Ltd reserves the right to increase the price of the goods, by giving notice to the Customer before delivery due to:

5.5.1.   any request by the Customer to change the delivery date(s), quantities or types of goods ordered, or the goods specification. or

5.5.2.   any delay caused by any instructions of the Customer in respect of the goods or failure of the Customer to give Burkert South Africa (Pty) Ltd adequate or accurate information or instruction in respect of the goods.

5.6. Burkert South Africa (Pty) Ltd reserves the right at its sole discretion to provide alternative goods of the same quality and quantity at the prevailing prices to those ordered by the Customer should such goods be superseded, replaced or their manufacture terminated.

6.     

6.1. All quotations will remain valid for a period of 30 (thirty) calendar days from the date of the quotation or until the date of issue of a new Price List, whichever occurs first.

6.2. All quotations are subject to the availability of the goods or services and subject to correction of good faith errors by Burkert South Africa (Pty) Ltd and any price quoted shall be subject to variation up to the time of delivery in relation to any fluctuations of the cost price of the goods or forex fluctuations. The price of goods is exclusive of all costs and charges of packaging, insurance and transport of goods.

6.3. The Customer hereby confirms that the goods or services on any Tax Invoice issued duly represent the goods or services ordered by the Customer at the prices agreed to by the Customer and, where delivery / performance has already taken place, that the goods or services were inspected and that the Customer is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects.

6.4. Notwithstanding the provisions of clause 1 above, all orders or agreed variations to orders, in writing, shall be binding and subject to this Agreement and may not be revoked by the Customer.

6.5. The Customer agrees that under no circumstances may the Customer cancel special orders placed with Burkert South Africa (Pty) Ltd and Burkert South Africa (Pty) Ltd will invoice special orders at full price.

6.6. Burkert South Africa (Pty) Ltd shall be entitled in its sole discretion to split the delivery / performance of the goods or services ordered in the quantities and on the dates it decides.

6.7. Burkert South Africa (Pty) Ltd shall be entitled to invoice each delivery / performance made separately.

6.8. Any delivery note, waybill, time sheet, Installation Certificate or job card (copy or original) signed by the Customer or a third party engaged to transport the goods and held by Burkert South Africa (Pty) Ltd shall be prima facie proof that delivery was made to the Customer.

6.9. The risk of damage to, destruction or theft of goods shall pass to the Customer on deliver/ installation of the goods or services.

6.10.            Installation and commissioning costs are not included in the price of the goods, unless specified in writing and signed by a duly authorised officer of Burkert South Africa (Pty) Ltd.

6.11.            Delivery, installation, and performance times quoted are merely estimates and are not binding on Burkert South Africa (Pty) Ltd.

6.12.            If Burkert South Africa (Pty) Ltd agrees to engage a third party to transport the goods, Burkert South Africa (Pty) Ltd is hereby authorised to engage a third party on the Customer's behalf and on the terms deemed fit by Burkert South Africa (Pty) Ltd.

6.13.            The Customer indemnifies Burkert South Africa (Pty) Ltd against any claims against Burkert South Africa (Pty) Ltd that may arise from such agreement in clause 7.13.

6.14.            Repair times and repair costs given are merely estimates and are not binding on Burkert South Africa (Pty) Ltd

6.15.            Any item handed in for repair may be sold by Burkert South Africa (Pty) Ltd to defray the cost of such repairs if the item remains uncollected within 30 (thirty) calendar days of the repairs being completed.

6.16.            All goods taken on an evaluation or demonstration basis by the Customer are deemed sold if not returned within 30 (thirty) calendar days of issue in the original condition, in the original packaging and with all accessories and manuals intact.

6.17.            The Customer acknowledges all copyrights and shall not duplicate copyrighted material and that each infringement attempt shall immediately render the full prevailing price payable to Burkert South Africa (Pty) Ltd.

6.18.            The Customer shall indemnify Burkert South Africa (Pty) Ltd against any claims, costs and expenses arising out of the infringement of copyright, patent, trademark, or design supplied by the Customer.

6.19.            Where Burkert South Africa (Pty) Ltd is required to manufacture goods in accordance with a specification supplied by the Customer, the Customer must ensure that the information given is correct. Burkert South Africa (Pty) Ltd will not be held liable for any damage whatsoever if the wrong information is given.

6.20.            Burkert South Africa (Pty) Ltd shall provide the services to the Customer only in accordance with the Service Specification in all material respects.

6.21.            The Customer has the following obligations:

The Customer shall:

6.21.1.        ensure that the terms of the order and (if submitted by the Customer) the Goods Specifications are complete and accurate.

6.21.2.        co-operate with Burkert South Africa (Pty) Ltd in all matters relating to the services.

6.21.3.        provide Burkert South Africa (Pty) Ltd, its employees, agents, consultants and subcontractors with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Burkert South Africa (Pty) Ltd to provide the Services. provide Burkert South Africa (Pty) Ltd with such information and materials as Burkert South Africa (Pty) Ltd may reasonably require supplying the service and ensure that such information is accurate in all material respects.

6.21.4.        prepare the Customer’s premises for the supply of the services.

6.21.5.        obtain and maintain all necessary permissions and consents which may be required for the services before the date on which the services are to start. and

6.21.6.        keep and maintain all materials, equipment, documents and other property of Burkert South Africa (Pty) Ltd (Suppliers Material) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Material in good condition until returned to Burkert South Africa (Pty) Ltd, and not to dispose of or use the Supplier Material other than in accordance with Burkert South Africa (Pty) Ltd’s written instructions or authorisation.

6.22.            If Burkert South Africa (Pty) Ltd’s performance of any of its obligations in respect of the services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer default):

6.22.1.                Burkert South Africa (Pty) Ltd shall without limiting its other rights or remedies have the right to suspend performance of the services until the Customer remedies the Customer’s default, and to rely on the Customer default to relieve it from the performance of any of its obligations to the extent the Customer default prevents or delays Burkert South Africa (Pty) Ltd’s performance of any of its obligations.

6.22.2.                Burkert South Africa (Pty) Ltd shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Customer default. 

6.22.3.                The Customer shall reimburse Burkert South Africa (Pty) Ltd on written demand for any costs or losses sustained or incurred by Burkert South Africa (Pty) Ltd arising directly or indirectly from the Customer default.

6.23.            All Intellectual Property Rights in or arising out of or in connection with the Agreement and/or the services shall be owned by Burkert South Africa (Pty) Ltd. The Customer acknowledges that, in respect of any third-party Intellectual Property Rights in the services, the Customer’s use of any such Intellectual Property Rights is conditional on Burkert South Africa (Pty) Ltd obtaining a written licence from the relevant licensor on such terms as will entitle Burkert South Africa (Pty) Ltd to license such rights to the Customer.

6.24.            Nothing in the Agreement is intended to or shall be deemed to establish any partnership or joint venture between any of the parties. Neither party shall have authority to act as agent for, or to bind the other party.

7.     

7.1. New goods are guaranteed for a period of 12 (twelve) months, goods not manufactured by Burkert South Africa (Pty) Ltd are guaranteed according to the Manufacturer's product specific warranties only and all other guarantees including common law guarantees are hereby specifically excluded. Services are guaranteed for a period of 90 (ninety) calendar days against faulty workmanship and parts are guaranteed for a period of 12 (twelve) months.

7.2. Liability under clause 8.1 is restricted to the cost of repair or replacement of faulty goods or services or granting of a credit at the sole discretion of Burkert South Africa (Pty) Ltd.

7.3. No claim under this Agreement shall arise unless the Customer has, within 14 (fourteen)calendar days of an alleged breach of contract and/or defect occurring, given Burkert South Africa (Pty) Ltd written notice by prepaid registered post of such breach or defect, and has afforded Burkert South Africa (Pty) Ltd at least 30 (thirty) calendar days to rectify such defect or breach.

7.4. To be valid, claims must be supported by the original Tax Invoice.

7.5. The Customer shall return any defective moveable goods to the premises of Burkert South Africa (Pty) Ltd at the Customer's own cost and packed in the original or suitable packaging and all risks for the duration of repair remain with the Customer.

7.6. All guarantees are immediately null and void, should:

7.6.1.   any goods be tampered with.

7.6.2.   the seals on goods be broken by anyone other than Burkert South Africa (Pty) Ltd.

7.6.3.   the goods be used or stored outside the Manufacturer's specifications.

7.6.4.   the defect arises because of Burkert South Africa (Pty) Ltd following any drawing, design or goods specification supplied by the Customer.

7.6.5.   the Customer alter or repair the goods without the written consent of Burkert South Africa (Pty) Ltd. or

7.6.6.   the defect arises because of fair wear and tear, wilful damage, negligence, or abnormal working conditions.

7.7. Burkert South Africa (Pty) Ltd will not accept delivery of, or work on returned goods if the Control of Substances Hazardous to Health Regulations (COSHH) forms have not been completed and submitted with each device. The COSHH form can be found at the website of Burkert South Africa (Pty) Ltd.

7.8. Any item delivered to Burkert South Africa (Pty) Ltd shall serve as pledge in favour of Burkert South Africa (Pty) Ltd for present and past debts and Burkert South Africa (Pty) Ltd shall be entitled to retain or realise such pledges as it deems expedient at the value as determined in clause 15.1. The sworn or realised value of pledged goods will be offset against the Customer’s debts any excess balance will be paid to the Customer.

7.9. We may offer guarantee periods which exceed the warranty period according to clause 8.1 for specific products at our discretion. Provided that such extended guaranty period is restricted to the replacement of the defective products in accordance with clause 8.2 of these Standard Conditions of Agreement and that any further liability (e.g. for direct or indirect damages) is excluded.

8.     

8.1. Under no circumstances shall Burkert South Africa (Pty) Ltd be liable for any direct or consequential damages flowing from any loss, injury, death or damage including loss of profits or for any delictual liability of any nature whatsoever whether caused negligently or innocently.

8.2. Burkert South Africa (Pty) Ltd’s total liability to the Customer in respect of all other losses arising under or in connection with the Agreement, whether in contract, delict (including gross negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid by the Customer for the goods and/or services from which the claim arises.

8.3. Under no circumstances shall Burkert South Africa (Pty) Ltd be liable for any damage arising from any misuse, abuse or neglect of the goods or services.

9.     

9.1. Delivery of the goods or services to the Customer shall take place at the place of business of Burkert South Africa (Pty) Ltd. If the Customer fails to accept or take delivery of the goods within 7 (seven) calendar days of Burkert South Africa (Pty) Ltd notifying that the goods are ready, Burkert South Africa (Pty) Ltd is entitled to invoice the Customer for the goods and to charge the Customer storage of 1% of the invoice value per month. If storage at third party’s premises is required, the cost incurred shall be borne by the Customer.

9.2. If Burkert South Africa (Pty) Ltd is responsible for obtaining licences, particularly but not limited to the export/shipment/import of goods, the deliveries of Burkert South Africa (Pty) Ltd are subject to the reservation that there are no impediments opposing to such licence due to national or international regulations, particularly export control regulations, embargo or other sanctions. The Customer agrees to provide Burkert South Africa (Pty) Ltd with all information and documents required for the export/shipment/import of the goods.

10.  

10.1.            The Customer agrees that the amount contained in a Tax Invoice issued by Burkert South Africa (Pty) Ltd shall be due and payable unconditionally:

10.1.1.                by cash on order. or

10.1.2.                if the Customer is a Credit Approved Customer, within 30 (thirty) calendar days from the end of the month in which a Tax Invoice has been issued by Burkert South Africa (Pty) Ltd.

10.2.            All amounts payable by the Customer under this Agreement are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by Burkert South Africa (Pty) Ltd to the Customer, the Customer shall, on receipt of a valid VAT invoice from Burkert South Africa (Pty) Ltd, pay to Burkert South Africa (Pty) Ltd such additional amounts in respect of VAT as are chargeable on the supply of goods or services at the same time as payment is due for the supply of goods or services.

10.3.            The Customer agrees to pay the amount on the Tax Invoice at the offices of Burkert South Africa (Pty) Ltd.

11.  

11.1.            The Customer has no right to withhold payment for any reason whatsoever 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 Burkert South Africa (Pty) Ltd, reduced to writing and signed by the Customer and a duly authorised representative of Burkert South Africa (Pty) Ltd.

11.2.            The Customer is not entitled to set off any amount due to the Customer by Burkert South Africa (Pty) Ltd against this debt. 12.3. All discounts shall be forfeited if payment in full is not made on the due date.

12.  

12.1.            The Customer agrees that the amount due and payable to Burkert South Africa (Pty) Ltd may be determined and proven by a certificate of balance issued and signed by any director or manager of Burkert South Africa (Pty) Ltd, whose authority need not be proven or by any independent auditor. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer.

12.2.            Any printout of computer evidence tendered by any party shall be admissible evidence and no party shall object to the admissibility of such evidence purely on grounds that such evidence is computer evidence or that the requirements of the Electronic Communications and Transactions Act 25 of 2002 (as amended) have not been met.

13. If any amount due to Burkert South Africa (Pty) Ltd is not paid on due date, such amount, as well as this agreement as a whole will become an incidental credit agreement, which will bear interest from that date at the rate as (a) prescribed by Burkert South Africa (Pty) Ltd ‘s bank as their prime lending rate plus an additional 1 (one) % per month or (b) the maximum prescribed interest rate as stipulated in section 42(1) of the National Credit Regulations per month, but only if applicable to the Applicant in terms of sections 4, 5 and 6 of NCA. Such interest will be capitalized monthly in advance.

14.  

14.1.            The Customer and Surety hereby jointly and severally, irrevocably and in rem suam cede and assign as a pledge unto and in favour of the Burkert South Africa (Pty) Ltd, all the right, title, interest in and to all claims of whatsoever nature and description and howsoever arising which the Customer and/or Surety may now or at any time hereafter have against all and any persons, companies, corporations, firms, partnership, associations, syndicates and other legal personae whomsoever without exception as continuing covering security for the due payment of every sum of money which may now or at any time hereafter be or become owing by the customer and/or Surety from whatsoever cause or causes arising, it being acknowledged that this cession is a cession in securitiatium debiti and is not an out-and-out cession.

14.2.            Should it transpire that the Customer and/or Surety entered into prior deeds of cession or otherwise disposed of any of the right, title and interest in and to any of the claims which will from time to time be subject to this cession, then this cession shall operate as a cession of all the Customer’s and/or Surety’s reversionary rights.

14.3.            This cession shall be and remain in full force and effect as a continuing security notwithstanding any fluctuation, or temporary extinction of the Customer and/or Surety’s indebtedness to the Burkert South Africa (Pty) Ltd.

14.4.            For the purpose of giving effect to the foregoing cession both the Customer and Surety hereby nominate, constitute and appoint Burkert South Africa (Pty) Ltd to be its Attorney and Agent, in rem suam, with full authority for the Customer and/or Surety and in the Customer and/or Surety’s name to demand, sue for, recover and receive all sums of money hereby ceded and assigned and with the authority to sign all documents on the Customer and/or Surety’s behalf and in the Customer and/or Surety’s name in connection with the recovery of the said sums and to give acquittances and receipts for the Customer and/or Surety’s.

14.5.            The Customer and Surety agree that, on request by the Supplier, they shall be obliged to hand over to the Supplier all books of account, contracts, invoices, documents and the like which it may require for the purposes of ascertaining the amounts due to the Customer and/or Surety for the purpose of recovery of payment.

14.6.            The Customer and Surety shall be obliged to furnish Burkert South Africa (Pty) Ltd with a schedule of all debts due to the Customer and/or Surety by its debtors monthly and upon demand. Notwithstanding the foregoing, Burkert South Africa (Pty) Ltd or its nominee shall always be entitled to inspect all or any of the Customer and Surety’s records as Burkert South Africa (Pty) Ltd deems fit. Failure by either party to give effect to the foregoing shall not in any way prejudice the rights of Burkert South Africa (Pty) Ltd hereunder, and Burkert South Africa (Pty) Ltd shall always be deemed to have perfected its security in terms hereof.

14.6.1.                Burkert South Africa (Pty) Ltd may at any time assign, transfer, mortgage, charge, subcontract or deal in any other matter with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all its obligations under the Agreement to any third party.

14.6.2.                The Customer shall not, without the prior written consent of Burkert South Africa (Pty) Ltd, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Agreement.

15.  

15.1.            The Customer agrees that if an account is not settled in full:

15.1.1.                against order; or

15.1.2.                within the period agreed in clause10.1 above in the case of a Credit Approved Customer. Burkert South Africa (Pty) Ltd is:

15.1.2.1.    entitled to immediately institute action against the Customer at the sole expense of the Customer. or

15.1.2.2.    to cancel the Agreement and take possession of any goods delivered to the Customer and claim damages. These remedies are without prejudice to any other right Burkert South Africa (Pty) Ltd may be entitled to in terms of this Agreement or in law. Burkert South Africa (Pty) Ltd reserves its right to stop supply immediately on cancellation or on non-payment.

15.2.            A Credit Approved Customer will forthwith lose this approval when payment is not made according to the conditions of clause 11.1.1 and all amounts then outstanding shall immediately become due and payable.

15.3.            Burkert South Africa (Pty) Ltd shall be entitled to withdraw credit facilities at any time within its sole discretion.

15.4.            Without limiting Burkert South Africa (Pty) Ltd’s rights or remedies, Burkert South Africa (Pty) Ltd may at its discretion terminate the Agreement, suspend the supply of services or all further deliveries of goods under the Agreement or any other contract between the Customer and Burkert South Africa (Pty) Ltd with immediate effect by giving written notice to the Customer if:

15.4.1.                the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business. or  

15.4.2.                the Customer’s financial position deteriorates to such an extent that in Burkert South Africa (Pty) Ltd’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

15.5.            On termination of the Agreement:

15.5.1.                the Customer shall immediately pay to Burkert South Africa (Pty) Ltd all Burkert South Africa (Pty) Ltd’s outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice yet been submitted, Burkert South Africa (Pty) Ltd shall submit an invoice, which shall be payable by the Customer immediately on receipt.

15.5.2.                the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

16.  

16.1.            In the event of cancellation, the Customer shall be liable to pay:

16.2.            the difference between the selling price and the value of the goods at the time of repossession. and

16.3.            all other costs incurred in the repossession of the goods. The value of repossessed or retained pledged goods shall be deemed to be the value placed on them by any sworn valuator after such repossession, and such valuation shall be conclusive proof of the value. If the goods are not recovered for any reason whatsoever, the value shall be deemed to be nil.

16.4.            In the event of cancellation of the Agreement by Burkert South Africa (Pty) Ltd, it shall be entitled to repossess any goods that have been delivered to the Customer and remains unpaid by the due date.

16.5.            In the event of cancellation of the Agreement by Burkert South Africa (Pty) Ltd, it is entitled not to produce any unmade

16.6.            balance of a contract and to recover any loss sustained thereby from the Customer.

17.  

17.1.            All goods supplied by Burkert South Africa (Pty) Ltd remain the property of Burkert South Africa (Pty) Ltd until such goods have been fully paid for whether such goods are attached to other property or not.

17.2.            The Customer is not entitled to sell or dispose of any goods unpaid for without the prior written consent of Burkert South Africa (Pty) Ltd. The Customer shall not allow the goods to become encumbered in any manner prior to the full payment thereof and shall advise third parties of the rights of Burkert South Africa (Pty) Ltd in the goods. In the event where Burkert South Africa (Pty) Ltd gives permission that the unpaid goods maybe sold to a third party, the Customer does so as principal and not as the agent of Burkert South Africa (Pty) Ltd.

17.3.            If any goods 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 Agreement to retransfer the same quantity of goods in ownership to Burkert South Africa (Pty) Ltd.

18.  

18.1.            The Customer shall be liable to Burkert South Africa (Pty) Ltd for all legal expenses on the attorney-and-own-client scale incurred by Burkert South Africa (Pty) Ltd in the event of:

18.1.1.                any default by the Customer or

18.1.2.                any litigation regarding the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, for any form of security that Burkert South Africa (Pty) Ltd may demand.

18.2.            The Customer agrees that Burkert South Africa (Pty) Ltd will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate's Courts or in terms of Rule 25 of the Superior Courts Act No 10 of 2013.

19. The Customer agrees that no indulgence whatsoever by Burkert South Africa (Pty) Ltd will affect the terms of this Agreement or any of the rights of Burkert South Africa (Pty) Ltd and such indulgence shall not constitute a waiver by Burkert South Africa (Pty) Ltd in respect of any of its rights herein. Under no circumstances will Burkert South Africa (Pty) Ltd be estopped from exercising any of its rights in terms of this Agreement.

20. The Customer hereby consents that Burkert South Africa (Pty) Ltd 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. These South African courts shall have exclusive jurisdiction in any litigation between the parties arising from whatsoever source.

21.  

21.1.            Any document shall be deemed duly presented to and accepted by the Customer within:

21.1.1.                5 (five) business 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

21.1.2.                within 24 (twenty-four) hours of being faxed to any of the Customer's fax numbers or any director, member, or owner's fax numbers. or

21.1.3.                on being delivered by hand to the Customer or any director, member, or owner of the Customer. or 22.1.4. within 48 (forty-eight) hours if sent by overnight courier or

21.1.4.                within 7(seven) days of being sent by surface mail. or

21.1.5.                within 24 (twenty-four) hours of being e-mailed to any e-mail address provided by the Customer. The Customer chooses its address for any notification or service of legal documents or processes as the business address or the physical addresses (domicilium citandi et executandi) as provided to Burkert South Africa (Pty) Ltd below.

21.2.            The Customer undertakes to inform Burkert South Africa (Pty) Ltd in writing within 7 (seven) calendar days of any change of Director, Member, Shareholder, Owner or Partner or address or 14 (fourteen) calendar days prior to selling or alienating the Customer’s business and failure to do so will constitute a material breach of this Agreement. Upon receipt of such written notification, Burkert South Africa (Pty) Ltd reserves the right, at its sole discretion, to withdraw any credit facility advanced to the Customer.

21.3.            The Customer hereby agrees that the credit facility is a variable credit facility and that Burkert South Africa (Pty) Ltd shall be entitled to increase its credit limit from time to time.

21.4.            The Customer takes note that Burkert South Africa (Pty) Ltd will treat the private information of the Customer in accordance with the Privacy Policy of Burkert South Africa (Pty) Ltd (available on request).

22. The Customer shall:

22.1.            comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Prevention and Combating of Corrupt Activities Act 12 of 2004 (as amended).

22.2.            not engage in any activity, practice, or conduct which would constitute an offence under sections of the above-mentioned Act, if such activity, practice, or conduct had been carried out in the Republic of South Africa.

22.3.            have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including but not limited to adequate procedures under the above-mentioned Act, to ensure compliance with the relevant requirements and will enforce them where appropriate.

22.4.            promptly report to Burkert South Africa (Pty) Ltd any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of this Agreement.

23. The Customer agrees to the Standard Rates of Burkert South Africa (Pty) Ltd for any goods or services rendered, which rates may be obtained on request.

24. Each provision of this Agreement is severable from the other provisions. Should any provision be found to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall nevertheless remain binding and continue with full force and effect.

25. Any order is subject to cancellation by Burkert South Africa (Pty) Ltd due to any force majeure events including but not limited to acts of God or any circumstance beyond the control of Burkert South Africa (Pty) Ltd, 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, pandemic or legislation.

26. Any order is subject to cancellation by Burkert South Africa (Pty) Ltd if the Customer breaches any term of this Agreement or makes any attempt of compromise, liquidation, sequestration, termination, or judgment is recorded against the Customer or any of its principals.

27. The Customer agrees that Burkert South Africa (Pty) Ltd will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in clauses 26 or 27 occur.

28. If the National Credit Act 34 of 2005 (as amended) is applicable the following clauses shall not be applicable to this Agreement: clause 6.1, clause 21 and clause 22.6.

29. If the Consumer Protection Act 68 of 2009 (as amended) is applicable the following clauses shall not be applicable to this Agreement: clauses 6.1, 7.2, 7.4, 7.10, 8.1, 8.3, 8.4, 9.1, 12.2, 19.1, 21, 22.1, 22.2, 22.6.

30.         

30.1.            The customer acknowledges that Burkert South Africa (Pty) Ltd is required to comply with applicable export / import laws and regulations relating to the sale, export, import, transfer, assignment, disposal and use of the Products, including any export / import license requirements, in particular the country import laws of the customer, European foreign trade and sanctions laws, in particular for products as per Regulation EU 833/2014. The customer agrees as a fundamental obligation that Products will not at any time directly or indirectly be used, exported, imported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with any export / import laws and regulations, e.g. circumvention of said laws and regulations. Either Parties’ continuing performance hereunder is always conditioned on compliance with such export / import laws and regulations.

30.2.           The customer confirms that it will not (re-)sell or use the products outside the country of his company registration or export into a country with limitations as per any of the laws mentioned in paragraph (1). The customer shall not intentionally or in acting with reckless disregard frustrate the purpose of paragraph (1) using any third parties further down the commercial chain, including by possible resellers.

30.3.           The customer shall inform the Burkert South Africa (Pty) Ltd and the Parties shall coordinate in case of any problems in applying paragraphs (1) - (4), including sharing of necessary information without undue delay.

30.4.           Any The customer’s culpable violation of paragraphs (1), (2) or (3) shall constitute a material breach of an essential element of this agreement, and the customer shall:

30.5.           Indemnify and hold harmless Burkert South Africa (Pty) Ltd on first written demand for the full cost of any enforcement penalties and for any other related losses, including Burkert South Africa (Pty) Ltd’s reasonable legal fees, full cost of any enforcement penalties imposed because of the customer’s breach.

30.6.           Burkert South Africa (Pty) Ltd may terminate the contract immediately without prejudice.

30.7.            Any advance payments received by Burkert South Africa (Pty) Ltd for Sanctioned Goods not delivered at the time of termination as per (4)(ii), shall remain with Burkert South Africa (Pty) Ltd as non-refundable compensation and be deducted from any damages due as per paragraph (4) (i).

31.  

31.1.            Burkert South Africa (Pty) Ltd may collect personal information from customers necessary to process orders, deliver goods, and provide after-sales support

31.2.            Personal information will only be used for the purposes for which it was collected, including order fulfilment, invoicing, delivery, and customer communication.

31.3.            Burkert South Africa (Pty) Ltd undertakes to implement reasonable technical and organizational measures to safeguard personal information against loss, unauthorized access, or disclosure.

31.4.            Customers have the right to access, correct, or request deletion of their personal information in accordance with POPIA. Requests must be submitted in writing to Burkert South Africa (Pty) Ltd’s Information Officer.

31.5.            Burkert South Africa (Pty) Ltd will only send marketing communications with the customer’s explicit consent. Customers may opt out at any time.

31.6.            Personal information will not be transferred outside South Africa unless adequate protection measures are in place, in line with POPIA requirements.

32. Online Shop / E-Commerce Clauses

32.1.            Orders placed via Burkert South Africa (Pty) Ltd’s online shop constitute a binding electronic transaction under the Electronic Communications and Transactions Act (ECTA).

32.2.            All prices displayed online exclude VAT and exclude delivery charges unless otherwise stated.

32.3.            In line with the Consumer Protection Act, customers purchasing via the online shop have a 7-day cooling-off period to cancel without penalty, provided goods are returned unused and in original packaging.

32.4.            Online payments will be processed through secure, PCI-DSS compliant payment gateways. Burkert South Africa (Pty) Ltd does not store customer credit card details.

32.5.            Estimated delivery times will be displayed at checkout. Burkert South Africa (Pty) Ltd will notify customers of any delays.

32.6.            Returns and Refunds Returns must comply with Burkert South Africa (Pty) Ltd’s return policy. Refunds will be processed within 14 business days of receipt of returned goods.

32.7.            Customer Support Burkert South Africa (Pty) Ltd will provide accessible online support channels (email or phone) for queries related to online purchases.

33. This Agreement and its interpretation are subject to South African law.