Terms & Conditions
The following words/expressions shall have the meaning(s) respectively set out opposite them, unless it appears otherwise from the context of the Agreement:
1.1) “Affiliate” means any corporate entity with legal personality that controls a Party, is controlled by a Party, or is under joint control of a party. An entity shall be regarded as being in control of another entity if it owns, directly or indirectly, or is entitled to exercise, directly or indirectly, the votes attaching to at least 50% (fifty percent) of the equity share capital of the other entity, or if it possesses, directly or indirectly, the power to determine the composition of the majority of the board of directors of the other entity.
1.2) “Agreement” means this agreement entered into by and between the Parties for the purchase and sale of the Goods.
1.3) “Commencement Date” means the date upon which this Agreement has been signed by both the Parties.
1.4) “Confidential Information” means any proprietary information, technical experience or knowledge, specifications, data, materials, procedures, trade secrets, drawings, designs and know-how (whether patented, patentable or not) – irrespective whether in a written, graphical or other tangible or electronic form or verbal, visual or auditable form.
1.5) “Delivery Date” means the date referred to for the delivery by DONNLEE PUMP TECH to the BUYER of the Goods.
1.6) “Delivery Place” means the place, premises or site where DONNLEE PUMP TECH shall deliver the Goods to the BUYER.
1.7) “Goods” means those items referred to in which DONNLEE PUMP TECH will sell and deliver to the BUYER and the BUYER will purchase from DONNLEE PUMP TECH.
1.8) “Intellectual Property” means any and all proprietary rights to any subject matter susceptible of protection by way of patent, design, copyright, trademark and any similar statutory provision, as well as any confidential information relating to that subject matter.
1.9) “Month” means a calendar month, i.e. from the first day of any month to the last day of the same month.
1.10) “Parties” means the BUYER and DONNLEE PUMP TECH, and “Party” means either the BUYER or DONNLEE PUMP TECH (unless the context implies otherwise)
1.11) “Purchase Price” means the purchase price for the Goods as stipulated, which the BUYER will pay DONNLEE PUMP TECH.
1.12) “DONNLEE PUMP TECH” means Donnlee Pump Tech (Pty) Ltd, Registration Number 2009/023939/07, a company duly registered and existing in terms of the laws of South Africa.
1.13) “BUYER” means the entity purchasing the goods.
1.14) “Specifications” means the technical and performance requirements to which the Goods shall comply with.
1.15) “VAT” means value added tax, levied and payable in terms of the VAT Act.
1.16) “VAT Act” means the Value Added Tax Act 89 of 1991, as amended from time to time, including regulations promulgated there under.
2. Purchase Price and Payment
2.1) The Purchase Price shall include all of the DONNLEE PUMP TECH’s costs, expenses and liabilities to fully comply with all its obligations and warranties.
2.2) Subject to the other provisions of the Agreement, the BUYER shall make payment to DONNLEE PUMP TECH by means of electronic bank transfers, which transfer should be affected before the Goods are delivered to the BUYER.
2.3) Unless otherwise stipulated, or in writing and signed by the parties to this agreement, payment of invoices shall be made within 30 days from date of statement. On any late payment it must be noted that DONNLEE PUMP TECH will charge 3% interest per month on the outstanding amount.
2.4) A 25% Order Cancellation fee will be charged once official order has been received as production has started
3.0 Title and Risk
3.1) Goods and Clear Title to the Goods shall remain DONNLEE PUMP TECH’s until the Purchase Price has been paid to DONNLEE PUMP TECH by the BUYER.
3.2) All risks, excluding Intellectual Property risks, in the Goods shall pass from DONNLEE PUMP TECH to the BUYER, once Goods have been delivered to the BUYER.
4.0 Limitations of Liability / Consequential damages
4.1) In no event shall DONNLEE PUMP TECH be liable to the BUYER for any indirect, punitive, special, incidental or consequential damages, including but not limited to, loss of profits or interruption of production, loss of market share loss, loss of opportunity or business, or claims by the BUYER’s customers for such damages. DONNLEE PUMP TECH’s liability will be limited in all instances to a maximum of 5% of the purchase order value. Consequential damages are hereby expressly excluded.
5.1) The BUYER agrees to defend, indemnify, and hold harmless DONNLEE PUMP TECH and DONNLEE PUMP TECH’s directors, employees, agents and representatives against and from all claims, proceedings, damages, claims for compensation, penalties, losses, costs and expenses (including attorneys fees as between attorney and client), demands and liabilities arising directly or indirectly from or in connection with the Agreement, including those that arise from:
a) Damage to or loss of or destruction of any movable / immovable property or belonging (including the movable/immovable property/belonging of the BUYER or a third party)
b) Bodily injury/disease to or sickness/death of any person (including the directors, employees, agents and representatives of the BUYER)
c) The failure by the BUYER and its directors, employees, agents or representatives to comply with all legislation and the law, including with any legislation or industry code/practice applicable to the Goods
d) The pollution of or damage to the environment, including clean-up and rehabilitation as a result thereof and from acts or omissions of the BUYER and its directors, employees, agents or representatives in complying with the Agreement or anything done by it or him or any of them incidental thereto.
6.1) The BUYER undertakes that, except as authorized in writing by DONNLEE PUMP TECH beforehand, it shall, at all times during the continuance of the Agreement and after its expiry or its termination (for whatever reason):
a) Keep all Confidential Information confidential
b) Not disclose, in whole or in part, any Confidential Information to any other person or entity
c) Not use the Confidential Information for any purpose otherwise than as contemplated by and subject to the terms of the Agreement
d) Not make any copies of, record in a way or part with possession of any Confidential Information
6.2) The Confidential Information shall remain the property of DONNLEE PUMP TECH and DONNLEE PUMP TECH may demand the return thereof at any time upon giving written notice to the BUYER. Within 30 (thirty ) days of the date of such notice, the BUYER shall return all of the original Confidential Information and shall destroy all copies and reproductions thereof (including in electronic form) in its possession of its employees to whom it was disclosed to.
6.3) The BUYER hereby binds itself not to do anything, directly or indirectly, which will or may prejudicially affect DONNLEE PUMP TECH’s business in the local and international markets and industries.
7.0 Forwarding, transport and insurance
7.1) DONNLEE PUMP TECH shall in time be notified of special requirements regarding forwarding, transport and insurance. The transport shall be at BUYERS expense and risk. The BUYER to the last carrier shall upon receipt of DONNLEE PUMP TECH or of the shipping documents, immediately submit objections regarding forwarding or transport.
7.2) It is up to the BUYER to take out insurance against damage of any kind. Even if insurance cover is to be arranged by DONNLEE PUMP TECH, it shall be taken out on behalf of the BUYER and at its expenses and risk.
8.1) DONNLEE PUMP TECH carries an 18-month warranty on the following:
a) New Manufactured Pumps
b) New Parts Installed on Reconditioned Pumps
c) Workmanship on the Pumps supplied as New or Reconditioned
8.2) DONNLEE PUMP TECH warranty will only apply under the following terms:
a) Donnlee Pump Tech’s personnel to do the Commissioning of the said pump.
b) Donnlee Pump Tech’s personnel to do the Lazer Alignment of the said pump.
8.3) The following reasons will cancel the warranty with immediate effect:
a) The Start up of a new or reconditioned pump without Donnlee Pump Tech’s assistance
b) Any solids greater than 300 ppm’s (Particles per Million) that goes through the pump.
c) Bypassing of any safety devices or probes on the pump.
d) Faults from incorrect use from the mine personnel, including but not limiting to the following:
a. Water in the Bearing Housings
b. Empty Columns
c. Miss Alignment
d. Lack of Maintenance
e. External Factors not functioning such as Bedplates, Valves etc
8.4) A warranty will be determined as follows:
a) The Strip and Quote of the suspected warranty pump to be completed at Donnlee Pump Tech’s facilities under the supervision of the Mine Personnel
b) A Failure Report will be submitted on the agreement of the parties