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TERMS & CONDITIONS OF SALE

  1. DEFINITIONS
    • “the Company” means Macrotec Engineering (Pty) Ltd, as well as any affiliated companies, successors-in-title, subsidiaries, trading divisions and assigns;
    • “Contract” means a contract concluded between the Customer and the Company for the supply of Goods and/or rendering of Services by the Company to the Customer;
    • “the Customer” means the party indicated in the credit application form and/or the Customer of the Goods supplied or the recipient of the Services rendered by the Company;
    • “Affiliates” means, in relation to the Company or the Customer, the entities that form part of a group structure comprising of subsidiaries, fellow subsidiaries and/or holding companies and any entity that is managed or controlled by any of the aforesaid entities;
    • “Goods” means the Goods supplied by the Company to the Customer;
    • “Services” means the Services rendered by the Company to the Customer;
    • “Specifications” means any one or more of technical specifications, designs, measurements, instructions, itemised details, plans, drawings and programs that have been expressly accepted by the Company in wiring in respect of a Contract or project.
  2. THIS AGREEMENT
    • This Agreement shall govern the supply of Goods and the rendering of Services by the Company and, where applicable, by the Company’s Affiliates to the Customer and shall take precedence over any terms and conditions which may be contained in any of the Customer’s documentation, including its purchase orders and will govern all transactions between the Company, its Affiliates and the If there is a conflict between this Agreement and any of the terms and conditions contained in a Contract or the Company’s or its Affiliates’ other documentation, the provisions of this Agreement will prevail.
    • The Company’s acceptance of the Customer’s purchase order is expressly conditional upon the Customer agreeing to the provisions of this Agreement. When the Customer places a purchase order with the Company, the Customer will be deemed to have accepted the provisions of this Agreement, and the corresponding quotation.
    • Should the Company so require, the Customer shall provide the Company with such security as the Company in its sole discretion may require.
  3. CREDIT FACILITIES
    • The Customer acknowledges that the granting of credit facilities to it is at the sole discretion of the Company.
    • The Company reserves the right to suspend or withdraw the Customer’s credit facilities at any time if the Customer is in default under this Agreement, a Contract or any other agreement concluded with the Company.
    • The Company reserves the right, to be exercised at its discretion, to reduce or increase the credit limit under the credit facilities granted to the Customer.
    • If the Customer exceeds its credit limit, the Company reserves the right to suspend all further deliveries of Goods or the rendering of Services until such time as the Customer brings its account within its allocated credit limit.
    • Whatever credit limit is granted to the Customer, shall not be deemed to be a limit of the Customer’s indebtedness to the Company.
    • Should the Company permit any credit limit to be exceeded, the liability of any surety or validity of any cession of debtors will not be limited to such credit.
  4. ORDERS
    • The Customer’s order shall constitute an irrevocable offer to purchase the Goods or contract the Services in question from the Company and shall be capable of acceptance by the Company expressly by issuing a written acceptance of order, impliedly or by the Company’s conduct.
    • The Customer shall bear the risk of any errors of misunderstandings arising from oral orders.
    • No variation or withdrawal of an order made by the Customer shall be valid unless the Company specifically confirms such variation or withdrawal of the order in writing to the Customer.
    • If the Company, at its sole discretion, accepts the cancellation of an order, it reserves the right to charge the Customer for all the costs it has incurred up to the date of the cancellation at its prevailing rates.
  5. PRICES
    • Unless the Company provides the Customer with a written quotation, which the Customer accepts within the period for which the quotation is valid, the price of the Company’s Goods and/or Services will be the Company’s official list price/rates at the date of delivery of the Goods or the date of the rendering of the Service.
    • The Company reserves its right to vary any quoted price by adding thereto the increased costs to it of any Goods or Services resulting from any adverse fluctuation in the rate of exchange, or increase in surcharge, government duty, freight or any other costs of importation, or increase in the costs of material, transport, labour or insurance between the date of quotation and the date of delivery of the Goods or rendering of the Services or for any change in the scope of supply subsequent to The rate of exchange is stated on the quote, with the % of quote subject to exchange rate fluctuations, and the quote will be adjusted to take into account the actual rate of exchange for the equipment.
    • Unless otherwise stipulated in the Contract, delivery shall be “ex-works” as per Incoterms 2020 and the price shall exclude packaging, loading, and insurance.
    • All shipping terms stated are as per Incoterms 2020.
  6. PAYMENT
    • Where a credit facility has been granted by the Company to the Client:
      • The Customer shall affect payment to the Company on or before the last working day of the following month in which the Goods were delivered or the Services supplied (30 days from Statement). No discounts may be claimed or taken unless the Company has agreed to such discount in writing and the Customer has effected payment within the payment period allowed for such discount.
      • The Company reserves the right to request a deposit, grant a credit facility with a deposit upon placement of an order, or to request a deposit on a special order or on non-standard equipment.
    • Where no credit facility has been granted by the Company to the Client:
      • The Customer shall effect 50% payment to the Company on placement of the order, and 50% on the date factory completion. No discounts may be claimed or taken.
      • On any order that includes transport or installation, the Customer shall effect 70% payment to the Company on placement of the order, and 30% on the date completion, for the amounts listed as Transport or Installation on the Quotation.
    • The Customer carries any risk associated with or arising from the method or manner elected to effect payment to the Company. The Customer shall only be regarded as having affected payment to the Company once the payment has been received in the Company’s bank account and cleared by its bankers.
    • If any payments due to the Company are subject to a withholding tax, the Customer shall pay the Company an additional amount so that the Company receives full payment that it’s due to the Company. Unless otherwise expressly agreed in writing, all payments are to be in South African Rand or United States Dollars.
    • The Customer shall not be entitled, for any cause whatsoever, to withhold, deduct from or defer any amount due by it to the Company. All payments shall be free of exchange and set off.
    • The Customer shall not be entitled to withhold or deduct any amount as retention.
    • The Company may appropriate payments from the Customer to any such outstanding amounts as it deems best.
    • The Company reserves the right to levy interest on all overdue amounts at 4% (four percent) above the then current commercial bank prime overdraft rate as quoted by its banker from time to
    • The Customer must notify the Company of any error in any invoice and/or statement submitted to it by the Company within 14 (fourteen) days from the date of the invoice and/or statement concerned, failing which the invoice and/or statement will be deemed to be free of any problems.
  7. DELIVERY OF GOODS AND COMPLETION OF SERVICES
    • The Company can presume that the equipment has been delivered to The Customer if:
    • The Customer or a company appointed by The Customer collects the components from The Company.
    • The Customer has accepted delivery of the components; or
      • The components have been delivered to The Customer, and
        • The Customer does anything in relation to the components that would be inconsistent with The Company’s ownership of them; or
        • After the lapse of a reasonable time The Customer keeps the components without telling The Company that it rejected delivery.
    • From the time notice is given to the Customer of factory completion, the Customer will have 30 (thirty) days to collect the goods. After 30 days storage will be charged at the prevailing rate of the Company. 
    • The date of completion of the Services will be deemed to be the date on which the Goods to which the Services related are ready to be used and a certificate issued by the Company’s engineer/project manager or their assistant shall be prima facie proof of the Customers acceptance that the goods are in good working order and in accordance with its specifications. The Customer undertakes to grant the Company or its subcontractors access to the site/s where the Services are to be rendered and neither the Company nor its subcontractors shall be liable for any loss and/or damage caused to any person and/or property as a result of the entry and/or activities of the Company or its subcontractors in the rendering of Services.
    • The Customer warrants that the signatory to any tax invoice, delivery note, or any other documentation of the Company made out in the name of the Customer is duly authorised to bind the Customer in relation to the transaction and shall constitute prima facie proof of the proper delivery of the Goods or rendering of the Services to the Customer.
    • Time shall not be of the essence in respect of any Contracts. The Customer shall not be entitled to cancel any order or Contract by reason of any delay and the Company shall not be liable for any damages for failure to timeously effect delivery of the Goods or to complete the Services by a specific date or time for any order.
  8. DISCREPANCIES
    • Unless the Customer notifies the Company in writing within 7 (seven) days of the date of delivery that the Goods delivered are defective, short delivered, damaged or not in accordance with the order, the Company shall not be liable for any of the aforesaid discrepancies, provided that the Customer’s notification shall have no probative value.
    • Once the Company has satisfied itself of the validity of the Customer’s complaint, the Company will determine, at its absolute discretion, the manner in which it resolves such discrepancies.
  9. SPECIFICATIONS
    • The Company’s obligations are to supply the Goods per the quotes Specifications.
    • If any Goods or Services are to be supplied in accordance with Specifications furnished by the Customer, the Customer shall not have any claim of any nature whatsoever against the Company for any loss or damage sustained by the Customer or any third party as a result of any error, discrepancy or defect in those Specifications or if the goods in question are not suitable for the purpose for which they are required, whether or not that purpose was known to the Company.
  10. VARIATIONS
    • The Company shall supply the Goods and/or render the Services strictly in accordance with the terms of the Contract.
    • In addition to clause 5 (PRICES) above, should the Customer require variations to the Goods, including the quantities thereof, or the Services or should the Company be hindered, delayed or prevented from supplying the Goods or rendering the Services or be exposed to extra costs due to extensions or omissions from any order/Contract, deviations from the Specifications, late, defective or non-receipt of information or by any other act, default or omission by or on behalf of the Customer, the Company shall be entitled to an appropriate variation to the price relating to the Goods or Services in question or any other obligation of the Company.
  11. RISK & OWNERSHIP
    • Risk in the Goods will pass to the Customer on the date of delivery but ownership in the Goods shall remain vested in the Customer until the full purchase price for such Goods is paid to the Company.
    • If the Customer delays or fails to accept delivery of the Goods in any manner, the risk in such Goods shall pass to the Customer as soon as the Company attempts to deliver same to the Customer, or as soon as the Company notifies the Customer that the goods are ready for collection.
    • While any amount is owed by the Customer to the Company in respect of any Goods, the Customer shall be obliged to keep the Goods concerned free of any lien, hypothec, encumbrance and/or attachment and shall ensure that the Goods do not accede to any property, whether movable or fixed.
    • The Customer shall take all such steps as may be necessary to notify interested third parties and inform the owner/landlord of the premises at which the Goods are kept of the Company’s ownership of such Goods.
    • The Customer shall fully insure the Goods against loss or damage until it has paid the full purchase price to the All benefits in terms of such insurance policy shall be ceded to the Company.
    • The Company is entitled to enter the Customer’s premises during working hours to remove the Goods supplied to the Customer should the latter fail to effect payment therefor without Court order.
  12. LIEN
    • Unless the Company has received full payment in respect of the Services, it shall be entitled to exercise a lien over the Goods in respect of which the Services were rendered, irrespective of whether or not the Customer has paid the Company for the Goods concerned, until the Customer settles all amounts due in respect of the Services.
    • The Company shall also be entitled to exercise a lien over the Goods in respect of which the Services were rendered as security for any amounts owed by the Customer to any of the Company’s Affiliates.
  13. RETURNS
    • Goods sold by the Company are sold voetstoots and are not returnable save with the written consent of the Company or as provided for in the Consumer Protection Act 68 of 2008, in the event that it is applicable.
    • Should the Company in its absolute discretion elect to accept the return of any Goods, it will furnish the Customer with written notification and the Goods must be immediately returned to the Company, at the Customer’s cost, with the corresponding invoice and they must be undamaged and saleable. The Risk of the Goods shall remain with the Customer until the Goods are received by the Company.
    • Goods shall be deemed to be delivered to the Company by the Customer only upon the Company physically having a representative acknowledge such receipt.
    • The Company reserves the right to levy a handling charge of 30% (thirty percent) in respect of any such returned Goods.
  14. WARRANTIES
    • Any statutory warranties required to be made by the Company shall apply if and when applicable. In any other instance the warranty shall be as contained in balance of paragraph 14.
    • The Equipment and its components are warranted to be free from defects.
    • The Warranty for Goods manufactured by the Company is 12 months from the date of manufacture.
    • Other Goods supplied by the Company shall have the original OEM warranty and any warranty claim will be subject to the approval of the original OEM.
    • The period of warranty is calculated from the date of manufacture. Repairs or replacements carried out under warranty do not extend the warranty on the product.
    • Should the plant not be operated to The Company’s specifications or if any unapproved modifications are made or unapproved components installed by unauthorised operators and installers then all warranties shall be immediately void.
    • Should any component not be maintained in accordance with The Company’s specifications or be serviced by an unauthorised person then any warranty in relation to that component shall be immediately void.
    • Warranties also do not cover the following:
      • Damage caused by power surges or power failure.
      • Damage caused by malicious action.
      • Damage caused by operator error.
      • All wear items.
    • Wear items include, but are not limited to:
      • Thermocouples
      • Burner components
      • Refractory slabs
      • Refractory wear blocks
      • Heat exchanger tubes and plates
      • Filters
      • Filter elements
      • Gaskets
    • Should any defect occur during the warranty period then The Company shall be at liberty to replace such defective product or effect repairs to the product.
    • Save for the above, the Company gives no warranties of whatsoever nature, whether express or implied, in respect of the Goods or Services.
  15. LIMITATION OF LIABILITY AND INDEMNITY
    • Any liability of the Company for direct loss or damage arising from a breach of a Contract or this Agreement shall not exceed the total price paid or due to be paid by the Customer for the Goods or Services that form the subject matter of such Under no circumstances will the Company be liable for any indirect, consequential, special or delictual loss or damage of any nature and howsoever arising which may be suffered by the Customer or any third party as a result of or in connection with the Goods and/or services or any transaction contemplated therein.
    • In addition to the above, the Customer hereby indemnifies the Company for and holds it harmless against any claim, damage, loss, cost or expense, of whatever nature, made against the Company by any third party arising from or associated with the Goods or the Services, the Customer’s use, installation, operation or storage of the Goods, the Customer’s representations to third parties in respect of the goods or the Services for any third party’s use of the goods or any other matter for which the Company would not be liable to the Customer under this Agreement.
    • Upon delivery of the Equipment and its components all liability and risk arising from the possession or use of the Equipment and its components shall be borne by The Customer.
    • The Customer is responsible for obtaining its own insurance cover upon taking delivery of the Equipment and its components.
    • The Company shall not bear any liability or risk in relation to the equipment not being operated or maintained as per the operation manual.
    • The Company shall not bear any liability or risk in relation to the storage of waste, fuel, chemicals, or other substances that could pose a fire or health and safety risk.
    • The Company shall not bear any liability or risk in relation to the operating procedures to mitigate fire or health and safety risks.
    • The Company shall not bear any liability or risk in relation to the failure to follow fire safety standards or regulations.
    • The Company shall not bear any liability or risk in relation to the failure to follow health and safety standards or regulations.
    • Unless otherwise expressly agreed in this agreement or any addendum thereto, the Parties indemnify one another and hold one another harmless and shall have no claim of whatsoever nature against the other.
  16. BREACH
    • If the Customer fails to pay any amount on its due date, or suffers any civil judgment being taken or entered against it, or commits an act of insolvency, or is placed under sequestration, liquidation or business rescue proceedings, or makes or attempts to make any general offer of compromise with any of its creditors or sells its business or changes the structure of its ownership, the Company shall, without prejudice to any other remedies that it has available to it, be entitled to: suspend or cease performance of its obligations to the Customer until the Customer’s breach has been remedied; and/or
      • summarily cancel a Contract; and/or
      • repossess any Goods which have not been paid for; and/or
      • exercise its lien over any Goods or any of the Customer’s property in its possession or under its control; and/or
      • summarily cancel this Contract or claim specific performance of all of the Customer’s obligations whether or not such obligations have fallen due for performance, in all events without prejudice to the Company’s right to claim damages.
    • If the Customer or any of its Affiliates have failed to timeously effect payment of an amount owed to the Company or any of its Affiliates, same will be regarded as a breach of this Agreement enabling the Company to exercise any of its rights.
  17. VIS MAJOR (UNFORESEEN EVENTS)
    • Should any event take place which may render the Company unable to perform in accordance with its obligations in terms of this Agreement, then the Customer may not hold the Company liable, provided that the Company could not have expected to have reasonably foreseen the possibility of the event occurring or taking place. Such unforeseen event may include any act of God or any other event beyond the reasonable control of the Company.
    • The Customer shall have no right to cancel the agreement in the event of an unforeseen event taking place.
    • The Company must forward written notice to the Customer as soon as it becomes aware of the vis major and in such notice, The Company must inform the Customer of its inability to perform, its anticipated resumption of performance and any delays which may arise together with anticipated completion dates.
  18. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIAL INFORMATION
    • The Company shall retain ownership of its confidential information and all of the intellectual property rights in respect of the Goods, whether same have been registered or not.
    • Without limiting the above, the Customer shall not, directly or indirectly, and whether for reward or not, at any time use, exploit, replicate, duplicate, or disclose any of the Company’s confidential information, such as the methods of manufacture, plans, drawings, specifications, price lists, documents or any other information relating to the Goods or Services to a third party.
    • The Customer hereby indemnifies the Company against any loss suffered by the Company as a result of the Customer breaching this clause.
    • The Customer hereby indemnifies and holds the Company harmless against all claims and expenses of whatever nature and description arising from the alleged or actual infringement of any third party’s intellectual property rights occasioned by the Company’s performance of any Contract.
  19. CESSION AND ASSIGNMENT
    • The Customer shall not be entitled to cede its rights or assign its obligations under this Agreement without prior approval from the Company.
    • The Company shall be entitled to cede its rights or assign its obligations under this Agreement and such cessionary shall be entitled to enforce its rights hereunder and in terms of any security furnished by the Customer to the Company against the Customer and/or the party that provided such security in respect of the Goods and/or Services supplied and/or rendered by the Company and the Goods and/or Services supplied and/or rendered by the cessionary to the Customer.
    • The Company may subcontract its obligations hereunder without the Customer’s consent.
  20. LEGAL PROVISIONS
    • This Agreement and all transactions between the Customer and the Company shall be governed and decided upon in accordance with the laws of the Republic of South Africa.
  21. DISPUTES
    • Should any dispute arise, the Parties are required to convene a meeting and in such meeting attempt to resolve the dispute.
    • Should the minutes of the meeting reflect that such dispute remains unresolved then the Parties must refer the dispute to an arbitrator to be arbitrated.
    • The arbitrator will be appointed by the Society of Advocates of KwaZulu-Natal (or its successor) and will be a person who has been in practice for a period of no less than 10 years. The Parties accept the appointment of an arbitrator by the Society of Advocates of KwaZulu-Natal (or its successor) as final and binding.
    • The Parties agree that any award rendered by an arbitrator shall be final and binding upon them and be of full force and effect and that the Parties shall have no further claims against one another arising from the arbitrated dispute.
    • The Customer shall be liable to pay any legal costs incurred and awarded to The Company on an attorney and client scale.
    • In addition to a dispute being arbitrated as contained in this Clause, the Parties further agree that where any dispute relates to technical issues pertaining to the Equipment that the Engineering Council of South Africa (or its successor) shall appoint an engineer to investigate the technical issue, compile a report and make a finding on the technical issue.
    • The finding by such an engineer shall be binding on the Parties and no further reports may be filed by either of the Parties in the furtherance or otherwise of their respective cases before the arbitrator.
    • The engineer appointed by the Engineering Council of South Africa (or its successor) for the purposes of this Clause shall have at least 10 years’ experience in the particular field which can determine the technical issue.
    • Both Parties shall share the costs equally for the professional services rendered by the engineer and arbitrator and where a party refuses to contribute to such costs, the other party shall have a claim against that party to recover such costs irrespective of the findings of the arbitrator in his/her award insofar as liability, quantum and costs are concerned.
    • The arbitration shall be conducted in accordance with the rules prescribed by the arbitrator, which rules shall be binding on the Parties.
  22. DOMICILIUM
    • All notices by the one party to the other shall be given in writing by prepaid registered post, email, or delivery by
      • The Company at Unit 3, Ground Floor, Warne House, 7 Garlicke Dr, Ballito, South Africa.
      • The Customer at the address as provided by the customer. Failing this the address stated on the Quotation or Invoice to the Customer or as registered with CIPC.
    • The Parties shall notify one another of a change in domicilium by giving written notice of such change, which change will only become effective 7 days after service of such written notice.
    • Any notice given to be given by the Parties must be hand delivered or by registered mail at the chosen domicilium and such notice shall be deemed received within 7 days of the date on which it was delivered.
  23. GENERAL
    • This Agreement constitutes the entire agreement between the parties relating to the subject matter No party shall be entitled to rely upon any term, warranty, guarantee, condition, or representation, unless it is contained herein.
    • No amendment of this Agreement and no extension of time, waiver, or relaxation of any of the provisions of this Agreement shall be binding, unless recorded in a single document signed by both the parties.
    • No relaxation or indulgence shall prejudice or be deemed to be a waiver of any of the Company’s rights hereunder.
    • Each provision of this Agreement is severable, the one from the other. If any provision is found to be defective, unlawful, or unenforceable for any reason, the remaining provisions shall continue to be of full force and effect.
    • The rule of construction that this Agreement be interpreted against the party responsible for drafting this document shall not apply.
  24. DISCLOSURE OF INFORMATION
    • The Customer hereby consents and grants authority to the Company to conduct credit checks, searches and the like with any credit agency or party which the Company may at its discretion consider expedient or necessary, inter alia, for the purpose of ascertaining the credit worthiness of the Customer in order to trace the Customer or any of its assets.
    • The Company shall be entitled to record any adverse credit report with any agency or person. The Customer acknowledges that the application fro and existence of any account with the Company may be recorded by credit agencies and details of the conduct of the amount may be given to the duly recorded and shared with other persons for various reasons.
    • The Customer hereby waives any claim and indemnifies and holds the Company harmless against any claim from any nature and howsoever arising from the aforesaid instances.