Terms and Conditions
In the absence of an executed agreement between parties, the following Terms and Conditions for Order Acceptance will apply.
Manufacturer is a manufacturer that is contracted to manufacture and/or pack various personal care products including but not limited to Hand Soaps, Sanitisers, Aerosols, FireOUT and Oxygen. Client desires to engage Manufacturer to manufacture certain products in accordance with orders issued from time to time by Client.
- Statement of Work
Client hereby engages Manufacturer, and Manufacturer hereby accepts Client’s engagement, to furnish product as requested in accordance with Section 3.
(a) Manufacturer’s terms and conditions of acceptance are solely within the Manufacturer’s discretion. Client’s Orders shall set forth for each ordered Product: the quantity, the applicable Purchase Price and total price as well as the requested delivery date, which may be adjusted through regular status reports issued by the manufacturer in accordance with Section 4. All Orders shall be governed by these Terms and Conditions, which shall not be changed or supplemented without written acceptance by the Manufacturer. Pre-printed terms and conditions on Client’s Order form, if any, shall not apply to the Order. No Order is accepted unless Manufacturer issues a Sales Order Acknowledgement. (b) Order Modification, Cancellation, or Delivery Schedule Changes requested by Client will be binding on the Manufacturer upon Manufacturer’s written acceptance of the request and upon terms, satisfactory to Manufacturer that compensate Manufacturer for all costs incurred by reason of such modification, cancellation or deferment. “Costs” as used herein includes engineering, production and overhead costs attributable to the order. In the event of Order cancellation (i) Manufacturer will deliver and Client will accept all Products completed prior to the cancellation date [and (ii) the Product warranty will not apply to the Product which is the subject of the cancelled order.
- Shipment and Delivery
Manufacturer will furnish Products in accordance with each accepted Order, subject to these Standard Terms and Conditions. Delivery of Products will carry a charge of R499.99 per load and will be confirmed once delivery date has been confirmed by both Manufacturer as well as Client.
The Product shall be deemed accepted by Client when the Product has passed Manufacturer’s inspection and conforms to Specifications. Client shall have  days to notify Manufacturer of Client’s revocation of acceptance of Product based on non-conformance to specifications or to the workmanship standard. Client’s revocation must be in writing. After the 5 days have lapsed, the Manufacturer holds no liability on non-conforming products.
- Prices, Invoicing and Payment
Client shall pay Manufacturer the Purchase Price as set forth in the Sales Order Acceptance or in any invoice pertaining to a modification or cancellation. The client will receive a Sales Order from the Manufacturer once order has been placed and received. All Sales Orders carry a 50% non-refundable deposit to be paid before production can be scheduled. The manufacturer will notify the Client prior to order being complete so that Client can pay the remaining 50% of the sales order. An invoice will include the invoice date, the Order number, and the total price and name (if applicable). If Client has a credit facility with the Manufacturer, all invoices are payable 30 days from invoice. All credit facilities will be reviewed on an annual basis. If any orders exceed the Client’s credit facility available, the Client will be pay the amount that the credit limit has been exceeded by on confirmation of order. Payment not received when due shall bear interest at the rate of 1½% monthly from its due date until paid.
- Engineering Changes
If Client requests that Manufacturer incorporate an engineering change into a Product, such request shall include a description of the proposed change sufficient to permit Manufacturer to evaluate it. Manufacturer’s evaluation shall be in writing and shall state the impact of the requested change on the existing delivery schedule and cost. Manufacturer shall not be obligated to proceed with a requested change until the parties have agreed on the changes to the Product, Specifications, estimated delivery schedule and pricing, including the price for additional development, rework, and obsolete materials and testing, if any.
- Force Majeure
Neither party shall be liable for its failure to perform due to any occurrence beyond its reasonable control, including acts of God, fire, floods, war, terror, civil disruptions, sabotage, accidents, labour disputes or shortages, governmental laws, ordinances and regulations, allocations and price restrictions, inability to obtain material, equipment or transportation, or any other similar occurrence; provided, however, Client’s payment for Products produced and delivered shall not be suspended by any event of force majeure. The party whose performance is prevented by any such occurrence shall promptly give written notice to the other party of the cessation of performance. The party affected by such occurrence shall use commercially reasonable efforts to minimize the effects of the force majeure event.
- Intellectual Property and Confidentiality
(a) Ownership of Intellectual Property. Title to and ownership of all of the technology, trade secrets, knowhow and information regarding Products supplied by Client to Manufacturer shall remain in Client’s rights. Client hereby grants Manufacturer a limited, non-transferable, non-exclusive revocable license to use Client’s software, technology, trade secrets, knowhow and proprietary information (Client’s Proprietary Information), free of any claim or allegation by Client of misappropriation or infringement by Manufacturer of Client’s Proprietary Information; provided, however, that Manufacturer’s license to use Client’s Proprietary Information shall endure only for the term of the accepted Order. After the termination or expiration of an accepted Order, Manufacturer shall have no further rights to use Client’s Proprietary Information as to that Order and Manufacturer shall return to Client all documents and materials relating to Client’s Proprietary Information. Title to and ownership of any software, technology, trade secrets, know how, and information of Manufacturer (Manufacturer’s Proprietary Information) used by Manufacturer hereunder shall remain the property of Manufacturer. (b) Confidentiality. The parties acknowledge that each party’s Propriety Information set forth in Section 9 (a) contains valuable trade secrets. Each party agrees that it will maintain and protect the confidentiality of the other party’s Proprietary Information using the same standard of care that such party uses to protect its own Proprietary Information, which in no event shall be less than reasonable care. The obligation to keep each party’s Proprietary Information confidential survives the termination or expiration of the accepted Order.
- Product Warranty
Manufacturer warrants that Products supplied to Client hereunder will conform to Client’s Specifications and will be free from defects in workmanship for a period of ten (10) days from the date of delivery of the Products to Client. Client shall notify Manufacturer within 7 days of Client’s receipt of products, in writing, of any Product defect, which notification shall describe the defect in sufficient detail to permit Manufacturer to isolate the defect. Upon notification from Client, Manufacturer will provide Client with instructions on returning the Product. Upon receipt of any Products returned by Client, the Manufacturer shall inspect Products in accordance with the retained Standard. If Manufacturer determines that the defect is not due to nonconformity with Specifications or is unable to isolate any defect or malfunction in the Product, then Client is solely responsible for isolation of the defect or malfunction and Manufacturer will seek instructions on whether Manufacturer should return the Product to Client or dispose of it.
If any returned Product contains malfunctions due to nonconformity with the Specifications, then Client’s exclusive remedy and Manufacturer’s sole liability under this warranty will be, at its sole option and expense, to correct or replace the nonconforming or defective Product or refund the Purchase Price to Client. This warranty does not apply to: any first articles, prototypes, pre-production units, test units of a Product, any Products which have been altered or modified in any way by Client or third party; or any Products which have been subject to misuse, abnormal use or neglect or to components received from Client. Manufacturer will not be held liable in the case of damage to a product that occurs during customer contracted rework.
THE PRODUCT WARRANTY STATED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES AS TO QUALITY, FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE, WHETHER IMPLIED BY CUSTOM OR LAW. WITHOUT LIMITING THE FOREGOING DISCLAIMER, CLIENT ACKNOWLEDGES AND AGREES THAT MANUFACTURER DOES NOT WARRANT ANY PARTS, COMPONENTS OR OTHER MATERIALS PROVIDED TO MANUFACTURER BY CLIENT AND USED IN THE MANUFACTURE OF THE PRODUCTS.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL THE MANUFACTURER BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTIAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING LOSS OF PROFITS DAMAGES, ARISING OUT OF THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT, OR USE OF ANY PRODUCTS OR THE FURNISHING OF ANY SERVICE, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT, STRICT LIABILTIY OR OTHERWISE, EVEN IF CLIENT HAS BEEN WARNED OF THE POSSIBLITY OF ANY SUCH DAMAGES.
Client shall defend, indemnify and hold Manufacturer and its subsidiaries, officers, directors, employees, agents and representatives harmless from any and all claims, demands, liabilities, actions, suits, proceedings, losses, injuries, death, judgments, and/or costs (including without limitation reasonable attorneys’ fees and related costs) based on or arising out of any claims or demands based on or relating to: Manufacturer’s use of Client’s Proprietary Information the design of the Products; Client’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the Products; Client’s violation or alleged violation of any laws or regulations, including the laws and regulations governing product safety, labelling, packaging and labor practices; or a breach by Client of any of these terms and conditions. Manufacturer shall give written notice of any claim or potential claim to Client within a reasonable time following the time at which Manufacturer first became aware of the claim for indemnification hereunder. Client may, at its option, have control of any litigation and appointment of counsel in defence of any third party claim for which Manufacturer seeks indemnification. No suit or proceeding shall be settled or compromised without the prior written consent of Manufacturer. The obligation to indemnify under this shall survive the termination or expiration of the accepted Order.
- Governing Law, Merger
(a) Merger. These Terms and Conditions and the agreements referenced herein constitute the entire agreement of the parties with respect to Manufacturer’s services for Client and can be modified only by written agreement. (b). Governing Law. The validity, interpretation and performance of these Terms and Conditions shall be governed by the laws of the Republic of South Africa, without regard to conflicts of laws principles. Venue for any suit, action or proceeding pertaining to these Terms and Conditions, including any Order, Invoice, Warranty or indemnification claim, shall be in the jurisdiction of Gauteng, as Manufacturer elects. In any arbitration, suit or action to enforce these Terms and Conditions or for the breach of same, the prevailing party shall be entitled to recover from the losing party all of its costs and expenses therein, including expert fees, deposition costs and attorneys fees as fixed by the arbitrator, trial court and appellate court.