Terms & Conditions of Sale
SECTION 1: THE CONTRACT
1.1 All orders are accepted and Products supplied subject to these Terms and Conditions. These Terms and Conditions of Sale including any documents, drawings or specifications incorporated herein by reference shall form the whole of the contract between Malema Sensors and the Buyer and Malema Sensors does not contract other than under these conditions which shall prevail over any other terms or conditions put forward by the Buyer (whether orally or by Buyer’s Quotation or any other documents) which are inconsistent and/or at variance with them. No amendment or variation to these conditions shall be effective unless expressly agreed and executed by both parties hereto.
1.2 An offer by Malema Sensors in its Quotation that does not stipulate an acceptance date is not binding. This Contract shall be deemed to have been entered into upon written acknowledgement of the Quotation by an officer or authorized representative of the party to be bound.
SECTION 2: PRICE
2.1 Unless requested by Buyer and expressly stated in the Quotation, prices do not include the following: packing for storage, freight charges, insurance, taxes (federal, local, or otherwise imposed on manufacture, sales receipts, gross income, occupation, use, including value added and similar impositions), Customs duties and import/export fees. Any sales, use or other taxes and duties imposed on the transaction or the equipment supplied shall be paid or reimbursed by Buyer. Such tax or taxes not included in Malema Sensor’s prices will be added to the related invoices as a separate charge and payment of those charges will be, and will remain, the exclusive responsibility of Buyers.
2.2 Any item not specified in the Quotation or included as part of the price quoted shall be an additional item payable by Buyer.
Changes in price
2.3 Prices are subject to change; charges will be made on delays, changes or additions to the scope the work (see Sections 6 & 7 for details).
Confidentiality of pricing information
2.4 The terms of any Quotation and any pricing information disclosed to Buyer in connection with any Quotation shall remain confidential and shall not be disclosed to any third party without the prior written consent of authorized officer or representative of Malema Sensors.
SECTION 3: PAYMENT TERMS
3.1 Unless otherwise agreed or stated, all amounts due under Malema Sensors’ invoice(s) to the Buyer are payable within thirty (30) days upon the Buyer’s receipt of Malema Sensors’ invoice and punctual payment is agreed to be the essence of this agreement. Malema Sensors reserves the right to deliver and invoice the Products comprising the whole or any part of the order. Orders that exceed $50,000.00 U.S. Dollars are subject to 30% down payment on the order, the remaining balance in accordance with the terms herein.
3.2 Extension of credit shall be at the sole discretion of Malema Sensors. In the event credit is extended to the Buyer, should the aggregate of the amounts due from the Buyer to Malema Sensors at any time exceed the Buyer’s credit limit as notified by Malema Sensors, the Buyer shall forthwith pay to Malema Sensors the amount necessary to reduce the aggregate amount below the credit limit.
3.3 If the Buyer fails to pay promptly when due any sum owing to Malema Sensors or to perform any obligation hereunder or under any order placed with Malema Sensors, Malema Sensors in addition to exercising any or all other rights it may have, may require immediate payment of all amounts owing in respect of the Products.
Interest on late payment
3.4 Malema Sensors reserves the right to charge interest on any sum due but unpaid from the due date of the invoice at the rate of no less than 1.5% per month and no more than the highest rate of interest permitted by applicable law until the date on which payment is received by Malema Sensors. Any payments received by Malema Sensors shall be first set-off against any interest payable but unpaid and against the oldest outstanding invoice.
3.5 If payment from Buyer is not resolved in a reasonable amount of time, other Purchase Orders placed by the Buyer to Malema Sensors shall be subject to hold, and will release Malema Sensors of any further obligation of performance or timely delivery.
SECTION 4: TITLE, DELIVERY AND INSURANCE
4.1 All Products included in sale or license, including all equipment, parts, manuals, and related materials required for installation and/or use thereof, shall be F.O.B. Boca Raton, Florida USA and all repair or replacement parts may, at Malema Sensors’ option, be F.O.B. Malema Sensors’ designated repair/manufacturing facilities. International deliveries shall be EXW (ex-works), unless specified otherwise at the time of Quotation and is included in the Quotation/Purchase Order amount.
4.2 Full risk of loss (including transportation delays and losses) shall pass to Buyer, regardless whether title has been passed to Buyer, transport is arranged or supervised by Malema Sensors, or start-up is carried out under the direction or supervision of Malema Sensors.
4.3 Loss or destruction of the equipment or injury or damage to the equipment that occurs while risk of such loss or damage is born by Buyer does not relieve Buyer of its obligation to pay Malema Sensors for the equipment.
4.4 Whether or not any cause for delay will occur due to causes beyond Malema Sensors’ reasonable control Malema Sensors shall not be liable for any loss, damages or expense, including, without limitation, consequential or incidental damages, loss of profits or revenues loss of use, or otherwise, whatsoever incurred or suffered by Buyer or Buyer’s customers if Malema Sensors fails to meet any specified delivery schedule.
SECTION 5: PATENT OR TRADEMARK INFORMATION
5.1 If the Product sold hereunder is to be prepared or manufactured according to Buyer’s specifications, Buyer shall indemnify Malema Sensors and hold it harmless from any claims or liability for patent or trademark infringement on account of the sale of such Products.
5.2 The Buyer expressly acknowledges that Malema Sensors holds certain intellectual property rights in the component technology and/or other proprietary technology in the Products. Nothing in this Agreement shall be deemed a transfer or grant of a license or any other rights of any existing intellectual property rights from Malema Sensors to the Buyer, or to allow the Buyer to incorporate Malema Sensors’ component technology and/or other proprietary technology into future products or services, or from transferring, assigning, or selling Malema Sensors’ component technology and/or other proprietary technology to any third party.
SECTION 6: CHANGES
Product design modification
6.1 Buyer may request, in writing, changes in the design, drawings, specifications, shipping instructions, and shipment schedules of the equipment.
6.2 As promptly as practicable after receipt of such request, Malema Sensors will advise Buyer what amendments to the Contract, if any, may be necessitated by such requested changes, including but not limited to the amendment of the Purchase Price, specifications, shipment schedule, additions to the scope of the work, or date of delivery.
6.3 Any changes agreed upon by the parties shall be evidenced by a Change Order signed by both parties.
SECTION 7: CANCELLATION OR TERMINATION
7.1 Subject to payment of termination fee as provided for herein, the Buyer may cancel an Order in writing. Upon Malema Sensors’ receipt of Buyer’s cancellation notice (“Cancellation Date”), Buyer shall pay forthwith a termination fee on an Escalation Schedule as follows: if Cancellation Date is prior to Malema Sensors placing an order for materials to process Buyer’s order or more than 14 days from date of delivery, whichever first occurs, termination fee is 20% of total Purchase Price for the Order; if Cancellation Date is after Malema Sensors has ordered/received materials to produce Buyers’ Order or less than 14 days but more than 7 days from date of delivery whichever first occurs, termination fee is 75% of the total Purchase Price for the Order, if Cancellation Date is upon complete production of the Order save for delivery or less than 7 days from date of delivery, whichever first occurs, termination fee is 100% of the total Purchase Price for the Order. The termination fee is payable within 7 days of Malema Sensors’ invoice. Upon Buyer’s request, Malema Sensors shall preserve, protect and deliver to Buyer, at Buyer’s expense, materials on hand, work in progress, and complete work, both in its own and in its suppliers’ plants.
SECTION 8: DELIVERY AND DELAYS
8.1 Malema Sensors shall use its best efforts to meet quoted delivery dates, which are estimated based on conditions known at the time of Quotation.
8.2 Malema Sensors shall not be liable for any nonperformance, loss, damage, or delay due to war, riots, fire, flood, strikes or other labor difficulty, governmental actions, acts of God, acts of the Buyer or its customer, delays in transportation, inability to obtain necessary labor or materials from usual sources, or other cause beyond the reasonable control of Malema Sensors.
8.3 In the event of delay in performance due to any such cause, the date of delivery or time for completion will be extended to reflect the length of time lost by reason of such delay. Malema Sensors shall not be liable for any loss or damage to Buyer or its customer resulting from any delay in delivery.
8.4 Malema Sensors shall as soon as possible inform the Buyer by telephone, facsimile or email and subsequently confirm in writing the happening of any event causing delay or non-delivery occasioned by such circumstances outside its control and specify the proportion of Products in respect of which delay or non-delivery has arisen, or will arise.
8.5 The Buyer shall accept the proportion of Products which Malema Sensors is able to deliver at this time fixed for delivery at the price quoted. Malema Sensors shall be the sole judge whether it is able to deliver any and if so what part of the Products.
8.6 Malema Sensors agrees to make and the Buyer agrees to accept delivery whenever such causes of delay have been remedied or eliminated. During the continuance of an event of force majeure each party’s obligations hereunder (other than to pay money) shall be suspended and will resume as soon as possible after the cause of circumstance has ceased to have effect.
SECTION 9: WARRANTY
Period of Warranty
9.1 Malema Sensors warrants its Products will meet their specifications when used in accordance with their applicable instructions and within the limits stated in the operating manuals and/or product data sheets for a period of one year from shipment of the Products. Malema Sensors makes no other warranty, expressed or implied. There is no warranty of merchantability or fitness for a particular purpose. The warranty provided herein and the data, specifications and descriptions of Malema Sensors Products appearing in Malema Sensors’ user manuals may not be altered except by express written agreement signed by an officer of Malema Sensors. Representations, oral or written, which are inconsistent with this warranty or such publications are not authorized and if given, should not be relied upon.
9.2 Buyer shall report any claimed defect in writing to Malema Sensors immediately upon discovery and in any event, within the warranty period. If Malema Sensors on receipt of the alleged defective product determines that the defect is due to misuse owing to failure to comply with instructions and/or applicable limits stated in the operating manuals and/or product data sheets or for whatever other reasons (including intentional damage), Malema Sensors shall have the right to impose such repair and other transportation charges as incurred.
9.3 Where there are manufacturers’ defects, Malema Sensors shall, at its sole option, repair the products and/or equipment or furnish replacement equipment or parts thereof, at the original delivery point. Malema Sensors shall not be liable for costs of removal, reinstallation, or gaining access.
Validity of warranty
9.4 If Buyer or others repair, replace, or adjust equipment or parts without Malema Sensors prior written approval, Malema Sensors is relieved of any further obligation to Buyer under this section with respect to such equipment.
9.5 No equipment furnished by Malema Sensors shall be deemed to be defective by reason of normal wear and tear, failure to resist erosive or corrosive action of any fluid or gas (unless otherwise specified in Quotations), Buyer’s failure to properly store, install, operate, or maintain the equipment in accordance with good industry practices or specific recommendations of Malema Sensors or in accordance with operating manuals and/or product data sheets limits, or Buyer’s failure to provide complete and accurate information to Malema Sensors concerning the operational application of the equipment.
SECTION 10: TECHNICAL DOCUMENTS
10.1 Technical documents furnished by Malema Sensors to Buyer, such as drawings, descriptions, designs and the like, shall be deemed provided to Buyer on a confidential basis, shall remain Malema Sensors’ exclusive property, shall not be provided in any way to third parties, and shall only be used by Buyer for purposes of installation, operation and maintenance.
10.2 Technical documents submitted in connection with a Quotation that does not result in Purchase Order shall be returned to Malema Sensors if requested.
SECTION 11: LIMITATION OF LIABILITY
11.1 Unless otherwise expressly provided in these Terms and Conditions, all terms, conditions, warranties, undertakings or representations whether express, implied or otherwise relating in any way to the Products supplied or to these Terms and Conditions are excluded or limited to the fullest extent by law.
11.2 Malema Sensors’ maximum liability under this Contract shall not exceed the replacement costs of the Product or the equipment or portion thereof upon which such liability is based. All Malema Sensors’ such liability shall terminate upon the expiration of the warranty period, if not sooner terminated.
11.3 The Buyer warrants and acknowledges that it has not relied on any representation made by Malema Sensors not stated expressly in these Terms and Conditions or upon any descriptions or illustrations or specifications contained in any documents of any nature including any catalogue, list or brochure produced by Malema Sensors or supplied to the Buyer in relation to the supply of any Products unless specifically incorporated or stated in the Quotation.
11.4 Malema Sensors shall in no event be liable for any consequential, incidental, indirect, special or punitive damages arising out of the Contract, or out of any breach of any of its obligations hereunder, or out of any defect in, or failure of, or malfunction of the Product/equipment, including but not limited to, claims based upon loss of use, lost profits or revenue, interest, lost goodwill, work stoppage, impairment of other equipment, environmental damage, nuclear incident, loss by reason of shutdown or non-operation, increased expenses of operation, cost of purchase of replacement power or claims of Buyer or customers of Buyer for service interruption whether or not such loss or damage is based on contract, tort (including negligence and strict liability) or otherwise.
SECTION 12: LAW AND ARBITRATION
12.1 The said Contract shall be governed by the law of the State of Florida. Any disputes arising out of this Contract shall be resolved by informal mediation in any manner that the parties may agree within 45 days of written request for mediation by one party to the other. Any dispute that cannot be resolved through mediation shall be resolved by binding arbitration conducted in English in USA in the state of Florida (neutral party). The arbitrators are not entitled to award damages in excess of original Purchase Order price as said above in Section 11.
SECTION 13: GENERAL
13.1 The headings have been included for convenience of reference only and shall in no way affect the construction of the Terms and Conditions thereof. Any provision of this agreement which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of these Terms and Conditions.
Waiver of rights
13.2 No failure or delay on the part of Malema Sensors to exercise any of its rights under this Agreement shall operate as a waiver thereof. Nor shall any single or partial exercise of any such right preclude any other or further exercise thereof. Any waiver by Malema Sensors of any breach by the Buyer of any of the Buyer’s obligations Under this agreement shall not affect the rights of Malema Sensors in the event of any further or additional breach or breaches.
13.3 The terms in the Quotation shall prevail over the terms and conditions herein to the extent of such inconsistency.
Reference: Document No.:SSD-001, Rev 0, Rev Date 11/1/2012