Terms and Conditions

RHINOPAK PACKAGING AND FILLING SOLUTIONS (PTY) LTD

TERMS AND CONDITIONS

Table of Contents

1. DEFINITIONS AND INTERPRETATION 

2. APPLICATION OF AGREEMENT 

3. QUOTATIONS AND FORMATION OF CONTRACT 

4. PRICE AND PAYMENT

5. DEPOSIT AND NON-REFUNDABILITY 

6. RETENTION OF OWNERSHIP 

7. DELIVERY 

8. SITE PREPARATION AND CUSTOMER OBLIGATIONS

9. INSTALLATION AND COMMISSIONING

10. TRAINING 

11. WARRANTY 

12. WARRANTY EXCLUSIONS 

13. SERVICE AND MAINTENANCE 

14. SERVICE CALL-OUTS AND REPAIRS 

15. SPARE PARTS 

16. LIMITATION OF LIABILITY 

17. INDEMNITY 

18. INSOLVENCY AND BUSINESS RESCUE 

19. INSURANCE

20. FORCE MAJEURE 

21. TERMINATION 

22. CONFIDENTIALITY 

23. GOVERNING LAW 

24. ENTIRE AGREEMENT

1. DEFINITIONS AND INTERPRETATION

1.1. In these Standard Terms and Conditions, unless inconsistent with the context,

the following expressions shall bear the meanings assigned to them:

1.1.1. “Agreement” means these Terms and Conditions together with all

annexures, schedules, specifications and quotations.

1.1.2. “Business Day” means any day other than a Saturday, Sunday or public

holiday in the Republic of South Africa.

1.1.3. “Commissioning” means the process whereby the Equipment is installed,

calibrated, tested and confirmed to be operational in accordance with the

agreed specifications.

1.1.4. “Delivery Date” means the anticipated date upon which the Equipment is to

be delivered to the Customer.

1.1.5. “Equipment” means the machinery, packaging equipment, components,

accessories and related systems supplied by the Supplier in terms of this

Agreement.

1.1.6. “Site” means the premises where the Equipment will be installed and

operated.

1.1.7. “Supplier” means RHINOPAK PACKAGING AND FILLING SOLUTIONS (PTY) LTD.

1.1.8. “Specification” means the technical specifications of the Equipment as

provided by the Supplier.

1.2. Words importing the singular shall include the plural and vice versa.

1.3. Headings are included for convenience only and shall not affect

interpretation.

2. APPLICATION OF AGREEMENT

2.1. This Agreement shall govern the supply of all Equipment sold by the

Supplier to the Customer unless otherwise expressly agreed in writing.

2.2. No terms or conditions contained in any document issued by the Customer

shall apply unless expressly accepted by the Supplier in writing.

2.3. In the event of conflict between the quotation and this Agreement, the

provisions of this Agreement shall prevail.

3. QUOTATIONS AND FORMATION OF CONTRACT

3.1. All quotations issued by the Supplier are valid for a period of thirty (30) days

unless otherwise specified.

3.2. A binding agreement shall only come into existence once:

3.2.1. the Customer has accepted the quotation in writing; and

3.2.2. the deposit (if applicable) specified in the quotation has been paid.

3.3. The Supplier reserves the right to withdraw or amend any quotation prior to

acceptance.

4. PRICE AND PAYMENT

4.1. The purchase price of the Equipment shall be the amount specified in the

Supplier’s quotation.

4.2. Unless otherwise agreed in writing, payment shall be made as follows:

4.2.1. 50% deposit upon acceptance of quotation; and

4.2.2. 50% prior to delivery and / or collection.

4.3. All invoices shall be payable within seven (7) days of date of invoice.

4.4. Interest shall accrue on overdue amounts at prime plus 2% per annum,

calculated daily and compounded monthly.

4.5. The Supplier shall be entitled to suspend delivery, installation,

commissioning or service obligations where the Customer fails to comply

with payment obligations.

4.6. The Customer shall not be entitled to withhold payment on the basis of any

dispute unless such dispute has been determined in accordance with the

dispute resolution provisions contained herein.

5. DEPOSIT AND NON-REFUNDABILITY

5.1. Payment of Deposit

5.1.1. Upon acceptance of the Supplier’s quotation, the Customer shall pay a nonrefundable

deposit in the amount specified therein (“the Deposit”).

5.1.2. The Deposit shall constitute consideration for:

5.1.2.1. the reservation and allocation of the Equipment;

5.1.2.2. procurement of components and materials;

5.1.2.3. manufacturing, assembly or sourcing costs;

5.1.2.4. administrative and logistical preparation; and

5.1.2.5. the Supplier foregoing alternative commercial opportunities.

5.2. Nature of Deposit

5.2.1. The Customer acknowledges and agrees that:

5.2.1.1. the Deposit is not a penalty, but a genuine pre-estimate of damages

likely to be suffered by the Supplier in the event of cancellation or nonperformance

by the Customer;

5.2.1.2. the Deposit is reasonable and proportionate having regard to the nature

of the Equipment and the Supplier’s business operations;

5.2.1.3. the Supplier shall incur irrecoverable costs and commercial prejudice

upon acceptance of the order.

5.3. Non-Refundability

5.3.1. The Deposit shall be non-refundable, including but not limited to where:

5.3.1.1. the Customer cancels the order for any reason;

5.3.1.2. the Customer delays performance;

5.3.1.3. the Customer commits a breach of this Agreement;

5.3.1.4. an Insolvency Event occurs in respect of the Customer.

5.3.2. The Supplier shall be entitled to retain the Deposit without prejudice to its

right to claim additional damages.

5.4. Supplier Default

5.4.1. Notwithstanding the above, the Deposit shall only be refundable where:

5.4.1.1. the Supplier fails to perform its obligations due to its own material breach;

and

5.4.1.2. such breach is not remedied within a reasonable period after written notice.

5.5. Set-Off

5.5.1. The Supplier shall be entitled to set off the Deposit against:

5.5.1.1. any damages suffered;

5.5.1.2. any outstanding amounts;

5.5.1.3. any costs incurred as a result of the Customer’s breach.

6. RETENTION OF OWNERSHIP

6.1. Ownership of the Equipment shall remain vested in the Supplier until the Supplier

has received payment in full of:

6.1.1. the purchase price;

6.1.2. all applicable taxes;

6.1.3. any interest or additional charges.

6.2. Until ownership passes to the Customer, the Customer shall:

6.2.1. store the Equipment at the supplies facility subject to a reasonable storage

fee being levied;

6.2.2. ensure that the Equipment remains identifiable as the Supplier’s property;

6.2.3. not pledge, sell or encumber the Equipment.

6.3. The Supplier shall be entitled to enter the Customer’s premises to recover

Equipment where payment obligations are not fulfilled.

7. DELIVERY

7.1. Delivery dates provided by the Supplier are estimates only.

7.2. The Supplier shall not be liable for delays caused by:

7.2.1. delays in manufacturing;

7.2.2. supplier delays;

7.2.3. transportation disruptions;

7.2.4. customs clearance delays; and

7.2.5. force majeure events.

7.3. Risk in the Equipment shall pass to the Customer upon delivery to the

Customer’s premises.

7.4. The Customer shall ensure that the Site is prepared and suitable for delivery.

7.5. Where delivery is delayed due to the Customer’s failure to prepare the Site,

the Supplier shall be entitled to charge reasonable storage and handling fees.

8. SITE PREPARATION AND CUSTOMER OBLIGATIONS

8.1. The Customer shall ensure that the Site meets all technical requirements

necessary for installation of the Equipment including:

8.1.1. adequate electrical supply;

8.1.2. compressed air supply where required;

8.1.3. sufficient floor load capacity;

8.1.4. adequate environmental conditions.

8.2. The Supplier shall not be responsible for delays caused by inadequate Site

preparation.

8.3. The Customer shall provide reasonable access to the Site for the Supplier’s

personnel.

9. INSTALLATION AND COMMISSIONING

9.1. Installation of the Equipment shall only be performed where such services are

expressly included in the quotation.

9.2. Commissioning shall include operational testing of the Equipment.

9.3. The Equipment shall be deemed accepted by the Customer upon the earlier

of:

9.3.1. successful completion of commissioning; or

9.3.2. the Customer placing the Equipment into operational use.

9.4. Any defects identified during commissioning shall be recorded and addressed by

the Supplier within a reasonable time.

10. TRAINING

10.1. The Supplier may provide training to the Customer’s personnel regarding the

operation of the Equipment.

10.2. Training services shall be charged at the Supplier’s prevailing rates unless

included in the quotation.

10.3. Travel, accommodation and subsistence costs incurred in providing training

shall be for the Customer’s account.

10.4. On completion of Training, the trainee as the case may be shall be issued with

a certificate to warrant their competency to operate the Equipment.

11. WARRANTY

11.1. The Supplier warrants that the Equipment shall be free from structural and

mechanical defects for a period of twelve (12) months from the date of

commissioning.

11.2. The Supplier’s obligations under this warranty shall be limited to the repair or

replacement of defective components.

11.3. The Supplier shall not be responsible for removing or reinstalling Equipment

unless agreed otherwise.

11.4. Warranty claims must be reported within seven (7) days of discovery of the

defect.

12. WARRANTY EXCLUSIONS

12.1. The warranty shall not apply to defects arising from:

12.1.1. normal wear and tear;

12.1.2. operator error;

12.1.3. improper maintenance or maintenance by any third party not including the

Supplier;

12.1.4. electrical irregularities;

12.1.5. modifications made without the Supplier’s consent;

12.1.6. use outside the intended purpose of the Equipment; and

12.1.7. repairs carried out by unauthorised personnel.

13. SERVICE AND MAINTENANCE

13.1. The Customer shall ensure that the Equipment is serviced at the intervals

recommended by the Supplier.

13.2. Preventative maintenance services may be provided by the Supplier under

separate service agreements.

13.3. Failure to comply with recommended maintenance schedules may invalidate the

warranty.

14. SERVICE CALL-OUTS AND REPAIRS

14.1. Service call-outs requested by the Customer shall be chargeable.

14.2. Charges shall include:

14.2.1. technician labour;

14.2.2. travel time;

14.2.3. travel expenses;

14.2.4. accommodation where required;

14.2.5. replacement parts.

14.3. Service visits relating to valid warranty claims shall not include labour charges

but travel expenses may still apply.

15. SPARE PARTS

15.1. The Supplier shall endeavour to maintain availability of spare parts for the

Equipment.

15.2. Spare parts shall be supplied at the Supplier’s prevailing prices.

15.3. Should any spare parts be procured from any third party but for the Supplier,

the customer shall lose their warranty and hereby indemnifies the Supplier

against any loss or damages as the case may be.

16. LIMITATION OF LIABILITY

16.1. To the fullest extent permitted by law, the Supplier shall not be liable for:

16.1.1. loss of profits;

16.1.2. loss of production;

16.1.3. loss of business;

16.1.4. loss of contracts; and

16.1.5. indirect or consequential damages.

16.2. The Supplier’s total liability arising out of this Agreement shall not exceed the

purchase price of the Equipment.

17. INDEMNITY

17.1. The Customer indemnifies the Supplier against any claims arising from:

17.1.1. misuse of the Equipment;

17.1.2. failure to follow operating instructions;

17.1.3. unauthorised modification of the Equipment; and

17.1.4. operation by untrained personnel.

18. INSOLVENCY AND BUSINESS RESCUE

18.1. Upon binding themselves to the terms and conditions set forth in this Agreement

the Customer warrants to the supplier that they have satisfied their obligations in

terms of the Companies Act, and in particular in terms of the tests and provisions

providing for solvency and liquidity.

18.2. Definition of Insolvency Event:

18.2.1. For purposes of this Agreement, an “Insolvency Event” shall mean the

occurrence of any one or more of the following events in respect of the

Customer:

18.2.1.1. the Customer is placed under provisional or final liquidation, whether

voluntary or compulsory;

18.2.1.2. the Customer commences business rescue proceedings in terms of the

Companies Act 71 of 2008, or has business rescue proceedings

commenced against it;

18.2.1.3. the Customer proposes or enters into any compromise or arrangement

with its creditors generally;

18.2.1.4. the Customer is unable to pay its debts as they fall due in the ordinary

course of business;

18.2.1.5. any judgment is granted against the Customer and remains unsatisfied

for a period exceeding seven (7) days;

18.2.1.6. any writ of execution, attachment or similar process is issued against the

Customer and is not discharged within seven (7) days;

18.2.1.7. the Customer ceases or threatens to cease carrying on business;

18.2.1.8. any event occurs which is analogous to the foregoing in terms of

applicable law.

18.3. Supplier’s Rights Upon Insolvency Event

18.3.1. Upon the occurrence of an Insolvency Event, the Supplier shall, without

prejudice to any other rights available in law or in terms of this Agreement, be

entitled, in its sole discretion, to:

18.3.1.1. immediately suspend all obligations, including delivery, installation,

commissioning, or servicing of the Equipment;

18.3.1.2. cancel this Agreement forthwith, without the requirement of notice;

18.3.1.3. declare all amounts owing by the Customer to be immediately due and

payable, whether or not such amounts would otherwise have been due;

18.3.1.4. withhold delivery of any Equipment not yet delivered, notwithstanding

prior payment arrangements;

18.3.1.5. reclaim possession of the Equipment in accordance with clause 5,

including entering the Customer’s premises for such purpose, where

permitted by law;

18.3.1.6. retain all payments already made by the Customer as pre-estimated

damages, without prejudice to the Supplier’s right to claim further

damages;

18.3.1.7. require advance payment or security as a condition for continuing

performance.

18.4. Business Rescue Specific Provision

18.4.1. In the event that the Customer enters business rescue proceedings:

18.4.1.1. the Supplier shall be entitled to suspend all further performance unless

adequate security is provided;

18.4.1.2. the Supplier shall not be obliged to deliver any further Equipment or

provide any services unless payment is made in advance;

18.4.1.3. the Supplier’s rights as a creditor and owner of the Equipment shall not

be prejudiced.

18.5. No Waiver of Ownership Rights

18.5.1. Nothing in this clause shall be construed as limiting or waiving the Supplier’s

rights under the Retention of Ownership clause, and the Supplier shall be

entitled to assert its ownership rights against:

18.5.1.1. the Customer;

18.5.1.2. any liquidator;

18.5.1.3. any business rescue practitioner;

18.5.1.4. any creditor of the Customer.

19. INSURANCE

19.1. The Customer shall insure the Equipment against all operational risks including

fire, theft and accidental damage from the date of delivery.

20. FORCE MAJEURE

20.1. Neither party shall be liable for failure to perform its obligations where such

failure results from events beyond its reasonable control including:

20.1.1. natural disasters;

20.1.2. strikes;

20.1.3. war;

20.1.4. pandemics; and

20.1.5. supply chain disruptions.

21. TERMINATION

21.1. The Supplier may terminate this Agreement where the Customer:

21.1.1. fails to make payment when due;

21.1.2. commits a material breach; and

21.1.3. becomes insolvent.

21.2. Upon termination the Supplier may recover any Equipment supplied but not paid

for.

22. CONFIDENTIALITY

22.1. The Parties agree to maintain confidentiality regarding all technical and

commercial information relating to the Equipment.

23. GOVERNING LAW

23.1. This Agreement shall be governed by the laws of the Republic of South Africa

with the High Court of South Africa, Gauteng Local Division having jurisdiction of

any disputes between the parties.

24. ENTIRE AGREEMENT

24.1. This Agreement constitutes the entire agreement between the Parties and

supersedes all prior negotiations and agreements.