STANDARD TERMS AND CONDITIONS OF SALES AND SERVICES INCLUDING DEED OF SURETYSHIP
Table of contents
- Scope of Application
- Service Exchange Units
- Delivery
- Quotation, Pricing and Invoices
- Payment
- Warranty
- Liability
- Insurance
- Cancellation
- Domicilium and Jurisdiction
- Privacy
- General
1. SCOPE OF APPLICATION
1.1 These terms and conditions of the company N Taylor t/a KZN Air Shocks (hereinafter referred to as the “Seller”) shall apply to all contracts concluded between a consumer or a trader (hereinafter referred to as the “Client”) and any job, contract of sale, servicing and/or repair work including the replacement or refurbishment of parts that is to be carried out on any vehicle/s, part or items (hereinafter referred to as the “goods”) as instructed verbally or in writing by the Client. The inclusion of the Client’s own conditions is herewith objected to, unless other terms have been stipulated.
1.2 The terms and conditions shall apply to all services rendered and parts supplier by or through the Seller. The Seller shall proceed with the relevant part replacements / repairs and shall employ the services of such sub-contractor as the Seller in its absolute discretion deems necessary.
1.3 The Client undertakes that on completion of the relevant repairs / part replacements that all costs due to the Seller and or sub-contractor shall be settled prior to the collection or removal of any vehicle or parts from the Seller’s premises, unless other terms have been agreed upon in writing with the Seller.
1.4 Whenever it is necessary or preferably that a third party / sub contractor provide the Services and or parts or any part thereof, the Seller will be entitled to arrange the involvement of such third party on behalf of the Client.
1.5 If the Seller arranges the participation of such third party / sub contractor with the knowledge and consent of the Client, the Seller shall not be liable for the services and or parts of such third party or sub contractor or any damages arising therefrom.
1.6 Should the Client allege any of the services rendered or parts supplied to be defective in any manner, the Client shall give the Seller a reasonable opportunity to inspect same.
1.7 The job card and any or all other documentation issued by The Seller and accepted by the Client forms part of the Agreement.
2. SERVICE EXCHANGE UNITS
2.1 The Seller hereby sells components, both new and remanufactured on a service exchange basis to the Client. Unless otherwise stated.
2.2 Exchange units must have all their fittings, sensor wires and dust covers. Failure to submit the unit without these components could result in a core deposit being charged.
2.3 Company regulation requires that all service exchange units be tested to make sure that the shock rebounds when tested out of the vehicle and that there is no damage on the electrical components. The Seller has the right to charge a non-refundable core deposit should the Clients service exchange unit be damaged in such a way that it cannot be refurbished. The struts should not leak any oil, if there is a strut that is leaking oil then a core deposit will have to be charged. This is at the Sellers own discretion.
2.3 All shocks / air bellows are sold on a service exchange basis unless otherwise stated by the Seller.
2.4 The Seller will only offer a guarantee on Air Suspension Compressor Pumps that are fitted at the Sellers Fitment Centre. The most common cause of compressor failure is a leak in the air suspension system. Failure to detect or repair this leak will jeopardise the lifespan of the Air Suspension Compressor Pump.
2.5 Air Suspension Compressor Pumps that have failed due to over temp / negligence / air loss in the system / failure to repair air leaks in the air suspension system, will not be covered under Warranty and the Warranty will be regarded as null and void.
2.6 Company Regulation requires that all Air Suspension Compressor Pump fitments done will require a 24 hour / overnight assessment to eliminate the possibility of further leaks in the air suspension system.
2.7 AMK Compressor Pump Warranties – please note that AMK carries the warranty cover on these units. If it happens that a Compressor Pump is faulty, then the unit would need to be sent back to AMK for testing and consideration. Please note that the downtime for this process is 12 weeks. AMK needs to do their relevant inspections and testing on the unit in order to establish if the part will be replaced under Warranty. Please note that the decision to proceed / not to proceed with the Warranty Claim is at the sole discretion of AMK. The Seller will not carry any form of warranty for their parts and we will not be held liable or responsible for the downtime process.
3. DELIVERY
3.1 The Seller shall render the services and or provide the goods as soon as is possible, but within a reasonable time.
3.2 Any approximation of the time required to render the services and/or provide the goods and / or any dates given for completion constitute estimates only and shall not be binding to the Seller.
3.3 Failure by the Seller to complete the services and / or supply the goods on or before any given date will not entitle the Client to cancel the Agreement unless a reasonable time has been exceeded and then subject to the Client paying the Seller for the costs of services and/or goods provided up to date of cancellation. The Seller shall not be liable for any loss or damaged which the Client or any third party may sustain as a result of such late delivery.
3.4 The Seller is entitled to acquire a deposit from the Client, prior to rendering the Services and/ or providing the relevant Goods.
3.4 Once the relevant repair has been completed or goods have been obtained, shall the Client collect and take delivery of the vehicle or goods at the premises of the Seller, whereby delivery shall be completed when the repair or goods have been discussed with the Client.
3.5 Should the client be in breach of any of the terms and conditions herein contained, then and in that event the Seller has the right to suspend any repair or deliver any of the goods to the Client.
3.6 The Seller shall not be liable for any loss or damage arising due to any pre-existing latent defect in the Clients property.
3.6 Upon completion of the relevant repair or receipt of the ordered part, the Client will collect the said vehicle or part from the Seller within 3 (three) working days from date of completion. Should collection not be made, then the Seller has the right to levy storage fees against the Client at a daily rate of R300 excl VAT until such time as the vehicle or part has been collected. The Seller has the right to move the said vehicle or part to a storage facility at the Client’s expense, should this be deemed necessary. Should the Client not collect and settle the relevant repair or ordered parts, then the Seller shall be entitled to take the necessary steps to have the vehicle or part sold.
3.7 The Seller shall have the right and adequate justification for any delay in or suspension of delivery should any strikes, lock-outs, war, civil unrest, acts of terrorism, differences with workmen, accidents to machinery, failure of usual sources of supply of materials, acts of government or quasi government or legislation, commercial exigencies or any other contingencies beyond the Sellers control.
3.8 Should this occur, then and in that event, the Client shall not have any claim of any nature whatsoever, specifically for the cancellation of the contract against the Seller. The scope of work / repair or obtaining parts on behalf of the Client will proceed as soon as seemingly possible.
4. QUOTATIONS, PRICING AND INVOICES
4.1 All quotations will remain valid for a period of 7 (Seven) days from date of quotation.
4.2 All quotations are subject to availability of the goods or services and subject to the correction of good faith errors by the Seller. The prices quoted are subject to any increase in the cost price, including currency fluctuations. Prices are subject to change without notice and shall not be binding.
4.3 The Client hereby confirms that the parts or services on any Tax Invoice issued, duly represent the services or parts ordered or supplied by the Seller, at the prices agreed to by the Client. It will be at the Sellers standard rates and charges and determined by the Seller as work is carried out, which charges are deemed to be fair and reasonable.
4.4 Should it be deemed necessary by the Seller to repair or replace further parts on the Client’s vehicle, than initially quoted, then the Seller will inform the Client of such added repair. These added repairs are considered to be necessary and / or advisable by the Seller. Should the Client not wish to proceed with the added repairs as indicated by the Seller, then the Client runs the risk of potential damage to the current parts being replaced and the Warranty on the replacement parts will be affected. Should the Client suffer any damages on the vehicle or any replacement part because of the fact that he/she did not proceed with the added repairs as recommended by the Seller, then the Client will have no recourse agains the Seller for the recovery of the said damage.
4.5 Assessment Fees charged, covers diagnostic and component assessments done on the respective vehicle or part. Should it be necessary to strip any part for quotation purposes, then and in that event, the Client agrees to the following:
4.4.1 That the Seller will be authorised to remove and strip the part to the necessary point;
4.4.2 All costs pertaining to clause 4.4.1 above will be charged according to the Seller’s standard rates and the Client will be liable for the payment of such costs;
4.4.3 Should the Client not wish to proceed with the recommended quotation supplied by the Seller, then and in that event, the Client undertakes to settle all costs incurred by the Seller for the submission of the relevant quotation.
5. PAYMENT
5.1 Payments in respect of parts purchased or services rendered, shall be made by Cash, Card or EFT.
5.2 All EFT payments must reflect in the Seller’s Bank Account before any vehicle or part will be released. Proof of payment is not sufficient and will not be accepted.
5.3 Possession will only be returned to the Client upon full payment being received by the Seller and allowing the Client to inspect or test the property does not constitute giving possession.
5.4 The Client acknowledges that its property will at all times be subject to the Seller’s lien, which will only be extinguished upon receipt of full payment by the Seller, including third party costs incurred on behalf of the Client.
5.5 The Client consents to a lien in favour of the Seller arising from unpaid storage costs and third party costs.
5.6 The Client undertakes to pay the Seller as agreed and if acting in a representative capacity, the signatory hereof binds himself / herself as surety and co-principal debtor in solidium with his or her principal in favour of the Seller. This suretyship shall be a continuing suretyship, which may only be cancelled in writing by the Seller, provided that all amounts due and owing by the Client to the Seller has been settled in full.
6. WARRANTY
6.1 Parts are guaranteed according to product specific warranties only and all other warranties including common law warranties are hereby specifically excluded.
6.2 Liability under clause 6.1 above is restricted to the cost of repair or replacement of faulty goods or services, which is at the sole discretion of the Seller. Warranties or Guarantees offered to the Client will be submitted in writing on each quotation or tax invoice. This said document will form part of the contract as follows:
6.2.1 Parts which are either destructively or accident damaged will not be covered under Warranty and the Seller has the right to reject a warranty claim under dubious circumstances;
6.2.2 All guarantees and warranties are immediately null and void should we find that our units have been tampered with in any way or if the parts are used outside the required specifications. The Seller cannot be held responsible should there be a part failure or damage due to vehicle modifications made by the client.
6.2.3 Faulty installation of parts supplied to the Client by the Seller will not be covered under guarantee. All parts needs to be returned to the Seller by the Client and the Seller will at their own discretion confirm if the part was damaged due to faulty installation and/or tampering or part failure.
6.2.4 Should it be established that repairs completed by the Seller is inoperative either due to defective parts or workmanship, then and in that effect, the Seller will assume, in its discretion, to rectify the respective defects. Either by adjusting, repairing or replacing the respective inoperative part or rectifying the respective defective workmanship, as long as the above does not extend to parts having been put to wrong use or misused outside the required specifications.
6.2.5 The Client is responsible to return all parts, either supplied or fitted, under warranty, to the Seller for inspection and will afford the Seller at least 30 days to rectify such defect. It is at the Sellers discretion if the part has indeed failed or if tampering / misuse was the cause of the failure. Parts which are replaced under warranty will carry the warranty for the remainder of the initial warranty period.
6.2.6 Should the Client notify the Seller of any form of defective product or workmanship, then the client should within a time period of 5 (five) days, after advising the Seller, return the part or vehicle to the Seller for inspection, and the Seller will assume, in its discretion, to rectify the respective defects. If the Client fails to return the said part or vehicle after submitting their concern to the Seller, then the warranty on the part or workmanship will not be covered as the client is being negligent in getting the respective defective parts or workmanship repair / replaced in time, thus causing either further damage or failure.
6.2.6 Under no circumstances shall the Seller be liable to the Client for any economic loss of whatever nature (direct or indirect) including without limitation to loss of anticipated profits, loss of actual profits (direct or indirect), loss of business and any indirect, special or consequential loss of damage, however so arising.
7. LIMITATION OF LIABILITY
7.1 The Seller shall not be liable to the Client for any loss or special or consequential damages whatsoever arising out of any breach of The Seller of any of its obligations in terms of this agreement.
7.2 Possession of the Client’s property is taken by the Seller strictly subjection to the provisions of this Agreement.
7.3 The Seller does not assume or accept any risk until the Client’s property is delivered to the Seller’s regular business premises and any collection and/or delivery of the Client’s property at any place other than such premises is done entirely at the Client’s risk.
7.4 The Client authorises the Seller to transport its property from one place to another as may reasonably be required or necessary, including for purposes of testing, diagnostics or transfer to and/or from any third party.
7.5 Any transportation of the Client’s property is undertaken strictly subject to it being done at the Client’s risk and under waiver of any/all claims arising therefrom, except if the Seller is grossly negligent.
7.6 Although all reasonable care will be taken with the Client’s property in the possession of the Seller and its employees, the Seller shall not be liable for any loss or damages suffered by the Client due to theft, fire, or any other cause.
7.7 The Seller shall not be liable for any loss of damage whatsoever suffered by the Client as a result of:-
7.7.1 Products, or any part of the product, or workmanship, including work undertaken by a sub-contractor, being defective in any way or failing to fulfil in part or completely with any written guarantee provided by the Seller.
7.7.2 Products supplied to a Client or a sub-contractor duly appointed by the client, where faulty installation was conducted and our product was damaged. This product will not be covered under warranty as third party installations and tampering of products are not covered under product warranty. The part would need to be replaced at Client’s / Sub-Contractors cost.
7.7.3 Damage to any parts supplied to a Client, be it via our appointed courier or client’s appointed courier, howsoever arising, including but not limited to fire, theft, damage in transit, accident or any cause whatsoever. The goods are transported at the Client’s own risk.
7.7.4 Damage to any property of the Client at the Seller’s premises, howsoever arising but not limited to burglary, theft, hail damage, accident or any other cause whatsoever. The Clients property and parts are stored, held and driven by the Seller on behalf of the Client will be at the Client’s sole risk.
7.7.5 Gross negligence and wrongful / unlawful acts of the Seller’s sub contractors or employees.
8. INSURANCE
8.1 The Seller does not have sufficient insurance to cover collection and delivery of clients vehicles. Clients who requests the Seller to either collect or deliver their vehicle at a specific address does so at their own risk. The Client needs to make sure that he/she has sufficient insurance in place to cover any form of damage or loss.
8.2. Should the Clients respective insurance company fail to pay any claim submitted to the said company, then the Client shall have no claim against the Seller whatsoever.
9. CANCELLATION
The Seller may cancel this contract if the Client:
9.1 Is in breach of any of the Terms and Conditions of this Contract;
9.2 Is in the process of being provisionally or financially sequestrated;
9.3 Is in the process of surrendering his/her estate;
9.4 Being a natural person, dies;
9.5 Is in the process of dissolving a partnership;
9.5 Is a Company that is being placed under provisional or final order of liquidation or judicial management;
9.6 Is a Company and attempting to compromise with its Creditors Then and in that event the Seller shall:-
9.7 Cancel the Contract, either verbally or in writing to this effect, without prejudice, including claiming for parts already installed or services already rendered:
9.8 Retain the parts which might still be in the Seller’s possession at the time of the said breach or cancellation;
10. DOMICILIUM & JURISDICTION
The Client nominates his/her/their domicilium citandi et executandi as the physical address provided and thus reflecting on the respective invoice for services rendered / parts supplied. This address shall be used to serve all notices and processes in connection with any claim that may arise in terms hereof. This nominated address of any Director (in the case of a Company), Member (in the case of a Close Corporation) or of the Owner(s) or Partner(s).
The Client hereby consents that the Seller shall have the right to institute any legal action in either the Magistrates Courier or the Durban High Court at its sole discretion and consents to the relevant jurisdiction. These South African Courts shall have exclusive jurisdiction in any litigation between the parties arising from whatsoever source.
Any document shall be deemed duly presented to and reasonably accepted by the Client:-
10.1 within 5 days of prepaid registered mail to any of the Client’s business or postal addresses or to the personal address of any director, member or owner of the Client; or
10.2. being delivered by hand to the Client or any director, member or owner of the Client; or
10.3 within 48 hours if sent by overnight courier; or
10.4 within 7 days of being sent by surface mail; or
10.5 within 24 hours of being emailed or any e-mail address provided by the Client; or
10.6 within 24 hours of being sent as an attachment on Whats App, SMS Tex Messages or Smartphone related messages to the Client or any director, member or owner of the Client.
11. PRIVACY
Any personal information that the Seller may collect will be processed in a lawful and responsible manner that will never infringe on the privacy of the Client.
The Seller shall at all times attempt to keep record of all :-
communications being verbal or written agreements,
quotations / invoices sent electronically or on paper;
between the Seller, Client and any sub contractor, referring to any services rendered and / or parts supplied / ordered.
It is agreed between the Client / Sub Contractor that the Seller may keep records of such relevant communications for a period that the Seller may deem to be necessary.
We will only ever collect and process what is necessary to fulfil our requirements and tasks. The Seller shall not disclose any information or documentation to any third party unless specifically ordered by a court of law.
12. GENERAL
12.1 The Client acknowledges that the Seller is entitled at its sole discretion and without the prior written consent of the Client or any third party, as it may deem necessary from time to time, to amend or change the Terms and Conditions of this Contract. Official changes to the Terms and Conditions will be made readily available to be accessed on the Sellers official website.
12.2 The Client acknowledges that the Seller is entitled, without the Client’s prior consent, to cede and assign all or any of its rights, title and interest in and to this contract to any other company and/or third party whatsoever.
12.3 In the event of a dispute arising between the Seller and the Client, for any reason whatsoever, and the matter being handed over to the Seller’s Attorneys, then the Client shall be liable to pay all costs, charges and expenses incurred on the attorney and own client scale. These costs will include Collection Commission, Tracing Agents Fees and Sheriff’s Fees.
12.4 All monies collected by the Attorneys on behalf of the Seller will be allocated to firstly offset any legal costs, collection commission, tracing agents and/or Sheriff’s fees. Only thereafter will the monies collected be made to offset the claim amount.
12.5 Each provision of this Contract is severable from the other provisions. Should any provision be found to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall nevertheless remain binding and continue with full force and effect.
12.6 This Agreement and its interpretation shall be determined in accordance with the Laws of South Africa.