All orders accepted by Metrismart are subject to these General Conditions of Sale.
Any Conditions attached to the purchaser's order shall be deemed to be superseded
by these General Conditions of Sale.
1. Alterations and variations These conditions of Sale shall not be altered or varied
unless specifically agreed to by Metrismart in writing.
2. Acceptance of order Metrismart reserves the right to accept or refuse any order.
3. Price Prices in the price list may be changed at any time without prior notice.
Prices confirmed by Metrismart in a written quotation shall be valid for order placement
within 30 days and delivery within normal lead times as specified in the quotation.
Unless otherwise stated in writing, prices are net, ex-works Durban, and exclude
V.A.T. Metrismart shall be entitled to increase any prices quoted if, prior to the
date of delivery, the cost to Metrismart of procuring any products from an international
source increases by reason of currency fluctuations or increase in customs or governmental
duties or levies; the amount of the increase shall be invoiced and paid by the purchaser
on delivery or, if applicable, in accordance with the agreed credit terms. If requested
by the purchaser, the increase shall be certified by Metrismart auditors, which certification
shall be final and binding.
4. Delivery 4.1 Delivery is subject to the prompt receipt by Metrismart of all necessary
information, specifications, drawings and other data which is required for the proper
execution of the order. Delivery dates are subject to confirmation by Metrismart.
Metrismart will take reasonable steps to deliver on the dates promised, however,
Metrismart reserves the right to reschedule delivery dates. The purchaser shall take
delivery when the goods are available. Metrismart reserves the right to make partial
deliveries and each separate delivery shall constitute a separate contract of sale
subject to these General Conditions and the purchaser shall not be entitled to cancel
as a result thereof.
4.2 All costs of carriage and insurance relating to supplies by Metrismart to the
purchaser shall be borne by the purchaser. If such costs are borne by Metrismart
on behalf of the purchaser, the purchaser shall reimburse Metrismart for the amount
paid in respect of carriage and insurance on carriage in accordance with paragraph
5. Payment Where Metrismart has granted the purchaser credit terms, payment is due
within 30 days of the date of statement, without retention of any kind. Partial deliveries
may be separately invoiced. Where credit terms have not been granted, payment is
cash with order. In the event that payment is not received within the said thirty
days, interest shall accrue on outstanding amounts at prime rate (being the annual
rate of interest charged on bank overdraft facilities as certified by Metrismart
's bankers, which interest shall be compounded monthly in arrears). The said interest
shall be calculated from the date of delivery until the date of payment.
6. Risk and ownership 6.1 Risk in the goods shall pass to the purchaser on the goods
being installed on site.
6.2 Ownership of the goods shall pass to the purchaser only on full payment of the
goods. Metrismart shall not be obliged to furnish a purchaser or end user with a
letter of transfer of ownership. In the event that the purchaser fails to pay any
amounts due on or before the due date for payment and/or if, prior to the due date
for payment, the purchaser should be provisionally or finally sequestrated or liquidated,
then Metrismart shall, to the extent legally permitted and without prejudice to any
other rights or remedies, be entitled to enter the purchaser's premises or any other
premises at which the goods supplied have been stored or installed, and to re-take
possession thereof. The purchaser acknowledges that goods affixed to any immovable
property shall not form part thereof and Metrismart shall remain entitled to the
7. Goods incorrectly supplied Metrismart must be notified within seven days of receipt
of any goods which have been supplied incorrectly. Goods supplied correctly to the
purchaser's written order are not returnable except with the express written approval
of Metrismart. Customers are to verify that goods ordered are suitable for their
8. Specifications 8.1 Metrismart reserves the right to change specifications without
notice. In the event that any products are manufactured and supplied by Metrismart
to the purchaser in accordance with the customer's specifications, Metrismart shall
have no liability of whatsoever nature for any defects or failure of operation of
whatsoever nature due to any omission of information or technical deficiency or negligence
on the part of the purchaser or any third party in connection with the preparation
of the specifications.
8.2 Metrismart shall not have any liability for any claims or demands by any third
party, including, without limitation, in respect of any claim for breach of intellectual
property rights (including patents, copyright or design rights) in relation to any
specifications supplied by the purchaser. The purchaser shall indemnify and keep
Metrismart fully indemnified from and against any such claim including for legal
costs and expenses on an attorney and client fee basis.
9. Software and Intellectual Property Rights 9.1 The intellectual property rights
(which shall include, without limitation, patents, design rights and copyright) in
all products supplied by Metrismart to the purchaser shall, unless stated otherwise
on the product concerned, vest in Metrismart and the purchaser shall not make copies
of any such products or components forming part thereof or procure that any third
party does so on its behalf and, in the event of any such breach, the purchaser shall
indemnify and keep Metrismart fully indemnified, including for any consequential
loss suffered (including loss of profit) by reason of such breach, without prejudice
to any other remedies in law.
9.2 In the case of any supplies of computer software programmes or products embedded
with computer microchips, the copyright and intellectual property rights in any such
programmes and products remain with Metrismart. The purchaser shall have a non-executive
license to use such programmes and products, which license may be terminable by Metrismart
by notice in writing, if the purchaser is in breach of any conditions of sale in
respect of any order for the time being and from time to time and/or in the event
of any cancellation of any order by Metrismart in terms of these General Conditions
of Sale. The purchaser shall not make copies of any such software programmes and
microchip products save for a back-up copy of the computer programme for its own
purposes. All such computer software programmes shall be returned to Metrismart upon
demand in the event of any breach of the provisions of this clause and/or the cancellation
of any order.
10. Force Majeure Metrismart shall not be in default of performance of the order
if delayed, hindered or prevented by Force Majeure. Force Majeure shall be any force
beyond the control of Metrismart which could not reasonably have been foreseen and
guarded against. Force Majeure include, but is not limited to, acts of God, strikes,
lockouts, fires, riots, civil commotion or civil unrest, interference by civil or
military authorities, compliance with new or changed regulations or orders of any
governmental authorities, and acts of war whether declared or undeclared, custom
or transportation difficulties or delays.
11. Cancellation of order Metrismart reserves the right to terminate the order and
not deliver any uncompleted portion of the sale if the purchaser a) commits a breach
of any of these general conditions of sale b) being an individual dies or is provisionally
or finally sequestrated or surrenders his estate. c) being a partnership is dissolved d)
being a company is placed under provisional or final liquidation or judicial management.
termination of the order for any reason whatsoever Metrismart shall be entitled to: a)
full payment for goods delivered and for any goods partially manufactured or in
stock which have been specially manufactured in terms of the order. b) to take possession
of any goods not fully paid for. c) to take any further legal action for damages
suffered by Metrismart as a result of the order being terminated.
12. Limited Warranty 12.1 Metrismart warrants its products to be free from defects
in manufacture or workmanship for a period of 12 months from date of manufacture,
under normal use and service. This warranty covers both hardware and software products,
and in this document the word "products" refers to both hardware and software. Products
are dated at time of manufacture. For undated products, the warranty shall be 12
months from date of purchase. For products supplied by Metrismart, but manufactured
by others, the warranty period shall be as specified by the manufacturer and, in
the case of any such warranty, or if no warranty is specified, the purchaser shall
not make any claims against Metrismart in respect of the manufacturers warranty or
the absence of any such warranty in respect of any defects in the said product for,
whatsoever reason and howsoever caused, including, without limitation, for defects
in manufacture or workmanship. This warranty is null and void if the product has
been damaged by accident, electrical failure or power surge or interruption of power,
or if installed or used otherwise than in accordance with the product specifications
or instructions, subjected to abuse or misapplication, or has been altered, repaired
or serviced in any way and by anyone other than Metrismart. In case of defect, obtain
a Return Authorisation from our Service Department, and return the goods to Metrismart.
12.2 This document represents the entire agreement between buyer and seller. It is
hereby recorded that Metrismart has made no representations, nor given any warranties,
nor made any promises not expressly set forth in writing in this limited warranty.
There are no warranties, expressed or implied, of merchantability, or fitness for
purpose. Metrismart does not warrant that the product will satisfy the user's requirements,
nor that the product will be without defect, fault or error, nor that the operation
of the product will be uninterrupted. Metrismart does not have control over the application
or use of its products, and does not warrant that the products will prevent any loss
by fire or otherwise, nor that the products will in all cases provide the protection
for which it will be installed or intended.
12.3 The buyer or user acknowledges that Metrismart is not an insurer and that the
installation of the products does not exclude the necessity for insurance by the
user for all or any loss or damage that may be occasioned by loss or damage by fire
or other wise. This warranty is in lieu of any warranty implied or given in law and
in substitution of any other liability on the part of Metrismart in respect of the
12.4 Any computer software or products with embedded microchips manufactured or written
and supplied by Metrismart shall be "year 2000 compliant". "Year 2000 compliant"
shall mean that software programme or computerised product shall be capable of processing
date and time data from, into and between 1999 and 2000, and leap year calculations.
To the extent that any such software or computerised products supplied by Metrismart
are used in conjunction with any products or computer programmes or hardware supplied
by any third party, Metrismart shall have no liability whatsoever if any errors or
system failures are caused by the failure of any third party's systems, products,
software or hardware due to their lack of compliance. Metrismart shall have no liability
of whatsoever nature for any consequential loss suffered by the purchaser by reason
of any breach of this Warranty and all and any claims in respect of consequential
loss (which shall include, without limitation, loss of profits or revenue or opportunity
of business or injury or damage to property or persons) are hereby excluded."
12.5 It is hereby expressly recorded and agreed that in the event of a product being
proved defective in materials or workmanship, in Metrismart's sole opinion, then
Metrismart's total obligation shall be to repair or replace, at its discretion, the
12.6 Save as provided for above, any and all liability for any claim or claims against
Metrismart, its employees, agents, authorised representative and/or licensors, for
damage to property or persons (to the extent legally permitted) and for direct incidental
or consequential loss or damage of whatsoever nature and however arising, including,
but not limited to, liability for all and any acts, omissions or defaults on the
part of Metrismart, its employees, agents authorised representatives and licensors,
whether such acts, omissions or defaults are non-negligent, negligent, grossly negligent,
willful, intentional or otherwise, whether separately or in combination of such grounds,
is expressly excluded.
12.7 This limitation of liability, as set forth above shall, in addition to all other
circumstances, be of full force and effect even in the event of Metrismart, its employees,
servants, agents, authorised representatives and licensors having been advised of
the possibility of damages arising. This limitation of liability, as set forth above
shall, in addition to all other circumstances, be of full force and effect even in
the event of any acts, omissions or defaults on the part of Metrismart, its employees,
agents, authorised representatives and licensors, whether such acts, omissions or
default are non-negligent, negligent, grossly negligent, willful, intentional or
otherwise, constituting any breach, permitting the user to cancel the contract for
breach or for any other reason.
12.8 This warranty replaces all previous warranties and is the only warranty made
by Metrismart on its products. No increase or alteration, written or verbal, of the
obligation of this warranty is authorised.
12.9 To the extent that any part of this Limited Warranty is held to be unenforceable,
the same shall not prejudice the enforceability of any remaining provisions forming
part hereof, to the maximum extent practicable.
13. Domicilium and Notices 13.1 Any notices, legal proceedings and the like may be
served by Metrismart at the purchaser's address set forth on the quotation or written
order for the products concerned. Any such notices or proceedings may be served by
hand, prepaid registered post or facsimile transmission.
Notices served: By hand, shall
be deemed to have been received on the date of delivery. By prepaid registered post,
shall be deemed to have been received within five days from the date of posting,
and By facsimile transmission, shall be deemed to have been received within twenty-four
hours of the transmission thereof, provided that Metrismart supplies a copy of the
facsimile transmission report showing the date and time for transmission.
14. Jurisdiction Any claims or proceedings against the purchaser in terms of any order
or these General Conditions of Sale may be brought by Metrismart against the purchaser
in the Durban Magistrate's Court and the purchaser submits to the exclusive jurisdiction
thereof, notwithstanding the amount of the claim or
15. cause of action. If for any reason the said Magistrate's Court is incapable of
acting on grounds of lack of jurisdiction, the purchaser submits to the jurisdiction
of the Durban High Court .
15. Indemnity In the event that Metrismart is required to provide services on site
for the benefit of the purchaser or its customer, the purchaser shall indemnify Metrismart
from and against any claims or demands arising from or as a result of or in connection
with any injury to persons or death or damage to property, howsoever and by whomsoever
caused (including by any employees or agents of Metrismart, save where such damage
has been caused by Metrismart employees in the course of their employment, maliciously
16. Governing Law These General Conditions of Sale shall be interpreted according
to the laws of the Republic of South Africa.
17. Headings Headings in these Conditions of Sale are for convenience only and shall
not be used in the interpretation thereof.