Terms of service

General terms and conditions of sale and delivery of Flecto Sense (Pty) Ltd.

1. General terms and conditions

1.1. The present General Terms and Conditions of Sale and Delivery shall apply to all contracts entered into by Flecto Sense (Pty) Ltd unless otherwise agreed in writing, in which case any such agreement shall only concern the specific contract.
1.2. The terms and conditions set out herein derogate from, among others, the provisions of the Republic of South Africa Sale of Goods Act, which shall thus only apply to the extent that the parties have not agreed otherwise.

2. Quotation and acceptance

2.1. All prices stated in quotations and order confirmations shall be indicated in EURO (EUR) and shall be exclusive of VAT. 2.2. Flecto Sense (Pty) Ltd shall not be liable for any misprints, erroneous calculations or any other errors in quotations made.
2.3. All quotations made by Flecto Sense (Pty) Ltd shall be subject to acceptance within thirty (30) days of the date indicated in the quotation. Flecto Sense (Pty) Ltd reserves the right to withdraw any quotation not yet accepted at any time within the time stipulated for acceptance.
2.4. Any order received by Flecto Sense (Pty) Ltd shall be deemed to be accepted only upon the issue of a written order confirmation.
2.5. In the event of any price increase due to exchange rate on the total price quoted or order price due, Flecto Sense (Pty) Ltd reserves the right to adjust the invoice price accordingly.

3. Delivery

3.1. Delivery shall be ex works.
3.2. The Purchaser shall bear the transport risk, also in the case of carriage-free delivery.
3.3. A handling fee of EUR 40.00 shall be charged in respect of all orders for less than EUR 350.00.
3.4. In the event of changes being requested by the Purchaser in respect of customised products already in progress: :
3.4.1. More than 10 working days prior to date of dispatch: Flecto Sense will apply an alteration/cancellation fee of 150 EUR per cancellation.
3.4.2. 0-10 working days prior to date of dispatch: No alteration or cancellation is possible (except for return fee model cf. clause 10).
3.5. The product may be subject to export controls and the delivery is therefore conditional upon the issuance of the required export authorisation.

4. Packaging

4.1. All prices shall be exclusive of packaging.
4.2. Packaging material debited to the Purchaser shall be credited if returned in undamaged condition within fourteen (14) days of receipt. Any extension of the deadline for returning packaging material shall be subject to written acceptance by Flecto Sense (Pty) Ltd.

5. Terms of payment

5.1. Unless otherwise stated in the quotation, order confirmation or invoice, the terms of payment shall be in advance. Flecto Sense (Pty) Ltd shall retain title in products delivered until payment in full therefore has been effected.
5.2. In the event of overdue payment, interest shall be charged on the amount due at a rate of two (2) per cent per commenced month as from the due date.
5.3. Any set-off shall be subject to acceptance by Flecto Sense (Pty) Ltd.

6. Time of delivery

6.1. All delivery times indicated shall be approximate times of delivery for the product unless Flecto Sense (Pty) Ltd has accepted a specific time of delivery.
6.2. Where Flecto Sense (Pty) Ltd fails to effect delivery at the agreed time of delivery, the Purchaser shall submit a written demand for delivery to Flecto Sense (Pty) Ltd. The Purchaser shall be entitled to assert remedies for breach in the event of late delivery only where Flecto Sense (Pty) Ltd fails to effect delivery within fifteen (15) days from the Purchaser having submitted such demand for delivery.
6.3. The Purchaser shall be entitled to cancel the contract for the relevant delivery where Flecto Sense (Pty) Ltd fails to effect delivery within fifteen (15) days of the Purchaser having submitted its demand for delivery if the delay is material based on a specific assessment. The Purchaser shall not have access to any other remedies for breach in the event of the delayed delivery.
6.4. Flecto Sense (Pty) Ltd shall not be liable for any non-performance of its obligations where such non-performance is due to circumstances beyond Flecto Sense (Pty) Ltd's control and which prevent performance, including, for example, war, mobilization, riots, civil unrest, supplier failure, government intervention or intervention by local authorities, strike, blockade or lockout, product shortage due to allocation, import or export bans, natural disasters, fire or other circumstances.

7. Duty to complain and duty to inspect

7.1. The Purchaser undertakes to inspect the products delivered immediately on receipt to ensure:
7.1.1. that the number of items received is as agreed;
7.1.2. that the description on the packaging is as agreed; and
7.1.3. that no visual damage has been caused to the products delivered and that the products delivered are not defective or non-conforming in any way
7.2. Any complaint made pursuant to Clause
7.1.1 shall be made immediately. Complaints made pursuant to Clauses
7.1.2 and 7.1.3 shall be made within seven (7) days of the receipt of the products delivered; however, the Purchaser shall immediately complain about damage in transit to the carrier by way of a note to this effect on the transport document. The Purchaser shall not be entitled to set up claims at a later date in respect of any such defects or non-conformities as should have been found by inspection in compliance with the duty to inspect provided for in Clause 7.1.
7.3. Other than the provisions set out in Clause 7.1, the Purchaser shall be obliged to complain about any defects or non-conformities found in products delivered without undue delay after the Purchaser has detected or ought to have detected such defect or non-conformity.

8. Sales and product information

8.1. Quotations, drawings, descriptive material and similar documents shall not without the consent of Flecto Sense (Pty) Ltd be copied, reproduced or made available to any third person.
8.2. Flecto Sense (Pty) Ltd shall retain the rights in drawings, descriptive material and similar documents submitted to the Purchaser prior to, during and after the conclusion or expiry of the contract.

9. Warranty

9.1. Products delivered shall be covered by a 24-month warranty. The warranty shall cover any defects in workmanship or materials.
9.2. Cover under the warranty shall be subject to the Purchaser’s compliance with the terms of payment. Should the Purchaser at the time of any warranty event be in arrears with payments, the warranty shall lapse.
9.3. In the event of any changes to the products delivered or the installation or use thereof contrary to the instructions issued by Flecto Sense and the manuals handed out, the warranty shall lapse. Cover under the warranty shall also be conditional on the product being used in accordance with the generally accepted practice.
9.4. Should any defects or non-conformities be found within the warranty period, the Purchaser shall return the products concerned to Flecto Sense customs declared on CIF/DDP terms. Flecto Sense shall subsequently be entitled and obliged to either repair the products returned or make a replacement delivery at its own discretion provided that the defects or non-conformities found in the products are covered by the warranty. Flecto Sense shall assume ownership of any parts replaced. The cost of returning products repaired under the warranty shall be borne by Flecto Sense.
9.5. The Purchaser shall be entitled to cancel the Contract and demand crediting of the price of the defective or non-conforming product in the event that Flecto Sense fails to remedy a defect or non-conformity in accordance with Clause 9.4. The Purchaser shall further be entitled to claim compensation for its own documented direct costs relating to the defect or non-conformity. Flecto Sense shall not be liable for any operating loss, loss of profits, loss of time or any other similar indirect loss arising as a result of defective or non-conforming products. The Purchaser shall be entitledto no other remedies for breach against Flecto Sense than the remedies specified herein.
9.6. Flecto Sense shall not be liable for products’ failure to comply with the warranty set out in Clause 9 in any of the following events:
9.6.1. the Purchaser makes any such further use of the products after discovering the defect;
9.6.2. the defect occurred because the Purchaser failed to follow Flecto Sense’s written instructions as to the storage, commissioning installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same;
9.6.3. the defect arises as a result of Flecto Sense following any drawing design or specification supplied by the Purchaser;
9.6.4. the Purchaser alters or repairs the product without the written consent of Flecto Sense; or
9.6.5. the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage or working conditions.

10. Return of goods

10.1. Goods can only be returned (with a return fee cf. below) within 30 days from the date of delivery. After this deadline return is not possible.
10.1.1. Minimum sales value of returned goods: 350 EUR. Return is not accepted below this amount.
10.1.2. Configured meters/products: a credit note shall be issued for the invoice amount less ninety (90) percent.
10.1.3. Non-configured products: a credit note shall be issued for the invoice amount less fifty (50) percent.
10.1.4. For products purchased from third party specially for customer, return is not possible.

11. Product liability

11.1. Flecto Sense (Pty) Ltd shall not be liable for any personal injury and property damage caused by a defective product delivered by Flecto Sense (Pty) Ltd.
11.2. Flecto Sense (Pty) Ltd shall not be liable for any damage to property which has been made a part of, incorporated in, added to or in some other way connected to a product delivered by Flecto Sense (Pty) Ltd. Flecto Sense (Pty) Ltd shall furthermore not be liable for damage to property caused by a product manufactured by Flecto Sense (Pty) Ltd which is used to manufacture, process or in some other way treat such property. The liability shall, however, only cover the reduction in value of the manufactured or processed property, the extra manufacturing or processing costs or the actual cost of repairs.
11.3. Flecto Sense (Pty) Ltd shall not be liable only for direct loss associated with a product manufactured by Flecto Sense (Pty) Ltd where such product causes damage resulting in a product manufactured or processed by the Purchaser or a third party having to be discarded or repaired, becoming more expensive to manufacture or losing value.
11.4. Flecto Sense (Pty) Ltd shall under no circumstances be liable for any capital loss and/or indirect loss.

12. Intellectual Property

12.1. Buyer acknowledges Flecto Sense (Pty) Ltd' exclusive right, title, and interest in trademarks, logos and other markings of Flecto Sense (Pty) Ltd relating to the products, as well as in any and all manuals or documents provided by Flecto Sense (Pty) Ltd relating to the products (collectively, "Flecto Sense (Pty) Ltd' Marks"), and will not at any time do or cause to be done any act or thing contesting or in any way impairing or tending to impair this right, title, and interest.
12.2. Buyer acknowledges that Flecto Sense (Pty) Ltd claims and reserves all rights and benefits afforded under national and international intellectual property laws in all Intellectual property relating to the products. "Intellectual Property" means all intellectual property and/or proprietary rights, including without limitation all rights of inventorship and authorship, in inventions, patents, patent applications, and know how, for any product, process, method, machine, manufacture, design, composition of matter, or any new or useful improvement thereof, as well as all copyrights, trademark, trade dress and service mark rights and all rights in trade secrets, computer software, data and databases, and mask works.
12.3. Buyer is not authorized to make any changes, additions, improvements, alterations, or modifications of any sort to the products. Whether authorized or un-authorized, any changes, additions, improvements, alterations, or modifications of any sort to the products made by Buyer shall inure to the benefit of Flecto Sense (Pty) Ltd, and Flecto Sense (Pty) Ltd shall have full right, title, and interest in them.
12.4. The rights and obligations set forth in this section shall survive the termination of this agreement.

13. Environmentally correct waste management

13.1. Customers are required to dispose of end-of-life products in an environmentally correct way, either by returning the products to Flecto Sense (Pty) Ltd (only if so agreed) or by handing them over to the nearest certified disposal facility. Products can be returned to Flecto Sense free of charge. However, the customer must arrange and pay the costs for transporting them (including the processing of hazardous goods, if necessary). If customers do not return the products to Flecto Sense, they are obliged to dispose of the products at their own expense in accordance with Swiss law. In Switzerland, disposal is governed by the Technische Vorschriften zur Entsorgung von Elektro- und Elektronikaltgeräten (VRG) (Technical Rules for the Disposal of WEEE) pursuant to the WEEE Directive (Waste of Electrical and Electronic Equipment).

14. Reservations for changes

14.1. Flecto Sense (Pty) Ltd reserves the right to make changes to products offered. This reservation shall also include products already ordered provided that it can be assumed that the changes contemplated will not materially affect the functionality of the products.

15. Disputes

15.1. The parties shall seek to settle any dispute arising out of the agreement, including disputes relating to the existence or validity of the agreement, through mediation by Republic of South Africa Arbitration in accordance with Republic of South Africa Arbitration’s rules thereon applicable at the time the request for mediation was submitted.
15.2. Mediation shall not preclude a party from instituting arbitration proceedings in accordance with the provisions set out below or from taking other legal steps in relation to the dispute arisen.
15.3. If the mediation ends without the dispute having been settled, the dispute shall be settled by arbitration by Republic of South Africa Arbitration in accordance with Republic of South Africa Arbitration’s rules thereon applicable at the time the arbitration proceedings were instituted. The laws of Republic of South Africa excluding any choice of law rules shall govern the agreement and the settlement of disputes.