Standard Terms and Conditions
STANDARD TERMS AND CONDITIONS
HILTI AUTHORISED DISTRIBUTOR SALES TERMS AND CONDITIONS
STANDARD CONDITIONS OF AGREEMENT
1. The Customer agrees that (a) this Agreement represents the entire Agreement between the Customer and the Hilti Authorised distributor, PRIME AGENCIES (hereinafter called Hilti Authorised distributor) and that no alterations or additions to this Agreement may be effected unless agreed to by both parties, reduced to writing and signed by the Customer and a duly authorized representative of Hilti; (b) this Agreement will govern all future contractual relationships between the parties; (c) this Agreement is applicable to all existing debts and future debts between the parties; (d) this Agreement is final and binding and is not subject to any suspensive or resolute terms or conditions; (e) any conflicting conditions stipulated by the Customer are expressly excluded; (f) these terms supersede all previous conditions of Agreement without prejudice to any securities or guarantees held by Hilti.
2. Any order only becomes final and binding on receipt and acceptance of such order by the Hilti Authorised distributor at its business address.
3. The signatory hereby binds himself / herself in his / her personal capacity as Shareholder (in the case of a company), Member (in the case of a close corporation) or Owner or Partner as surety and co-principal debtor jointly and severally for the full amount due to Hilti Authorised distributor and agrees that these Standard Conditions will apply in the exact same way to him / her.
4. The Customer acknowledges that it does not rely on any representations made by Hilti Authorised distributor in regard to the goods and services or any of its qualities leading up to this Agreement other than those contained in this Agreement. All specifications, price lists, performance figures, advertisements, brochures and other technical data furnished by Hilti Authorised distributor in respect of the goods or services orally or in writing will not form part of the Agreement in any way unless agreed to in writing by Hilti Authorised distributor.
5.1 The Customer agrees that neither Hilti nor any of its employees or Hilti Authorised distributor will be liable for any negligent or innocent misrepresentations made to the Customer.
5.2 It is the sole responsibility of the Customer to determine that the goods or services ordered are suitable for the purposes of intended use.
5.3 The Customer agrees to pay all additional costs resulting from any acts or omissions by the Customer including suspension of work, modification of requirements, failure or del ay in giving particulars required to enable work to proceed on schedule or requirements that work be completed earlier than agreed.
5.4 Hilti & its Hilti Authorised distributor reserves the right at its sole discretion to provide alternative goods of the same quality and quantity at the prevailing prices to those ordered by the Customer should such goods be superseded, replaced or their manufacture terminated.
6.1 All quotations will remain valid for a period of 7 days from the date of the quotation.
6.2 All quotations are subject to the availability of the goods or services and subject to correction of good faith errors by Hilti Authorised distributor and the prices quoted are subject to any increases in the cost price, including currency fluctuations, of Hilti Authorised distributor before acceptance of the order.
6.3 If the Customer disputes the amount of increase, the amount of the increase may be certified by any independent auditor and such certificate shall be final and binding on the Customer.
6.4 The Customer hereby confirms that the goods or services on any Tax Invoice issued duly represent the goods or services ordered by the Customer at the prices agreed to by the Customer and, where delivery / performance has already taken place, that the goods or services were inspected and that the Customer is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects.
6.5 The goods may be exchanged or returned for credit by the Customer within 10 days of the delivery date subject to prior written approval by Hilti. Authorised distributor.
6.6 All goods to be returned or exchanged shall be dispatched and carriage paid by the Customer and shall be subject to a handling fee as per the Standard Rates of Hilti Authorised distributor, available on request.
6.7 Hilti Authorised distributor shall not accept the return of any goods unless Hilti Authorised distributor has been advised of the prior dispatch of the goods and the original Tax Invoice number has been quoted.
6.8 Notwithstanding the provisions of clause 1 above, all orders or agreed variations to orders, whether orally or in writing, shall be binding and subject to these Standard Conditions of Agreement and may not be revoked by the Customer.
6.9 Hilti & Hilti Authorised distributor shall be entitled in its sole discretion to split the delivery / performance of the goods or services ordered in the quantities and on the dates it decides.
6.10 Hilti Authorised distributor shall be entitled to invoice each delivery / performance actually made separately.
6.11 Any delivery note, waybill, time sheet or job card (copy or original) signed by the Customer or a third party engaged to transport the goods and held by Hilti Authorised distributor shall be prima facie proof that delivery was made to the Customer.
6.12 The risk of damage to, destruction or theft of goods shall pass to the Customer on acceptance of any order placed in terms of this Agreement and the Customer undertakes to comprehensively insure the goods until paid for in full. Hilti Authorised distributor may recover insurance premiums from the Customer for such ordered and uninsured goods.
6.13 Delivery and performance times quoted are merely estimates and are not binding on Hilti or the Hilti Authorised distributor.
6.14 If the Hilti Authorised distributor agrees to engage a third party to transport the goods, Hilti Authorised distributor is hereby authorized to engage a third party on the Customer’s behalf and on the terms deemed fit by the Hilti Authorised distributor.
6.15 The Customer indemnifies Hilti & the Hilti Authorised distributor against any claims against Hilti & the Hilti Authorised distributor that may arise from such agreement in clause 6.14.
6.16 Repair times and repair costs given are merely estimates and are not binding on Hilti or the Hilti Authorised distributor.
6.17 The Hilti Authorised distributor shall repair all new goods at no cost to the Customer within the specified No Cost Period for that tool.
6.18 Repairs to be made to goods after the No Cost Period shall be charged at a limited fixed amount which is the Repair Cost limit typically a fixed percentage of the then current list price of corresponding or equivalent tool except on items specifically indicated otherwise.
6.19 Repairs are subject to a 3 months warranty (parts and labour included), except on items specifically indicated otherwise.
6.20 Any item handed in for repair may be sold by Hilti Authorised distributor to defray the cost of such repairs if the item remains uncollected within 4 weeks of the repairs being completed.
6.21 The Customer acknowledges and accepts that Hilti Authorised distributor may suspend the no cost period or repair warranty should any values be overdue for more than 31 days without payment and no items for repairs will be booked in during this time.
6.22 The Customer acknowledges all copyrights and shall not duplicate copyrighted material and that each infringement attempt shall immediately render the full prevailing price payable to Hilti.
6.23 The Customer shall indemnify Hilti against any claims, costs and expenses arising out of the infringement of copyright, patent, trademark or design supplied by the Customer.
6.24 In the event of Customers ordering goods online, the Customer shall be entitled to exercise a cooling-off right within 7 days of receiving the goods. The Customer shall be liable for the cost of returning the goods.
7.1 New goods are guaranteed according to the Manufacturer’s product specific warranties only and all other guarantees including common law guarantees are hereby specifically excluded.
7.2 Liability under clause 7.1 is restricted to the cost of repair or replacement of faulty goods or services or granting of a credit at the sole discretion of Hilti Authorised distributor.
7.3 No claim under this Agreement shall arise unless the Customer has, within 14 days of an alleged breach of contract and/or defect occurring, given Hilti Authorised distributor written notice by prepaid registered post of such breach or defect, and has afforded Hilti Authorised distributor at least 30 days to rectify such defect or breach.
7.4 The Customer shall return any defective moveable goods to the premises of Hilti Authorised distributor at the Customer’s own cost and packed in the original or suitable packaging and all risks for the duration of repair remain with the Customer.
7.5 All guarantees are immediately null and void should any goods be tampered with or should the seals on goods be broken by anyone other than Hilti, Hilti Authorised distributor or should the goods be used or stored outside the Manufacturer’s specifications. Hilti or Hilti Authorised distributor can’t be responsible of an accident occurring with a modified tool, especially if a part of the tool was not provided by Hilti or the Hilti Authorised distributor (e.g. cable, plug, safety part, consumables etc.)
7.6 Any item delivered to Hilti Authorised distributor shall serve as pledge in favour of Hilti Authorised distributor for present and past debts and Hilti Authorised distributor shall be entitled to retain or realize such pledges as it deems expedient at the value as determined in clause 15.1. The sworn or realized value of pledged goods will be offset against the Customer’s debts any excess balance will be paid to the Customer.
8.1 Under no circumstances shall Hilti or Hilti Authorised distributor be liable for any consequential damages including loss of profits or for any edictal liability of any nature whatsoever whether caused negligently or innocently.
8.2 The Customer hereby indemnifies Hilti or Hilti Authorised distributor against any and all liability, loss, damage or claim of any nature suffered by any third party in relation to any act or omission by the Customer or the Customer’s members, employees, representatives, agents or assigns or any third party in relation to the goods and the use thereof and/or arising from the provisions of these Standard Conditions of Agreement.
8.3 The Customer acknowledges that in any instance where it is found Hilti is liable to the Customer, Hilti’s aggregate liability to the Customer shall not exceed the Purchase Consideration in respect of each item.
8.4 Under no circumstances shall Hilti or Hilti Authorised distributor be liable for any damage arising from any misuse, abuse or neglect of the goods or services.
9.1 Delivery of goods or services to the Customer shall take place at the place of business of Hilti.
9.2 If the Customer or its agent fails to take delivery of the goods, or in any way delays the delivery of the goods, the Customer shall be liable to pay all costs of storing, insuring and handling the goods until delivery takes place.
10.1 The Customer agrees that the amount contained in a Tax Invoice issued by Hilti Authorised distributor shall be due and payable unconditionally (a) cash on order; or (b) if the Customer is a Credit Approved Customer, within 30 days from the end of the month in which a Tax Invoice was issued by Hilti.
10.2 The Customer agrees to pay the amount on the Tax Invoice at the offices of the Hilti Authorised distributor.
10.3 The risk of payment by cheque through the post rests with the Customer
11.1 The Customer has no right to withhold payment for any reason whatsoever and agrees that no extension of payment of any nature shall be extended to the Customer and any such extension will not be applicable or enforceable unless agreed to by Hilti Authorised distributor, reduced to writing and signed by the Customer and a duly authorized representative of Hilti Authorised distributor.
11.2 The Customer is not entitled to set off any amount due to the Customer by Hilti Authorised distributor against this debt.
11.3 No settlement discounts will be granted under any circumstances.
12.1 The Customer agrees that the amount due and payable to Hilti Authorised distributor may be determined and proven by a certificate issued and signed by any director or manager of Hilti Authorised distributor, whose authority need not be proven or by any independent auditor. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer.
12.2 Any printout of computer evidence tendered by any party shall be admissible evidence and no party shall object to the admissibility of such evidence purely on grounds that such evidence is computer evidence or that the requirements of the Electronic Communications and Transactions local legal requirements have not been met.
13.1 The Customer agrees that interest shall be payable at the maximum legal interest rate prescribed by the local laws on any moneys past due date to Hilti Authorised distributor and that interest shall be calculated daily and compounded monthly from the date of acceptance of the order.
13.2 The Customer expressly agrees that no debt owed to Hilti Authorised distributor by the Customer shall become prescribed before the passing of a period of six years from the date the debt falls due.
14.1 The Customer agrees that if an account is not settled in full (a) against order; or (b) within the period agreed in clause 10.1 above in the case of a Credit Approved Customer; Hilti Authorised distributor is: (i) entitled to immediately institute action against the Customer at the sole expense of the Customer; or (ii) to cancel the Agreement and take possession of any goods delivered to the Customer and claim damages. These remedies are without prejudice to any other right Hilti Authorised distributor may be entitled to in terms of this Agreement or in law. Hilti reserves its right to stop supply immediately on cancellation or on non-payment.
14.2 A Credit Approved Customer will forthwith lose this approval when payment is not made according to the conditions of clause 10.1(b) and all amounts then outstanding shall immediately become due and payable.
14.3 Hilti Authorised distributor shall be entitled to withdraw credit facilities at any time within its sole discretion.
15.1 In the event of cancellation, the Customer shall be liable to pay (a) the difference between the selling price and the value of the goods at the time of repossession and (b) all other costs incurred in the repossession of the goods. The value of repossessed or retained pledged goods shall be deemed to be the value placed on them by any sworn valuator after such repossession, and such valuation shall be conclusive proof of the value. If the goods are not recovered for any reason whatsoever, the value shall be deemed to be nil.
15.2 In the event of cancellation of the Agreement by Hilti Authorised distributor, it shall be entitled to repossess any goods that have been delivered to the Customer and remains unpaid by the due date.
15.3 In the event of cancellation of the Agreement by Hilti Authorised distributor it is entitled not to produce any unmade balance of a contract and to recover any loss sustained thereby from the Customer.
16.1 All goods supplied by Hilti remain the property of Hilti Authorised distributor until such goods have been fully paid for whether such goods are attached to other property or not.
16.2 The Customer is not entitled to sell or dispose of any goods unpaid for without the prior written consent of Hilti Authorised distributor. The Customer shall not allow the goods to become encumbered in any manner prior to the full payment thereof and shall advise third parties of the rights of Hilti Authorised distributor in the goods.
17.1 The Customer shall be liable to Hilti Authorised distributor for all legal expenses on the attorney-and-own-client scale incurred by Hilti Authorised distributor in the event of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Hilti may demand.
17.2 The Customer agrees that Hilti Authorised distributor will not be required to furnish security in terms of local laws
18. The Customer agrees that no indulgence whatsoever by Hilti Authorised distributor i will affect the terms of this Agreement or any of the rights of Hilti Authorised distributor and such indulgence shall not constitute a waiver by Hilti Authorised distributor in respect of any of its rights herein. Under no circumstances will Hilti Authorised distributor be estopped from exercising any of its rights in terms of this Agreement.
19. The Customer hereby consents that Hilti Authorised distributor shall have the right to institute any legal action in either the United Republic of Zimbabwe Court at its sole discretion. These United Republic of Zimbabwe courts shall have exclusive jurisdiction in any litigation between the parties arising from whatsoever source.
20.1 Any document shall be deemed duly presented to and accepted by the Customer (i) within 5 days of prepaid registered mail to any of the Customer’s business or postal addresses or to the personal address of any director, member or owner of the Customer; or (ii) within 24 hours of being faxed to any of the Customer’s fax numbers or any director, member’s or owner’s fax numbers; or (iii) on being delivered by hand to the Customer or any director, member or owner of the Customer; or (iv) within 48 hours if sent by overnight courier or (v) within 7 days of being sent by surface mail; or (vi) within 24 hours of being e-mailed to any e-mail address provided by the Customer.
20.2 The Customer chooses its address for any notification or service of legal documents or processes as the business address or the physical addresses (domicilium citandi et executandi) 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).
20.3 The Customer undertakes to inform Hilti Authorised distributor in writing within 7 days of any change of Director, Member, Shareholder, Owner or Partner or address or 14 days prior to selling or alienating the Customer’s business and failure to do so will constitute a material breach of this Agreement. Upon receipt of such written notification, Hilti authorised distributor reserves the right, at its sole discretion, to withdraw any credit facility advanced to the Customer.
20.4 The Customer hereby consents to the storage and use by Hilti Authorised distributor of the personal information that it has provided to Hilti Authorised distributor for establishing its credit rating and to Hilti Authorised distributor disclosing such information to credit control companies, banks and other institutions involved in rating credit. The Customer agrees that Hilti Authorised distributor will not be held liable for the good faith disclosure of any of this information to such third parties and that no further specific consent needs to be obtained for the transfer of such information to a specific third party.
20.5 The Customer hereby consents that Hilti Authorised distributor can provide personal information of the Customer to third parties, if the Customer has indicated Hilti Authorised distributor as a trade reference to third parties and the Customer agrees that Hilti Authorised distributor will not be liable for the good faith disclosure of any of this information to such third parties.
20.6 The Customer hereby agrees that the credit facility is a variable credit facility and that Hilti Authorised distributor shall be entitled to increase its credit limit from time to time.
21. The Customer agrees to the Standard Rates of Hilti for any goods or services rendered, which rates may be obtained on request.
22. Each provision of this Agreement 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.
23. Any order is subject to cancellation by Hilti Authorised distributor due to acts of God or any circumstance beyond the control of Hilti, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
24. Any order is subject to cancellation by Hilti Authorised distributor if the Customer breaches any term of this Agreement or makes any attempt of compromise, liquidation, sequestration, termination or judgement is recorded against the Customer or any of its principals.
25. The Customer agrees that Hilti Authorised distributor will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in clause 23 or 24 occur.
26. If the local National Credit laws are applicable the following clauses shall not be applicable to this Agreement: clause 5.1, clause 19 and clause 20.6.
27. If the local Consumer Protection laws are applicable the following clauses shall not be applicable to this Agreement: clauses 5.1, 6.2, 6.4, 6.9, 7.1, 7.2, 7.3, 7.4, 7.5, 8.1, 11.2, 13.2, 17.1,19, 20.1, 20.2, 20.6.
28. This Agreement and its interpretation is subject to local law