Terms and Conditions of Sale Products

All orders accepted by Pro-Vey through the FlexiLine online platform are subject to the Terms and Conditions of Sale set out below:

(Version updated December 2024)

General

1.1 All orders for products and services on the FlexiLine website at www.flexiline.co.za (the “FlexiLine website”) accepted by Pro-Vey (Pty)Ltd registered in South Africa under registration number 1998/001168/07, are subject to these terms and conditions of sale. No other terms will apply to the supply of products and services by Pro-Vey & FlexiLine unless agreed in writing by an authorised signatory of Pro-Vey or expressly stated otherwise in these terms and conditions of sale.

1.2 To the maximum extent permitted by law, all descriptions of the products and services contained on the FlexiLine website or otherwise communicated to any purchaser of such products or services (the “Customer”) are approximate only and shall not form any part of the contract between Pro-Vey & FlexiLine and the Customer. Pro-Vey & FlexiLine shall not be liable to the Customer for any errors or omissions on the FlexiLine website, the FlexiLine catalogues or other product advertisement.

1.3 The advertising of products and services on the FlexiLine website is not an offer capable of acceptance; it merely constitutes an invitation by FlexiLine for the Customer to make an offer to purchase products and services. Pro-Vey & FlexiLine’s acceptance of the Customer’s order will take place when Pro-Vey & FlexiLine confirms pricing and delivery dates to the Customer in writing, at which point a contract will come into existence between Pro-Vey & FlexiLine and the Customer. Each order placed by a Customer shall constitute a separate contract between Pro-Vey & FlexiLine and the Customer, to be governed by these terms and conditions.

1.4 These terms and conditions of sale apply to export transactions to the extent applicable, however, to the extent that that there is a conflict between these terms and conditions and the terms and conditions contained in Annexe A, then the terms and conditions contained in Annexe A shall prevail. These terms and conditions shall not apply to Product Plus Products, to which separate terms and conditions of sale apply.

1.5 The Customer’s particular attention is required for clause 11, which sets out certain limitations of Pro-Vey & FlexiLine’ liability.

Prices

2.1 The indicative prices of the products and services are as set out on the FlexiLine website. Pro-Vey & FlexiLine reserves the right to change prices without prior notice at any time. Customer is informed that prices and products in the printed hard copy catalogues are subject to change. Up-to-date information can be found on the FlexiLine website. In the event of any conflict between prices for any products listed on the FlexiLine website and prices listed in the physical catalogues, prices listed on the FlexiLine website shall prevail.

NOTE: If you are a Consumer, please note that the above clause limits your rights and remedies against us, and this clause limits and excludes your right to recover or make claims for losses, damages, liability or harm that you may suffer as a result of a change in prices in such ways and in those circumstances listed in the clause. You will also be responsible for, and you accept, various risks, damages and injury which may be suffered by you.

2.2 The price of an ordered product or service will be as set out in the written acceptance communicated by Pro-Vey & FlexiLine, together with any applicable discounts. The price for products or services ordered for delivery at a future specified date (“forward orders”) may be varied by Pro-Vey & FlexiLine after the date of order acceptance by written notice to the Customer.

2.3 All prices exclude value-added tax, and other applicable local sales taxes which Pro-Vey & FlexiLine will add at the rate applicable at the date of order acceptance.

Ordering

3.1 Pro-Vey & FlexiLine reserves the right to decline to trade with any company or person, to the maximum extent permitted by law. Pro-Vey & FlexiLine may decline to accept any order, whether or not payment has been received, by giving notice of non-acceptance to the Customer by telephone, email or facsimile within a reasonable period of receipt of the order by Pro-Vey & FlexiLine. Further, Pro-Vey & FlexiLine may vary or cancel orders prior to collection or delivery of the product which have been accepted by giving written notice of such cancellation to the Customer by telephone, email or facsimile within a reasonable period of receipt of the order by Pro-Vey & FlexiLine, without incurrence of any penalty or liability. If Pro-Vey & FlexiLine rejects or cancels an order for which payment has been taken, it will refund the amount to the Customer as soon as reasonably practicable.

3.2 Pro-Vey & FlexiLine executes orders to the Customer’s requirements, but may provide substitute products where requested by the Customer, or where the product has been superseded by the latest version. To the extent that orders cannot be fulfilled completely from stock, the unfulfilled balance will (at the Customer’s option) either be put on back order to be fulfilled when Pro-Vey & FlexiLine next has available stock or be cancelled and refunded to the Customer.

3.3 The Customer must submit orders using the FlexiLine stock numbers and the priced units used on the FlexiLine website or in the FlexiLine hard copy catalogues, and must specify which delivery option is required. Any confirmation of a previous order by the Customer must be marked ‘CONFIRMATION ONLY’ or otherwise clearly identified as a confirmation to avoid duplication. If the Customer orders the wrong product or number of products, or duplicates orders, the provisions of clause 12 (Cancellation and Returns) will apply.

NOTE: If you are a Consumer, please note that the above clause constitutes an assumption of liability and risk by you, as you undertake to submit orders using the FlexiLine stock numbers and priced units used on the FlexiLine website or in the FlexiLine hard copy catalogues.

Delivery

4.1 Subject to any cancellation, substitution or non-fulfilment of Customer’s orders in accordance with clause 3 (Ordering), Pro-Vey & FlexiLine will deliver the products specified in the Customer’s order. Pro-Vey & FlexiLine may use third party delivery agents to deliver products to Customers, in the event that Pro-Vey & FlexiLine are requested to deliver the parts, for which the customer will be responsible for all delivery charges.

4.2 The Customer’s delivery options, and the prices for them, are as set out on the FlexiLine website and will be applied at the date of order or will be notified to the Customer at the time of order.

4.3 Customers are responsible to collect their orders, however, in the event that it is agreed for Pro-Vey & FlexiLine to arrange delivery, delivery prices apply per order, irrespective of the number of products ordered. Delivery will be made to the Customer’s usual business address, unless otherwise agreed in writing.

4.4 Pro-Vey & FlexiLine will aim to deliver products in accordance with the times and dates for delivery quoted on the FlexiLine website or by Pro-Vey & FlexiLine ‘ employees (the ‘Quoted Delivery Times’), but Quoted Delivery Times are approximate only and to the maximum extent permitted by law, Pro-Vey & FlexiLine shall not be liable for the consequences of any delay in delivery. Time for delivery shall not be of the essence. Delivery of products marked in the hard copy catalogues or on the Pro-Vey & FlexiLine website as requiring special handling may (because of the nature of the products) take longer to be delivered.

NOTE: If you are a Consumer, please note that the above clauses limit your rights and remedies against us, and these clauses limit and exclude your rights to recover or make claims for losses, damages, liability or harm that you may suffer. You will also be responsible for, and you accept, various risks, damages, harm and injury which may be suffered by you.

4.5 If any delivery has not been made by the Quoted Delivery Time, then subject to the Customer notifying Pro-Vey & FlexiLine of such delay, Pro-Vey & FlexiLine will endeavour to ascertain if the product has been delivered and will inform the Customer of the status of the delivery or the new expected delivery time. Pro-Vey & FlexiLine may also, at its discretion, refund the total delivery charge to the Customer in circumstances where there is a delay in delivery. If a revised delivery time is not acceptable Pro-Vey & FlexiLine may also, at its discretion, offer an alternative delivery option. To the maximum extent permitted by law, these are the Customer’s exclusive remedies for late delivery.

4.6 Pro-Vey & FlexiLine will aim to deliver Extended Range products in accordance with the lead times published for them on the RS website. All such lead times are approximate only, and no other delivery options are available for Extended Range products. RS may, following Customer’s order, notify the Customer if RS will be unable to fulfil any order for Extended Range products within that published lead time, and may provide alternative options.

Inspection, Transit Delays and Non-delivery

5.1 The Customer must inspect the products as soon as is reasonably possible after delivery or collection. The Customer shall, within 7 working days of the date of delivery or collection or, in the case of sub-clause iv below, the Quoted Delivery Time or any updated estimated date for delivery, give notice to Pro-Vey & FlexiLine in detail of:

Any defect in the product that is apparent on reasonable examination. In this case Pro-Vey & FlexiLine shall, at Pro-Vey & FlexiLine’s discretion, replace the products or refund the purchase price. In any event the Customer must refuse parcels delivered to it in a damaged condition;

ii Any shortfall in products delivered. In this case Pro-Vey & FlexiLine shall, at its discretion, deliver the undelivered products or refund the price of the undelivered products;

iii Any delivery of products not in accordance with the order. In this case Pro-Vey & FlexiLine shall, at Pro-Vey & FlexiLine’s discretion, replace the products or refund the purchase price; or

iv Any non-delivery of the products (in which case the time limit is within 10 days of the estimated despatch date). In this case Pro-Vey & FlexiLine shall deliver the undelivered products or refund the price of the undelivered products.

5.2 If the Customer fails to give any such notice, the products shall be conclusively presumed to be, in all respects, in accordance with the order and free from apparent defects, and the Customer shall be deemed to have accepted the products accordingly. Pro-Vey & FlexiLine’ record of the products despatched (including the quantity) shall be conclusive evidence of the products received by the Customer, unless proved otherwise by the Customer.

NOTE: If you are a Consumer, please note that the above clauses constitute an assumption of liability and risk by you, as you undertake to inspect the products and tender notice of any defects within 7 working days of delivery, collection or Quoted Delivery Time.

5.3 The remedies set out above are the Customer’s exclusive remedies for non-delivery or short delivery of products, or for apparent defects in the products or delivery of products not in accordance with the order.

Payment

6.1 If Pro-Vey & FlexiLine has not granted credit to the Customer, payment terms are cash or credit card with order.

6.2 Credit terms (subject to satisfactory references and at Pro-Vey & FlexiLine’s absolute discretion) are available. If credit has been granted, on acceptance of a Customer’s order, Pro-Vey & FlexiLine will issue that Customer with an original and valid tax invoice (in a format approved by Pro-Vey & FlexiLine) to be issued by Pro-Vey & FlexiLine which complies with the Value-Added Tax Act 89 of 1991. Such invoice will be sent by email in PDF format, unless otherwise agreed between Pro-Vey & FlexiLine and the Customer. The Customer shall pay the price of the product or service within 30 days from date of statement. Credit facilities may be withdrawn by Pro-Vey & FlexiLine at any time with prior notice to the Customer and Pro-Vey & FlexiLine reserves the right, in its sole and absolute discretion, to alter the credit facilities or to review the extent, nature and duration of such facilities without being obliged to furnish reasons to the Customer.

6.3 All payments must be made without any set-off, deduction or counterclaim.

6.4 If any sum is not paid on the due date for payment then, without prejudice to any other right or remedy:

i all sums then outstanding from the Customer will immediately become due and payable notwithstanding that such sums would not otherwise be due until a later date, and

ii Pro-Vey & FlexiLine shall be entitled to recover all costs that it has incurred in recovering any outstanding sums from the Customer, including but not limited to collection costs and legal costs; and

iii Pro-Vey & FlexiLine may also charge the Customer interest from the due date until payment is made in full (both before and after any judgement) on the amount unpaid at a rate which is 4 per cent per annum above the prime overdraft rate published by Standard Bank Limited from time to time, and

iv Pro-Vey & FlexiLine may stop accepting orders and/or suspend shipments until payments are made in full.

6.5 A certificate signed by any director or manager of Pro-Vey & FlexiLine showing the amount due and owing by the Customer to Pro-Vey & FlexiLine at any given time shall be prima facie evidence of the facts stated therein for the purposes of all legal proceedings against the Customer for the recovery of the said amount including for the purposes of summary judgment or provisional sentence.

Risk and Ownership

7.1 In the case of products to be delivered to the Customer’s usual business address, risk of loss of or damage to the products shall pass to the Customer on delivery, unless the Customer fails to take delivery of the products, in which case such risk shall pass to the Customer at the time when Pro-Vey & FlexiLine has attempted to deliver the products. In the case of products which the Customer orders to be collected from Pro-Vey & FlexiLine’s stores, risk of damage or loss to the products shall pass to the Customer at the time of collection.

7.2 Ownership of any product supplied shall not pass to the Customer until full payment of the purchase price of the products and of all other amounts owing to Pro-Vey & FlexiLine has been made (in cash or cleared funds). If the Customer is late in paying any sum to Pro-Vey & FlexiLine, then Pro-Vey & FlexiLine shall be entitled to the immediate return of all products where ownership has not passed to the Customer. The Customer authorises Pro-Vey & FlexiLine and its agents to recover any such products in such circumstance, and to enter any premises of the Customer for that purpose.

7.3 Demand for or recovery of the products by Pro-Vey & FlexiLine shall not of itself discharge either the Customer’s liability to pay the whole of the price and take delivery of the products or Pro-Vey & FlexiLine’s right to sue for the whole of the price.

Product and Availability Information

8.1 Pro-Vey & FlexiLine reserves the right, without prior notice, to discontinue any product or to make design changes as part of its continuous programme of product improvement, or to assist product availability, and such changes may take place during the life of any FlexiLine catalogue. The most up to date information on the availability and design of the products Pro-Vey & FlexiLine supplies is available on the FlexiLine website.

8.2 Unless otherwise confirmed in writing, nothing on the FlexiLine website or in any FlexiLine catalogue is to be taken as a representation of the source of origin, manufacture, or production of the products or any part of them.

**NOTE: If you are a Consumer, please note that the above clause limits your rights and remedies against us, and this clause limits and excludes your right to recover or make claims for losses, damages, liability or harm that you may suffer. You will also be responsible for, and you accept, various risks, damages, harm and injury which may be suffered by you. **

Warranties and Remedies

9.1 Pro-Vey & FlexiLine warrants that no product purchased from Pro-Vey & FlexiLine is materially defective.

9.2 In the event of any such product being materially defective, and subject to the provisions of clause 5 (Inspection, Delivery, Delays and Non-Delivery) surrounding defects apparent on delivery, Pro-Vey & FlexiLine will (at its option) replace or repair the product or refund the purchase price.

9.3 Pro-Vey & FlexiLine warrants that any service purchased from Pro-Vey & FlexiLine as referred to in clause 13 (Services) will be provided using reasonable care and skill. If any such service falls short of this standard, Pro-Vey & FlexiLine will, at its option, either re-provide the service or supply to the Customer free of charge a substitute product in place of the defectively serviced product.

9.4 These warranties shall not apply to any defect which arises from improper use, failure to follow the product instructions, or any repair or modification made without the consent of Pro-Vey & FlexiLine.

9.5 To the maximum extent permitted by law, the remedies set out in this clause 9 shall be the Customer’s sole remedies for any breach of warranty and in respect of the supply or non-supply of products and/or services.

9.6 The availability of the remedies set out in this clause 9 is subject to:

i a claim being made in writing to Pro-Vey & FlexiLine, prior to the return of any defective product, and within 6 months of the original date of despatch or date of service, or such other periods as may be indicated by Pro-Vey & FlexiLine for specific products or services from time to time in writing (provided that for certain Pro-Vey & FlexiLine 3^rd party supply products such period may vary); and

ii the Customer returning or disposing of the relevant products, or making them available for collection by Pro-Vey & FlexiLine, in accordance with Pro-Vey & FlexiLine’s instructions and suitably packaged. In particular, for any returns, the Customer must obtain a returns number from Pro-Vey & FlexiLine and quote this on all paperwork, and state the original invoice number in respect of the products and the nature of any claimed defect.

NOTE: If you are a Consumer, please note that the above clause limits your rights and remedies against us, and this clause limits and excludes your right to recover or make claims for losses, damages, liability or harm that you may suffer to the extent that this is permitted by applicable laws. You will also be responsible for, and you accept, various risks, damages, harm and injury which may be suffered by you.

9.7 Where the Customer returns defective products otherwise than in accordance with these provisions, Pro-Vey & FlexiLine may refuse such products and return them to the Customer at the cost of the Customer.

9.8 Any products which are replaced by Pro-Vey & FlexiLine shall become the property of Pro-Vey & FlexiLine. Title to replacement products shall pass to the Customer in accordance with the provisions of clause 7 (Risk and Ownership), and the period of the replacement product’s warranty shall be the unexpired period of the defective product’s warranty.

9.9 Save as expressly provided in these terms and conditions of sale, all implied warranties, terms and conditions (whether statutory or otherwise) concerning the supply or non-supply of products and/or services are excluded to the fullest extent permitted by law (including, without limitation, the implied terms of satisfactory quality, fitness for purpose and provision of services with reasonable care and skill).

9.10 The Customer acknowledges that it is responsible for ensuring that the products and services it orders are fit for the purposes for which it intends to use them.

Export Control and Limitations of Use

10.1 Certain products sold by Pro-Vey & FlexiLine are subject to export control regulations of the United Kingdom, the United States of America, the European Union and other countries (“Export Laws”). The Customer shall comply with such Export Laws and obtain any licence or permit required to transfer, export, re-export or import the products.

NOTE: If you are a Consumer, please note that the above clause constitutes an assumption of liability and risk by you, as you undertake to comply with applicable Export Laws and obtain the relevant licenses and/or permits.

10.2 The Customer shall not, directly or indirectly, sell, permit to be sold, dispose of, export, re-export or otherwise provide products to any country or entity under sanction or embargo administered by the United Kingdom, the United States of America, the European Union or other country.

10.3 The Customer represents, warrants and undertakes to Pro-Vey & FlexiLine that products it purchases from Pro-Vey & FlexiLine will not be used, sold or incorporated into products used directly or indirectly in the design, development, production or use of chemical, biological or nuclear weapons, delivery vehicles and systems of the same or in the development of any weapons of mass destruction.

NOTE: If you are a Consumer, please note that the above clauses constitute an acknowledgement of certain facts by you and you will not be able to deny these statements as true. We may take action against you and may have claims against you as a result of these statements.

10.4 Products sold by Pro-Vey & FlexiLine are not recommended or authorised for use in life support, surgical implantation, nuclear or aircraft applications or for any use or application in which the failure of a single component could cause substantial harm to persons or property.

10.5 Classifications of product for export purposes, including ECCN and Harmonised Tariff codes, are made for internal use by Pro-Vey & FlexiLine only. Such information is provided by Pro-Vey & FlexiLine in good faith based on the information available to it at the time of compilation. Pro-Vey & FlexiLine makes no warranty or representation that such information is up to date or correct, and shall not be liable to the Customer for any form of loss or damage suffered by the Customer as a result of reliance upon such information. Use of the information is done so at the Customer’s own risk with no recourse to Pro-Vey & FlexiLine. The Customer is responsible for ensuring compliance with all applicable export legislation, including determining the correct classification of an item at the time of any onward export.

NOTE: If you are a Consumer, please note that the above clause limits your rights and remedies against us, and the clause limits and excludes your right to recover or make claims for losses, damages, liability or harm that you may suffer. You will also be responsible for, and you accept, various risks, damages, harm and injury which may be suffered by you.

11.Liability

11.1 Subject to clause 11.3, Pro-Vey & FlexiLine shall not be liable (whether arising in delict (including negligence), contract or breach of any duty or otherwise) for any of the following: (a) indirect or consequential loss or damage; (b) loss of revenue; (c) loss of profits; (d) loss of productivity; (e) loss of production; (f) loss of business or expected future business; (g) economic loss; or (h) damage to reputation or goodwill.

11.2 If, notwithstanding any other provisions in these terms and conditions, any liability attaches to Pro-Vey & FlexiLine, then (subject to clause 11.3) Pro-Vey & FlexiLine’s liability to the Customer arising out of or in connection with these terms and conditions or any order whether in contract, tort or otherwise shall be limited in the aggregate to R20,000 or the total value of the order, whichever is greater.

11.3 Nothing in these terms and conditions of sale (including without limitation this clause 11) shall exclude or limit the liability of Pro-Vey & FlexiLine for death or personal injury caused by the negligence of Pro-Vey & FlexiLine or its employees, agents or sub-contractors, or for fraud or anything else which cannot by law be limited or excluded.

No Fault Cancellations and Returns

12.1 Pro-Vey & FlexiLine may, at its discretion and in writing, allow an order to be cancelled where there is no fault with the product subject to Pro-Vey & FlexiLine recovering from the Customer the costs incurred by Pro-Vey & FlexiLine, and subject to the processing charge provided for in this clause 12.

12.2 In the event of cancellation of part of any order only, Pro-Vey & FlexiLine may invoice the Customer any difference in selling price per unit applicable to the quantity actually despatched up to the time of cancellation compared to the quantity ordered, taking into account volume discounts applied to such order.

12.3 For Customers other than Consumers, a reasonable processing charge may apply in respect of all products returned other than due to defects covered by the warranty at clause 9.

12.4 Customers may only return products to Pro-Vey & FlexiLine, and receive a credit or refund or replacement on the following conditions:

i) The Customer should contact Pro-Vey & FlexiLine to obtain a returns number (to be quoted on all relevant paperwork)

ii) Returns must be made within 30 days of the date of delivery (as stated on the delivery documentation) or collection of such product(s).

iii) Products must be returned to Pro-Vey & FlexiLine in their original condition and packaging and in a condition which will enable them to be immediately fit for re-sale;

iv) The Customer must follow any specific instructions which appear on the FlexiLine website with any product regarding its return to Pro-Vey & FlexiLine;

v) Products must be returned to Pro-Vey & FlexiLine adequately packed and despatched freight prepaid, clearly labelled to: CUSTOMER RETURNS DEPARTMENT, Pro-Vey & FlexiLine South Africa, 95 Park Avenue North, Highway Business Park, Centurion, Douth Africa.

vi) The Customer must quote the Returns Number on the parcel being returned.

12.5 Where the Customer returns products to Pro-Vey & FlexiLine not in accordance with clause 12.4 (i) – (vi) above (for example, after the period for returns has expired or in an unfit state) Pro-Vey & FlexiLine may refuse to accept the return and return the products to the Customer at the Customer’s expense or may apply a handling charge which relates to the actual cost of reprocessing.

12.6 This no fault returns policy excludes software, calibrated products, production packaging products, non-catalogue products, specially manufactured products and any products marked as non-cancellable (NC) or non-returnable (NR). In addition, Pro-Vey & FlexiLine will not accept returned ESD sensitive devices where the integrity of the original Pro-Vey & FlexiLine or 3^rd party supplied ESD shielding packaging has been compromised e.g. the bag has been opened and resealed or multiple bags have been stapled together.

12.7 Pro-Vey & FlexiLine accepts no responsibility for any loss of or damage to products in transit from Customer to Pro-Vey & FlexiLine where Pro-Vey & FlexiLine has not provided the collection Services.

Services

13.1 Pro-Vey & FlexiLine offers services in respect of certain products. These services include: programming, cutting to size, assembling and technical assistance, and any other services that the parties agree. Pro-Vey & FlexiLine may quote a turnaround time target for these services, but, to the maximum extent permitted by law, Pro-Vey & FlexiLine shall be under no liability if it fails to comply with such target.

Compliance with laws, instructions and warnings

The Customer must, at all times:

comply with all relevant laws, regulations and standards relating to the products, including but not limited to the loading, storage, stacking, handling and use thereof;

comply with the instructions provided by Pro-Vey & FlexiLine in relation to the products and the handling and use thereof;

iii. take proper notice of the warnings provided by Pro-Vey & FlexiLine in relation to any hazards associated with the products or the handling or use thereof;

to the extent applicable, communicate the items listed in (i) to (iii) above to all persons to whom the Customer supplies the goods; and

ensure that the persons referred to in (iv) above undertake to communicate the items listed in (i) to (iii) above to all persons to whom they supply the goods, and so on down the supply chain until the goods reach the end user.

The Customer shall not knowingly sell to any buyer who is on, or who will supply the products to any other person who is on, the US Denials List or any other embargoes or sanctions list.

NOTE: If you are a Consumer, please note that the above clause constitutes an assumption of liability and risk by you, as you undertake not sell or supply the products to persons on the US Denials List or any other embargoes or sanctions list. In addition, the above clause also limits your rights and remedies against us, and this clause limits and excludes your right to recover or make claims for losses, damages, liability or harm that you may suffer as a result of your selling or supplying the products to persons on the US Denials List or any other embargoes or sanctions list.

If the Customer exports the products:

vi.) the Customer shall comply with all applicable export controls and shall comply with any applicable Pro-Vey & FlexiLine policy in force from time to time (if there is any conflict between the two, the export controls shall prevail); and

vii.) it is the Customer’s sole responsibility to ensure that it complies with all laws and regulations applicable to exports.

As far as the law allows, the Customer hereby indemnifies and holds Pro-Vey & FlexiLine harmless from and against all actions, claims, costs, demands and expenses incurred or suffered by Pro-Vey & FlexiLine arising out of the breach by the Customer of this clause 14.

NOTE: The above clause requires you to indemnify and hold Pro-Vey & FlexiLine and other persons or entities harmless from and against claims, loss, damages, and harm that may be suffered by Pro-Vey & FlexiLine and other persons or entities as a result of the events set out in the above clause. You are also required to indemnify Pro-Vey & FlexiLine and other persons and entities against claims for loss, damages, and harm that may be made by any person or entity as a result of the events set out in the above clause. This places various risks, liabilities, obligations and legal responsibilities on you and you will be responsible and liable for the payment of the value of the claims, loss, damages, and harm that may be suffered or claim.

Business rescue

If the Customer is a company, it must notify Pro-Vey & FlexiLine in writing within 2 days of the occurrence of the following events:

when its board of directors becomes aware that the Customer is Financially Distressed;

when its board of directors contemplates, considers, discusses or agrees to the Business Rescue of the Customer proposes to do any of the things referred to in this clause 15; or

iii. when it becomes aware of any person proposing to take, or taking, any step to apply to court for the Business Rescue of the Customer.

The written notice must set out the full details of the Financial Distress or the actual or proposed activity contemplated in (ii) and/or (iii) above, as the case may be.

‘Business Rescue’ bears the meaning assigned to it in section 128(1)(b) of the Companies Act, 71 of 2008, and

‘Financially Distressed’ bears the meaning assigned to it in section 128(1)(f) of that Act.

Breach

If the Customer breaches any obligation owed by it to Pro-Vey & FlexiLine whether under these terms and conditions of sale or otherwise and fails to remedy such breach (if such breach is capable of remedy) within 7 days of receipt of written notice from Pro-Vey & FlexiLine requiring it to do so, Pro-Vey & FlexiLine shall be entitled, without prejudice to any other remedies to which it may in law be entitled, to:

claim immediate payment of all amounts payable by the Customer to Pro-Vey & FlexiLine notwithstanding that such sums would not otherwise be due until a later date;

suspend performance of any obligation owed by it and to claim any additional costs and expenses incurred by it as a result thereof;

iii. cancel the contract; and/or

to retain, as a penalty, all amounts paid by the Customer or alternatively to claim such damages as it may have suffered.

The Customer shall be liable to pay all expenses and legal costs, including attorney and client costs and collection commission, which Pro-Vey & FlexiLine may incur in taking any steps pursuant to any breach of these terms and conditions of sale by the Customer.

In addition to any and all other legal remedies available to Pro-Vey & FlexiLine in law, Pro-Vey & FlexiLine may, to the maximum extent permitted by law, immediately cancel this contract or any other contract between the parties with no notice to the Customer if the Customer:

delivers a written notice referred to in (i) of clause 15 to Pro-Vey & FlexiLine;

becomes Financially Distressed, or any person undertakes or proposes any activity contemplated in (ii) or (iii) of clause 15;

vii. is liquidated (provisionally or finally, voluntarily or compulsorily);

viii. effects a general compromise or any other arrangement with its creditors; and/or

suffers any judgement to be granted against it and fails to meet the judgement or take steps to set it aside or rescind it, within 30 days of it being granted.

Force Majeure

A force majeure event is any event beyond the reasonable control of Pro-Vey & FlexiLine (including but not limited to strikes, traffic congestion, the downtime of any external line, or Pro-Vey & FlexiLine’s inability to procure services, materials or articles required for the performance of the contract except at enhanced prices). If Pro-Vey & FlexiLine is prevented or restricted from carrying out all or any of its obligations under these terms and conditions of sale by reason of any force majeure event, then Pro-Vey & FlexiLine shall be relieved of its obligations during the period that such event continues, and shall not be liable for any delay and/or failure in the performance of its obligations during such period. If the force majeure event continues for a period longer than fourteen days, Pro-Vey & FlexiLine may cancel the affected order or cancel the whole or any part of these terms and conditions of sale, without any liability to the Customer.

Intellectual Property Rights

18.1 The Customer acknowledges that Pro-Vey & FlexiLine own the intellectual property rights in the FlexiLine website, the FlexiLine catalogues, the catalogue content, the stock/part numbers and the products supplied or listed in any of the aforegoing, and that their whole or partial reproduction or commercialisation (outside the purpose for which it was delivered) without Pro-Vey & FlexiLine’s prior written consent is prohibited.

NOTE: If you are a Consumer, please note that the above clause constitutes an assumption of liability and risk by you, as you undertake not to reproduce or commercialise Pro-Vey & FlexiLine’s intellectual property rights, unless you obtain Pro-Vey & FlexiLine’s prior written consent.

18.2 Pro-Vey & FlexiLine does not warrant or give any assurance to the Customer that any products supplied do not infringe the intellectual property rights of any third party.

NOTE: If you are a Consumer, please note that the above clause also limits your rights and remedies against us, and this clause limits and excludes your right to recover or make claims for losses, damages, liability or harm that you may suffer. You will also be responsible for, and you accept, various risks, damages and injury which may be suffered by you.

Anti-Corruption

19.1 The Customer shall (and shall procure that persons associated with it or other persons who are providing goods or services in connection with these Terms and Conditions shall) comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption, including, but not limited to, the Prevention and Combating of Corrupt Activities Act 2004, the Prevention of Organised Crime Act 1998, the Financial Intelligence Centre Act 2001 and any other relevant act and shall:

not (directly or indirectly) induce any employee, agent or subcontractor of Pro-Vey & FlexiLine to make any concession to or confer any benefit on the Supplier, refrain or withhold from doing any act, in return for any gift, money, or other inducement;

not do or omit to do any act that will cause or lead Pro-Vey & FlexiLine to be in breach of any of the Relevant Requirements; and

iii. promptly report to Pro-Vey & FlexiLine any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with these Terms and Conditions.

19.2 Financial restrictions on gifts and entertainment are contained in Pro-Vey & FlexiLine’s Anti-Bribery Policy and further details are available on request.

19.3 Any breach of this clause 19 by the Customer shall be a material breach of these terms and conditions which is incapable of remedy.

NOTE: If you are a Consumer, please note that the above clause constitutes an assumption of liability and risk by you, as you undertake not to contravene the anti-bribery and corruption provisions set out in this clause.

Personal information

20.1 We collect, use, processes and store your personal information and other information obtained from you. We will use, collect, process and store this personal information and other information in accordance with our privacy statement and applicable data protection laws. Our privacy statement sets out the details of the personal information and other information which we collect, process and store. It also sets out how we use, collect, process and store your personal information. Our privacy statement is accessible on the FlexiLine website.

20.2 The Customer represents, warrants and undertakes that it has the right and the authority of its representatives to allow Pro-Vey & FlexiLine to collect and process the personal information in the manner set out in the Privacy Statement.

NOTE: If you are a Consumer, please note that the above clause constitutes an acknowledgement of certain facts by you and you will not be able to deny these statements as true. Pro-Vey & FlexiLine may take action against you and may have claims against you as a result of these statements.

Miscellaneous

Waiver

21.1 No failure or delay by a party to enforce or exercise any right or remedy under these terms and conditions or by law shall be deemed to be a waiver of that or any other right or remedy, nor shall it operate so as to bar the enforcement or exercise of that or any other right or remedy at any time subsequently. Any waiver of any breach of these terms and conditions shall not be deemed to be a waiver of any subsequent breach.

Variation

21.2 No purported variation of these terms and conditions shall be valid unless it is in writing (which excludes email) and signed by or on behalf of each party.

Law and Jurisdiction

22.1 The contract between Pro-Vey & FlexiLine and the Customer based on these terms and conditions of sale as applicable to each Customer order shall be governed by and interpreted in accordance with the laws of the Republic of South Africa and the Customer submits to the exclusive jurisdiction of the High Court of South Africa.

22.2 Customers who are Consumers may submit any disputes with Pro-Vey & FlexiLine for resolution to the relevant industry Ombudsman or such other forum as specified in applicable laws.

22.3 If any part of these terms and conditions of sale is found to be unenforceable by any court or competent authority or would be found to be unenforceable if it were interpreted or construed in a particular way, then it is the parties’ express intention that the relevant wording should be interpreted or construed so as to avoid such a finding and that, in the event of such a finding, the remainder of the provision in question shall be interpreted or construed to give it full effect.

Exclusion of third party rights

23.1 No express term of these terms and conditions, nor any term implied under it confers any benefits or rights to any third party.

Domicilia

Unless the Customer has already designated an address as its* domicilium citandi et executandi *by completing the Pro-Vey & FlexiLine online registration form(s), the Customer nominates as its domicilium citandi et executandi the following physical address for the service upon it of process, and the following physical address and e-mail address for the service upon it of all notices, in connection with these terms and conditions of sale:

Address: _______________________________________________________

E-mail: __________________________________________

Pro-Vey & FlexiLine nominates the following address as its domicilium citandi et executandi for the service upon it of all process, and the following physical address and e-mail address for the service upon it of all notices, in connection with these terms and conditions of sale:

95 Park Avenue North, Highway Business Park, Centurion, South Africa

E-mail: info@provey.co.za

The notice shall be deemed to have been duly given:

i.) 5 Business Days after posting, if posted by registered post (airmail, if available) to the Party’s address;

ii.) on delivery, if delivered to the Party’s physical address between 08h30 and 16h00 on a Business Day (or on the first Business Day after that if delivered outside such hours);

iii.) on despatch, if sent to the Party’s then fax number or e-mail address between 08h30 and 16h00 on a Business Day (or on the first Business Day after that if despatched outside such hours);

unless the addressor is aware, at the time the notice would otherwise be deemed to have been given, that the notice is unlikely to have been received by the addressee through no act or omission of the addressee.

A party may change that Party’s address, fax number or e-mail address for this purpose to another physical address in the Republic of South Africa by notice in writing to the other Party, such change to be effective only on and with effect from the 7th day after the giving of such notice.

Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a party shall be an adequate written notice or communication to that Party notwithstanding that it was not sent to or delivered at that Party’s chosen address.

Consumer Protection Act

Nothing in these terms and conditions of sale:

i.) limits or exempts Pro-Vey & FlexiLine from any liability (including liability for any loss directly or indirectly attributable to Pro-Vey & FlexiLine’s gross negligence or that of any person acting for, or controlled by, Pro-Vey & FlexiLine) to the extent that the law does not allow this;

ii.) requires the Customer to assume risk or liability for this kind of loss to the extent that the law does not allow this; or

iii.) limits or excludes any warranties or obligations which are implied into these terms and conditions of sale by applicable laws or which we give under the applicable laws, to the extent that any applicable law does not allow them to be limited or excluded.

If these terms and conditions of sale, and/or any products and/or services provided under these terms and conditions of sale, is regulated by the Consumer Protection Act, 68 of 2008, as amended, it is not intended that any provision of these terms and conditions of sale contravenes any provision of that Act. Therefore, all provisions of these terms and conditions of sale must be treated as being qualified, to the extent necessary, to ensure compliance with the provisions of that Act.

Annexe A

Additional terms and conditions for export customers

The terms contained in this annexe are in addition to those contained in the standard terms and conditions of sale to which this annexe is attached. In the event of any conflict between the standard terms and conditions of sale and this annexe, the provisions of this annexe shall prevail.

Ordering

All orders must be submitted to Pro-Vey & FlexiLine in writing by e-mail and such orders must include full instructions regarding transportation (including mode of carriage) and the country of final destination.

Price

All prices exclude:

i packaging;

i transportation;

ii insurance;

iii VAT (if applicable); and

iv all other duties, taxes, dues, levies or charges imposed in connection with the products by the South African authorities and/or the authorities in any country to which the products are to be transported; and

v the fees of any Chamber of Commerce and/or any consular fees of the country to which the products are to be transported,

for which the Customer is solely responsible.

In instances where the parties agree in writing that Pro-Vey & FlexiLine shall be responsible for the export of the products, VAT will not be charged. In all other instances VAT will be charged notwithstanding that the products may subsequently be exported.

Payment

Payment terms are cash or direct deposit with order, bank draft or bank guaranteed cheque drawn on a South African bank with order, or (subject to Pro-Vey & FlexiLine’s prior written approval) confirmed irrevocable letter of credit.

In instances of payment by confirmed irrevocable letter of credit, same must:

i.) be subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision ICC Publication No. 500) as amended;

ii.) be irrevocable and opened or confirmed by a recognised South African bank to Pro-Vey & FlexiLine ‘s sole satisfaction;

iii.) be expressed to be payable at sight in Rands;

iv.) (iv) be expressed to allow part shipment;

v.) be expressed to have a validity period of not less than 120 days from date of opening or confirmation;

vi.) state that all costs and commissions are for the Customer’s account;

vii.) conform in all respects to the tender and quotation of Pro-Vey & FlexiLine including with regard to the description of the products, price and delivery terms; and

viii.) state the origin of the products to be “various”.

Delivery

Unless otherwise agreed upon in writing between the parties, delivery shall be in accordance with Incoterms 2010 EXW (95 Park Avenue North, Highway Business Park, Centurion, South Africa). Where the parties agree that Pro-Vey & FlexiLine shall be responsible for transportation of the products, delivery shall be in accordance with Incoterms 2010 CPT or FCA.

If the Customer does not collect the Products or give Pro-Vey & FlexiLine adequate instructions regarding transportation of the Products from Pro-Vey & FlexiLine’s premises, then Pro-Vey & FlexiLine may, without prejudice to any of its other rights or remedies:

i.) arrange transportation of the Products to the Customer’s domicilium citandi et executandi by whatever means it thinks most appropriate at the Customer’s risk and expense; or

ii.) arrange storage of the Products at the Customer’s risk and expense; or

iii.) notice in writing, treat the agreement between the parties as repudiated by the Customer.

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