Atlas-Copco DML

1. LOSS OF PROFIT, DAMAGE ETC

The Seller shall not be liable for any direct, indirect or consequential loss or damage arising from any transaction and/or Machine(s) sold exceeding R100 000.00, unless specifically agreed to, in which event any costs of insurance will be for the Purchaser’s account.

2. INSTALMENT PAYMENT

Should in exceptional circumstances it expressly be agreed that the purchase price or any portion thereof may be payable in instalments, then:

• In relation to any purchases, the Purchaser will confirm that the Machine(s) is/are insured under the Purchaser`s Insurance Policy agreement, with the Seller noted as beneficiary and the Seller’s interest noted, before the Machine(s) is/are released by the Seller (a copy of the Policy agreement to be presented to the Seller before collection).
• If for whatever reason/s the Purchaser defaults on the Agreement and payment terms as indicated in the Sale Agreement, the Seller has the right to collect the Machine(s) from the place where the Machine(s) is/are at such relevant time at the Purchaser’s expense (permission for access to such place needs to be sent to the Seller before collection/release of the Machine(s)).
• If the Seller has to collect the Machine(s) due to non-payment by the Purchaser as per clause 2.2 hereinabove, the deposit and all payments received to date will be retained by the Seller as pre-liquidated damages and the Purchaser will additionally be liable for any shortfall or expenses incurred as set out in clause 5.2 below.
• All and any damages, breakdown or maintenance will be for the account of the Purchaser and this is for the duration of the period until payment has been made in full.

3. OWNERSHIP

• Ownership of the Machine(s) is/are expressly reserved. Ownership will only pass to a Purchaser on payment of the full purchase price, unless specifically agreed otherwise. Payment is to be made prior to delivery and/or collection.
• In the event that the purchase price is paid in instalments and the Purchaser collects the Machine(s) before the purchase price is paid in full, and the Machine(s) will be stored on a premises leased/rented by the Purchaser, the Purchaser shall notify the relevant lessor, (with copy of such notice to be presented to the Seller) that the Machine(s) is/are owned by the Seller until notified otherwise by the Seller.

4. INSPECTION

• The Purchaser acknowledges that:
• he or she may consult an independent expert to inspect the Machine(s);
• the Machine(s) have/has a level of wear and tear and that it is not expected to perform like a new machine; and
• the Purchaser acknowledges that the Machine(s) is/are second hand.
• Prior to collection/release of the Machine(s) from the Seller’s yard, the Purchaser will arrange a final inspection and testing of the Machine(s) at the Seller’s yard and satisfy himself/herself that the Machine(s) is/are fit and proper for the purpose which it was purchased.
• After final release and handover, the Seller will not be responsible nor liable for any damages or repairs whatsoever on the Machine(s). The Purchaser will be liable for cost of maintenance, repairs, wear and tear, insurance and insurance excess.

5. SPECIAL REMEDY FOR BREACH AND CANCELLATION 

• Should the Purchaser default in any payment due under this Agreement or be in breach of its terms in any other way, and fail to remedy such default or breach within 7 (SEVEN) days after receiving a written demand that it be remedied, the Seller shall be entitled, without prejudice to any alternative or additional right of action or remedy available to the Seller under the circumstances without further notice, to cancel this Agreement with immediate effect, to repossess the Machine(s), and recover from the Purchaser damages for the default or breach and the cancellation of this Agreement.
• Prior to the payment of the full purchase price, the Seller shall be entitled, without prejudice to its other rights or remedies, to cancel the Agreement with immediate effect and without notice if the Purchaser compromises or attempts to compromise with its creditors or commits any act of insolvency or allows any final judgment to remain unsatisfied for seven days or longer, or, being an individual, surrenders his or her estate or is sequestrated or being a company is liquidated or applies for business rescue.
• In the event of cancellation of the Agreement by any Party, the Seller will, notwithstanding any right the Seller might have in terms of clause 5.1 and 5.1 hereinabove, be entitled to claim from the Purchaser any shortfall as a result of reselling the Machine(s) to a third party. The shortfall shall be the difference between the net proceeds of the sale of the Machine(s) to a third party, after deducting the cost of making any repairs necessary to place the Machine(s) in a saleable condition, storage charges, commission, and other necessary expenses, and the original purchase price as agreed between the Purchaser and Seller.

6. JURISDICTION

If the Purchaser fails to make payment on the due date or commit a breach of any of the provisions of this Agreement, and the Machine have/has been collected/released, the Purchaser consents that the Seller may, at its option, institute legal proceedings in the Magistrate’s Court with relevant jurisdiction, notwithstanding that the subject matter or amount of the claim or cause of action would otherwise be beyond the jurisdiction of the Magistrate’s Court, to claim payment of the full outstanding balance of the purchase price.

7. LEGAL COSTS

Should at any time a dispute arise relating to any transaction and legal proceedings be instituted by the Seller, the Purchaser shall be liable for all legal costs and related disbursements on an attorney and own client scale, including collection commission, if any.

8. SURETYSHIP

If the Purchaser is a company or a close corporation its obligations hereunder shall be guaranteed in the form of the Purchaser's standard Deed of Suretyship, ANNEX "B" hereto, by its directors or members at the date of signature of this Agreement. Failure by any of such directors or members to sign the said Deed of Suretyship shall entitle the Seller forthwith to cancel this Agreement without affecting any claims that the Seller may have acquired against such company or close corporation prior to the cancellation.

9. WHOLE AGREEMENT

• This is the entire agreement between the Parties.
• Neither Party relies in entering into this Agreement upon any warranties, representations, disclosures or expressions of opinion which have not been incorporated into this Agreement as warranties or undertakings.
• No alteration, variation, amendment or consensual cancellation of this Agreement shall be of any force or effect unless reduced to writing and signed by both Parties.
• No relaxation, extension of time, latitude or indulgence which any Party (“the grantor”) may show, grant or allow to another (“the grantee”) shall in any way constitute a waiver by the grantor.
• A certificate signed by the Seller’s accountants of the amount due by the Purchaser and the date on which it is payable in terms hereof shall be prima facie evidence of the correctness of the contents thereof.

10. NON-WAIVER

• Neither party shall be regarded as having waived, or be precluded in any way from exercising any right under or arising from this Agreement by reason of such Party having at any time granted any extension of time for, or having shown any indulgence to the other Party with reference to, any payment or performance hereunder, or having failed to enforce, or delayed in the enforcement of, any right of action against the other Party.
• The failure of either Party to comply with any non-material provision of this Agreement shall not excuse the other Party from performing the latter’s obligations hereunder fully and timeously.

11. NO WARRANTIES, REPRESENTATIONS

• The Purchaser agrees that no warranties or representations have been given or made as to the suitability, machine hours, nor the state or condition of the Machine(s) or any part thereof, except as specifically set out in this Agreement.
• The Seller acknowledges that he or she pointed out all latent or patent defects in the Machine(s) that was within his or her knowledge.
• The Purchaser agrees that he or she has been informed of the Machine’s general condition and accepts it.
• The Purchaser warrants that it has independently inspected and tested the Machine(s) and enters into this Agreement based on its own inspection and expert advice, and not based on any representations by the Seller or any of its representatives.

12. WARRANTY OF AUTHORITY

• The persons signing this Agreement expressly warrant their authority to do so.
• The Seller warrants that the Seller is the sole owner of the Machine(s) and that the Machine(s) is/are fully paid and that there are no claims whatsoever regarding attachment orders, or claims regarding ownership rights and that there are no outstanding claims from any person, institution or outstanding lease or hire purchase / credit agreements against the Machine(s).
• The Seller warrants that he / she has the full right and authority to sell the Machine(s) to the Purchaser and is truly and legally authorised to deal freely with the Machine(s).
• There are no understandings or agreements between the Purchaser and the Seller nor have any representations been made by or on behalf of the Seller except as contained in this Agreement.
• The Seller warrants that the Machine(s) is/are sold free of liens and encumbrances.

13. SEVERABILITY

Each term and/or condition stands independently, which means that should anyone or more be found to be invalid, the remaining Terms and Conditions should not be affected.

14. COSTS

The legal costs incurred in the preparation and negotiation of this Agreement shall be the responsibility of the Seller.

15. COMPREHENSION

• The Parties herewith declares that they are aware that they may obtain legal advice from any legal representative. The Parties declare that they had sufficient time to examine the terms of this Agreement and the Parties had obtained legal advice in respect of conditions which they deemed necessary to understand, appreciate and comprehend the terms of this Agreement.
• The Parties declare that they understand, appreciate and comprehend the terms of this Agreement.

16. GENERAL

The Seller may revise these Terms and Conditions from time-to-time. Revised Terms and Conditions will apply to the use of the Seller’s website from the date of the publication of the revised Terms and Conditions on the Seller’s website. Please check this page regularly to ensure you are familiar with the current version.