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South Africa - Terms & Conditions of Sale

1 Conclusion of a Contract, Quality, Order Confirmation

1.1 These terms and conditions form part of every contract for the sale of equipment, accessories, consumables or services ("Products") by us to the purchaser of our Products ("Customer") ("Contract").

1.2 Unless otherwise expressly stated, an offer to supply Products does not constitute a binding Contract until we have confirmed the order in writing to Customer ("Order Confirmation"). Our Order Confirmation (which includes these terms and conditions, the Contract and any applicable quotations; invoices, and payment terms) (i) is the authoritative document defining the scope of the parties' respective contractual obligations; (ii) shall constitute a separate contract between us and the Customer, governed by these terms and conditions; (iii) shall not be cancelled or varied by the Customer, except with our written consent; (iv) shall be binding on the parties in respect of the type, quantity and price of Products ordered; and (v) shall be made in our sole discretion and the Customer shall have no expectation that we shall accept any particular Product(s) order.

1.3 Customer’s own terms and conditions are not recognised by us except when we have expressly agreed to them in writing and notwithstanding anything to the contrary in Customer's own terms and conditions. Customer's own terms and conditions are also not recognised by us even if, in knowledge of them, we unconditionally execute the delivery of Products without expressly contradicting Customer's own terms and conditions.

1.4 Supplemental oral agreements or assurances from our employees or authorised representatives require our written confirmation to be legally binding.

2 Pricing

2.1 Unless otherwise expressly stated by us in writing, all price quotes are valid for thirty (30) days only. Our prices are exclusive of any value added tax payable in any country where Products are delivered. Unless otherwise quoted, the cost of distribution, freight, handling and/or installation (as applicable) will be added to the price of any Products forming part of a particular Order Confirmation at the rate which is valid at the date of shipment. Should Customer cause delay in delivery beyond ninety (90) days from the expected ship date of our order confirmation, we shall be entitled to charge the list prices for the Products and installation (if applicable) in effect on the actual date of delivery.

2.2 The amounts charged will be based on the publicly quoted rate of exchange of The Standard Bank of South Africa Limited ("the Bank") at which United States Dollars can be purchased with Rand at or about 11h00 on the date of an Order Confirmation. Should Customer cause delay in delivery beyond thirty (30) days from the expected ship date of an Order Confirmation, we shall be entitled to levy the rate of exchange at which United States Dollars can be purchased with Rand at or about 11h00 on the date on which the order is shipped. In the event of a dispute as to the exchange rate applicable on the relevant date, a certificate ("the Certificate") signed by a branch manager of the Bank, whose appointment and designation it shall not be necessary to prove, shall constitute prima facie proof of that rate. Should Customer dispute the Certificate such dispute shall be referred to our auditors ("the Auditors") for determination, acting as experts and not as arbitrators, and the Auditors' determination shall be final and binding on the parties.

2.3 Up until four (4) weeks before the designated delivery date, Customer may request that an (or part of an) Order Confirmation be cancelled or changed. If we agree to the cancellation or change, Customer shall be liable for an additional fee of 10% of the original value of the entire Order Confirmation (the "Fee"), unless otherwise expressly provided for in writing by us. If we do not agree to the cancellation or change of an Order Confirmation, the Customer shall be liable for the full value of the respective Order Confirmation. The amount of the Fee shall rise to 25% of the original value of the entire Order Confirmation if the order is for specially configured Products. Any cancellation or order change made less than 4 weeks before the designated delivery date is not permitted.

3 Conditions of Payment

3.1 The price payable for Products is due immediately and payable within thirty (30) days after date of statement. Payments are to be made directly to us without deduction or set-off and free of any bank or other charges so as to be received "for value" in our nominated bank account on or before the due date for payment thereof.

3.2 In the case of Customer being in default with payment, we are entitled to charge interest on demand at the rate of 3% over the prime rate of interest (nominal annual compounded monthly in arrears) from time to time as published by the Bank from time to time as its prime overdraft lending rate (a certificate from any manager of the Bank, whose appointment or authority need not be proved, as to the prime rate at any time and the usual way in which it is calculated and compounded at such time shall, in the absence of manifest or clerical error, constitute prima facie proof of the then prime rate). The charging of interest is without prejudice to any other rights or remedies that we may have.

3.3 Set-off or application of any right of retention arising out of counterclaims by Customer which is disputed by us are excluded. The application of any right of retention is also excluded where the counterclaims of Customer do not arise under a particular Order Confirmation.

4 Contract Termination

4.1 We may by written notice (i) terminate a particular Order Confirmation(s) immediately without prejudice to any accrued rights; or (ii) claim immediate specific performance of any of Customer's obligations under a particular Order Confirmation(s), whether or not such obligation is then due, if Customer commits a material breach of any of the terms of any Order Confirmation and, where such breach is capable of remedy, fails to remedy the same within fourteen (14) days after receipt of a written notice from us giving particulars of the breach and requiring it to be remedied. For the purposes of this clause 4.1, failure to pay by a particular date shall be regarded as a material breach.

4.2 We may by written notice terminate a particular Order Confirmation(s) immediately without prejudice to any accrued rights if: (i) the Customer commits an irremediable, or persistent, breach of a provision of any particular Order Confirmation; (ii) any step, application, order, proceeding, resolution, meeting or appointment is taken, convened or made by or in respect of Customer for a distress, execution, composition, moratorium or arrangement with creditors, winding up, dissolution, administration, receivership (administrative or otherwise), business rescue or bankruptcy, or if Customer is unable to pay its debts, or if any event occurs which, under the applicable law of any jurisdiction to which Customer is subject, has an effect similar to that of any of the events referred to in this clause 4.2 (ii); (iii) if the Customer merges, is acquired by, acquires, enters into a joint venture with, or comes under the direct or indirect control of any other person; and/or (iv) if the Customer suffers any judgment to be granted against it.

5 Inspection and Acceptance

5.1 Customer shall inspect the Products immediately upon delivery and immediately notify the carrier in writing for any visible damage or missing packages. Copy of the damaged/missing notice, or written notice for any other discovered defect in the delivered Products, must be forwarded to us within five (5) business days. If Customer fails to give such notice, the Products shall be deemed accepted and to conform to the terms of the particular Order Confirmation.

5.2 We will not accept the return of Products, defective or otherwise, without a return authorisation number issued by us. Products authorised to be returned shall be shipped to our specified location freight pre-paid (DDP Incoterms 2020).

5.3 We will reimburse Customer any transportation charges in the event that the Products returned to us are defective.

6 Delivery, Packing and Risk of Loss

6.1 All orders will be delivered duty paid destination (DDP - Incoterms 2020), unless specific other terms are specified in the Order Confirmation, and may include freight and handling fee to cover the cost of pick-up, transportation, insurance and delivery.

6.2 Delivery of the Products shall take place at road level, front door steps at Customer's premises or any other address specified in a particular Order Confirmation.

6.3 Except where otherwise expressly stated in a particular Order Confirmation, all delivery and shipment dates are approximate and subject to our availability schedule. We will make reasonable efforts to meet the delivery date(s) quoted and the Customer acknowledges and agrees that time shall not be of the essence in respect of the delivery of Products. However, we will not be liable for any failure to meet the quoted delivery dates or for any delay in performance under a particular Order Confirmation caused by Excusable Delays (as defined in clause 13.2). Customer will be informed of the beginning and ending of these Excusable Delays as soon as practicable.

6.4 Where there is a delay in delivery caused by our gross negligence or wilful misconduct, our liability for resulting damages will be limited to a maximum of 5% of the total price of the Products affected by the delay.

7 Taxes

7.1 Customer is responsible for the payment of all taxes which may be assessed or levied on or on account of the Products sold to Customer, including, without limitation, all value added and sales taxes.

7.2 Where Customer claims that a transaction is not subject to any such tax or that we are not required to collect such tax, Customer must provide us with all documentation necessary to support such a claim and allow us to document any decision we may make not to collect such tax(es). Customer maintains full liability for, and holds us harmless against, any expenses incurred or action raised as a result of our reliance upon Customer’s statements and documents.

8 Installation and Site Preparation

8.1 Installation services are included in the purchase price of the Products only if expressly so stated in a particular Order Confirmation. Except as expressly stated in a particular Order Confirmation, installation service will only be performed in the country of original delivery.

8.2 It is the responsibility of Customer to prepare appropriate environmental conditions at the site to our satisfaction and to provide the required services for the duration of the installation, including, whatever is required to uncrate, transport and/or install the Products to/at their appropriate location for use. Failure to do so, will result in a service charge by us to cover the lost time of our service personnel. If any installation services are to be carried out on a Customer’s computer system, the Customer has the full responsibility to perform an adequate data back-up to preserve the integrity of existing data. Should we be unable to perform the required installation services within twelve months of the Products' shipment date as a result of Customer’s inability to prepare the site as required, Customer shall be responsible for additional costs associated with any required hardware, software and firmware updates. Delay of the installation will not extend the contracted warranty period of any Products.

8.3 Customer hereby undertakes to maintain its premises in a safe condition and to comply with all applicable laws governing workplace health and safety. Customer hereby accepts full responsibility for any harm or injury to, or liability arising from work performed by our service personnel while on Customer’s premises, except to the extent caused solely by the gross negligence or wilful misconduct of our service personnel.

8.4 Installation services will be invoiced on the basis of the time worked and material used unless otherwise agreed with Customer in writing. We will charge the then applicable hourly rate for work, travel and waiting time as well as any additional costs identified in a particular Order Confirmation.

8.5 Customer shall provide us with written acceptance of the installation services. Acceptance shall be deemed to have been given if Customer has not provided us with such written acceptance within two (2) weeks after completion of the installation services and within that time has not reported any defects in the installation services.

9 Limited Warranty

9.1 We warrant to Customer that the Products sold are, at the time of shipment to Customer from us, free from defects in materials and workmanship. Unless otherwise stated in a particular Order Confirmation or in the applicable price list, this warranty shall be valid for a period of twelve (12) months from the date of delivery to Customer.

9.2 If the warranty in clause 9.1 of these terms and conditions is breached, we agree either to repair or replace, at our sole option, any part of such Products which, under proper and normal conditions of use, prove(s) to be defective. Alternatively, we may at any time, in our sole discretion, elect to discharge our warranty obligation under a particular Order Confirmation by accepting the return of any defective Product pursuant to these terms and conditions and refunding the purchase price paid by Customer. The remedies provided in this clause 9.2 are Customer's only remedies (to the exclusion of all others) for breach of the warranty in clause 9.1 of these terms and conditions.

9.3 Except where otherwise stated in the applicable price list, we will use reasonable efforts to perform all warranty services at Customer's premises, provided, however, that we reserve the right to require that Customer return the Products to our production facility when necessary to provide proper warranty service.

9.4 We warrant newly installed parts for a period of ninety (90) days. Replaced parts will become our property and are to be handed over to us.

9.5 If an inspection of the claimed defects shows that no warranty claim exists, Customer shall be liable for all costs associated with the inspection including, without limitation, the costs of transport of the returned Products to our production facility and back to the Customer, as applicable.

9.6 It is recognised that some Products by their nature may not function for the warranty period in clause 9.1. Therefore, all consumable products and other similar parts, as referenced in the applicable Product’s operating manual (i.e.: chromatography columns, lamps, graphite tubes, reagents, films, etc…), are expressly excluded from the warranty set out in clause 9.1 of these terms and conditions.

9.7 The warranty set out in clause 9.1 excludes any equipment or accessories which are identified on applicable price lists, special promotional materials, or in the particular Order Confirmation, as items in respect of which the limited warranty in clause 9.1 may be further limited. Included within this category are items which are sold at specially reduced prices with reduced warranty protection. Third party Products will be limited to the warranty supplied by the original manufacturers.

9.8 The warranty in clause 9.1 does not cover loss, damage, or defects resulting from: improper or inadequate maintenance by Customer, Customer-supplied products, unauthorised modification or misuse, operation outside of the environmental specifications for the Products or improper site preparation or maintenance.

9.9 No warranty is made with respect to used, reconstructed, refurbished or previously owned Products, which are sold “As Is”, unless otherwise indicated in the particular Order Confirmation.

9.10 The warranty in clause 9.1 applies only to Products located within the country of original delivery.

9.11 We warrant our software for a period of ninety (90) days. The sole and exclusive warranty applicable to software and firmware products is that they will conform to the program manual(s) current at the time of shipment to Customer when properly installed on the processor, provided, however, that we do not warrant that the operation of the processor or software or firmware will be uninterrupted or error-free.

9.12 Warranty services referred to in 9.3 do not include the cost of travel and accommodation incurred by us to do the warranty services at the customers premises. These costs are for the customer’s account and customer agrees to pay us as per Clause 3.

9.13 All warranties, conditions and other terms implied by statute or common law are excluded from a particular Order Confirmation to the fullest extent permitted by law.

10 Limitation of Liability

10.1 The remedies provided in these terms and conditions are Customer's sole and exclusive remedies. We shall not be liable to Customer for any loss of profit, loss of opportunity, costs and fines and/or any indirect or consequential loss, whether based on contract, misrepresentation, delict (including negligence), strict liability or otherwise, arising out of the design, manufacture, sale, delivery, installation, service or use of the Products, and the Customer indemnifies and holds us harmless against any such claim(s). We neither assume, nor authorise any other person to assume for us, any other liability in connection with the design, manufacture, sale, delivery, installation, service or use of the Products.

10.2 Subject to clause 10.3 our maximum aggregate liability to Customer for any loss or damage in respect of any claims, actions or proceedings arising out of a particular Order Confirmation whether in contract, misrepresentation, delict (including negligence), strict liability or otherwise, shall not exceed the total amount of the price paid by Customer to us for the Products.

10.3 Nothing in these terms and conditions shall exclude or restrict either party's liability for death or personal injury arising from its negligence or that of its employees, agents or subcontractors, or shall exclude or restrict a party's rights, remedies or liability under the law governing these terms and conditions in respect of any fraud.

10.4 Save as otherwise provided herein, the limitation period for any claims, actions or proceedings arising out of a particular Order Confirmation whether in contract, misrepresentation, delict (including negligence) or otherwise, is twelve (12) months from the date on which the cause of action accrued.

10.5 Insofar as the Consumer Protection Act, 2008 ("CPA"), does not apply to a particular Order Confirmation or the supply of Products by us to the Customer or any arrangement therefor (save that sections 60 and 61 of the CPA would ordinarily apply to us and the Customer), the Customer agrees that to the extent permitted by law section 61 of the CPA will not apply to the Products or to us as between us and the Customer, and the Customer waives any claims it may have against us and indemnifies us against any liability arising out of the provisions of the said section 61 which it may incur as a direct or indirect result of the supply of the Products to the Customer or by virtue of us falling within any of the definitions of "producer", "importer", "distributor" or "retailer" as defined in section 1 of the CPA.

11 WEEE (Waste Electrical and Electronic Equipment) compliance

11.1 We will comply with the European WEEE regulation (as well as any equivalent legislation in South African) under the following conditions:

a) The Customer will bear the responsibility and the costs of transport (Incoterms 2010: DDP) of waste equipment to the authorized WEEE collection centre nominated by us.

b) We will bear the costs and responsibility related to disposal and data reporting of waste equipment.

12 Export

12.1 Customer acknowledges that the Products and related technology (including, but not limited to, technical data and information) are subject to applicable export laws and regulations (including but not limited to those of South Africa, the United States, the European Union and/or United Kingdom), which may prohibit or restrict certain operations. Customer hereby undertakes not to sell, transfer, transmit, and export or to re-export products or related technology in violation of the export control laws or regulations of South Africa, the United States, the European Union and/or United Kingdom.

12.2 We shall be entitled to refuse performance of our obligations under a particular Order Confirmation where performance would violate clause 12.1 without any claim whatsoever from the Customer.

13 Software Licence and Copyright Material

13.1 We provide software products by licence only. The terms of the licence are available from us and are deemed accepted by Customer on delivery of licensed software.

13.2 All rights (including, without limitation, all intellectual property rights) in the software remain with us or our licensors, in so far as they have not been expressly granted to Customer in these terms and conditions or by other agreements. Customer shall only be granted a limited right to use the software in accordance with the terms of the relevant software licence agreement.

13.3 Unless otherwise specified, our copyright works (including, without limitation, software, firmware, and printed documentation) may not be copied except for archive purposes, to replace a defective copy, or for program error verification by Customer.

13.4 The Customer shall during the currency or after the expiry or termination of a particular Order Confirmation (i) not take any action to jeopardise, limit, frustrate and/or interfere with any of our intellectual property rights; nor (ii) without our prior written consent, use or adopt any name, trade name, domain name, trading style or commercial designation that includes, or is similar to, or may be mistaken for the whole or any part of any trade mark, trade name, trading style, domain name or commercial designation used by us.

14 Arbitration

Any dispute between the parties relating to any matter arising out of a particular Order Confirmation or the interpretation thereof, shall be directed to confidential and binding arbitration administered by, and pursuant to the rules of the Arbitration Foundation of Southern Africa, and this clause 14 shall not preclude either party from seeking urgent relief on an interim basis in a court of competent jurisdiction pending the decision of the arbitrator.

15 Confidentiality

15.1 The Customer shall treat as confidential all Contracts, Order Confirmations and dealings as between us and the Customer and all related documentation and any other materials concerning our business, financial condition and affairs including, without limitation, our intellectual property and/or our intellectual property rights which the Customer has received or obtained during its dealings with us, whether orally, visually, in writing or in any other form, and including any materials generated from such materials and any copies of any of the foregoing.

15.2 The foregoing obligation to keep such information confidential shall not apply to: (i) information already in the public domain or which hereafter enters the public domain through no fault of the Customer; (ii) information which is disclosed to the Customer by a third party, where the third party has obtained such information without breach of any confidentiality obligation and has an unfettered right to disclose such information; and (iii) information that is required to be disclosed by applicable law or by court or government order, provided that in such case and prior to such disclosure being made the Customer provides us with written notice describing the applicable disclosure requirement, consults with us as to the advisability of taking steps to resist or to narrow the scope of such requirement, and cooperates with us in any attempt that we may wish to have made to take steps of the type aforementioned or to obtain an order or other reliable assurance that confidential treatment will be accorded to any information disclosed.

16 Miscellaneous

16.1 All Order Confirmations shall be governed by, construed and take effect in accordance with South African law. Save as provided in clause 14, the South Gauteng High Court, Johannesburg shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of or in connection with a particular Order Confirmation (including claims for set-off or counterclaim) or the legal relationships established by a particular Order Confirmation. The UN Convention on Contracts for the International Sale of Goods is excluded (CISG).

16.2 We shall not be liable for any failure due to acts of God, acts or failures to act of Customer, acts of civil military authority, fires, strikes, floods, epidemics, attack, war, delays in transportation or other causes beyond our reasonable control, including, without limitation, delays in obtaining or inability to obtain any license that may be required by law or the necessary labour, materials, components, or manufacturing facilities (together referred to in these terms and conditions as "Excusable Delays").

16.3 Customer may not assign, transfer or delegate any of its rights or obligations under any Order Confirmation without our prior written consent, and any purported assignment of such rights or obligations without such consent shall be null and void.

16.4 If any provision in a particular Order Confirmation which is or may become illegal, invalid or unenforceable in any jurisdiction affected by a particular Order Confirmation shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated as having not been written (i.e. pro non scripto) and severed from the balance of the respective Order Confirmation, without invalidating the remaining provisions of the respective Order Confirmation or affecting the validity or enforceability of such provision in any other jurisdiction.

Updated on February, 2022.