TERMS AND CONDITIONS OF SALE
Mentis Additive Manufacturing (Proprietary) Limited
(Registration Number 1988/006925/07)
1.1. These terms and conditions shall apply and regulate the sale of any goods, material, products, equipment or rendering of any services by the Seller (Mentis Additive Manufacturing (Pty) Ltd t/a Mentis 3D) to the Purchaser (whose details appear at the end of this document, or have been provided on the Seller’s online order system), arising out of any offer made by the Seller and accepted by the Purchaser or any other agreement reached between the parties.
1.2. In the event that the Consumer Protection Act 68 of 2008 (or any other applicable legislation) applies to this agreement or to a specific transaction, any provision of the agreement, or of the particular transaction concerned is in conflict with this act shall be read in such a way that it is not in contravention of the applicable act, or if this is impossible, it shall be deemed to be deleted and shall not apply or have any effect on the validity of this agreement.
2. ORDERS AND DELIVERY
2.1. Orders by the Purchaser for goods or services shall be made in writing by way of purchase order (including by way of online order). Alternatively, the Seller may accept proof of payment following the Seller’s quotation as a valid order, or any other manner nominated by the Seller. In the event of an oral order being accepted by the Seller, the Seller will not be responsible for any errors or misunderstandings occasioned by the Purchaser’s failure to make orders in writing. The Seller reserves the right to only accept / begin with any orders upon full payment being received.
2.2. The Seller’s quotes will be valid for a 30 (thirty) day period, or alternative period, as expressly confirmed in writing by the Seller.
2.3. Orders by the Purchaser shall constitute irrevocable offers to purchase the goods or services in question at the prices determined and/or quoted by the Seller and shall be deemed accepted by the Seller by way of the delivery of the goods and/or provision of the services either orally, or by the written acceptance or confirmation of the order and the issuing of an order number by the Seller.
2.4. Orders accepted by the Seller shall not be varied or cancelled by the Purchaser, except with the written consent and confirmation of the Seller and should any order be varied and/or cancelled by the Purchaser, the Purchaser bears full liability for any and all costs, damages or losses caused to the Seller from such varying or cancellation of the order.
2.5. Delivery of goods to any delivery address as chosen by the Purchaser shall constitute proper delivery of the goods, despite the fact that such address may not have been the address or premises of the Purchaser and despite the fact that neither the Purchaser nor its representative is present to accept delivery.
2.6. Should the Purchaser opt to collect the goods, all risks and liability of the goods will pass to the Purchaser on collection of the goods. Delivery costs shall be paid for by the Purchaser.
2.7. In the event that the Purchaser delays or fails to take delivery or collect the goods as agreed, the risk shall immediately pass to the Purchaser and it accepts liability for the reasonable costs of storing, insuring, and handling and re-delivery of the goods, until delivery and/or collection takes place by the Purchaser.
2.8. Every endeavor shall be made to effect delivery promptly or within the period indicated in writing by the Seller, but the Seller does not guarantee dispatch on a specific date nor warrants timeous delivery. In the event of any claimed damage to packaging of the goods upon delivery, photo evidence of same will be required.
2.9. The Seller will not be responsible for delays in delivery which are due to vis major (acts of God), war, civil unrest, strikes, labor disputes, accidents, weather, load shedding / reduction, lockdowns, breakdown of machinery or raw material scarcity. The Seller shall furthermore not be liable for any costs, loss or damage, consequential or otherwise, resulting from any delay, cancellation or suspension of any orders based on any reason beyond the Seller’s reasonable control.
2.10. A delivery note issued by the Seller and purporting to be countersigned by or on behalf of the Purchaser shall on the mere production thereof serve as prima facie evidence of the fact that the goods (quantity and condition) described therein were delivered to the Purchaser.
2.11. All goods delivered (and/or services supplied) to the Purchaser shall be presumed to have been delivered in good order and condition to the satisfaction of the Purchaser, unless the Purchaser, within 48 (forty-eight) hours of delivery, advises the Seller in writing of any claimed defect and/or return of any goods to the Seller. By failing to give notice within the above period, the Purchaser confirms that the goods and/or services were ordered and supplied without defect. Upon notice being provided in accordance with this clause, goods are to be returned to the Seller, at the Purchaser’s cost, within 5 (five) working days.
2.12. In the event of any defects in respect to the goods being proven, no refund / credit / re-prints will be provided until such time as the original goods have been returned and received by the Seller. In the event that defective goods are returned, no modifications to the original order will be accepted. Any modifications will constitute a new order, and quoted as such.
2.13. Save for the provisions dealing with the return of goods as per the Consumer Protection Act (if applicable), goods sold by the Seller are not returnable, save at the option of the Seller, and shall be for the expense of the Purchaser and in the condition dictated by the Seller on a case by case basis.
2.14. If the Seller consents in terms of 2.13 above, the Purchaser shall be obliged to pay a handling fee of 10% (ten percent) of the invoiced price of the goods, which handling fee shall form part of the selling price of the goods, which price will be increased by an amount equivalent to such handling fee.
2.15. The Seller will not accept responsibility for any design faults, corrupted files, incorrect or faulty drawings. Any faulty prints / re-prints as a result thereof will be for the cost of the Purchaser.
3. PAYMENTS AND PRICES
3.1. The purchase price for all goods and/or services rendered shall immediately be payable in cash by the Purchaser upon acceptance of the order by the Seller , without deduction or set off. Alternatively, in the event that the Purchaser is approved by the Seller to purchase on account / credit, the goods supplied or services rendered shall be paid in full, without deduction or set off, within 30 (thirty) calendar days from the Seller’s invoice.
3.2. The Seller may allocate payments received from the Purchaser to any amounts owing by the Purchaser to the Seller at the time of allocation, as it may in its sole discretion deem fit.
3.3. The price of all goods and/or services rendered by the Seller to the Purchaser under this agreement shall, in the absence of a written agreement to the contrary, be the prices determined by the Seller for such goods and/or services. The price reflected on the Seller’s invoice for such goods and/or services shall be prima facie proof of the Seller’s price for such goods and/or services.
3.4. The price reflected on the Seller’s invoice is strictly net and not subject to any discounts, unless otherwise agreed in writing between the parties.
3.5. While quotations are generally valid for 30 (thirty) days, the Seller reserves the right to increase prices after acceptance of any order, at any stage, as a result of inflation rate changes (in accordance with CPI), exchange rate fluctuations and unavoidable increases in respect to disbursements and / or its suppliers in the event that orders take longer than 30 (thirty) days to deliver (for any reason whatsoever), or for ongoing arrangements / agreements / order between the Seller and the Purchaser. (“CPI” means the weighted average of the consumer price index for all areas, groups and all items, from time to time, published by Statistics South Africa in its quarterly bulletin in respect of “all items”, or if the calculation of such index is ceased, the most similar index, as compiled and published by Statistics South Africa or anybody authorised in its stead, in terms of the Statistics Act, No. 66 of 1976, to compile and publish national statistics.)
4. INTELLECTUAL PROPERTY PROTECTION
4.1. For the purposes of this clause, “Intellectual Property Rights” shall include, without limitation, any ideas, concepts, know-how, recipes, formulas, data processing techniques, copyrights, patents, designs, inventions, source code and documentation, notes and memorandum attaching to the applicable material described herein.
4.2. The Purchaser acknowledges that the Seller’s services include the provision of additive manufacturing (3D printing) services.
4.3. In accordance with the Purchasers requirements, these services (and other services) may consist of either one (or a combination of) the following:
4.3.1. the design / concept is created, invented and/or developed independently and/or owned by the Purchaser, wherein the Seller is requested to manufacture such design / concept / product (“the Purchaser Material”);
4.3.2. the design / concept is created, invented and/or developed by the Seller at the request of the Purchaser, wherein the Seller is requested to manufacture such design / concept / product (“the Requested Material”);
4.3.3. the design / concept / product is / has been created, invented and/or developed independently and/or owned by a third party (which design / concept may or may not already be partially or finally developed as an existing product), wherein the Seller is requested to manufacture, reproduce or reverse-engineer such design / concept / product (“the Third Party Material”);
4.3.4. the design / concept / product has already been created, invented and/or developed by the Seller prior to the involvement / request of the Purchaser, and the Seller is requested to manufacture such design / concept for use by the Purchaser (“the Existing Material”);
4.4. All Intellectual Property Rights, together with all right, title and/or interest therein, attaching to –
4.4.1. the Purchaser Material will remain vested in the Purchaser at all times, but subject to the provisions of clause 4.5 below;
4.4.2. the Requested Material and the Existing Material will remain vested in the Seller at all times, and the Purchaser will have no right to use such material other than as specifically recorded in clause 4.6 below;
4.4.3. the Third Party Material will remain vested in the applicable third party at all times, subject to the provisions of clauses 4.9 and 4.10 below.
4.5. The Purchaser hereby grants, at no cost to the Seller, a right / license of access to and use of the Purchaser Material for purposes of executing the order.
4.6. The Seller hereby grants to the Purchaser the right to exclusive use of the product/s manufactured as a result of the Requested Material and the Existing Material, but subject to the provisions of clause 4.7 below.
4.7. The Purchaser shall not –
4.7.1. reproduce or modify the Existing Material and/or the Requested Material, nor the products derived therefrom; or
4.7.2. rent or lease the Existing Material and/or the Requested Material, nor the products derived therefrom to any other person; or
4.7.3. distribute the Existing Material and/or the Requested Material, nor the products derived therefrom to third parties;
unless specifically authorised in writing by the Seller.
4.8. The Purchaser warrants that its employees and consultants will be informed of the meaning and extent of this clause / agreement.
4.9. The Purchaser warrants to the Seller that it owns the Purchaser Material and / or has received the necessary consent from the applicable third party in respect to the Seller’s use and execution of the order in respect to the Third Party Material (or other any other material).
4.10. The Purchaser hereby indemnifies the Seller, and agrees to hold it harmless against any claim, loss, liability, damage or expense suffered or incurred as a result of –
4.10.1. the Purchaser and/or any of its respective employees / consultant/s failing to abide by the provisions of this clause / agreement;
4.10.2. any person alleging that the use of the Third Party Material or any other material or Intellectual Property Rights by the Seller will result in any infringement of such person’s rights.
4.11. The Seller shall have the right, at any stage, to register any trademark, patent, design or copyright in respect to any of its Intellectual Property Rights relating to any of its material, including the Requested Material and the Existing Material. The Purchaser will reasonably assist the Seller, where necessary, in respect to the registration of same.
4.12. In the event that Seller requires the use of any Purchaser Material for marketing purposes, the consent of the Purchaser will be requested. This will not, however, apply to any intellectual property which is in the public domain.
5.1. The Purchaser agrees and acknowledges that in the event that the Purchaser breaches any of the terms and/or conditions herein by way of the following:
5.1.1. the Purchaser failing to pay any amount due and payable on due date;
5.1.2. the Purchaser suffering any civil judgment taken or entered against it;
5.1.3. the Purchaser causing a notice to surrender its estate to be published in terms of the Insolvency Act;
5.1.4. the Purchaser being a natural person becomes deceased;
5.1.5. the Purchaser being provisionally or finally liquidated or sequestrated, or placed under provisional or final judicial management, or subjected to business rescue, as the case may be;
then and in that event, all amounts owing by the Purchaser to the Seller under all agreements for the supply of goods and/or services shall become immediately due, owing and payable irrespective of the date when the goods were purchased, or services rendered.
5.2. The Seller shall, in addition to any other remedies which it may have at law, be entitled to take the action as set out below:
5.2.1. suspend further deliveries to the Purchaser;
5.2.2. claim specific performance;
5.2.3. cancel this agreement;
5.2.4. collect or recover from the Purchaser any goods supplied by it under this agreement, to the value of the balance then due by the Purchaser to the Seller, without the need of a Court order authorizing the collection. In this regard, the Purchaser hereby irrevocably authorises the Seller to enter upon the Purchaser’s premises to take possession of such goods.
5.2.5. In the event of the Purchaser obstructing the Seller from removing its goods, necessitating the obtaining of a Court Order, the Seller shall be entitled to obtain an award of costs against the Purchaser on a scale as between attorney and client.
Notwithstanding the delivery or collection of any goods to the Purchaser, the Seller reserves ownership of such goods until the Purchaser has made payment in full to the Seller of all amounts due, owing and payable to the Seller.
7. LEGAL PROCEEDINGS
7.1. The Purchaser agrees that these terms and conditions, and all modifications and amendments thereto shall be governed by and decided upon and construed under and in accordance with the laws of the Republic of South Africa.
7.2. A certificate signed by a manager or director of the Seller (whose authority need not be proved) shall on the mere production thereof serve as prima facie proof of the indebtedness of the Purchaser to the Seller.
7.3. The Purchaser shall pay all legal costs on an attorney and client scale, tracing agent’s fees and collection commission which the Seller may incur in taking any steps pursuant to any breach or enforcement of these terms and conditions by the Seller.
7.4. The Purchaser shall be liable to pay interest in respect of amounts unpaid, as at the due date, at the prime interest rate plus 2% (with prime calculated by the Seller’s bank). The interest shall be calculated and paid monthly in advance. If the interest is not paid, it shall be added to the capital owing and the whole amount shall form the principal debt, which shall accrue interest in this way until payment in full is received from the Purchaser for the principal debt, interest and legal costs.
8. DISCLOSURE OF PERSONAL INFORMATION
8.1. If necessary, the Seller reserves the right to obtain, hold or otherwise process personal information as defined and in accordance with the Electronic Communications and Transactions Act, 2002; the Regulation of Interception of Communications and Provision of Communication-Related Information, 2002 (RICA) and the Protection of Personal Information Act, 2013 (POPIA) to any of its partners, directors or other officers (the ‘Data’) for the purpose of carrying out its business and any associated activities.
8.2. Subject to the provisions of POPIA, the Data will be held securely and in accordance with the provision of all applicable acts and may be shared with, disclosed to and/or processed by other companies within the Seller’s group and other organisations which the Seller nominates. The Seller may also disclose the data to any person concerned with the prevention of crime, criminal acts and general law enforcement.
9.1. The Purchaser chooses the address as set out in any order form or online request form (or failing a written order form, the delivery address specified by the Purchaser) as its domicilium citandi et executandi, for the valid service of any and all proceedings and notices, for any purpose, arising out of, or in connection with, the relationship between itself and the Seller, as regulated by this agreement.
9.2. The Seller chooses as its domicilium citandi et executandi at 147 North Reef Road, Activia Park, Elandsfontein, Gauteng, South Africa, 1406.
9.3. Any notice given in terms of this agreement shall be in writing and shall be deemed to have been duly received by the addressee on date of delivery if by hand delivery. If sent by prepaid registered post, it shall be deemed received on the 8th day following the posting thereof. The Purchaser confirms and accepts transmission by email as valid and that receipt shall be deemed 1 (one) day after dispatch of the notice. A positive “delivery receipt” (whether by way of email or otherwise) shall not necessarily be required to constitute valid and adequate service. it
10. WARRANTIES AND INDEMNITY
10.1. The Seller gives no warranty, express or implied, and disclaims all liability to the Purchaser in connection with the Seller’s performance or goods, or the Purchaser’s use of the goods supplied, or that the goods will be fit for any particular use, and in no event will the Seller be liable for special, indirect, direct or consequential damages, including but not limited to loss of profits.
10.2. In addition to the above, the Seller confirms that none of its goods or services are FDA, SABS and / or SAHPRA approved. The Seller further confirms that none of its goods or services are certified or will be in compliance with any regulations in any country, nor can the Seller confirm or warrant they are or will be capable of such certification.
10.3. Any advice or opinion given by the Seller is for the Purchaser’s benefit only and the Seller accepts no responsibility for any damage incurred as a result of the reliance thereon and the Purchaser confirms this applicable indemnity.
10.4. The Purchaser warrants that the Purchaser Material, the Requested Material and any other intellectual property, requested product and / or order provided to or sent to the Seller will not be in contravention of any civil or criminal laws (both nationally and globally) and hereby indemnifies the Seller in respect to any claim brought against it by any third party or any damages suffered by the Seller in the event that the Purchaser is in breach of this provision at any stage.
10.5. Any court order given for any liability of the Seller to the Purchaser, in any way, shall not exceed the total price already paid by the Purchaser to the Seller for the specific services rendered and/or goods supplied in connection with the applicable award.
11.1. The Purchaser hereby agrees that the Seller may obtain details on the Purchaser’s accounts status from other known creditors of the Purchaser and agrees that the Seller may use this and information obtained from credit bureaus to assess its creditworthiness.
11.2. The Purchaser acknowledges and agrees that any information regarding its creditworthiness, defaults in payment to the Seller and details of the manner in which it conducts its account with the Seller, may be disclosed to any other creditor of the Purchaser or to any credit bureau.
12.1. This contract represents the entire agreement between the Seller and the Purchaser and shall govern all future contractual relationships between the parties and shall also be applicable to all nominated debts which the Purchaser may owe to the Seller prior to the Purchaser’s signature hereto, being an amendment and replacement to any previous stipulated agreement.
12.2. No amendment and/or alteration and/or variation and/or addition and/or cancellation of these terms and conditions, whether consensual or unilateral shall be of any force and effect, unless reduced to writing and signed by a director of the Seller.
12.3. No warranties, representations or guarantees have been made by the Seller, or on its behalf, which may have induced the Purchaser to sign this document.
12.4. No relaxation or indulgence which the Seller may give at any time in regard to the carrying out of the Purchaser’s obligations in terms of any contract shall prejudice the Seller or be deemed to be waiver of any of the Seller’s rights in terms of any contract.
12.5. The Purchaser shall not cede its rights nor assign its obligations acquired in terms of this agreement without the written consent of the Seller.
12.6. The Seller shall at any time, in its sole discretion, be entitled to cede all or any of its rights in terms of this agreement, including all terms and conditions and sureties, to any third party without prior notice to the Purchaser.
12.7. The headings in this document are included for convenience and are not to be taken into account for the purpose of interpreting this agreement.
12.8. Each of the terms herein shall be a separate and divisible term and if any such term becomes unenforceable for any reason whatsoever, then that term shall be severable and shall not affect the validity of the other terms, nor the contract as a whole.
12.9. Provided that they do not conflict with any of the terms and conditions contained herein, such general practices, terms and conditions applicable to the industry or profession in which the Seller conducts business shall be applicable to all dealings between the Seller and the Purchaser.
12.10. The Seller reserves the right to refuse the acceptance of any order, for any reason whatsoever.