General Terms and Conditions
Last Updated: 01/10/2024
(General Terms that apply to the sale of our Goods)
1. Introduction
1.1 This document contains general terms and conditions (our general terms) for Marley Pipe Systems (SA) (Pty) Ltd. The commercial terms of any transaction may be contained in specific terms that will incorporate (include) these General Terms.
1.2 It is important that both contracting parties always comply with this Agreement. Any uncertainty needs to be clarified without delay.
1.3 These general terms must be read in conjunction with any specific additional terms agreed between the parties which may include Orders, Tenders, Quotations or Offers that are made available to you. Should there be any conflict of meaning these general terms shall prevail.
1.4 Referring to the clause above, nothing in these Terms obligates either party to enter into any Orders or to accept any Quotations or Tenders.
1.5 Important terms that may limit Marley’s responsibility or that may involve some risk for you have been put in bold and italics. Please pay special attention to these terms.
1.6 These Terms cover any transactions where you receive goods or services from Marley and assume your acceptance and agreement to these terms.
- Definition
We have given meanings to some words that are used throughout the General Terms. These words usually begin with a capital letter. Singular words include the plural and the other way round:
Word and Meaning
- AFSA
The Arbitration Foundation of Southern Africa (or any replacement), including group companies)
- Agreement
These general terms and any specific terms that incorporate (include) these general terms
- Goods
any goods you purchase from us, by, order, tender or by entering a sales premises
- Marley Pipe Systems, Marley, we or us
Marley Pipe Systems (SA) (Pty) Ltd (Registration Number 2013/170713/07)
- Purchase Price
Purchase consideration that you will pay to us for Goods you receive from us
- You or your
The person who enters into an Agreement with us, including any legal entity (such as a company)
3. Prices
3.1 The Purchase Price in respect of Goods are as set out in the price lists we give you or is indicated on or near the Goods if you are buying them directly off the shelf. These are current and effective on the date of dispatch of the goods to which they relate.
3.2 We may also agree on a discount with you with regard to certain goods, in which event the discount will be subtracted from the Purchase Price.
3.3 If our listed Purchase Price has increased or decreased between the date of our tender, quotation or other offer (or, failing that, the date of the contract) and the date of delivery of the Goods to you, the Purchase Price (or discounted price) will be increased or decreased in the same way.
3.4 We will be entitled in our discretion to amend the price lists that apply to any or all of the Goods.
4. Payment
4.1 The Purchase Price for the Goods must be paid and cleared before we deliver the Goods to you, unless we have agreed otherwise.
4.2 If we have arranged for other terms of payment the following terms will apply, unless otherwise agreed in writing and signed by both parties:
- Each invoice we issue to you must be paid without deduction within 30 days of the date of the monthly statement in respect of all invoices issued during that month.
- We will be entitled to invoice portions of the contract as the contract progresses.
- If we receive payment from you within 30 days of the date of any statement we may, but are not obliged, allow you a settlement discount.
- You must not delay full payment to us for any reason. If we have allegedly defaulted in any way your right is limited to that of claiming a refund.
- We may charge you interest on any overdue amount at the maximum rate permitted by law. If no maximum is prescribed, the rate will be 3% per month.
- If we find that your financial position is not to our satisfaction at any time, we may ask you to pay us in advance or provide us with adequate security for payment. We will then suspend all our obligations in terms of this Agreement until you have paid us or provided security.
- All prices are exclusive of any tax, impost or other levy which you may have to pay as a result of this contract and we will be entitled on demand to recover any such amounts we have paid or to require you to pay those amounts.
- All payments made in terms of this Agreement must be made in South Africa rand, payable free of deduction at the address, or into the bank account as stated on the invoice.
5. Estimates
5.1 The estimates we give you related to Goods are based on our past experience. We are not experts with regard to giving advice, estimates, drawings or any other guidelines that are intended help you assess the Goods that you need to use for a specific project.
5.2 Estimates are given, free of charge, in good faith to assist you and must not be treated as expert advice, but rather as a helpful guideline.
5.3 We are not liable if the estimate is not completely accurate and you may not claim for shortages, over-supply of Goods or any other inaccuracy.
6. Warranties Claims & Limitations
6.1 We warrant that the Goods will be free from apparent defects and suitable for all its intended purposes, but not that the goods are suitable for any other purposes.
6.2 You agree that no warranties or representations, express or implied, other than those recorded in these Terms have been given to you or made by us regarding this Agreement.
6.3 Indirect damages excluded. We will not be responsible for any indirect, incidental, special, or consequential damages or losses arising from the Agreement. This includes loss of profits, revenue, anticipated savings, business transactions, goodwill or other contracts. It is irrelevant if this is due to negligence (carelessness) or breach of contract.
6.4 The warranties in this Agreement will apply, unless separate guarantees or warrantees have been given to you in writing or apply in law.
7. Reservation of ownership and cession as security
7.1 Risk and reward on domestic transactions transfer to Marley customers on receipt of goods. Until all amounts due for purchase of the Goods have been paid –
- ownership of the goods will not pass to you and the parties agree that the Goods must remain movable property, severable from any other movable or immovable property to which the Goods may be attached;
- any claim which you may at any time have arising wholly or partially out of or in connection with the disposal of the Goods, will be deemed to have been ceded to us as security for your obligations under this Agreement.
7.2 Risk and reward on cross-border / export transactions shall be governed by the agreed terms of sale on the basis of Incoterms 2020 or any later published version.
8. Return and repair of Goods
8.1 We warrant that the Goods will be free from apparent defects and will operate the way it was designed to if it is correctly installed.
8.2 When you return the goods the following terms apply:
- if the original packaging is unopened, we will not charge you any amount;
- if the Goods are in their original condition and repacked in their original packaging we may charge you a reasonable amount for:
- use of the Goods; and
- necessary costs associated with restoration of the Goods for restocking.
8.3 Repair of Goods. If you have asked us to repair Goods that were defective, we are not responsible for any further reparations if you damage the repaired Goods or three months have elapsed since the Goods were repaired.
8.4 If the Goods do not comply with this warranty and you notify us of the defect within 6 months after the defect became apparent, we will replace, or refund a proportionate share of the price in respect of the defective Goods when you return the Goods concerned to us.
8.5 When you return the goods the following terms will apply:
- if the original packaging is unopened, we will not charge you any amount;
- if the Goods are in their original condition and repacked in their original packaging we may charge you a reasonable amount for:
- use of the Goods; and
- necessary costs associated with restoration of the Goods into a state that makes it fit for
8.6 No warranty is given with regard to ordinary wear and tear on the Goods.
9. Force Majeure
Should the business of Marley Pipe Systems be interrupted, suspended or restricted by strike, lockout, fire, explosion, flood, typhoon, earthquake, sandstorm, windstorm, infection, disease, epidemic, pandemic, riots, calamities, labour shortage or dispute, war, other acts of God, acts or requests of government, accident, change of regulations or rules or law or government policy, government interference or any other cause beyond the control of Marley Pipe Systems, we shall be entitled to postpone the date or dates of delivery until such time as the suspension, interruption or restriction has ceased.
10. Breach
If you breach any of your obligations to us, or
10.1 become insolvent (bankrupt),
10.2 have some legal disability, for example, if you are placed under administration, custodianship, receivership, bankruptcy, liquidation, sequestration, winding-up, dissolution or placing under supervision for business rescue proceedings (or any other similar process);
10.3 take steps to deregister yourself (close down) or is deregistered we may, without any prejudice to any other remedies to which we may be entitled –
- to claim immediate payment of all amounts you owe us, whether due under this or any other contract, and whether then due and payable or not;
- to suspend the performance of any obligation owed by us;
- to cancel this agreement;
- to claim such damage as we may have suffered.
11. Resolving disputes
The parties will handle any and all disputes in the following way:
11.1 Notifying each other. There will be a dispute about or from this Agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:
- Negotiation (direct talks to try and agree how to end the dispute); failing which
- Mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
- Arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).
11.2 Negotiation. Each party must make sure that their chosen representatives meet within 5 business days of notification, to negotiate and try to end the dispute by written agreement within 10 more business days.
11.3 Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.
11.4 Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitration The arbitration will be held in English in Johannesburg. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.
11.5 Periods. The parties may agree in writing to change the periods for negotiation or mediation.
11.6 Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).
11.7 Severability. This clause is separate and divisible from the rest of this Agreement and remains effective even if the Agreement ends or is invalid.
12. General Terms
12.1 Entire contract. The Agreement is the entire agreement between the parties on the subject.
12.2 Variation and cancellation. No agreement varying, adding to, deleting from or cancelling this agreement must be effective unless reduced to writing and signed by or on behalf of the parties.
12.3 Non-waiver. Any favour we may allow you will not affect [or substitute] any of our rights against you.
12.4 Legal costs if you default. You must pay all legal costs, including attorney- and client costs, collection, commission and tracing fees, incurred as a result of a breach of this Agreement.
12.5 Governing Law. South African law governs this Agreement.
12.6 Jurisdiction. We will be entitled, but not obliged, to institute any proceedings arising out of or in connection with this agreement in any Magistrate’s Court having jurisdiction over the matter, despite the facts that the proceedings may otherwise exceed the jurisdiction of that Court.
12.7 Cession and assignment. We will be entitled to cede and assign its rights and obligations arising out of this contract without obtaining your consent.
12.8 Future contracts. In the absence of an express agreement to the contrary, these conditions must apply to all future contracts between you and us relating to the Goods.
12.9 Verbal arrangements. We reserve the right to recognise any verbal arrangements not recorded in writing and signed by the parties, whether such arrangements are made before, at or after the time this contract is entered into and whether they have the effect of adding to, amending or cancelling this contract.
12.10 Changes. No change to the Agreement is effective unless in [physical] writing and signed [with a handwritten signature] by authorised signatories of both parties.
12.11 Waiver (giving up rights). Any favour we may allow you will not affect or substitute any of our rights against you.
13. Notices and domicile
13.1 Notices. The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, fax, or email to an address or number given in the specific terms.
13.2 Service (delivery) address for legal documents. Each party chooses its street addresses [and numbers] given on the invoice, order form or other document recording purchase as its domicilium citandi et executandi (its address for the service of any document used in legal action) for the Agreement.
13.3 Change of addresses or numbers. Each party may change the addresses or numbers in the specific terms to any other addresses or numbers in South Africa by writing to the other party 14 days before the change.
13.4 Deemed delivery. Notice will be considered to be delivered on the date shown on any hand-delivered, prepaid registered post, courier, fax or email confirmation of delivery.
13.5 Notice actually received. If a party actually receives any notice or other communication, this will be good enough.