Standard Trading Terms and Conditions

SALIENT PORTIONS OF BWE’S STANDARD TRADING TERMS AND CONDITIONS

1. These terms should be read together with the appropriate Standard Trading Terms and Conditions. In the event of a conflict between this document (“these terms”) and the “Standard Trading Terms and Conditions”, the Standard Trading Terms and Conditions as reflected on Barloworld’s website will apply.
2. All words shall bear the same meaning as those ascribed to them in the Standard Trading Terms and Conditions.
3. Barloworld, through the registered legal entity shown on the face hereof (“Barloworld”), hereby agrees to sell new or used, remanufactured or rebuild equipment, remanufactured or rebuild components, machinery, plant, lubricants and/or parts, technology (hardware or software), Telemetry Devices or digital products (including any installation and/or assembly and commissioning thereof), (collectively the “Equipment”); sale of Technology Enabled Solutions (“TES”); rental of Equipment; and contracts for the provision of any services, labour, maintenance and/or repair services (collectively the “Services”).
4. A Contract shall be deemed to have been entered into, on the earlier of the following: (a) the issue of the Acceptance; (b) when Barloworld accepts payment of all or part of any amount which is or will become payable in terms of any Contract (including any advance payment or deposit); (c) when the Parts and/or Equipment is delivered to, or collected by, the Customer; (d) when Barloworld begins carrying out the Services, Preventative Maintenance Service and/or Additional Services; or (e) in respect of TES when the telemetry system and Customer’s website subscription is activated.
5. The Customer acknowledges that its authorised representative will be present at the Delivery Address on the Delivery Date. To the extent that an authorised representative is not present at the Delivery Address on the Delivery Date, the Customer acknowledges that all information applicable to the Parts and/or Equipment and handover material will be given to and signed by the person authorised to collect the Parts and/or Equipment on its behalf, and that it is the Customer’s obligation to ensure that such information is effectively communicated to all relevant persons, as necessary.
6. Without in any way limiting the Standard Trading Terms and Conditions, and as far as permissible in law, neither Barloworld, its directors, officers, employees, contractors, agents or other persons acting on behalf of Barloworld (collectively “Indemnified Parties”) will be liable for any/all claims, demands, actions, suits, and/or proceedings (whether actual or alleged), criminal liability, penalties, expenses, charges, costs (including costs on an attorney and own client scale on a full indemnity basis), liabilities, losses, damages, injury, death, damage, or loss of property of whatsoever nature from any cause of any kind whether in contract, delict, or restitution, or for breach of statutory duty or misrepresentation, or otherwise (collectively “Claims”) and whether or not caused by the negligence of the Indemnified Parties, which may be caused to or suffered or sustained by the Customer, its directors, officers or employees (collectively “Indemnifying Parties”) and/or the Indemnifying Parties contractors, agents, customers, invitees, licensees or any other third party, arising out of, incidental to or connected in any way with the Contract (or its cancellation), any Acceptance (or its cancellation), the supply of the Parts, Equipment, TES or Services, Preventative Maintenance Services, Additional Services or the rental of Equipment, unless such Claims are caused by the wilful conduct or gross negligence of Barloworld.
7. Notwithstanding anything to the contrary contained elsewhere in the Contract, as far as permissible in law, Barloworld shall not under any circumstances be liable to the Indemnifying Parties and/or the Indemnifying Parties contractors, agents, customers, invitees, licensees or any other third party in terms of, arising out of or in connection with the Contract and/or any work carried out in terms thereof or otherwise (or its cancellation) or any Acceptance (or its cancellation) for: (a) loss of actual or anticipated profit or revenue, loss of use or productivity, loss of production or business interruption, loss of data, loss of goodwill, loss of any contract or business, loss of opportunity, any demurrage or other costs related to the delay of vessels; and (b) any kind of incidental, special, indirect or consequential loss or damage, even if Barloworld has been advised, knew or should have known of the possibilities of such loss or damage.
8. The Customer hereby indemnifies the Indemnified Parties and undertakes to keep each of them indemnified and held harmless against any Claims which may be made against any of them arising out of or in connection with: (a) the Contract (or its cancellation), any Acceptance (or its cancellation), the supply of the Parts, Equipment, TES or Services, Preventative Maintenance Services, Additional Services, the delivery of Goods, or the rental of Equipment; (b) any alleged violation of any laws, including health, safety and environmental requirements, labour and social security laws and regulations by the Indemnifying Parties; (c) the Customers possession, use, on-selling of Parts, Equipment and/or Goods, or rental of the Equipment; (d) the Customer or an authorised user of the Telemetry Device providing false, incomplete or inaccurate information to Barloworld; and/or (e) or as a result of the Customer failing to notify Barloworld of a change in the ownership of Equipment and/or Goods on which the Telemetry Device is installed.
9. Unless otherwise specifically set out in the quotation or otherwise stated in the relevant Standard Trading Terms and Conditions as far as permissible in law: (a) the total liability of the Indemnified Parties to the Indemnifying Parties under or in connection with all Contracts and/or any work carried out in terms thereof or otherwise, howsoever arising, including, but not limited to, any liability arising out of contract, delict, statutory duty or otherwise and whether arising by way of penalties, liquidated damages, delay damages, performance liquidated damages, indemnity or otherwise, shall not exceed in aggregate the lesser of R2,000,000.00 (two million Rand) and: (i) in the case of the sale of any Parts and/or Equipment, the cost of replacement of the Parts and/or Equipment; (ii) in the case of the performance of Services, Preventative Maintenance Service, Additional Services, 6 (six) times the monthly fee payable by the Customer for those service/s which gave rise to the claim; (iii) in the case of the rental of Equipment, 6 (six) times the monthly rental payable by the Customer, at the time that the claim arose; and in the case of the sale of TES, 6 (six) times the monthly Fee payable by the Customer for the TES which gave rise to the claim.
10. Barloworld is not liable for any failure or delay in performing any of its obligations under the Contract which is caused by any event or circumstance which: (a) is beyond its reasonable control; or (b) it could not reasonably have provided for/against before entering into the Contract; or (c) having arisen, could not reasonably have been avoided or overcome by Barloworld.
11. As far as permissible in law, the Customer expressly agrees that, except for any written warranty or guarantee which is signed by both Parties and which Barloworld expressly agrees in writing is part of the Contract: (a) the Parts and/or Equipment is sold or let voetstoots (that is as they stand where they stand) without any warranty and/or guarantee, including any implied or common law warranty; (b) Barloworld is not liable for any latent or patent defect in the Parts, Equipment and/or Goods; (c) TES, Preventative Maintenance Services, Additional Services and Services are provided without any warranty and/or guarantee, including any implied or common law warranty; and (d) Barloworld does not make any representations in respect of the sale or rental of the Parts, Equipment, Goods, TES, the Preventative Maintenance Services, Additional Services, Services, and/or the fitness of the sale or rental of the Equipment, TES, and/or Goods or any part thereof for any particular purpose, other than as provided for in the operating and maintenance manual provided by Barloworld.
12. The Customer acknowledges that it has read the instructions and warnings provided to it by Barloworld as it appears in the operating and maintenance manual in respect of the hazards arising from, or associated with, the Parts, Equipment and/or it’s use and/or the Preventative Maintenance Services, Additional Services, Services and the Customer agrees that those instructions and warnings are adequate, clearly expressed in plain language and easy to understand.
13. The Customer agrees to comply with all relevant and applicable anti-bribery and anti-corruption laws in its dealings with Barloworld.
14. To the extent permissible by the applicable laws, the Customer will protect, defend, indemnify and hold harmless the Indemnified Parties against any Claims, of any governmental authority or any third party as a result of the breach by the Customer of any sanctions laws, economic or trade restrictions or export controls regulations (collectively “Sanctions”), whatsoever applied and/or imposed by the European Union and/or the United Kingdom and/or the United States of America or any international governmental organization or relevant authority, as may be amended from time to time.
15. All right, title and interest in and to the Intellectual Property owned by either Barloworld or the Original Equipment Manufacturer (“OEM”) pertaining to the Parts, Equipment, TES and/or the provision of Preventative Maintenance Services, Additional Services, Services shall vest respectively in either Barloworld or the OEM, as the case may be, and all benefits arising from the use of the Intellectual Property shall inure exclusively for the benefit of Barloworld and/or the OEM, respectively. The Customer acknowledges that it has no rights in or to the Intellectual Property.
16. Where any amount payable under a Contract is based on an exchange rate, that exchange rate shall be set out in the quotation. The Customer agrees to bear the risk in any variation in the exchange rate of the South African Rand against the applicable foreign currency in accordance with the terms set out in the quotation, from the date of quotation until the date of payment, and Barloworld shall be entitled to increase or reduce the amount due by the Customer in respect of the Contract accordingly.
17. As far as permissible in law, should the Customer breach these terms, then Barloworld shall, in addition to any other rights which it might have in law or these terms, have the right to obtain an attachment in any court of competent jurisdiction placing the Goods and/or Equipment into the custody of Barloworld pending the conclusion of any action instituted or to be instituted against the Customer and the parties agree that Barloworld need not serve a notice of demand on the Customer before institution of proceedings to obtain an order for attachment of the Goods and/or Equipment or an interdict against the Customer.
18. Barloworld processes and manages Personal Information in accordance with the Protection of Personal Information Act No. 4 of 2013 and Barloworld’s Privacy Statement, the current version of which may be accessed from the Company website (https://www.barloworld-equipment.com/legal/privacy-statement/). The Privacy Statement may be changed from time to time, and any updated versions will be published on the Company website

SPECIAL ADDITIONAL CONDITIONS FOR CUSOMERS PURCHASING SURPLUS STOCK

19. All new, OEM remanufactured, and Barloworld remanufactured Parts and Components are sold voetstoots (that is as they stand, where they stand) without any warranty and/or guarantee.
20. Credit returns will not be accepted on Surplus Parts and Components.
21. OEM and/or Barloworld Remanufactured Parts and Components can be purchased, but cores will not be accepted for core credit
22. The Surplus stock Pricing is final, and no further discounts will be applicable and/considered.
23. In the event that any Surplus stock is exported by the Customer beyond the borders of the Country in which they were delivered, Barloworld shall not be responsible for providing any export documentation to the Customer or any third party in relation to the Surplus stock and Barloworld shall not be responsible to the Customer or any third party for any costs incurred or associated with such exportation.
24. If any Surplus stock is exported by the Customer beyond the borders of the country in which they were delivered, and any penalty is levied against Barloworld in relation to such exportation, then the Customer shall pay to Barloworld on demand, such penalty. For the avoidance of doubt, Barloworld shall recoup any drawback incurred in relation to the exportation of the Surplus stock by the Customer, from the Customer.