1. General
a. All sales of and services provided by GOLF CART SPARES AFRICA LTD (“GCS” or the “seller”), its agents, assigns and any person or company appointed to act on its behalf shall be governed by these general conditions, to the exclusion of any other unilateral document of the customer to the contrary.
b. Any deviation from these general conditions requires the express prior written acceptance of the seller and is only valid for the transaction for which it is accepted.
c. The fact that the seller does not avail itself of these general conditions at a given time cannot be interpreted as a waiver of the right to do so at a later date.
d. In the event of a conflict between these General Conditions from one side, and the provisions of the contract mutually agreed between GCS and the customer, or those of the offer, from the other side, the latter shall take precedence.
e. In these general conditions, the term “equipment” refers to any machine, tool, accessory, spare part, and generally to any goods.
2. Offers and Contract Formation
a. Offers are always made on the basis of the information provided by the customer who, by accepting the offer and/or issuing the purchase order, explicitly guarantees the completeness and accuracy of this information. The customer is therefore solely responsible for providing the necessary information and ensuring its accuracy. Should it turn out that the information provided is incomplete, inaccurate or misleading, GCS reserves the right in its sole discretion to either cancel the offer made or issue a new offer replacing the original one.
b. Any offer by the seller is only valid if signed by authorised persons and is valid for a limited period of 30 days, unless expressly waived. During this period and before the offer has been accepted, the seller shall not be under any obligation to the customer and may at its sole discretion withdraw or amend the offer at any time.
c. Technical specifications and any information contained in the catalogues and other pre-contractual documents are for information purposes only. The mere communication of prices, rates and conditions does not constitute an offer and does not imply any obligation on the part of GCS. The conditions of an offer relate exclusively to the supplies and services specified therein and do not bind GCS to any additional supplies or services.
d. A purchase order from the customer can only be binding for GCS if it has been accepted and signed by GCS.
e. Any order or request for intervention by the customer implies the unconditional acceptance of the offer and of these General Conditions.
f. If the goods ordered by the customer are no longer produced or cannot be delivered by the manufacturer, GCS can cancel the order without compensation to the customer.
g. GCS is a reseller of the goods. The contract with the customer is therefore ancillary to the contract with the supplier of the goods and the performance of GCS’s obligations is dependent on the supplier contract. GCS therefore reserves the right to terminate any contract with the customer without notice or compensation in the event of termination of the supplier contract.
3. Price
a. The price indicated by GCS is exclusive of tax. Any taxes (VAT, customs duties, etc.) are always payable by the customer. The latter shall also bear the consequences of any differences in the interpretation of customs tariffs.
b. The customer expressly agrees that GCS reserves the right to pass on to the customer any price changes from its suppliers in price adjustments.
4. Terms of Payment
a. Unless explicitly agreed in writing by the seller, the price is payable in full on the date of receipt of the invoice and at GCS’s registered office. In any case, it must be paid before the equipment leaves the factory, for equipment to be manufactured, and in cash, on collection, for equipment in stock.
b. Any complaint relating to an invoice must be received by the seller by registered post within eight (8) days of receipt of the invoice, on pain of forfeiture. After this period, the invoice will be irretrievably deemed accepted.
c. Any sum not paid on the due date shall be increased, as a matter of right and without prior notice of default, by interest on arrears calculated, in proportion to the number of days of lateness, on the basis of the Euribor 12-month interest rate + 4% subject to a minimum of 12% per annum, as well as by compensation for damages and costs incurred by the seller as a result of late payments. This compensation is 15% of the outstanding amount, excluding taxes, subject to a minimum of USD 250, without prejudice to the seller’s right to claim a higher compensation on the basis of a greater loss.
d. Furthermore, non-payment on the due date shall also automatically and without prior notice lead to the lapsing of future deadlines and render all sums owed by the customer to GCS fully and immediately payable. In such a case, the seller also reserves the right to suspend the performance of its own obligations until full payment of the amounts due.
e. Where applicable, the drawing and/or receipt of bills of exchange or other payment documents does not constitute a novation and does not override these general conditions.
f. If the credit insurer withdraws or reduces the customer’s credit lines or if the limits of the credit insurance are reached, GCS reserves the right to demand adequate additional guarantees from the customer for the continuation of its commitments. If the customer does not meet the requirements of GCS in this respect, GCS shall have the right to terminate all or part of the contracts with the customer (including any pending order), with immediate effect and without the customer having any right to compensation.
g. The customer is not authorised to apply set-off on the amounts he/she/it owes to GCS and the withholding of any amount by the customer is therefore not allowed.
5. Delivery
a. Unless otherwise expressly provided for, deliveries shall be made according to INCOTERM “EXW” at the GCS warehouse (Incoterm 2020).
b. The customer declares that he/she/it is aware of the fact that the delivery and/or execution times communicated are purely for information purposes and depend on GCS’s suppliers, in particular on the availability of the equipment at the supplier’s premises and/or on the time that the equipment is delivered from the factory by the supplier. Failure to meet a deadline shall not entail any penalty or indemnity whatsoever for the seller, nor the cancellation of the order, nor the right for the customer to take any action whatsoever against the seller.
c. If delays occur, the delivery period shall be extended accordingly. The seller shall be entitled to make partial deliveries if necessary.
d. GCS expressly reserves the right to deliver the goods in a slightly different configuration from the one mentioned in the purchase order, as long as the deviations in question do not entail substantial changes in the characteristics of the Equipment. In addition, the information contained in the photos, illustrations, drawings and similar documents is purely illustrative and cannot give rise to any claims by the customer.
f. Without prejudice to the other provisions of these general conditions, and any other right of the seller, in the event of failure by the customer to collect and/or take possession and/or take delivery of the goods ordered within 10 days of written notification that they are available, the seller reserves the right to charge the customer storage expenses at market rate.
6. Cancellation of Orders or Termination of Contracts
a. All orders placed by the customer are binding. The customer can only withdraw them within the period mentioned in the offer or, if no period is mentioned, within one month of acceptance of the offer and, in any case, before the equipment leaves the factory, by registered letter sent to the seller. In the event of such a withdrawal, the customer shall owe the seller a fixed lump sum compensation of 30% (thirty percent) of the total amount of the order (excluding VAT), subject to a minimum corresponding to the amount of the deposit and without prejudice to the seller’s right to obtain greater compensation in the event that its loss is higher.
b. Without prejudice to GCS’s other rights and remedies, GCS reserves the right to terminate the contract or to cancel any order at any time either without cause subject to 6 months’ notice period, or in the following cases, without notice:
(i). In the event of non-compliance by the customer with one of his/her/its contractual obligations and in particular in the event of failure to meet any payment term;
(ii). In the event that the customer does not collect and/or take possession and/or delivery of the equipment ordered within 30 days of the written notification that it is available;
(iii). When the supply of the equipment or services ordered cannot be carried out in whole or in part by reason of any acts and doings imputable to the customer;
(iv). In the event of death, disability, loss of more than half of the capital or cessation of payments, bankruptcy, judicial reorganisation, liquidation, seizure or any other procedure with similar effects affecting the customer.
Without prejudice to GCS’s other rights and remedies, the termination of the contract or the cancellation of an order by GCS in any of the cases listed above shall in any case have the following consequences:
• The equipment shall be returned to GCS immediately. In the event of delay in returning the equipment, the customer shall owe GCS an amount equal to 10% of the purchase price of the equipment, as well as any costs for repairing the equipment;
• A cancellation indemnity, at the flat-rate of 30% of the total amount of the order or of the price of the intervention, shall be payable by the customer, without prejudice to GCS’s right to claim a higher amount in the event that its damages exceed this flat-rate indemnity.
The customer waives any claim for compensation in the event of termination of the contract or the cancellation of an order in one of the above cases.
7. Complains and Lack of Conformity
a. Any complaint relating to a lack of conformity with the order or an apparent defect in the equipment delivered must be made at the time of delivery and be confirmed by registered mail to the seller within eight (8) days of delivery or provision of the services, with a detailed description of the defects or faults found.
b. Any claim relating to a possible hidden defect in the equipment must be sent to the seller by registered mail within eight (8) days of the discovery of the defect, with a detailed description of the latter. This shall not impact the limitation of the warranty period.
c. No complaint or dispute shall entitle the customer to delay payment of invoices.
d. In the absence of a written complaint sent to the seller within the above-mentioned time limits, the equipment delivered shall be deemed to have been delivered and accepted by the customer in full and in good condition.
e. If the parties have agreed to sign a delivery report, this report shall be deemed to have been signed by the customer if it has not been sent by the customer within ten (10) days of delivery. This time limit is without prejudice to points a to d above and in no way be regarded as an extension of the time limits set out in a and b for lodging a complaint.
8. Warranty and Liability
a. The seller’s warranty obligations with respect to both apparent and hidden defects are those included in the warranty granted by the manufacturer or supplier of the delivered goods (back-to-back), which the customer declares to be fully aware of and accept.
b. Exclusions: the warranty does not apply in any case to:
(i) Abnormal use or use that does not comply with the purpose of the equipment or the manufacturer’s operating instructions and/or BIA’s instructions;
(ii) Damage or wear and tear resulting from a special/non-standard configuration of the equipment, carried out at the customer’s request.
c. The customer must stop using the equipment from the time of discovery of a defect until the seller has had a reasonable time to examine the defect and determine whether it is covered by the warranty.
d. In the event that a complaint is recognised to be justified and the payment conditions are met, the seller’s warranty obligation is strictly and exclusively limited to the free replacement, at the initial agreed Incoterms of the defective parts, to the exclusion of any claim for damages for any loss whatsoever. The seller cannot be obliged to provide any other remedy. The seller (or, where applicable, the equipment manufacturer) shall retain ownership of the replaced parts unless otherwise agreed.
e. These clauses do not apply to second-hand equipment, which is sold without warranty of any kind and approved through handover.
f. If the customer fails to fulfil any of his/her/its obligations, the seller shall be automatically and definitively discharged from any warranty obligation.
g. The seller’s liability, both contractual and tortious, shall be limited to the normal, foreseeable, material and direct damage proven to be in immediate connection with a breach by GCS in the performance of its obligations. In the event of direct material damage, GCS’s liability shall be limited to a maximum amount corresponding to the value of the goods that are the subject of the order or of the intervention as mentioned in the purchase order, with an absolute maximum of 10,000 USD. GCS shall in no way whatsoever be held liable for any abnormal, unforeseeable, indirect and/or consequential damage caused to the customer, the customer’s staff or third parties by the execution of its services, such as, but not limited to: loss of profit, loss of customers, loss of operational profit, etc. The customer waives any right of recourse against GCS to obtain compensation for the financial consequences of such damage and guarantees GCS and its insurers against any action brought by third parties (including its staff) concerning the aforementioned damage.
9. Intellectual Property and Confidentiality
Offers, studies, models, drawings, photographs and samples, operating instructions and other technical or commercial documents handed over or communicated to the customer shall remain the exclusive property of the seller and/or its supplier, shall be confidential and can only be used for the purpose of examining the offer or for the purposes provided for in or under the contract. In particular, they cannot be used, copied, communicated or handed over to third parties without the seller’s express prior written authorisation. Their media must be returned or destroyed (in the case of electronic media stored in the customer’s possession) at the seller’s request and, in any case, after normal use.
10. Force Majeure and Unforeseen Circumstances
a. In the event of any force majeure events or unforeseeable circumstances, the occurrence of which is wholly or partly beyond the control of the seller (such as, but not limited to, natural phenomena, extreme weather conditions, war, industrial disputes, acts of terrorism, epidemics and consequent quarantines, shortage of raw materials and energy, disruption of transport and manufacturing, fire and explosion damage, government action, etc.) which reduce the availability of the equipment from the supplier where the seller procures it, cause a delay in the fulfilment of the seller’s contractual obligations or prevent the fulfilment of its contractual obligations, the seller (i) shall be released from its contractual obligations and, where applicable, shall have the right to suspend, defer or reduce deliveries or any other of its contractual obligations, for the full duration of and to the extent of the effects of the aforementioned events or circumstances and (ii) shall have no obligation to obtain supplies from alternative sources.
b. If the case of force majeure or unforeseeable circumstances last for more than three (3) months, the seller shall be entitled to terminate the contract, without compensation to the customer and the customer shall remain liable for the price of the goods and services delivered prior to the termination (including all taxes and charges) and the costs incurred by the seller.
c. In the event of the occurrence of events which could not reasonably be foreseen at the time of the contract being entered into, which are beyond the control of the seller, and which make the fulfilment of its contractual obligations excessively onerous, the parties shall be obliged, within 30 days of this clause being invoked, to negotiate new contractual conditions which reasonably take into account the consequences of the event. If the parties fail to reach an agreement within this period, the seller shall be entitled to terminate the contract without compensation to the customer.
11. Transferof Risk and Retention of Title
a. The risk related to the goods shall be transferred to the customer as soon as the goods are made available to it, i.e., EXW, at GCS’s warehouse, unless otherwise agreed upon in the contract.
b. If GCS has to take care of the transport, this will be done at the client’s risk.
c. Notwithstanding the delivery and the transfer of risk upon delivery, the material delivered remains the exclusive property of the seller until full payment of the price in principal, interest, compensation and possible costs by the customer.
d. The customer, who would have received delivery of the goods before the full payment of the price of the latter (in principal, interest, indemnities and possible costs), expressly accepts that until the full payment of the price:
(i) It will take all necessary steps to secure this reservation of title and will keep the goods in such a way that they can be identified as the property of the seller and will in particular affix a sign clearly and visibly indicating that the said goods remain the property of the seller and will inform thereof any third party potentially concerned;
(ii) In the event of bankruptcy, seizure or any other claim on the goods, the customer shall immediately notify the creditor, receiver, liquidator, bailiff or other third party or legal representative of the existence of this retention of title clause. The customer shall also notify the seller of its bankruptcy or of the seizure of the goods;
(iii) He may not in any way transform or incorporate the goods;
(iv) He may not sell, lease, make available to third parties in any capacity whatsoever, pledge or encumber the goods in any way;
(v) He must keep the goods in a perfect state of maintenance;
(vi) He must take out and maintain all necessary and useful insurance, in particular against the following risks: theft, destruction, fire and all other possible forms of damage by his employees and/or third parties. The customer must, at first request, present the corresponding certificates to GCS. In case of damage to the goods, GCS shall take over the customer’s rights towards the insurance company and shall directly receive the compensation due from this company up to the amount owed by the customer to BIA. The customer must inform his insurer in writing and have a beneficiary clause signed if necessary.
12. Subcontracting and Assignment
a. The seller may have all or part of the contract performed by or assigned to a third party without the customer’s prior consent.
b. The customer cannot assign in whole or in part its rights and obligations pursuant to or arising from this contract to a third party.
13. Poaching of Staff
The customer is prohibited from poaching staff from GCS in any way, directly or indirectly, as an employee or as a self-employed person, for a period of one year from the end of the contract or from the end of the execution of the last order. In the event of non-compliance with this provision, the customer shall owe GCS compensation equal to the amount of one year’s gross remuneration of the staff member concerned.
14. End-User
The customer represents and warrants that it is the end-user of the goods purchased, that it will use solely for its own purposes, in the country and on the site indicated at the time of the order and in full compliance with the law and regulations and will not supply it or make it available in any form whatsoever to a third party. In addition, the customer represents and warrants that it will not re-export the goods, directly or indirectly, to Russia, Belarus or any other country under any form of sanctions. The customer shall indemnify and hold GCS harmless against any breach of that clause by the customer or any person related to it. Also, in the event of a breach of this obligation by the customer, whether reasonably suspected or proven, GCS shall be entitled to suspend the performance of its own obligations or to cancel any contract or order binding it to the customer without notice or compensation.
15. Governing Laws and Jurisdiction
These terms and conditions are exclusively governed by the laws of the Republic of Mauritius. Any disputes shall be submitted to the Mauritian courts.
16. Partial Nullity and Inapplicability
Any nullity or inapplicability of one or more provisions of these general conditions or of the contract shall not affect the validity or applicability of the remaining provisions. Where applicable, the parties undertake to replace the null and void or inapplicable provision with a valid provision that is the closest in economic terms to the null and void or inapplicable provision.