1. Definitions in these Conditions
“the Seller” means Gamma Materials Ltd and its subsidiary and associated companies.
“the Buyer” means the person or company whose order for the Goods, is accepted by the Seller.
“Conditions” mean the terms and conditions set out in this document.
“Contract” means the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
“Goods” or “Product” mean the goods (including any instalment delivery of the goods or any parts of them) which the Seller is to supply in accordance with these Conditions.
“Representative” means any person employed or authorised by the Buyer to act on his behalf to supervise and execute the works where the Goods will be used.
2. Basis of the Sale
2.1. The Seller shall sell and the Buyer shall purchase the Goods in accordance with these Conditions which shall govern the Contract. These Conditions apply to the Contract to the exclusion of any other terms and conditions that the Buyer purports to apply under any purchase order, confirmation of order or similar document, or which are implied by trade, custom, practice or course of dealing.
2.2. A quotation for the Goods given by the Seller shall not constitute an offer but shall constitute an invitation to the Buyer to place an Order with the Seller. The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Order shall only be deemed to be accepted when the Seller issues a written acceptance in accordance with the Terms and Conditions of Sales specified in the Quotation Form or Tender Document, at which point the Contract shall come into existence. Any quotation is valid for a period of 30 days only from its date of issue provided that the Seller has not previously withdrawn it.
2.3. The Seller’s catalogues, instruction leaflets, manuals, drawings, illustrations, specifications, and price lists do not constitute offers, and the Seller reserves the right to withdraw same at any time prior to acceptance of an order.
2.4. No terms or conditions endorsed upon, delivered with, or contained in the Buyer’s purchase order, specification or similar document will form part of the Contract simply as a result of a reference to such document in the Contract.
2.5. No variation to these Conditions shall be binding unless agreed in writing by an authorised employee of the Seller of the grade of manager or director.
3.1. All Sales are on Cash basis. Full payment must be effected before delivery.
3.2. For payment made by cheque, delivery will be effected upon clearance of cheque.
3.3. For Credit Sales, the Buyer shall ensure that all payments are made within the approved Credit Agreement. In case of default in payment of any one invoice, the Credit Agreement shall cease to apply and the Buyer will become immediately liable for all sums outstanding.
3.4. In case of recovery through an Attorney, the Buyer shall bear all legal costs and expenses of the Seller, including but not limited to 10% attorney’s commission plus value added tax on the sum due together with interest at the legal rate.
4.1. No order submitted by the Buyer shall be deemed to be accepted by the Seller until the earlier of an acknowledgement of order being dispatched to the Buyer, or the Goods being delivered to the Buyer.
4.2. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order submitted, and for giving the Seller any necessary information relating to the Goods, within a sufficient time to enable the Seller to perform this Contract in accordance with its terms.
4.3. The quantity, quality, and description of and any specifications for the Goods shall be those set out in the Seller’s quotation forming part of these Conditions, or the Buyer’s order (if accepted by the Seller in accordance with these Conditions).
5.1. The Seller’s liability in respect to discrepancies in quantity or measures of Goods supplied, shall be limited to the delivery of an additional supply of the Goods, in accordance with these Conditions, to make up for the discrepancy in quantity or measure. The Seller shall have no liability in respect to the discrepancy in quantity or measure if notification is given later than 24 hours after delivery of the Goods.
5.2. Where payment has already been made by the Buyer for the Goods, the Seller reserves the right to deduct from the amount to be refunded to the Buyer, all costs and expenses incurred by the Seller as a result of the Seller being prevented from or delayed in making any delivery resulting from the acts and/or omissions of Buyer.
5.3. Save where otherwise agreed in writing by the Seller, the Buyer may not re‐direct delivery of the Goods.
5.4. In the event that the Buyer requests that any Goods be deposited on a street, main road and/or public footpath, the Buyer shall be responsible for compliance with all statutes and regulations relating to public roads and byways including, without limitation, obtaining all necessary licenses and/or clearances, and for all steps which need to be taken for the protection at all times of persons or property, and shall indemnify the Seller in respect of all costs, claims, losses or expenses (including legal costs) which the Seller may incur as a result of a breach of this Condition 5.4.
5.5. ACCESS FOR DELIVERY. The Buyer shall provide suitable access facilities for discharging the Goods. The Buyer warrants the safety and suitability of all access roads, buildings, and appliances to be used for delivery purposes not being the property of the Seller, or any public road, and agrees to indemnify and keep the Seller indemnified against all losses, claims and expenses incurred as a result of any breach of this warranty. The Seller shall be entitled to refuse to use any premises, appliances or roads which it believes are unsuitable and in the event the Buyer shall be deemed to have failed to accept delivery.
5.6. DELIVERY NOTICE
5.6.1. Dates quoted for delivery are estimates only, and the time of delivery is not of the essence. The Seller shall make reasonable endeavour to ensure that Goods are delivered to the Buyer on the proposed delivery date as notified by the Seller to the Buyer.
5.6.2. The Seller shall agree on delivery times with the Buyer within 24 hours of the delivery date, and the agreed delivery times shall be estimates only (+/‐ 3 hours).
5.6.3. Save in so far as such exclusive of liability may be precluded by law from time to time, the Seller shall have no liability whatsoever in respect of any loss, damage, costs or expenses (including consequential loss or damage) which may be incurred by the Buyer and may arise from any delay in delivery and whether or not such delay shall occur by reason of the negligence of the Seller, its employees, agents or others for whom it may in law be responsible or otherwise.
5.6.4. The Buyer shall not be entitled to refuse delivery or refuse to take collection of the Goods, or repudiate or cancel the Contract as a result of any delay in delivery. Late delivery shall not affect the obligation of the Buyer to pay the Price (and delivery charges where additional to the Price).
5.7. CONDITION OF GOODS ON DELIVERY. The Buyer must satisfy himself as to the condition of the Goods at the time of delivery and the Goods are deemed to have been inspected and accepted by the Buyer or the Buyer’s representative after the delivery is ma***
5.8. The time allowed for discharging the vehicle after arrival at the address specified by the Buyer is 30 minutes.
6. The Seller’s Liability
6.1. The Seller shall not be liable to the Buyer in any manner for any delay in performing or any failure to perform any of the Seller’s obligations under the Contract if the delay or failure was due to any cause beyond the Seller’s reasonable control (i.e. “force majeure” as defined in 6.3 below) or the Buyer’s failure to provide adequate delivery instruction or any other negligence of the Buyer.
6.2. SUBJECT TO CONDITION 6.1, the Seller’s Liability shall be limited to the following:
6.2.1. THE LIABILITY ACCEPTED BY THE SELLER UNDER THE GUARANTEE SHALL BE IN SUBSTITUTION OF ANY OTHER LEGAL REMEDY OF THE BUYER IN RESPECT OF ANY ALLEGED DEFECT IN RELATION TO THE GOODS OR FAILURE OF THE GOODS TO COMPLY WITH THE SPECIFICATION CONTAINED IN THE CONTRACT.
6.2.2. THE LIABILITY OF THE SELLER ARISING OUT OR IN CONNECTION WITH ANY ACT, OMISSION, NEGLECT OR DEFAULT OF THE SELLER, ITS EMPLOYEES, AGENTS OR SUB‐CONTRACTORS IN CONNECTION WITH THE CONTRACT SHALL BE LIMITED TO THE REFUND OF THE PRICE OF THE GOODS OR THE SUPPLY OF ADDITIONAL GOODS PURSUANT TO THE GUARANTEE;
6.2.3. THE SELLER SHALL NOT BE LIABLE TO THE BUYER FOR ANY INDIRECT, CONSEQUENTIAL OR ECONOMIC LOSS OF ANY KIND WHATSOEVER WHICH THE BUYER MAY SUFFER OR INCUR BY REASON OF ANY ACT, OMISSION, NEGLECT OR DEFAULT IN CONNECTION WITH THE CONTRACT BY THE SELLER, ITS EMPLOYEES OR AGENTS.
6.3. FORCE MAJEURE
6.3.1. The Seller undertakes to make every reasonable endeavour to overcome difficulties arising from a force majeure provided always that the Seller shall not be obliged to purchase the Goods from third parties.
6.3.2. The Seller shall not be liable in any manner for any loss, direct, indirect or consequential, arising from any delay or default in the performance of any of the Seller’s obligations under the Contract where such delay or default arises as a result of any circumstance beyond the control of the Seller including (but without prejudice to the generality of the foregoing) war, industrial action, riot, malicious damage, fire, storm, cyclone, Act of God, accident, non-availability or shortage of material or labour, failure by any sub‐contractor or supplier to perform, failure of production equipment, or any statute, rule byelaw, order, regulation, requisition made or issues by any Government department, local or other duly constituted authority.
6.3.3. If performance of the Contract shall be delayed by any such circumstances, then the Seller shall have the right to suspend the performance of the Contract until such time as the reason for the delay shall no longer exist.
7. Passing of Risks
The risk in the Goods supplied shall pass to the Buyer the time when such Goods are either delivered to the address specified by the Buyer or are loaded onto the Buyer’s vehicle or onto the vehicle of any person acting for the Buyer.
No indulgence or forbearance extended to the Buyer shall limit or prejudice any right or claim available to the Seller.
The Buyer shall not, without the Seller’s prior written consent, assign or transfer or purport to assign or transfer the Contract to any other person whatsoever.
10. Limits of Contract
Any quotation includes only the Goods specified therein.
11. Law Applicable
The Contract shall in all respects be construed and operate as a Mauritian Contract and in conformity with Mauritian Law. The courts of Mauritius shall have exclusive jurisdiction thereon.