29 September 2024 (Version 4)

YOUR CONTRACT WITH US

We shall only contract with the customer (you) on and these Terms and Conditions unless otherwise agreed with you in writing.  All orders placed by you will be deemed to be placed subject to these Terms and Conditions.

These Terms and Conditions constitute the entire agreement between you and us and no other statements, representations or terms form part of it unless they are reduced to writing and signed by both parties Authorised Signatories.

Any tender or quotation given by us will comprise an invitation to accept and in any event is valid for a period of 30 days only from the date of its issue, unless otherwise stated in the tender or quotation. Any order issued by you is subject to acceptance by us and no order submitted by you shall be deemed to be accepted by us unless and until confirmed in writing by an Authorised Signatory. Each order or acceptance of the quotation for Goods by you from us shall be deemed to be an offer by you to buy the Goods subject to these conditions.

We may withdraw any quotation or tender at any time before it is incorporated into a Contract.

We shall not be obliged to accept any order given by you.

CANCELLATION

Any order given by you which has been accepted by us shall be irrevocable and may not be cancelled by you except where expressly agreed by an Authorised Signatory at our absolute discretion, then only on the terms that you will indemnify us fully against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by us as a result of such cancellation.

PRICE

The price of the Goods shall be our quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price prevailing at the date of delivery. Unless otherwise stated all prices quoted are as delivered to the authorised Scania dealer or workshop ex works exclusive of VAT, and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts you shall pay in addition when it is due to pay for the Goods.

We reserve the right at any time prior to delivery of the Goods (or any instalment), to increase the price to take into account:

a.    increases in our supplier's prices;

b.    any change in delivery dates, quantities or specification for the Goods which is requested by you;

c.    any other increase in cost to us for any reason beyond our control.

We shall require a deposit from you (unless by exceptional prior agreement) of a proportion of the price to be paid. We shall be entitled to retain this deposit in partial payment of any sums due where an order is cancelled by you without cause. If our costs exceed the deposit you will reimburse this excess on demand.

TERMS OF PAYMENT

Save for an open account, repair and or maintenance and or service accounts the price of all Goods shall be due and payable by you in cleared funds not later than the day prior to the date of delivery unless otherwise agreed by an Authorised Signatory.  Payments by credit card or otherwise incur a handling or other charge that we may recover from you.

If you fail to make any payment on the due date then, without prejudice to any other right or remedy available to us, we shall be entitled to:

a.    cancel the Contract forthwith or suspend any further deliveries of the Goods;

b.    appropriate any payment made by you to such of the Goods or Services (or the goods or services supplied under any other contract between you and us) as we may think fit;

c.    at any time, at our discretion, demand security for payment before continuing with the Contract or delivering any Goods;

d.    charge you interest at 4 per cent per annum above First National Bank prime interest rate for the time being on the amount unpaid, such interest being deemed to accrue on a day to day basis from the due date for payment until payment in full is made; and/or suspend our performance of all or any of our contractual obligations under or in connection with any other contract with you. You shall have no right to set off any sums due to us in respect of  any claim which you have against us.

We shall be entitled to retain possession of any of your Goods (whether new or used vehicles, parts or otherwise) against payment of any sums due to us on any of your accounts and whether relating to sales of vehicles, parts or services.

DELIVERY OF THE GOODS AND THE BUYER'S TRANSPORT COSTS

Unless otherwise confirmed by an Authorised Signatory delivery of the Goods will be deemed to be delivered when the Goods leave our premises whether the goods have been collected by you or on your behalf or the Goods have been delivered to you by us or on our behalf. We may agree to deliver to you or your nominated bodybuilder or specialist supplier.

Any date or dates quoted for delivery of the Goods are approximate only and we shall not be liable for any delay in delivery of the Goods or failure to make them ready for collection on such dates. The Goods may be delivered by us in advance of the quoted delivery date upon giving reasonable notice to you and part deliveries are allowed. If you fail to take delivery of the Goods then, without prejudice to any other right or remedy available to us, we may:

a.    store the Goods until actual delivery and charge you for the reasonable storage fees including insurance; or

b.    sell the Goods at a reasonable  price and (after deducting all reasonable costs incurred including storage, insurance and selling expenses) account to you for any excess over the price already paid by you under the Contract or charge you for any shortfall below the price payable by you under the Contract.

RISK AND OWNERSHIP

Risk of damage to or loss of the Goods shall pass to you when:

a.    we notify you that the Goods are available for collection in the case of Goods which are to be delivered at our premises; or

b.    in the case of Goods, we have agreed to deliver other than at our premises, at the time of delivery or, if you wrongfully fail to take delivery of the Goods, the time when we tender delivery of the Goods, or 

c.    such other time agreed in advance in writing by an Authorised Signatory.

Ownership in the Goods shall not pass to you until payment in full is received by us for the Goods.

Ownership shall not pass to you if there are any amounts outstanding on any account from you to us.

In the case of new Vehicles you may not under any circumstances sell or otherwise dispose of or encumber the Vehicles prior to full payment unless with prior written agreement of an Authorised Signatory. Until ownership in and to the Goods passes to you, you shall:

a.    hold the Goods on our behalf.

b.    keep the Goods properly stored and protected separate and distinct from all other property and comprehensively insure the Goods with a reputable insurance company for their full replacement value.

c.    We (including our representatives, agents and employees) are irrevocably authorised by you at any time to enter upon any of your premises or those of any third party where the Goods are stored, using reasonable force in the case of urgency for the purpose of repossessing, removing and if necessary dismantling such Goods for the purposes of removal.

Customer Property: Any customer Goods including vehicles left with us remain at your risk apart from damage or loss arising from our gross negligence.

INSPECTION / SHORTAGES

You are under a duty to inspect the Goods on delivery to your premises or on collection. 

We shall be under no liability for any shortages in the Goods at the time of delivery that would be apparent on careful inspection (whether or not such inspection has been carried out) and in any event will be under no liability if a written complaint is not delivered to us within 2 working days of delivery detailing the alleged shortage.

WARRANTY AND LIABILITY

We will be under no liability to you for any loss or damage of any kind however caused whether consequential, financial, loss of profit or opportunity or otherwise. All conditions, warranties and stipulations express or implied statutory customary or otherwise are hereby expressly excluded.

If you provide the specification or nominate the supplier of bodywork, equipment, or other adaptations to Goods then we shall not be liable for any issues arising from this, including Type Approval requirements, performance, delays or otherwise. We shall remain responsible for the aspects of the order other than your specification or nomination in accordance with these terms. For product performance or other issues arising from your specification or nomination we shall provide all reasonable assistance in pursuing warranties from suppliers. This shall be the extent of our liability to you.

SERVICE

You should remove all personal items from the vehicle when bringing it in for service and we shall have no responsibility for loss of or damage to such items except in consumer transactions and then only when this is caused by gross negligence on our part. Where a vehicle is being repaired following recovery it is your responsibility to remove or otherwise secure the vehicle’s load including trailers and equipment and we shall have no liability for any loss or damage to such items whilst the vehicle is under our control.

You will pay for any work that we do to, or Goods we supply in respect of your vehicle ordered by the driver of the vehicle or any person whom we reasonably believe has your authority to place such an order.

We shall be entitled to allow the vehicle to be collected on your behalf by any person whom we reasonably believe has your authority to do so and we shall not be liable for any loss of or damage to the vehicle in such circumstances.

You authorise us to drive the vehicle on the road or elsewhere in connection with any testing or taking the vehicle to coach builders or specialists or otherwise in connection with the carrying out of the servicing/repair.

FORCE MAJEURE

We shall not be liable to you or deemed to be in breach of the Contract by any delay in performing or failure to perform any of our obligations in relation to the Goods arising from any cause beyond our reasonable control.

If we are unable to perform our obligations under the Contract due to a cause beyond our reasonable control our obligations are suspended. If our inability to perform our obligations under the Contract due to a cause beyond our reasonable control continues for six months then either you or we may give written notice without liability to the other to terminate any unperformed element of the Contract.

SALES PROMOTION DOCUMENTS AND SPECIFICATIONS

Whilst we try to take every precaution in the preparation of our catalogues, technical circulars, price lists, illustrations drawings and other literature these documents are for your general guidance only and the particulars contained in them shall not constitute representations by us and we shall not be bound by them.

No dimensions, details, statements or other information as to capacity, output or power specified or contained in the drawings, catalogues, shipping specifications, photographs or other documents or illustrations shall be treated as binding upon us unless we have expressly agreed otherwise in writing signed by an Authorised Signatory. We reserve the right to make such changes in the specification of the Goods and/or the design of or material used in the Goods as may be required to conform with any applicable safety or other statutory requirements or which in our opinion will be an improvement to the Goods, or which do not materially affect their quality or performance or which are otherwise required due to any cause beyond our reasonable control.

DATA

You hereby give consent to us and the Scania group companies including Scania Finance Southern Africa (Pty) Ltd to process and share your data relating to you in your capacity as recipient of services as well as personal data and operational data, save for data which we and Scania group companies including Scania Finance Southern Africa (Pty) Ltd have created or generated itself.

The Company may collect data in a lawful manner, live or stored, relating to Goods. We may process any data in order to provide statistical analysis, promotion, product evaluation, advice, marketing or for other purposes. We may share and provide this information to suppliers, group companies including Scania Finance Southern Africa (Pty) Ltd or other parties in the distribution chain from time to time.

If you have access to or provide any such data as referred to above which may be personal data you warrant that you will comply with all laws, regulations or other legal requirements relevant to personal data. You will ensure that you have obtained all requisite consents to the processing of such personal data. You will indemnify us in full for all losses and costs arising from any breach of this warranty and for any other unlawful transmission of data. You may notify us in writing if you do not wish vehicle information to be used by us at info@scania .co.za.

The full terms and conditions of the data processing and protection are available on www.scania.co.za.

TERMINATION AND SUSPENSION OF THE CONTRACT

We shall be entitled by notice in writing to forthwith terminate the Contract if you are in breach of the Contract alternatively  suspend our performance of the Contract upon any breach of the Contract by you until such breach is remedied to our satisfaction.

GENERAL

Any notice to be given or required or permitted to be given by either party to the other under the Contract or these Terms shall be in writing and shall be deemed to have been duly given if sent or delivered to the party concerned at its registered office, by hand or such other address as that party may from time to time notify in writing.

If any provision of the Contract or these Terms shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of the Contract or these Terms as applicable.

You may not assign, subcontract, delegate or sub-licence the Contract or any of your rights or obligations under the Contract without our prior consent in writing. We may assign, subcontract, delegate or sub-licence part or whole of a Contract to any of our group companies or member of our dealer network.

We value and protect our brand, image and intellectual property. Nothing in these terms or any supply to you grants any ownership or rights over such assets beyond any legal minimum rights essential to the use of any Goods.

Our rights shall not be prejudiced or restricted by any indulgence by us to you and no waiver by us in respect of any breach of the Contract or these Terms shall operate as a waiver in respect of any subsequent breach of the same or any other provision.

Irrespective of where the Goods are delivered the validity construction and performance of the Contract and these Terms shall be governed by the South African Law. You agree to submit to the non-exclusive jurisdiction of any competent Court.

Should any action be instituted against you, you will be liable to pay our cost on the scale as between attorney and client.

NO RUSSIA AND NO-BELARUS  

NON-RE-EXPORTATION TO RUSSIA AND OR BELARUS

Background

The European Union/EU have issued numerous sanctions regulations targeting Russia and Belarus, such as Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s and Belarus actions destabilizing the situation in Ukraine, as amended inter alia through Council Regulation (EU) 2023/2878 of 18 December 2023 (hereinafter referred to as the “Amending Regulation”).All Scania-branded and other products supplied by us or any of our agents, distributors and or contractors under these terms and or any other agreement (hereinafter referred to as “Scania Products”) are ultimately sourced from Scania CV AB as incorporated in Sweden within the EU. The Amending Regulation contains mandatory requirements for EU entities selling, supplying, transferring, or exporting goods to certain countries including us to introduce contractual safeguards against re-exportation to Russia and or Belarus as well as re-exportation for use of supplied products in Russia and or Belarus. Scania CV AB therefore does not accept any such re-exportation. Considering the above, you acknowledge, accept, and agree to all the below provisions about re-exportation safeguards and restrictions, rights of inquiry and audit, remedies and sanctions, and related matters around all and any Scania Products (here­inafter jointly referred to as the “No-Russia and No- Belarus Clauses”).

Re-Exportation Safeguards and Restrictions

You hereby warrant and undertake that regardless of country of manufacture, export, or other origin of Scania Products.

a.    You will not (whether directly or indirectly) re-export any Scania Product.

i)      to Russia and or Belarus, defined as the Scania Product being delivered in Russia and or Belarus, or sold to a legal entity or an individual registered and/or located/residing in Russia and or Belarus, or sold to a legal entity which is more than 50 % controlled by another legal entity or an individual registered and/or located/residing in Russia and or Belarus; or

ii)     for use in Russia and or Belarus, defined as the Scania Product being registered in Russia and or Belarus or used predominantly for domestic traffic in Russia and or Belarus.

b.    you will include non-re-exportation restrictions corresponding to the No-Russia and or No-Belarus Clauses in all and any of your own agreements for transferring a Scania Product to a subsequent buyer.

c.    you shall, if so required and requested at any time by Scania CV AB or by us or any of our agents, distributors and or contractors to submit relevant end-user statements according to Scania CV AB-approved formats as confirming that no restricted re-exportation will occur. 

d.    you shall immediately notify us or any of our agents, distributors and or contractors of any breaches and incidents occurring on your side, and of any conduct generally by any third party which could frustrate the purposes of the No-Russia and or No-Belarus Clauses.

Inquiries and Audits

You undertake to fully comply without undue delay with any information requests made in writing by us or any of our agents, distributors and or contractors to inquire into measures taken by you to fulfil all and any of your undertakings as set out in the No-Russia and or No-Belarus Clauses. We or any of our agents, distributors and or contractors shall be entitled at its own cost to conduct audits on-site or off-site at any time and in any frequency of all and any of your facilities, systems and documentation as reasonably required or relevant for us or any of our agents, distributors and or contractors to verify your fulfilment of all and any of your undertakings under the No-Russia and or No-Belarus Clauses. On your reasonable demand, inquiries and audits as above shall be handled through an independent auditor without a right of access for us or any of our agents, distributors and or contractors if and only to the extent that information is manifestly, or is reasonably likely to be, proprietary to or trade secrets to you.

You undertake to honor rights of audit and inquiry corresponding to the above also in favor of Scania CV AB and acknowledges that a refusal to allow for Scania CV AB to fully exercise such rights shall be considered a breach of all and any agreement concluded with us or any of our agents, distributors and or contractors. 

Remedies and Sanctions

You acknowledge and accept that all your undertakings of the No-Russia and or No-Belarus Clauses are essential elements of the contractual and business relationship between the Parties, and that consequently any breach of any one of such undertakings shall be considered material and subject to the below regime of remedies and sanctions.

In case of breach by you of any of your undertakings of the No-Russia and or No-Belarus Clauses, save as set out separately below, and such breach has not been remedied by you (where remediable) within fifteen (15) days of date of sending by us or any of our agents, distributors and or contractors of a written request to that effect, we or any of our agents, distributors and or contractors may with immediate effect and by written notice to you take and/or deploy all, either or any combination of the following remedial actions and sanctions.

a.    Termination of all agreements with you.

b.    Cancelling of any confirmed and outstanding orders, regardless of whether the Scania Products covered by such orders are subject to re-exportation risks in conflict with the purposes the No-Russia and or No-Belarus Clauses.

c.    Waiving of any outstanding or ensuing obligations (such as, but not limited to for warranty coverage) under fulfilled order(s) for any Scania Product that has been re-exported in conflict with the No-Russia and or No-Belarus Clauses or which remains unaccounted for as according to the above (all such vehicles hereinafter collectively referred to as “Sanctionable Products”).

d.    Limiting of aftermarket and campaign support for all Sanctionable Products.

e.    Claiming for each breach the payment of a penalty, not to be counted against any damages claimed as below, in an amount determined by us or any of our agents, distributors and or contractors up to the higher of i) the aggregated purchase price paid or payable by you to us or any of our agents, distributors and or contractors for all Sanctionable Products, ii) twenty (20) % of the aggregated value of all orders for all and any Scania Products as confirmed by us or any of our agents, distributors and or contractors during the last twelve (12) months, and iii) R2Million.

f.    Claiming of compensation and indemnities from you over and above any penalties claimed as above, to hold us or any of our agents, distributors and or contractors harmless of all and any costs and damages incurred as a result of your breach, non-accountability of any Sanctionable Products, or other measure(s) taken or not taken and as warranting us or any of our agents, distributors and or contractors to terminate.

If for any specific order (whether confirmed or not, and regardless of what lead-time remains to the applicable or intended delivery date) we or any of our agents, distributors and or contractors has requested that an end-user statement be obtained and presented to us or any of our agents, distributors and or contractors as set out above, and we or any of our agents, distributors and or contractors has not received such a statement within such reasonable time set out in the written request, we or any of our agents, distributors and or contractors shall not be liable to fulfil its delivery obligations with regard to the Scania Products covered by such order until the end-user statement has successfully been submitted to us or any of our agents, distributors and or contractors. In case this still has not happened within fifteen (15) days from the date of sending of the request, we or any of our agents, distributors and or contractors shall also be entitled to immediately take all, either or any combination of the following actions.

a.    Refusal to confirm new orders. 

b.    Cancellation by written notice to you of the order(s) for      which the relevant end-user statements were requested.

c.    Cancellation, whether in connection with a main order   cancellation as under (b) above or at any time thereafter, any other order for Scania Products which is still outstanding with you.

d.    Claiming compensation and indemnities from you to hold us or any of our agents, distributors and or contractors harmless of all and any costs and damages incurred because of any order cancellation(s) as above.

In case Scania Products that were delivered to you have then been re-exported in conflict with the purposes of the No-Russia and or No-Belarus Clauses by any third party, notwithstanding that all of your undertakings as set out therein have been fulfilled, we or any of our agents, distributors and or contractors may with immediate effect and by written notice to you take and/or deploy all, either or any combination of the following remedial actions and sanctions.

a.    Termination of all agreements concluded with you forthwith.

b.    Cancelling of any confirmed and outstanding orders, regardless of whether the Scania Products covered by such orders are subject to re-exportation risks in conflict with the purposes of the No-Russia and or No-Belarus Clauses.

c.    Waiving of any outstanding or ensuing obligations (such as, but not limited to for warranty coverage) 

d.    under fulfilled order(s) for all Sanctionable Products.

e.    Limiting of aftermarket and campaign support for all Sanctionable Products.

In case there is persistent uncertainty as to the location of any Scania Products delivered to or through our network (such as due to non-activation in Scania systems of a warranty start date, or non-connectivity for positioning), and you have not reliably accounted for such Scania Products within fifteen (15) days of sending by us or any of our agents, distributors and or contractors of a written request for explanations, all the above shall apply correspondingly with a right for us or any of our agents, distributors and or contractors to consider such Scania Products that remain unaccounted for as Sanctionable Products. You acknowledge that due to Scania CV AB having to comply with continued changes to EU sanctions regulations, such as the Amending Regulation, the No-Russia and or No-Belarus Clauses may have to be re-negotiated from time to time, and that therefore, in any scenario in which any additional amendment(s) as may be required for such Scania CV AB compliance cannot be agreed with the you we or any of our agents, distributors and or contractors may with immediate effect and by written notice to you terminate all agreements with you and cancel any confirmed and outstanding orders.

Notices

Any notice to be sent by us or any of our agents, distributors and or contractors in writing according to the No-Russia and or No-Belarus Clauses shall be considered duly served if sent by e-mail to the last mail address you used for communicating to us or any of our agents, distributors and or contractors. 

Miscellaneous

Changes to the No-Russia and or No-Belarus Clauses may be communicated by us or any of our agents, distributors and or contractors in writing to you, and shall become binding on you if no objections to the communicated changes have been received by us or any of our agents, distributors and or contractors in writing within fifteen (15) days of sending of the communication.

In case of contradictory content between the No-Russia and or No-Belarus Clauses and any agreement concluded, those of the No-Russia and or No-Belarus Clauses shall prevail.