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Scales & Ember (Pty) Ltd General Conditions of Purchase
These General Conditions of Purchase regulate the relationship between the Parties concerning the purchase of goods and services by Scales & Ember (Pty) Ltd (hereinafter referred to as “the Buyer”), unless the Parties enter into an Agreement (as defined below). The Supplier’s performance of the obligations set out in the Order (as defined below) shall constitute the Supplier’s full acceptance of these general conditions.
Art. 1 Definitions
1.1 For the purposes of this document, the following terms shall have the meanings detailed below:
– Buyer: Refers to Scales & Ember (Pty) Ltd.
– Goods: Refers to the goods purchased by the Buyer, including, for example, raw materials, semi-finished goods, finished goods, and molds.
– Conditions: Refers to the General Conditions of Purchase outlined herein.
– Agreement: Refers to the instrument specifically drafted as a result of negotiations between the Parties to govern a contractual relationship between the Buyer and the Supplier.
– Supplier: Refers to the Buyer’s counterparty in each single commercial transaction.
– Offer: Refers to the document drafted by the Supplier to submit an offer for the purchase of Goods and/or Services to the Buyer.
– Order: Refers to a purchase order, meaning the document by which the Buyer accepts the Offer, binding the Buyer to purchase the Goods and/or Services.
– Contractual Relationship: Refers to the obligation binding the Buyer to the Supplier following the transmission of the Order by the Buyer.
– Request for Offer: Refers to the request, whether written or oral, submitted by the Buyer concerning a specific need to buy Goods and/or Services.
– Services: Refers to the services provided by the Supplier to the Buyer.
– Parties: Refers to both the Buyer and the Supplier.
Art. 2 Agreed Form for Additional Covenants or Derogations from These Conditions**
2.1 Any agreement supplementing, amending, or derogating from these Conditions shall be valid only when stipulated in writing between the Parties.
2.2 References to laws, regulations, rules, and provisions shall apply to those currently in force, and the Parties agree that any changes, amendments, modifications, or updates shall automatically bind them to comply with the new legal and factual framework.
2.3 Breaches or deviations from these Conditions, whether tolerated or not objected to by the Buyer, shall not constitute a derogation from these Conditions, nor establish a precedent to be invoked, and shall not be construed as tacit acceptance of such breaches.
2.4 Each Contractual Relationship shall be governed by these Conditions, and any matters not expressly provided for or derogated herein shall be governed by provisions of the Civil Code or other special laws in force at the time of Order transmission. Therefore, these Conditions do not exempt the Supplier from obligations under applicable laws or regulatory decisions, including the duty of diligence and professionalism as per Article 1176(2) of the Civil Code.
Art. 3 Contractual Documents
3.1 The purchase of Goods or Services by the Buyer shall be formalized through the following documents: i) Request for Offer; ii) Offer; iii) Order.
3.2 These Conditions constitute an integral and substantive part of all documents governing the Contractual Relationship between the Buyer and the Supplier. Each document under point 3.1 above implies acceptance of these Conditions without reservation.
3.3 These Conditions do not bind the Buyer and do not create enforceable expectations regarding ongoing negotiations or future purchases of Goods and/or Services.
3.4 If the Buyer and the Supplier enter into an Agreement for the purchase of Goods or Services, these General Conditions shall no longer apply.
3.5 In case of conflict between the provisions of the Order and these Conditions, the provisions of the Order shall prevail.
Scales & Ember (Pty) Ltd General Conditions of Purchase
These General Conditions of Purchase govern the relationship between the Parties concerning the purchase of goods and services by Scales & Ember (Pty) Ltd (hereinafter referred to as “the Buyer”), unless the Parties enter into an Agreement (as defined below). The Supplier’s performance of the obligations set out in the Order (as defined below) shall constitute the Supplier’s full acceptance of these general conditions.
Art. 4 Non-exclusivity Clause
4.1 Unless otherwise agreed in writing between the Parties, the Goods or Services shall not be requested from the Supplier on an exclusive basis.
Art. 5 Liability of the Supplier, Assignment of Orders, and Assignment of Receivables
5.1 The Supplier undertakes to compensate, indemnify, and hold the Buyer harmless in respect of third parties in connection with any claim, request, proceeding, damage, sanctions, penalties, cost, or expense arising from the Supplier’s intentional fault or gross negligence.
5.2 Except for liabilities attributable to the Supplier in relation to the performance of obligations under the Contractual Relationship with the Buyer, including responsibilities as a manufacturer, the Supplier shall also be liable to the Buyer for the actions of its employees and third-party associates selected or whose services are used by the Supplier.
5.3 The Supplier may not assign the Order, in whole or in part, without the prior written authorization of the Buyer. Failure to obtain such authorization gives the Buyer the right to terminate the Contractual Relationship under Article 14566 of the Civil Code.
5.4 Even with authorization from the Buyer, the Supplier remains solely responsible towards the Buyer.
5.5 The assignment of receivables is prohibited without the prior written authorization of the Buyer.
Art. 6 Industrial Property
6.1 The Supplier acknowledges that the Buyer is the sole owner of various distinctive signs, including but not limited to names, trademarks, drawings, logos, and designs (the “Industrial Property”), and agrees not to register or apply to register any of the Industrial Property. If the Buyer provides any material marked as Industrial Property (the “Material”) for the supply of Goods or Services, the Supplier shall transfer all rights of use to the Buyer, including reproduction, distribution, marketing, communication to the public, and transformation rights, on a permanent and exclusive basis.
6.2 Except as necessary for the provision of Goods and Services, the Supplier shall not dispose of or exploit the Industrial Property or Material during or after the Contractual Relationship, regardless of termination cause.
6.3 If the Supplier does not use Material for Goods or Services, it guarantees that the Goods, their use, and Service results do not infringe third-party rights, including intellectual property rights, and affirms lawful acquisition of usage rights from relevant owners.
6.4 Under Art. 6.3, the Supplier agrees to fully indemnify and hold the Buyer harmless against any claims, legal actions, demands, damages, sanctions, penalties, costs, or expenses arising from third-party intellectual property violations, such as unfair competition, patent infringement, or trademark issues related to Goods or Services.
6.5 The Supplier may not use Industrial Property for marketing purposes without the prior written consent of the Buyer.
Art. 7 Confidentiality and Privacy
7.1 The Supplier acknowledges that during the Contractual Relationship with the Buyer, it may access confidential Information, including data requiring discretion or subject to industrial property obligations. The Supplier agrees to maintain strict confidentiality over Buyer-related Information for the Contractual Relationship duration and three years post-termination, on behalf of its staff and associates.
7.2 All Materials and Information shared by the Buyer shall remain Buyer property, used exclusively by the Supplier for Contractual Relationship performance, with no disclosure without Buyer authorization.
7.3 Upon Contractual Relationship termination, the Supplier shall promptly return or destroy Buyer-provided Information and Materials, with written proof of destruction if return is impossible.
Art. 8 Personal Data Protection
8.1 As independent controllers of personal data under the GDPR and other applicable Privacy Laws, the Parties agree to:
– Limit personal data processing to activities related to Condition, Offer, or Order performance.
– Process personal data in compliance with Privacy Laws, using authorized staff with confidentiality agreements.
– Not disclose personal data to third parties except to comply with legal obligations.
– Inform third parties processing personal data for Condition, Offer, or Order compliance.
– Implement security measures per GDPR standards (Articles 32-35) and respect data subject rights (Articles 15 et seq.).
8.2 Each Party shall provide the other a GDPR-compliant Privacy Notice under Article 13.
8.3 Personal data protection dealings shall align with specific processing for Supplier services, integrating into Conditions, Offer, or Order terms.
8.4 In conflicts between this Article and Offer or Order terms, this Article prevails.
Art. 9 Supplier’s warranties
9.1 SCALES AND EMBER (PTY) LTD warrants that it is a lawfully established company and that it has the permits and authorisations required by applicable law in order to provide Goods and Services.
9.2 SCALES AND EMBER (PTY) LTD warrants that the Goods and the Services shall be produced and provided in accordance with industry best practices and according to the highest quality standards, and guarantees the quality of the raw materials used and compliance with all the laws, present and future, including any laws and regulations pertaining to economic, insurance, social-security, tax, and accident prevention matters, as may be applicable.
9.3 SCALES AND EMBER (PTY) LTD shall be responsible for ensuring that the Goods and the Services are adequate to its reputation and standards.
9.4 Any changes in the production of the Goods and/or the provision of the Services may exclusively take place following the Buyer’s written request.
9.5 SCALES AND EMBER (PTY) LTD warrants that the Goods and the Services shall be produced and provided in workplaces and with the use of machinery and equipment that comply with health, safety, and hygiene requirements in accordance with applicable law. SCALES AND EMBER (PTY) LTD furthermore warrants that the manufacture of the Goods and the performance of the Services shall be without any unlawful exploitation of workers, including child labour, in compliance with all the applicable laws and regulations regarding employment and use of labour.
9.6 SCALES AND EMBER (PTY) LTD also declares that production activities shall be organised in a fully autonomous manner and without creating an employer-employee relationship between the Buyer and SCALES AND EMBER (PTY) LTD.
9.7 SCALES AND EMBER (PTY) LTD warrants that it has experience in the industry and that it has the appropriate technical, financial, and professional knowledge, and the means necessary to effectively and professionally perform the Services requested by the Buyer.
**Art. 10 Locations and terms of delivery of the goods and conclusion of the services, penalty clause**
10.1 The Goods shall be delivered, and the Services provided, to the Buyer in the location stated in the Order, at the Buyer’s premises or the premises of third parties where expressly indicated by the Buyer.
10.2 The terms and conditions for delivery of the Goods and/or the provision of the Services agreed are deemed of the essence for the Buyer.
10.3 SCALES AND EMBER (PTY) LTD shall inform the Buyer without delay of every supervening circumstance or event which may compromise SCALES AND EMBER (PTY) LTD’s compliance with the terms and conditions for delivery of the Goods and/or conclusion of the Services. In this case, the Buyer may agree with SCALES AND EMBER (PTY) LTD on exceptional derogations to the terms and conditions agreed, without prejudice to the application of penalties as per Article 10.5 below.
10.4 In the event of delays in SCALES AND EMBER (PTY) LTD’s delivery of the Goods and/or conclusion of the Services due to events of force majeure as per Article 16 below, the relevant deadline shall be automatically extended by the same number of days as those during which work was prevented. However, said extensions can only be invoked if and when such work suspension periods are communicated in writing to the Buyer without delay, including via e-mail. It is understood that, in a collaborative spirit of mutual support, the Buyer may ask SCALES AND EMBER (PTY) LTD to be fully available to accelerate completion of the production of the Goods and/or conclusion of the Services as much as possible. Where the event of force majeure should last for a period of more than 20 (twenty) days after the above communication, the Buyer shall have the right to terminate the Contractual Relationship giving at least 5 (five) days’ notice to SCALES AND EMBER (PTY) LTD.
10.5 If SCALES AND EMBER (PTY) LTD fails to comply with the terms and conditions of delivery of the Goods and/or conclusion of the Services detailed in the Order, and the Buyer fails to communicate its intention to terminate the Order under Article 1456 of the Civil Code, SCALES AND EMBER (PTY) LTD shall pay a penalty of:
– 5% (five percent) of the purchase value of the Goods not delivered or the Services not provided within the established time-frames, without prejudice to compensation for any further damages, for a delay of more than 5 (five) working days;
– 10% (ten percent) of the purchase value of the Goods not delivered or the Services not provided within the established time-frames, without prejudice to compensation for any further damages, for a delay of more than 10 (ten) working days;
– 20% (twenty percent) of the purchase value of the Goods not delivered or the Services not provided within the established time-frames, without prejudice to compensation for any further damages, for a delay of more than 15 (fifteen) working days;
– 50% (fifty percent) of the purchase value of the Goods not delivered or the Services not provided within the established time-frames, without prejudice to the right to compensation for any further damages, for a delay of more than 20 (twenty) working days.
Payment of the amounts due under Article 10.4 shall be within 30 (thirty) days from the agreed date of delivery of the Goods and/or conclusion of the Services, without prejudice in any case to the Buyer’s right to offset any sums due on such account against any sums owed by the latter to SCALES AND EMBER (PTY) LTD by way of consideration (including in the form of payments on account).
10.6 If the delivery date exceeds 20 (twenty) working days, the Buyer shall have the right to terminate the Contractual Relationship under the relevant Order, without prejudice to the Buyer’s right to compensation for any additional damages.
Art. 11 Acceptance of goods and complaints
11.1 SCALES AND EMBER (PTY) LTD is responsible for ensuring that the Goods delivered (i) conform with the characteristics, laws, and specifications agreed in the Order; (ii) have no flaws and defects, and (iii) are consistent with the reputation and standards of the Buyer.
11.2 The Goods purchased are covered by a warranty against defects; therefore, if the Goods have any flaws or discrepancies, the Buyer may choose to either demand termination of the Order or a price reduction. SCALES AND EMBER (PTY) LTD shall have the right to ask the Buyer, as an alternative to termination of the Order or a price reduction, to replace the defective Goods, at SCALES AND EMBER (PTY) LTD’s care and expense, including any transport expenses arising therefrom.
11.3 Any discrepancies or non-conformities in the Goods with respect to what is agreed between the Parties, and any flaws, where apparent, must be reported to SCALES AND EMBER (PTY) LTD in writing (including via e-mail), within 8 (eight) working days from delivery. As to any non-apparent discrepancies or non-conformities, the reporting deadline is agreed to be 30 (thirty) working days after discovery.
11.4 It is in any case understood that the Buyer shall retain the right to compensation for any further damages arising out of defects in the Goods, pursuant to Article 1494 of the Civil Code.
Art. 12 Prices, invoicing, payments
12.1 Unless otherwise expressly agreed in the Order, prices are fixed and final. The payment methods, terms, and conditions are detailed in the Order. The prices stated in the Order are inclusive of all costs for the materials borne by SCALES AND EMBER (PTY) LTD for the production of the Goods, labour, the personnel needed for the performance of the Services, and any other responsibilities set out in the Order, none excluded or excepted.
12.2 SCALES AND EMBER (PTY) LTD may issue an invoice after the Goods and the Services under the Order are subject to verification and accepted by the Buyer.
12.3 Payment of invoices does not imply waiver, on the part of the Buyer, of any claims with regard to defects and/or non-conformities in the Goods delivered, or of any complaints with regard to the Services provided.
Art. 13 Termination
13.1 In case of non-performance of the obligations undertaken by SCALES AND EMBER (PTY) LTD under these Conditions, the Buyer shall have the right, if no action is taken within 15 (fifteen) days following formal notice, to terminate the Contractual Relationship via Certified E-Mail or registered mail with return receipt, without prejudice to the Buyer’s right to compensation for any further damages.
13.2 Without prejudice to any other right to terminate the Contractual Relationship under applicable law, the Buyer shall have the right to immediately terminate the Contractual Relationship under Article 1456 of the Civil Code, by providing written notice thereof to SCALES AND EMBER (PTY) LTD, where the latter has breached the following Articles: 5.3; 5.3; 6.2; 7.1; 7.2; 7.3; 9.1; 9.4; 10.2; 10.5; 10.6; 14.1; 14.2; 15, and 17. It is expressly understood that the Buyer shall retain the right to compensation for damages.
Art. 14 Insurance
14.1 In any case in which the nature of the Goods and/or Services provided require it, or where the Goods and/or Services may entail a risk for the
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