General Terms and Conditions
“Buyer” means any company, individual or organisation that enters into negotiations, orders or contracts a Performance with SMT.
“Client“ means the Buyer and any of its affiliates, assignees, employees, representatives, partners, clients or any later purchaser whose purpose is to benefit from a Performance.
“Contractual Documents“ means, depending on the case, (i) the order form issued by the Buyer as accepted by SMT, (ii) the pro forma invoice (or the estimate or the sales offer) issued by SMT and which the Client agreed in writing, (iii) the Product sales contract or Performances contract duly signed by the Parties and/or (iv) any other document signed by a valid representative of SMT attesting to an agreement between SMT and the Buyer about a Performance (the Buyer committing to confirm this agreement at first request by SMT in the manner that would be required (if any) by the banking system and / or the authorities of Democratic Republic of Congo). To avoid any confusion, it is explicitly acknowledged that the content of SMT‘s website (other than these General Terms and Conditions themselves published on it) is merely indicative and by no means binding on SMT.
“Performance“ means any supply of Products and/or provision of Services by SMT.
“Product” means any piece of machinery, vehicle, machine, equipment, accessory, consumable, spare part, document, component, system, support element and/or any combination of any number of the preceding which are ordered by the Buyer and/or delivered by SMT and/or identified in any Contractual Document as being part of any (current or future) SMT supply.
“Service“ means any service offered or provided by SMT (such as, for example, any set up, maintenance, repair, after-sales, technical training, rental, financing or formalities handling services).
“SMT“ means Services Machinery & Trucks RDC (SMT RDC) SARL or any of its affiliates which would be substituted for it (or would also become involved by virtue of a Contractual Document) in the provision of a Performance.
2. General Remarks
The Buyer acknowledges and accepts that SMT Performance are solely governed these General Terms and Conditions, save when (and as) expressly agreed otherwise in writing by SMT. The Buyer may not oppose SMT’s General Terms and Conditions with its own general purchase terms (unless same are countersigned by SMT).
Notwithstanding any possible presumption which might stem (as the case may be) from legislation or case law, it is hereby clarified insofar as relevant that SMT RDC shall never be held jointly liable with (nor shall its own actions or omissions jointly bind) any other commercial company, whether SMT Africa, any other affiliate of SMT Africa, any commercial company from the group of any manufacturer or supplier of SMT, any subcontractor of SMT nor any other legal entity.
3. Offers – Orders
All SMT estimates, sales offers, and pro forma invoices are valid seven (7) days as of signature by SMT and expire automatically unless accepted unconditionally in writing within said time period.
A Performance is deemed definitively agreed on when both parties sign a Contractual Document. SMT only commits to delivering a Performance that conforms to the description in the relevant Contractual Document. Under no circumstances can SMT be held liable for either an error made in the order by the Buyer or for the optimal use the Client should, should not or intends to make of the item. All sales of Products are final and cannot be returned or exchanged. The Buyer acknowledges being a professional and therefore waives all rights to invoke legislated consumer protection rights when ordering from SMT.
The applicable price is the one shown in the Contractual Documents. Unless there is an explicit note to the contrary, the price only covers the sales value of the Product (or of the Service supplied). It does not include any taxes, logistics costs (e.g. for Product delivery), administrative costs linked to the registration and/or the first entry into service of Products or accommodation of technicians on secondment.
5. Product Deliveries – Late Deliveries
No deliveries will be made until the Products are paid in full. Delivery will be made to the location indicated in the Contractual Documents or (by default) will be EXW – SMT premises (Incoterms 2010). In the event of a different interpretation of Incoterms by the Buyer and SMT, the publication “Incoterms 2010® by the International Chamber of Commerce – ICC Rules for the Use of Domestic and International Trade Terms” will serve as prevailing reference.
SMT reserves the right to choose the means of transportation of the Products to the place of delivery. SMT assumes no responsibility or obligation to provide advisory regarding the transportation means selected by the Buyer to take delivery of the Products. This choice is the sole responsibility of the Buyer.
Product delivery times are provided in good faith, but are estimates given for information only. A late delivery of less than six (6) months does not entitle the Buyer to cancel the sale, to refuse to take delivery of the Product or to claim compensation for late delivery, such a delivery period being jointly considered reasonable in the sense of Article 253, Para. 3 of the OHADA Uniform Act on General Commercial Law. Should the delivery period exceed six months, SMT will make a lump sum (all in) payment for full discharge equivalent to 2% of the sales price for every additional and complete month the delivery is delayed. This fixed compensation shall not, however, exceed 10% of the sales price.
The Client is required to take effective delivery of the Pro-ducts within seven (7) days of their availability by SMT, failing which the latter shall be entitled to invoice to the Buyer any costs associated with any late delivery (such as, for example, all costs of storage or safeguarding) and / or cancel the sale of the considered Products and redirect at its own discretion such Products to any other potential buyer.
6. Ownership – Title to the Goods
SMT is entitled to physically withhold any Products as long as the Buyer has not paid SMT the amounts owed in full.
Even in the case of delivery prior to full payment, SMT remains the exclusive owner of the Products delivered until effective payment of the full price in principal, taxes, interest, compensation and fees by the Buyer. This retention of title does not prevent that the transfer of risk takes place in accordance with the used Incoterm. The Buyer must ensure that the goods are clearly identified at its premises as being the property of SMT until it has acquired full ownership. SMT will be entitled to register title retention to the goods with the Registre du Commerce et du Crédit Mobilier at the Buyer’s expense in application of Article 74 of the OHADA Uniform Act on Security Interests and to invoke its ownership right and recover the Products in question, with no specific formalities, in case the price is not paid in full. Buyer is obliged to cooperate at SMT’s first demand with the effective implementation and registration of the retention of title clause, especially by confirming the serial numbers of the Products to SMT. As long as he did not become owner himself, Buyer may not resell, encumber the Products with a guarantee or another right, nor give the Products in use to a third party. The Buyer will use the Products only in accordance with their destination and in all reasonability (“bonus pater familias”), and engages especially to maintain the Products in accordance with the standards of the manufacturer, in absence of which SMT has the right to do this maintenance at Buyer’s costs. Under no circumstances, Buyer can invoke administrative, road or other documents (like e.g. the grey card) to deny this retention of title. In case of non-respect of an obligation of Buyer in this paragraph, SMT is entitled to claim a lump sum of 10% of the amount due by Buyer to SMT, without prejudice to SMT’s other rights.
As long as he did not become owner himself, Buyer will subscribe an insurance with an appropriate insurance company in order to cover the Products against every risk of loss and/or damage. Buyer will designate SMT as the beneficiary of this insurance. At the first demand of SMT, Buyer will send proof of subscription of such insurance, and proof of payment of the premiums. In case of default, SMT may contract itself an insurance and pay the premiums, and Buyer will reimburse the amount of the paid premiums increased with 10%.
Unless there is an agreement to the contrary duly signed by a valid representative of SMT, all payments to SMT must in all circumstances be made by bank transfer onto the bank account indicated by SMT in its own Contractual Documents bearing a signature (no modification of such bank account details being valid if communicated to the Buyer by phone or by way of a simple e-mail for example, as a way to reduce the risk of potential fraud by third parties). All SMT invoices are payable in readily available funds and in the currency shown in its invoices. The Buyer is not entitled to offset any amounts payable to SMT for a Performance against other current or future outstanding amounts owed to it by SMT for any other reason. A down-payment of at least 20% of the sales price of each Product sold must be paid at order time, failing which SMT will retain the right to refuse the order in question.
Late payment interest will be automatically charged on all unpaid invoices and amounts. It will be calculated based on the key interest rate of the Central Bank of Democratic Republic of Congo plus 10%. Besides these late payment interests, every payment that was not done within 15 days after a notice of default addressed to the Buyer by registered mail with confirmation of receipt or every equivalent way, will be increased with a lump sum of 15% of the amount due, with a minimum of 65 USD and a maximum of 12.500 USD, without prejudice to the right of SMT to obtain compensation for any additional prejudice suffered as a result of the late payment.
8. Warranties – Responsibilities – Non-Recruitment
SMT’s warranty obligations with respect to hidden Product defects are those provided by the manufacturer or SMT’s own supplier for the relevant Product. On the other hand, the Buyer acknowledges that accepting Product delivery (and/or taking physical possession) implies tacit and unconditional acceptance of all patent defects and therefore releases SMT from any liability in this respect.
The Buyer acknowledges that SMT is entitled (but not bound) to propose remediation of Products defects, it being agreed that the Buyer shall not have the right to claim back any portion of the sales price and that no compensation or financial indemnity will be due from SMT. The warranty provided by SMT is limited to repairing and/or replacing defective Products (when the conditions of the manufacturer’s warranty are met).
The Buyer is solely responsible for its own use of the Products. The warranty will be void if a defect results from an action or omission on the Client’s part.
Storage of the Products by the Buyer, in the Buyer’s premises or in any location designated by the Buyer, will be at the Buyer’s risk and peril and the latter shall be solely responsible for contracting insurance to cover the Products (whether or not such an insurance coverage is mandatory) against the risks of deterioration, fire, theft, vandalism and any other storage-related risks.
SMT shall in no case be liable to indemnify the Buyer for collateral damages, whether caused by late delivery, by lack of conformity or by any other cause for dissatisfaction related to a Performance, such as loss of profits, shortfall or loss of business opportunity and its potential liability for direct damages will in any case be capped at 25% of the remuneration effectively received by SMT for the relevant Performance.
SMT is not responsible for accidents related to the use of a Product, for personal injuries or for damages to goods other than the Product unless gross negligence or wilful misconduct on its part.
By contracting with SMT, the Client agrees not to (and sets forth that its own affiliates shall themselves not) recruit any current or former worker of SMT until the first anniversary of the termination of the considered Performance.
9. Force Majeure
SMT cannot be held liable in the event of non-performance or deferred performance of any of its obligations (even after six (6) months) if the non-performance or delay is due to an event out of its control or to unforeseeable circumstances over which it has partial or no control. These include delays by the manufacturer, forwarding agents and/or carriers, wars, attacks, acts of terrorism, strikes, social conflicts, natural disasters, embargoes, raw materials or energy shortages, government fiat, floods, fires, explosions, pandemic, etc. In the event of the occurrence of this type of situation, SMT will be released of its contractual obligations and will be entitled to suspend, defer or reduce its Performances during the entire period of the above events or circumstances within the limits of their effects and without any obligation to seek supplies from alternative sources.
In the event that the situation should last longer than three months, SMT will be entitled to cancel the Performances in question without compensation. However, (1) the Buyer will be required to pay for all Performances already delivered before the events in question, and (2) SMT will be required to refund to the Buyer the portion of the price already paid for Performances that were not delivered, after deduction of all fees and expenses incurred by SMT.
10. Changes in the Product Line
The technical specifications of the Products and the images as described in the Contractual Documents are provided for information only. SMT reserves the right to make modifications to the technical specifications, to adapt them, and to change them based on the manufacturer’s standards.
11. Intellectual Property
With the exception of manufacturer logos, all logos, brands, photos and models appearing in SMT’s commercial documents, including its Internet site, are its sole property. The Buyer acknowledges that no transfer of intellectual property rights takes place when a Performance is provided. All rights remain the exclusive property of SMT. Any partial or full reproduction of the logos, brands, photos, or models, regardless of media, and for any purpose whatsoever, is forbidden without the approval of SMT or of the holders of any related rights.
The Buyer agrees not to communicate, divulge or use, either during or after the agreement period, any information, know-how or technical processes belonging to SMT to which they may have had access or learned about as part of their contractual relationship with SMT.
13. Source of Funds – Money Laundering
The Buyer acknowledges that by ordering from SMT, they are tacitly stating that their funds were not obtained through money laundering, tax fraud, organised crime, corruption, any illicit traffic (such as, for example, the trafficking of drugs, arms or munitions, human beings or minerals) or terrorist activities.
14. Corruption – Embargoes
SMT representatives are not authorised (except at end of year time and under strict rules) to give business gifts to the Client’s representatives. If, however, gifts were to be made (during the end-of-year season, in particular), they cannot in any way be perceived as being intended to encourage the Buyer to close a deal.
The Buyer acknowledges that SMT must comply with the prohibition against doing business with people or organisations listed in the resolutions of the UN, EU or other national and international institutions with the power to issue lists of personae not gratae. Should the Client appear on one of these lists, SMT is entitled to refuse to engage in business with same.
The Buyer expressly commits not to export, transport or resell any of the Products to or in a country which is subject to an international economic embargo. In addition, the Buyer certifies SMT that it has neither exercised any illegitimate influence on SMT employees, advisors or representatives nor corrupted third parties, whether private individuals or a public authority, in order to obtain any public procurement contract, close a deal or gain any advantage in the context of (and/or in connection with) any Performance whatsoever.
15. Suspension and Breach of Performance
In the event of a serious doubt about the Buyer’s ability to fulfil any of its material Performance-related obligation, SMT reserves the right to suspend its own obligations until the Buyer’s satisfactory actions.
In the event that the Buyer effectively fails to fulfil any of its substantial contractual obligations, SMT is entitled to terminate the contract with immediate effect without referring the matter to a judge, without the obligation to repay the amounts already received, and without prejudice to its right to obtain legal compensation for any other prejudice suffered and without prejudice to its other rights.
The Buyer expressly waives its rights under Article 292 of the OHADA Uniform Act on General Commercial Law.
SMT reserves the right to suspend all or part of its Performances and, if required, to recover all delivered Products in the event of defaulted or late payment by the Buyer, if the Buyer is declared bankrupt, is liquidated, if its assets are seized in part or in full, in the event that the Buyer has not fulfilled any obligation resulting from article 6 or a prior relationship between the parties or should SMT discover that the Client has not complied with provisions 13 and/or 14 of these General Terms and Conditions.
16. Nullity or Partial Applicability – Non renunciation
The potential inapplicability or nullity of one or several of the provisions of these General Terms and Conditions will not impact on the applicability or validity of the other provisions. In such a case, the parties agree to replace the invalid clause with a provision validly negotiated together which, insofar as possible, has the same economic impact as the inapplicable or null clause.
The fact that SMT does not demand of the Buyer to perform one of its obligations at a certain moment, does not affect in any way the right of SMT to demand this performance at another moment. The fact that SMT renounces to invoke a breach of Buyer of whatever obligation, does not imply the renunciation by SMT for any other breach of this same obligation, nor for any other obligation, nor for the concerned breached obligation.
The French version of these General Terms and Conditions will prevail over all translations which are always be provided for convenience only.
18. Applicable Law – Arbitration
The relationship between SMT and the Client is governed by (1) these General Terms and Conditions and all other Contractual Documents, (2) by OHADA law and (3) subsidiary, by the legal provisions in effect in the country the Performance was provided in, with the express exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980.
Any dispute arising in the business relationship between the parties will be settled by arbitration, by a single arbitrator appointed, sitting and ruling in accordance with the provisions of the OHADA Treaty and the OHADA Uniform Act on the Right to Arbitration. However, SMT reserves the right to refer the case to the judicial courts of the jurisdiction in which it has its head office or in which the Buyer is established or in which the Products are physically located.