1. APPLICATION, INTERPRETATION AND GOVERNING LAW
1.1 Unless the context indicates otherwise, in these trading terms a reference to:
1.1.1 “Agreement” means this agreement to supply goods or services ordered by the Customer from time to time;
1.1.2 “Call Centre” means FRANKE’s official duly authorised call centre;
1.1.3 “Confirmation of Order” means a formal written acceptance issued by FRANKE in respect of any Order placed by the Customer for goods or services;
1.1.4 “Consumer” means a consumer as defined in the CPA or the NCA, as applicable;
1.1.5 “CPA” means the Consumer Protection Act 68 of 2008, as amended or replaced from time to time;
1.1.6 “FRANKE” means Franke South Africa (Pty) Ltd (Company registration number 2004/032793/07);
1.1.7 “Customer” means the person to whom FRANKE has agreed to supply goods or services;
1.1.8 “NCA” means the National Credit Act 34 of 2005, as amended or replaced from time to time;
1.1.9 “Order” means an order for goods or services issued by the Customer;
1.1.10 “POPI” means the Protection of Personal Information Act 4 of 2013, as amended or replaced from time to time;
1.1.11 “Written” or “In Writing” includes by way of handwriting, typewriting, faxing and emailing;
1.1.12 “Working Day” means any day other than a Saturday, Sunday or South African public holiday.
1.1.13 “South Africa” means South Africa, Botswana, Lesotho, Eswatini and Namibia.
1.2 This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa. These General Terms and Conditions of Sale (GTC), as may be amended by FRANKE from time to time via its website or on written notice to the Customer:
1.2.1 apply to all supplies of goods or services by FRANKE to the Customer;
1.2.2 together with the relevant Order and Confirmation of Order, if any, is the entire Agreement between the parties regarding the subject matter.
1.3 No relaxation or waiver by FRANKE of its rights or indulgence granted to the Customer at any time prejudices or constitutes a waiver of FRANKE’s rights (unless it is a written waiver signed in hard copy by both parties) and FRANKE is entitled to exercise its rights thereafter as if such relaxation, waiver or indulgence had not taken place.
1.4 The United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded. The exclusive place of jurisdiction is the Magistrates’ Court. However, FRANKE reserves the right to initiate court proceedings against the Customer at any other court of competent jurisdiction.
1.5 Customer may not cede or assign any of its rights or obligations in terms of the Agreement.
1.6 Supplementing services such as Consulting, Planning, Installation, Maintenance, Digital Services or any other services may be provided according to separate and specific business terms and conditions setting forth such specific commercial services.
2. GENERAL
2.1. The business relationship between FRANKE SOUTH AFRICA (PTY) LTD, 1194 SOUTH COAST ROAD, MOBENI, DURBAN,4060, SOUTH AFRICA (hereinafter FRANKE) and the B2B-Customer for the sale of products and additional services (if contractually agreed) is governed exclusively by these General Terms and Conditions of Sale (GTC) in the version valid at the time of the respective purchase order by Customer
2.2. Supplementing services such as Consulting, Planning, Installation, Maintenance, Digital Services or any other services may be provided according to separate and specific business terms and conditions setting forth such specific commercial services.
2.3. Amendments and modifications to the GTC or a concluded contract will only be valid if they have been accepted by FRANKE in writing. Any general purchasing terms and conditions or contractual provision of the Customer are hereby expressly rejected and excluded.
2.4. The following order of precedence applies to the validity and interpretation in case of a conflict between the following documents: (1) order confirmation, (2) FRANKE's offer, (3) GTC.
3. NOTICES
3.1. All notices referred to in the Agreement may be sent by email to:
3.1.1. FRANKE’s Division Stainless Steel / Zip email address or to such other addresses as advised by FRANKE in writing;
3.1.2. the Customer at its email address nominated in the credit application or its accounts department email address; or
3.1.3. such other email address nominated by the party concerned on 14 (fourteen) days’ written notice to the other.
3.2. An email referred to in clause 3.1 is deemed to have been received on the first Working Day following transmission.
3.3. All notices to FRANKE must contain the relevant FRANKE Confirmation of Order number, delivery note number and/or invoice number.
4. OFFERS
4.1 The offers and quote of FRANKE are non-binding and subject to change, unless otherwise indicated in the quote. A contract is concluded by order confirmation (submitted in writing or electronically) or by delivery. FRANKE may make changes to the order confirmation provided that these are insignificant and result in an improvement.
4.2 The illustrations, drawings as well as dimensional, weight and performance data from FRANKE's offers, brochures, price lists and catalogues are not binding, unless these have been expressly designated as binding.
4.3 Change, suspension or cancellation of unshipped orders requested by the Customer require the written consent of FRANKE. FRANKE may charge the Customer for costs incurred prior the receipt of such notice and any storage fees. Suspension of an order cannot be made later than 1 month before scheduled ship date and cannot exceed 3 months.
4.4 Orders for standard stock goods or services must be submitted in writing to the Call Centre.
4.5 All calls made to or from the Call Centre may be recorded for quality control, training, and/or record-keeping purposes. These recordings remain the property of FRANKE and will be processed in accordance with the Protection of Personal Information Act (POPIA). Callers will be notified of the recording and the purpose thereof at the start of the call.
4.6 A certificate issued by the FRANKE’s Finance Manager or National Sales Manager, whose appointment, authority and qualification need not be proved, is prima facie proof of the fact and contents of any telephone call or email to the Call Centre for the purposes of obtaining judgement.
4.7 FRANKE is not obliged to accept any Orders even if the Customer has successfully made application for credit.
4.8 The Customer may not cancel or amend any Order for stock item goods after the earlier of (a) a Confirmation of Order has been issued, or (b) the stock item goods have been dispatched from FRANKE’s premises for delivery.
5. QUOTATION AND ORDERS FOR CUSTOM MADE GOODS
5.1. These GTC also apply to all quotations by FRANKE and Orders for custom-made goods unless the quotation specifically states otherwise.
5.2. No quotation is binding upon FRANKE unless it is set out in writing in an official FRANKE quotation form and signed by a duly authorized representative of FRANKE.
5.3. A quotation is valid for a period of 60 (sixty) days from the date of the quotation unless the quotation states otherwise.
5.4. Within 5 Working Days of being issued, FRANKE may withdraw a quotation on written notice to the Customer.
5.5. The acceptance of a quotation does not give rise to a legally binding agreement unless and until FRANKE has issued the Customer with a Confirmation of Order.
5.6. Within 5 Working Days of being issued, FRANKE may by written notice to the Customer withdraw a Confirmation of Order that was issued in error or correct any error.
5.7. The Customer may not cancel or amend any Order for custom-made goods after the earlier of (a) the issue of the Confirmation of Order, or (b) the manufacture of custom-made goods has commenced.
5.8. FRANKE retains ownership of the rights of copyright and all other intellectual property rights in and to any drawings, designs, specifications, data, documents and moulds prepared or built by it or its employees, agents or subcontractors in connection with custom-made goods unless otherwise expressly provided in its written Confirmation of Order.
5.9. FRANKE does not accept responsibility for the design of custom-made goods.
5.10. Custom-made products, “Specials” or non-standard products may not be returned for credit, refund or otherwise.
6. CREDIT CHECK
6.1. The Customer acknowledges that FRANKE may carry out a credit check when the Customer is placing an order. The Customer consents to the processing of the relevant data with relevant third parties. FRANKE expressly reserves the right not to accept orders or demand advance payments if the credit assessment is unsatisfactory, at the full discretion of FRANKE at any time.
6.2. The Customer acknowledges that FRANKE may carry out a credit check when the Customer is placing an Order. The Customer consents to the processing of the relevant data with relevant third parties. FRANKE expressly reserves the right not to accept orders or demand advance payments if the credit assessment is unsatisfactory, at the full discretion of FRANKE at any time.
6.3. FRANKE may at any time with or without notice review the credit terms and alter, amend or withdraw the credit terms previously granted to the Customer in its discretion.
6.4. Without prejudice to any of its other rights, FRANKE may summarily withdraw credit, only supply goods or services going forward on a cash upfront basis or suspend its performance under or cancel any Order or the Agreement if:
6.4.1. the Customer is in default of any of its obligations to FRANKE; or
6.4.2. FRANKE reasonably believes that the Customer will not be able to meet any obligation to FRANKE when it falls due.
6.5. The Customer selects the physical address contained in its application for credit as the address at which legal processes may be served or such other physical address within the Republic of South Africa as the Customer may nominate from time to time on 14 (fourteen) days’ written notice to FRANKE.
6.6. The Customer is liable for costs on the scale between attorney and own client in the event of FRANKE successfully instituting legal proceedings against it.
6.7. The Customer authorises FRANKE to at any time:
6.7.1. verify information provided by the Customer to FRANKE by any means including the carrying out of credit bureau and third party checks; and receive from any credit bureau or third party any information relating to the Customer to establish compliance with the Agreement, creditworthiness or state of indebtedness.
6.8. The Customer acknowledges and agrees that:
6.8.1. FRANKE may transmit to its credit bureau and to any regulatory authority data relating to the Agreement;
6.8.2. information on non-compliance by the Customer with the terms and conditions of the Agreement may be transferred by FRANKE to its credit bureau;
6.8.3. FRANKE's credit bureau provides a credit profile and possibly a credit score on the Customer’s creditworthiness;
6.8.4. FRANKE may disclose any information relating to the Customer, including credit information, to its holding companies or any subsidiary of its holding companies; and
6.8.5. FRANKE may disclose credit information of the Customer to any third party with whom the Customer has, or intends to have, credit relations.
6.8.6. To the extent that it applies, FRANKE and the Customer must comply with the provisions of POPI in respect of the processing of any personal information provided by one party to the other.
6.8.7. FRANKE may at any time require the Customer to provide additional credit references and/or security acceptable to FRANKE in respect of the Customer’s obligations hereunder, including by way of suretyship, guarantee, mortgage, cession or notarial bond over movables.
7. PRICES
7.1. Prices, currency and rebates are outlined in the supplementing sales quote or sales documentation by FRANKE. Unless otherwise stated, any and all additional charges, such as, but not limited to, freight charges, insurance premiums, custom duties and clearance shall be borne by the Customer. Any resale prices referred to in its price list, catalogues or discount sheets are recommended prices only and not binding to Customer.
7.2. FRANKE reserves the right to adjust sales prices, rebates, discounts and product range each of them with at least 30 days' prior notice before the changes become effective by written notice to the Customer, or otherwise via its website, save in respect of goods on Order after Acceptance of Order has been issued.
7.3. In the event FRANKE wants to increase price for an accepted order, but unshipped product before delivery, the Customer has the right to cancel its order within one week of receiving notification of the price increase from FRANKE and before dispatch, otherwise the price increase is deemed to have been accepted.
7.4. Unless otherwise stated FRANKE’s prices are quoted exclusive of Value Added Tax which tax is payable by the Customer over and above that price.
7.5. The prices payable for stock item goods and services are the prices stated in FRANKE’s ruling price list as at the earlier of the date of Acceptance of Order or delivery, unless FRANKE agrees otherwise in writing.
7.6. No discounts or rebates apply unless expressly agreed to in writing by a duly authorised representative of FRANKE.
8. INVOICES, STATEMENTS AND PAYMENTS
8.1. Unless otherwise agreed, invoices are payable in full within 30 days of the invoice date in the currency stated in the invoice and with the standard payment method provided by FRANKE.
8.2. In the Customer does not timely pay outstanding amounts, FRANKE may, at its sole discretion, suspend the delivery of products or services to the Customer, including withholding delivery in respect of orders previously placed by the Customer and accepted by FRANKE, or require advance payment until all amounts owed to FRANKE have been paid. The exercise of this remedy by FRANKE does not prevent FRANKE from exercising other remedies available to FRANKE under this contract or at law.
8.3. FRANKE invoices Customers against delivery. FRANKE prepares statements monthly and are dated the last day of the month.
8.4. FRANKE will deliver invoices and statements to the Customer by email at the address referred to in clause 3.1.
8.5. Unless FRANKE notifies the Customer in writing of some other payment date, payment is due, and must reflect as cleared funds in FRANKE’s nominated bank account, by no later than the last Working Day of the month immediately following the date of FRANKE’s corresponding invoice e.g. if the invoice is dated August then payment must be made and must reflect as cleared funds in FRANKE’s nominated bank account by 30 September.
8.6. Where, pursuant to clause 7.5, the customer is entitled to claim an early settlement discount, payment by the Customer must be made on or before due date indicated failing which, the settlement discount is disallowed.
8.7. All payments to FRANKE must be made via electronic funds transfer service (EFTS), into the bank account nominated by FRANKE in writing, from time to time.
8.8. Upon the opening of a Customer account, or a change in bank account details, the Customer will be advised in writing of the bank account details of FRANKE, on its official letterhead. This letter will be signed by at least 2 duly authorised representatives of FRANKE and supported by a letter received from FRANKE’s bankers, signed by the Relationship Manager of that bank.
8.9. All changes to FRANKE’s bank account details will always be subject to a 30-day notice period and subject to all the communication procedures mentioned in preceding clause 8.8.
8.10. All amounts owing by the Customer must be paid to FRANKE without deduction, set off or demand. Under no circumstances is the Customer allowed to withhold or set off payment in respect of goods it wishes to return to FRANKE, outstanding credit notes and rebates or otherwise.
8.11. FRANKE may recover from the Customer interest compounded monthly on any overdue amount at 2% (two per cent) above the prime overdraft lending rate of interest charged by its principal bankers from time to time without an obligation to dispatch a previous notification of default. Claiming defects does not excuse the Customer from the obligation to pay the invoice when due.
8.12. A certificate issued under the hand of any director or manager of FRANKE, whose appointment, authority and qualification need not be proved shall be prima facie proof of amounts owing and/or due and payable by the Customer to FRANKE.
9. DELIVERY AND PACKAGING
9.1. Unless otherwise agreed and stated in the order confirmation, delivery is FCA (FRANKE location, Incoterms 2020). In case of international delivery, the Customer assumes full responsibility for compliance with applicable laws and regulatory requirements. FRANKE shall be responsible for safe packaging in conformity with transportation regulations and good commercial practices.
9.2. Partial deliveries are permissible and can be invoiced. Delivery before a confirmed delivery date is permissible, unless otherwise agreed.
9.3. Delivery and service dates are estimates unless FRANKE expressly agrees in writing to a fixed date or schedule. FRANKE will use commercially reasonable efforts to meet delivery and service date estimates. Time is not fundamental or of the essence to the Agreement unless the Agreement expressly states in writing that it is. All delivery and service dates are conditioned on FRANKE's timely receipt of all necessary information and the Customer preparatory work. If the Customer causes a delay in delivery or assumption of the products, FRANKE will store and handle all items at the Customer's risk and will invoice the Customers for the unpaid portion of the contract price, plus applicable storage, insurance, and handling charges. Failure to meet delivery dates shall not entitle the Customer to withdraw from the contract or to claim damages or contractual penalties.
9.4. In the absence of any written agreement to the contrary, all deliveries of goods ordered shall be made to the registered business address of the Customer within South Africa as specified by the Customer in writing
9.5. The Customer is responsible for receiving, unloading and checking the goods.
9.6. The Customer may not cancel an Order because of a delay in delivery unless FRANKE fails to remedy that delay within 30 (thirty) days of receipt of a written notice calling upon FRANKE to do so. Cancellation only applies to the undelivered portion of an Order where there has been short delivery.
9.7. FRANKE is not liable for any loss or damage the Customer may suffer as a consequence of early or late delivery or the cancellation or partial cancellation of an Order on account of non-delivery.
9.8. The Customer may refuse a delivery of goods:
9.8.1. if the goods are not those described in the delivery note;
9.8.2. to the extent that the quantity of the goods exceeds the quantity listed in the delivery note; or
9.8.3. to the extent that the goods are visibly damaged or defective, or do not materially comply with the Agreement.
9.9. The Customer may not otherwise refuse delivery. In particular the Customer may not refuse a delivery because it is short, early or delayed.
10. TRANSPORT INSPECTION
10.1. At the time of delivery, the Customer must immediately check the goods in the presence of the person making delivery on behalf of FRANKE.
10.2. The Customer accepts that goods described on a FRANKE delivery note signed for or receipted by the Customer or the Customer’s employee or representative were delivered in the quantities described in the delivery note and free of any visible damage or defects unless the Customer notifies FRANKE to the contrary in writing by clearly endorsing FRANKE’s copy of the delivery note with details of the short delivery or the damage or defects and such endorsement is counter-signed by the person making delivery on behalf of FRANKE. If the Customer fails to do so, the deliveries shall be deemed to be accepted, and respective claims are forfeited. Accordingly, FRANKE is not liable for any short delivery, damage or defects to the extent that no such notice, endorsement and counter signature have been duly given and made in terms of the preceding clause.
11. RETURNS
11.1. Customer has no right to refuse and return a conforming product. Exceptions are at the discretion of FRANKE.
11.2. The return of a non-defective standard product requires FRANKE's prior consent in any case, details are set forth in the FRANKE Return Procedure Policy. If FRANKE takes back the product, the Customer must pay as minimum 20% of the value of the goods. If the Customer has already paid the full value of the goods, FRANKE shall refund the Customer the amount exceeding 20% of the value of the goods by credit note. The costs of a return shipment are to be paid by the Customer. The products must be returned in undamaged original packaging and accompanied by the proof of purchase (copy of invoice and/or delivery note). Unjustified and/or incomplete returns will not be processed and will be returned to the Customer. Custom-made products and "non-catalogue items" are products that have been specially manufactured and/or procured at the Customer's request, e.g. tops, made-to-measure basins/sinks, products embossed with the Customer's logo, etc. These products and discontinued products cannot be returned or credited.
12. SERVICES
12.1. The Customer shall ensure and procure all necessary on-site installations for an undisturbed service and access to Products by FRANKE or its service providers if service is contractually agreed and needs to be provided on site.
12.2. FRANKE warrants that contractually agreed services will be performed in a workmanlike manner in conformity with standard industry practice. Should any nonconformity be detected within 30 days after the work is completed and the Customer gives FRANKE prompt written notification, FRANKE will supply the necessary service, direction, or consultation to correct the nonconformity.
12.3. Unless otherwise agreed, third party service providers (e.g. for installation) are acting as independent contractors, even if referred to and instructed by FRANKE. FRANKE does not assume any responsibility or liability in relation to independent contractors.
13. RETENTION OF TITLE/ PURCHASE MONEY SECURITY INTEREST
13.1. FRANKE remains the owner of the Products delivered by it until FRANKE has received the full payments in accordance with the order confirmation. The Customer authorizes FRANKE to register the ownership in the official register for retention of title or grants FRANKE a purchase money security interest and agrees not to challenge the legitimacy of this grant. Customer will assist FRANKE in taking all necessary actions to perfect and protect FRANKE's retention of title or any other security interest. Customer shall separate the Products from its other stock and give access to FRANKE upon request.
13.2. Risk in the goods passes to the Customer on delivery.
13.3. Where, following delivery, the goods are stored on leased premises, the Customer must notify the landlord in writing of FRANKE’s ownership of the goods and that they are excluded from any landlord’s hypothec.
13.4. Where, as a result of any failure to make payment in full or in part, FRANKE exercises its right of ownership and repossession, any matching goods found on any premises of the Customer or the place where delivery was originally made are deemed to be the goods sold and delivered to the Customer by FRANKE of which FRANKE is the owner due to non-payment or part-payment, and may be repossessed by FRANKE.
14. WARRANTY
14.1. FRANKE warrants that the FRANKE Products are new (unless marked as used/refurbished), are free of defects in title, workmanship and materials and correspond to their specifications. Unless otherwise agreed in writing, the Products and Services comply with the regulations and certifications at FRANKE's place of business.
14.2. Unless otherwise offered by FRANKE, the default bring-in warranty period is 1 (one) year from the date the product is dispatched by FRANKE or at the taking over of the services.
14.3. Customer shall immediately notify FRANKE in writing of any deficiencies of the products or services by submitting appropriate failure documentation. If the Customer reports a defect and no defect is found for which FRANKE is liable, FRANKE is entitled to claim compensation for the work undertaken and expenses.
14.4. In the event of a valid warranty claim, FRANKE will, at its option, choose to repair the defective product, to replace it with the same or a similar item or to refund the purchase price paid in cash or by credit note. Replaced parts shall become the property of FRANKE.
14.5. FRANKE is not liable for defects that the Customer recognized or should have recognized upon receipt or acceptance of the FRANKE products and did not report to FRANKE immediately after discovery and within the warranty period. There is no entitlement to warranty if the FRANKE products have not been assembled in accordance with the FRANKE instructions or have been improperly handled, used, repaired or modified.
14.6. The Customer shall follow and distribute the installation information, product manuals, operating and safety instructions, and other documentation and specifications provided by FRANKE with the products. FRANKE disclaims any liability, including warranty liability, if the Customer does not.
14.7. FRANKE may procure from time to time certain products or support services from third parties. Customer acknowledges that FRANKE is not the manufacturer or provider of such items. To the fullest extent permitted by law, FRANKE makes no warranties in relation to such items other than those manufacturers or third-party supporters, which FRANKE is able to pass through for its Customer’s benefit.
14.8. This Agreement must be interpreted in accordance with the CPA and the NCA insofar as these acts are applicable. In the event of any conflict or inconsistency the terms of these acts prevail.
14.9. Save as set out in clause 9.3.2:
14.9.1. all sales of goods by FRANKE are voetstoets; and
14.9.2. FRANKE gives no warranties of whatsoever nature regarding the goods and/or services sold or supplied by FRANKE and any common law warranties are excluded.
14.10. Notwithstanding clause 9.2 FRANKE’s goods and/or services may be sold or supplied subject to the following warranties:
14.10.1. such warranties as may be imposed by the CPA or otherwise by any applicable law; and
14.10.2. such other express written warranties as FRANKE may give in writing from time to time pursuant to its warranty policy in respect of the goods or services it supplies. The warranty policy and the terms of these warranties are published on FRANKE’s website at www.franke.co.za or www.zip.co.za for Zip branded products;
14.11. The Customer must:
14.11.1. notify the Call Centre immediately it becomes aware or suspects that any goods supplied by FRANKE might be defective;
14.11.2. ensure that the goods supplied by FRANKE are suitably stored and handled;
14.11.3. take reasonable steps to ensure that it only supplies goods it received from FRANKE to Consumers for their intended purpose and in accordance with any instructions that FRANKE may give from time to time in this regard;
14.11.4. allow FRANKE a reasonable opportunity to inspect, photograph or test any goods that it claims are damaged or defective; and
14.11.5. in all of its dealings with Consumers and others comply with the provisions of all relevant laws including the NCA and the CPA.
14.12. The Customer must not:
14.12.1. on-selling or on-supply goods sold or supplied by FRANKE without the user manuals or special instructions supplied by FRANKE in respect of those goods;
14.12.2. retail goods sold or supplied by FRANKE to a Consumer without taking reasonable steps to assure itself that the Consumer is aware of and comprehends the user manual and special instructions supplied by FRANKE in respect of those goods; or
14.12.3. sell, use or permit the use of any goods which are damaged or defective while that damage or defect persists.
14.13. FRANKE's contractual manufacturer's warranty replaces the statutory legal warranty to the
maximum extent admissible by applicable law. The warranty provided herein is exclusive and the
Customer shall not be entitled to any rights and claims other than those expressly stipulated in this terms
and conditions.
15. LIABILITY
15.1. The liability of FRANKE for all claims of the Customer arising from or in connection with the contract or its improper fulfilment, regardless of the legal basis on which they are made, is limited to the actual direct damages up to the amount paid by the Customer for the product causing the damage.
15.2. In no event shall the Customer be entitled to compensation for indirect, consequential or punitive damages, such as loss of production, loss of use, loss of orders, loss of profit and any other indirect, consequential, incidental, punitive or exemplary damages of such kind, whether such damages arise out of or are a result of breach of contract, warranty, tort (including negligence), strict liability or otherwise.
15.3. FRANKE is only liable without limitation for damages caused by FRANKE through unlawful intent or gross negligence, or any limitation in this Section that is contrary to applicable mandatory law.
15.4. Save for any claims arising under Section 61 of the Consumer Protection Act, neither party shall be liable to the other for any indirect, special, or consequential damages (including, but not limited to, loss of profits, loss of business, or loss of anticipated savings), whether arising from negligence or otherwise, but excluding liability for gross negligence, fraud, or wilful misconduct.
15.5. FRANKE ’s liability in respect of defects in any goods or services is limited by the provisions of clause 9.2 or by the terms of the warranties referred to in clause 9.3, to the extent that such warranties apply to the goods or services so supplied by FRANKE.
15.6. Notwithstanding clause 10.1:
15.6.1. the Customer indemnifies FRANKE and holds it harmless against any claim brought against FRANKE by a third party in terms of the CPA however arising from a supply of goods by FRANKE, other than claims arising as a result of a breach by FRANKE of its obligations under the CPA;
15.6.2. FRANKE indemnifies the Customer and holds it harmless against any claim brought against the Customer by a third party however arising from a supply of goods by FRANKE in breach of its obligations under the terms of the CPA;
16. INSURANCE
16.1. FRANKE does not provide third parties direct access to its insurance or give additional rights to its insurance, such as naming additional insured parties. Customer shall maintain adequate coverage by a property and a general commercial liability insurance.
17. INTELECTUAL PROPERTY
17.1. The use of the trademark, logo, product information, product drawings and product pictures of FRANKE for purposes of advertising shall be made in form of the official then current trademark, logo etc. as further describe in the FRANKE brand guidelines.
17.2. All intellectual property rights to the products or product documentation and information documents (catalogues, brochures, drawings, product data) are exclusively owned by FRANKE and remain with FRANKE. Any use, reproduction or modification requires the explicit written consent of FRANKE. In no event shall the Customer be deemed to have acquired any ownership rights or interest in or to any intellectual property rights of FRANKE. In the event of a claim or action or suspected infringement of third-party rights resulting from the products, FRANKE may at its expense and option either: (i) procure for the Customer the right to continue selling products or (ii) replace the products and/materials with non-infringing products and materials. FRANKE shall have no liability for continued infringement by the Customer after the exercise of option (i) and/or (ii) above by FRANKE.
17.3. Nothing in this Agreement, nor any amendments thereto, shall limit or restrict FRANKE with respect to feedback provided to FRANKE related to the products. The Customer agrees that FRANKE will be free to copy, modify, create derivative works, publicly display, disclose, distribute, license, incorporate and otherwise use the feedback, including derivative works thereto, for any and all commercial or non-commercial purposes.
17.4. If the deliveries and services of the supplier also include software, the Customer is granted the non-exclusive right to use the software together with the delivery item, unless otherwise agreed. All intellectual property rights to the software, which enables the operation, reference data, maintenance or repair of the machines, remain the property of FRANKE or its licensor. The Customer is not entitled to edit the software, in particular he has no right to make copies, decompile, reverse-engineer and disassemble or to use other methods to access the source code. The Customer and its Customers are hereby authorized to use the control software to operate the products for their own purposes, but have no further rights to the control software, in particular no right to reproduce, decompile, reverse engineer or otherwise attempt to derive information from the control software or to permit or cause this to be done.
18. DATA PROTECTION
18.1. Personal data will be gathered, processed, and used by FRANKE in compliance with the applicable data protection law and all of our employees, other Franke group companies and third party service providers who receive access to personal data are obliged to respect the confidentiality of the personal data. In the event that FRANKE is provided and receives personal data via Customer or a point of sale for such purpose described below, FRANKE is an independent controller under applicable data protection law. FRANKE collects personal data when customer submits it to us, through registration, completion of forms or e-mails, as part of an order for products or services, after-sale support for products or services, inquiries or requests about products being ordered and similar situations in which data subject has chosen to provide the information to FRANKE or via a point of sale to FRANKE. Some personal data provided (name, address, phone number and email address) will be processed by FRANKE for marketing, advertising or promoting purposes. We assume that this is of mutual interest for our Customer and for the Data Subject to upkeep a good business relationship and the respective Data Subject can object to the processing of his/her data for this purpose at any time without giving reasons by contacting FRANKE.
18.2. Some of the personal data provided may be stored or processed in other jurisdictions, such as the United States, whose data protection laws may differ from this jurisdiction. In such cases, FRANKE ensures that appropriate protections are in place to require the data processor in that country to maintain protections on the personal data that are equivalent to those that apply in the country of FRANKE. Customer is obliged to inform any point of sale and its end-users that it complies with applicable data protection law and personal data will be processed by FRANKE according to the terms and limitation set forth in this Clause. Customer shall, without limitation, defend, hold harmless and indemnify FRANKE in the event of damage that is attributable to Customer's transferring of personal data or in breach of applicable data protection law. Our full privacy statement can be found on our website: www.franke.com.
19. DISPOSAL OF PRODUCTS AND PACKAGING
19.1. Unless otherwise required by mandatory applicable law, the Customer assumes the obligation to properly dispose of the delivered goods after the end of use and any packaging (with exception of pallets) at his own expense in accordance with the applicable statutory provisions. If the Customer requests disposal by FRANKE, FRANKE shall provide the Customer with an offer to take back and dispose of the goods and packaging at the time of disposal. All related costs will be charged to the Customer.
20. DISPOSAL OF PRODUCTS AND PACKAGING
19.1. Unless otherwise required by mandatory applicable law, the Customer assumes the obligation to properly dispose of the delivered goods after the end of use and any packaging (with exception of pallets) at his own expense in accordance with the applicable statutory provisions. If the Customer requests disposal by FRANKE, FRANKE shall provide the Customer with an offer to take back and dispose of the goods and packaging at the time of disposal. All related costs will be charged to the Customer.
20. EXPORT
20.1. The export or re-export of products, spare parts or software may be subject to domestic and/or foreign export control regulations. The Customer undertakes to comply with the trade regulations and export control regulations and, if necessary, to obtain any necessary licenses for the export of the products from the competent authority.
21. BUSINESS INTEGRITY
21.1. The Customer must conduct its affairs in ethical manner, acknowledges to be informed about the FRANKE Code of Conduct adopted by the Franke Group, as modified from time to time, and shall adhere to the Code of Conduct's principles in relation to FRANKE. The FRANKE Code of Conduct and any amendments are published on our website: https://www.franke.com/ca/en/group/company/compliance.html.The Customer shall adequately inform its officers, directors and key employees about the FRANKE Code of Conduct and impose the obligation to comply with its principles.
22. MISCELLANEOUS
22.1. Should any provisions of these GTC be legally ineffective or invalid, the validity and effectiveness of the remaining provisions shall remain unaffected. In such cases, the invalid provision shall be modified or supplemented in such a way that the intended economic purpose of the provision is achieved as far as possible
22.2. The Customer acknowledges that FRANKE is entitled to retrace or recall equipment or take other corrective actions to the products. The Customer will actively support FRANKE when this need arises.
22.3. Force majeure, labor disputes, civil disorder, governmental actions, epidemic, pandemic and other unforeseeable and unavoidable events of major significance release the contracting parties from their performance obligations for the duration of the disturbance to the extent of the impact thereof. The same applies if these events take place when performance by the contracting party affected is already overdue. The contracting parties are required to provide the information reasonably necessary without delay and to adjust their mutual obligations to the altered circumstances in accordance with the principle of good faith dealing.
23. FICA COMPLIANCE AND VERIFICATION OF IDENTITY
23.1. The Customer acknowledges that the Company is required to comply with the Financial Intelligence Centre Act, 2001 (FICA), and any associated regulations or directives, including those relating to the sale and transfer of High-Value Goods (HVGs), as defined under applicable legislation.
23.2. Prior to the processing or fulfilment of any order that falls within the scope of HVG transactions, the Customer shall undergo a FICA compliance process, which may include the provision of the following:
23.2.1. Proof of identity (for natural persons) or registration documents (for juristic persons);
23.2.2. Proof of residential or business address (not older than 3 months);
23.2.3. Confirmation of the source of funds or payment;
23.2.4. Any other information reasonably required to verify the Customer’s identity or comply with FICA obligations.
23.3. The Company reserves the right to suspend or cancel any transaction pending completion of the FICA verification process. No goods will be delivered, and no ownership will pass to the Customer, until such time as the Customer has met all FICA related requirements to the satisfaction of the Company.
23.4. Failure to comply with these requirements may result in delays, cancellation of orders, or refusal to enter or continue a business relationship, without any liability to the Company.
23.5. In the event that the Customer fails or refuses to comply with the FICA verification process within [10 business days] of request:
23.5.1. The Company shall be entitled to cancel the relevant order without penalty or liability.
23.5.2. Any funds received may be refunded, less reasonable administrative costs incurred in the attempted verification process, and only in accordance with applicable legal obligations.
23.5.3. The Company may report the failure to comply to the Financial Intelligence Centre or any other relevant authority, where legally required.
23.5.4. The Customer shall have no claim against the Company arising from the cancellation or delay caused by non-compliance.
1.5.5. By transacting with the Company, the Customer expressly consents to the Company collecting, processing, and sharing their personal information with authorised third-party service providers or verification agencies for the purposes of fulfilling FICA compliance obligations. Such processing shall be conducted in accordance with the Protection of Personal Information Act, 2013 (POPIA), and any other applicable data protection laws.
CONTACT INFORMATION
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Last Updated: Oct 1, 2025