GENERAL TERMS AND CONDITIONS
These General Conditions of Delivery and Warranty (hereinafter referred to as “the General Conditions”) as issued by Scania West Africa Ltd (hereinafter referred to as “the Company”) shall apply to and govern all tenders submitted to, and all contracts of sale, quotations and delivery entered into, with its distributors and anyone else purchasing or being interested in purchasing vehicles, components, genuine parts, service exchange units and accessories (hereinafter referred to as “Products”) directly from the Company (such distributors and other purchasers hereinafter referred to individually as “Purchaser” and jointly as “Purchasers”).
These General Conditions may also apply to quotations or orders for Products involving other parties than the Company and Purchasers, but only provided that they have expressly agreed to that effect in the relevant tender or contract documents. In such cases, references herein to “the Company” shall be to the tendering or selling party while the Company shall have no backing commitment of any kind to the seller unless so confirmed in writing by the Company itself.
1. All proposals, drawings and documents issued or used in connection with tenders and contracts are the exclusive property of the Company and may not, without its written permission, be used or divulged to third parties. The dimensions, weights, drawings, reproductions and shipping volumes are intended as a general guide only, and must not be taken as binding in detail. All technical data are expressed in metric units.
2. Acceptance of any tender submitted by the Company must be in the possession of the Company within 21 days after the dispatch, or renewal (where applicable), of the tender in order to constitute a binding contract.
3. All tenders are subject to the condition that such export licenses as may be required for the exportation of the goods offered, are issued to the Company by the Ghanaian authorities.
4. The Company reserves the right to adjust prices or times of delivery, or both, before accepting an order.
2 PLACE AND EXTENT OF DELIVERY
5. The Products are delivered ex works, unless otherwise separately agreed between the Company and the Purchaser.
6. All trade terms appearing in any tender, contract or in these
General Conditions shall be interpreted in accordance with the ICC Incoterms, prevailing at the time the tender was submitted.
7. The obligations of the Company shall in all respects be limited only to what the Company has undertaken in writing. If there are contradictory provision in any contract, tender or program, their validity shall rank in the order in which the documents are mentioned in this sentence.
8. The Company reserves the right to make, without previous notice, the alterations and modifications to the design which it may deem appropriate. Such alterations and modifications shall not affect the validity of any contract and shall be no ground for any claims upon the Company.
3 TIME OF DELIVERY
9. The delivery time shall commence to run when a written contract between the Purchaser and the Company has been concluded, a complete specification of the performance has reached the Company and the letter of credit, licences or permits referred to in paragraph 15 hereof, have been received by the Company.
10. If, on account of force majeure, the delivery is hindered, impeded or delayed, the Company shall be exonerated from all responsibility, and reserve to itself the right either to postpone the delivery beyond the time agreed upon in the contract to the extent warranted by the circumstances or – if the duration of the circumstances constituting force majeure exceeds three months – wholly or partly to cancel the agreement without requiring the consent of any Court. Delay in delivery of non-essential parts or components shall be disregarded when calculating the time in which delivery had to be made.
11. Among circumstances constituting force majeure shall be considered labour disputes and any other difficulty in obtaining labour, blockade, war, political disturbances, preparation for national defence, traffic disturbances, state requisitions, export licence
failing, fire, natural causes, lack of material or power, lack or delay of ship or other means of transport, damage to machinery or other dislocations in manufacture, rejections during manufacture which could not reasonably be foreseen, non-arrival, faulty or delayed delivery from the Company’s suppliers of components, semi-finished products, raw material, power etc., and in general any circumstances of whatever nature which are beyond the Company’s control, and which in any way affect the ability of the Company to fulfil its delivery obligations.
12. If the Purchaser does not in due time fulfil the conditions incumbent upon the Purchaser or in any other way delays the execution of the work, for instance by additions or alternations to the order, the Company shall have the right either to prolong the delivery time or to cancel the agreement without requiring the consent of any Court. .
13. Partial deliveries are permissible.
3.1 PRICES AND TERMS OF PAYMENT
14. Unless otherwise separately agreed, prices are quoted DDP Tema and do not include packing.
15. Payment, shall be made in Ghana Cedis, or, in case transaction is made in a country other than Ghana, shall be made in the currency determined by the Company, subject to the laws of that other country. When placing the order the Purchaser shall commit to the agreed terms of payment with the Company.
16. The credit shall also provide for pro rata payment against certificates of manufacture in case of partial deliveries.
17. In the event of the importation of and/or the payment for the Products ordered being subject to the Purchaser having in its possession valid import and payment licenses or permits, the Purchaser shall, when placing its order, furnish the Company with copies of such licenses or permits which must be valid for the delivery time agreed upon.
18. Minor defects in the date of delivery are not valid reason for withholding payment or any part thereof.
19. If before delivery valid reason arises for assuming that the Purchaser will not fulfil its payment obligations, the Company shall be entitled to demand from the Purchaser such security as deemed adequate by the Company. Should such security not be given, the Company shall have the right to cancel the agreement without requiring the consent of any Court.
20. In case of delayed payment, interest shall be charged on all amounts from the date when they became due and payable, at a rate as agreed to separately with the Purchaser or otherwise as generally applied by the Company for payment defaults and specified in its invoice.
21. All down payments received by the Company from the Purchaser are not refundable even in the case of contract cancellation.
3.2 SPECIAL CHARGES
22. All and any fees for legalising invoices, stamping bills or other documents required by the laws of the country of destination are payable by the Purchaser and are not included in the purchase price, and the Company is hereby authorised to pay the same for the Purchaser’s account and add the cost thereof to the invoice.
23. The Company will take out requisite documents on behalf of the Purchaser, who must state how the goods are to be declared, and if the Purchaser does not furnish the necessary instructions, the Company will make declaration according to its best judgement, but will not in any event be responsible for any fines or other charges due to errors or incorrect declarations.
24. If delivery of Products has been effected prior to payment in full having been made for them, such Products shall remain the property of the Company until receipt of full payment. Acceptances or other such instruments of payment shall not be regarded as payment until honoured in full.
25. If mandatory law as applicable to delivery of Products does not permit the Company to retain title to them accordingly, the Company shall be entitled to the benefit of such other rights in respect thereof as such law permits it to retain. The Purchaser shall give the Company every assistance in taking every measure required to protect the Company’s right of ownership or such other rights as aforesaid.
26. As soon as the goods have been delivered, any subsequent damage to or deterioration of the goods shall be at the Purchaser’s risk, even if ownership of the goods has not yet passed to the Purchaser.
3.4 DEFAULT OF THE PURCHASER
27. Without prejudice to the relevant provisions of the preceding paragraphs and the Company’s right to demand fulfilment, the Company shall, if the Purchaser fails to fulfil any of its obligations, without notice of default be entitled to;
a) Store for the account and risk of the Purchaser the Products
on the company’s premises or, at its discretion, to transport and store them elsewhere;
b) suspend all deliveries to the Purchaser under any contract;
c) cancel, without the consent of any Court, all contracts with the Purchaser wholly or partly and to take back Products supplied; and.
d) be compensated fully by the Purchaser for any interest, damage and costs lost or incurred by the Company, whether in or outside of Court, as a result of such failure and measures taken by the Company in connection therewith
28. The Company shall have the same rights in case the Purchaser is declared bankrupt, applies for a moratorium of payment, otherwise appears unable to fulfil its obligations or terminates its business
29. If the goods are found to be damaged on arrival at the place of destination, if parts are missing, or if there should exist any other reason for complaint regarding the goods, notification thereof must be given without delay to the Company, to the carrier and to the company with whom the goods have been insured, at the risk of claims for compensation otherwise not being recognised.
In the case of a used vehicle, The Purchaser declares that they have been informed that the vehicle is not brand new and that it was earlier used by third persons. The used vehicles are sold as-is.
3.6 WARRANTY SCOPE AND COVERAGE
30. Subject as set out in detail below, the Company undertakes to remedy any defects in Products resulting from faulty material or workmanship (hereinafter referred to as “the Warranty”).
31. The Warranty applies in favour of Purchasers. In other words, the owner of a Product who is not a Purchaser as defined in these General Conditions may not refer to the Warranty unless the Company has acknowledged in writing that it applies in favour of such owner.
32. In the event of a defect being disclosed within a period of twelve months after the date of delivery to the first end-user, or at the latest twenty four months after delivery from the Company’s works, whichever occurs first, the Company shall at its own cost and option repair or replace the defective part, component or Product and reimburse the cost of dismounting and reinstalling in connection herewith.
3.8 SCANIA GENUINE PARTS, SERVICE EXCHANGE UNITS AND ACCESSORIES
33. The event of any such defect being disclosed within a period of twelve months after the date of purchase or from the date when fitted to the vehicle, whichever occurs first, the Company shall at its own cost and option repair or replace the defective part. Provided that the part was originally fitted by an authorised Scania workshop, the Company shall in addition reimburse the cost of dismounting and reinstalling in connection with the repair or replacement. General
34. Repair, replacement, reimbursement (where relevant), and any handling in connection therewith shall be subject to the warranty handling rules defined by the Company from time to time in its Scania Global Warranty Manual, as made available to the Purchaser according to normal Scania routines.
35. The Warranty shall not apply to, or cover;
- defects caused by, connected with or arising as a result of road accidents, accidental or natural causes, unsuitable, careless or
- abnormal use, overloading beyond the maximum gross laden weight specified by the Company, inadequate or faulty servicing including insufficient lubrication, dirt, neglect, unauthorised modification of the product, seals or other settings made by the Company or its suppliers having been broken or modified, or any other circumstances (of whatever nature) which are beyond the Company’s reasonable control;.
- normal wear items such as brake linings/pads, clutch drive plates, drive belts, wiper blades, tyres, bulbs etc, neither fluids and lubricants, etc, unless such items were damaged as a result of a defect covered by Warranty;
- use of obsolete genuine parts, service exchange units or accessories, or defects caused by such items;
- tires or wheel rims, or other parts or components determined by the Company from time to time through its Scania Global Warranty Manual, nor to defects caused by such parts or components; or
- parts or components that were supplied for fitting to the Product concerned by anyone else than the Company.
35. The Company makes no representation of any kind to the effect that parts or components not covered by the Warranty as above will carry other warranty directly from the supplier thereof, but only undertakes to pass on information of any such warranty (where applicable) being afforded directly to the Purchaser.
36. Furthermore, the Warranty will apply only provided that;
- the Company or its authorised workshop has been notified immediately;
- the Product is brought without delay at the purchaser’s own risk and expense to a workshop authorised by the Company;
- the Product has been subject to proper use, care and maintenance in accordance with the Company’s instructions; and
- the defective part is kept at the Company’s disposal for inspection.
37. Parts and components that the Company has repaired or replaced in accordance with the conditions stated above will in no way prolong the original Warranty period of the vehicle. However, such repaired or replaced parts or components in themselves are subject to Warranty on the conditions stated above.
38. In the case of used vehicles, the Company does not provide any guarantee, unless otherwise stated or agreed upon.
38. Delay in delivery not due to circumstances mentioned in paragraphs 10-11 but due to the fault of the Company shall entitle the Purchaser to compensation for verified damages suffered as a consequence thereof, but with no right to cancel the agreement. Such compensation shall in respect of each full week’s delay not exceed ¼ per cent of the value of such part or parts of the delivery which owing to the delay cannot be put into service, nor in total 5 per cent of that value.
39. The Company shall not be responsible for any indirect or consequential loss or damage nor for contingent losses which may arise under any circumstances whatsoever, except in case of wilful misconduct or gross negligence on the part of the Company.
40. The Company shall only be liable for payment of compensation and for replacement and repair as laid down above, if and so long as the Purchaser in turn fulfils its own obligations towards the Company according to contract and reports alleged defects immediately after the discovery thereof.
41. The Purchaser shall have no right to assert any claims for liability, damages or compensation over and above what has been stipulated in paragraphs 29-40 above.
3.10 GOVERNING LAW AND DISPUTE RESOLUTION
42. These General Conditions as well as tenders and contracts based thereon shall be governed by and construed in accordance with Ghanaian law.
43. Disputes in connection with these General Conditions as well as tenders and contracts governed thereby shall not be taken to a court of law but shall be finally settled by arbitration in accordance with Ghanaian law. However, if agreed on by both parties before commencement of contract, the governing law and competent courts shall be those of the country of the Purchaser in the event of any debt of the Purchaser owed and not paid to the Company.
SCANIA BUSINESS ETHICS
44. All companies within the Scania Group uphold in accordance with the Scania Code of Conduct published on www.scania.com the highest international standards in its sustainability work by ensuring, and promoting to others;
a) respect for employment and labour rights, including non-discrimination, health and safety, freedom of association and collective bargaining, as well as child non-labour and other human rights;
b) compliance with money-laundering, financing of terrorism laws, bribery, corrupt practices, export control and sanctions laws and regulations, all of which includes carrying out relevant counterparty due diligence checks;
c) efficient competition in the marketplace; and
d) environmental protection;
45. Scania expects the same considerate and responsible approach from all its suppliers, customers and other business partners. Scania therefore reserves an unconditional and irrevocable right to immediately cancel all orders, delivery or other undertakings still outstanding under the Agreement and even terminate the Agreement as such with immediate effect, if there has occurred, or there is in the reasonable opinion of Scania justified cause to suspect that there has occurred, any of the following within the Customer’s own operations or those of someone else under the Customer’s responsibility
a) Discrimination of employees, consultants, customers or others based on race, ethnicity, religion or cultural background, exercising of freedom of speech, or labour union affiliation.
b) Hiring of child labour or disregarding of fundamental labour rights and/or human rights.
c) Financing of or affiliation to terrorist acts.
d) Acts of money-laundering, bribery (whether the Customer is or was payer or payee) or other corrupt practices.
e) Breach of export control or international sanctions laws and regulations, which for purposes hereof shall include also the situation that continued participation by Scania in business governed by the Agreement would or could, in the reasonable opinion of Scania, constitute a breach by Scania of such laws and regulations.
f) Participation in agreements, concerted practices or other arrangements aimed at, or having the effect of, distorting competition in breach of applicable laws.
g) Lack of internal processes and other safeguards ensuring compliance as above within the relevant Customer organisation.
h) Any other material circumstance, under which Scania cannot reasonably be required or expected to fulfil its contractual undertakings in favour of the Customer, specifically taking into account Scania’s own commitments to its stakeholders in the Scania Code of Conduct.
END USER STATEMENT
Within a period of one year after delivery, the Purchaser has to inform the Company if he has sold back the vehicle(s), who is the end user purchaser.
The warranty is not transferrable to any end user Purchaser without the Company’s assessment and agreement.