STANDARD TERMS AND CONDITIONS OF SALE
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INTERPRETATION
In these terms and conditions, unless inconsistent with the text –
1.1 headings are for reference only and shall not be used in interpreting the meaning of the text;
1.2 words importing the singular shall include the plural and vice versa, words importing the masculine gender shall include the other gender(s) and vice versa, and natural persons shall include juristic persons and vice versa; and
1.3 a reference to a party includes that party’s successors in title and permitted cessionaries and assigns.
2. APPLICATION
2.1 All goods and services (hereafter referred to, collectively and individually, as ‘the goods’) sold and/or rendered by the Company to the Customer from time to time shall be sold and/or rendered, as the case may be, on the terms and subject to the conditions set out herein.
2.2 Should two or more persons sign this agreement as the Customer then the said persons shall be liable jointly and severally in solidum for the due performance of the Customer’s obligations in terms hereof.
2.3 The Company shall have the right at any time and in its sole and absolute discretion, to withdraw or vary the nature and/or extent of any credit facilities afforded to the Customer.
3. INDEPENDENT ADVICE
The Customer acknowledges that it has been free to secure independent legal advice as to the nature and effect of all of the provisions of this agreement and that it has either taken such independent legal advice or dispensed with the necessity of doing so. Further, the Customer acknowledges that all of the provisions of this agreement are fair and reasonable in all the circumstances and are part of the overall intention of the parties in connection with sale of goods by the COMPANY to the Customer.
4. ORDERS
4.1 The Company shall be entitled (but nog obliged) to accept verbal orders and/or orders placed without an order number. Provided that in such event the Company shall not be responsible for any errors in or arising from such orders.
4.2 An order, whether written or verbal, shall constitute an irrevocable offer by the Customer to the Company to purchase the goods so ordered, which offers shall be capable of acceptance by the Company by verbal or written acceptance or confirmation of the order, or by the delivery of the goods ordered (or any part thereof).
5. DELIVERY AND RISK
5.1 The goods shall be delivered by the Company to the Customer, and delivery of the goods shall be deemed to have been made by the Company to the Customer -
5.1.1 where the Company transports the goods – when the goods are offloaded at the Customer’s premises or at such other address as may have been nominated by the Customer; and
5.1.2 where the Customer collects the goods – when possession of the goods is given to the Customer or the Customer’s nominated carrier or agent or other recipient.
5.2 Signature of a Company delivery note or invoice by any employee of the Customer or of the Customer’s nominated carrier, agent or recipient, as the case may be, shall be prima facie proof of delivery to the Customer of the goods reflected in such delivery note / invoice.
5.3 The Company does not guarantee or warrant delivery of any goods, and the Company shall not be liable for any loss or damage including (without limitation) any loss of trade or profit, arising from or consequent upon the non-delivery or delayed delivery or partial delivery of any goods to the Customer for whatsoever reason or cause.
5.4 Should the Company make delivery of part only of any order then the Customer shall not be entitled to cancel the order in respect of those goods delivered or the balance of the order, and shall be obliged to accept such delivery of and pay for the goods so delivered.
5.5 All risk in and to the goods shall pass to the Customer on delivery of the goods by the Company to the Customer.
6. PRICE AND PAYMENT
6.1 The Company shall be entitled, at any time and from time to time in its discretion, to change its prices for the goods.
6.2 The Customer shall pay for the goods purchased by it within 30 (thirty) days of the date of statement therefore.
6.3 All payments shall be made by the Customer without any deduction or set-off of whatsoever nature or for whatsoever cause, and free of any and all exchange, bank or other like charges.
6.4 The Company may at any time and in its discretion, appropriate or re-appropriate any moneys received from the Customer towards any indebtedness of the Customer to the Company, and the Customer expressly waives its right to name the debt or account to which any payment made by it shall be applied.
6.5 The Company shall be entitled to charge, in which event the Customer shall be liable to pay, interest on all overdue amounts at the rate of 2.5% (two and a half percent) per month, calculated and compounded monthly in arrears from due date to date of payment thereof, both days inclusive, but subject to the maximum rate permissible from time to time in terms of the National Credit Act, No. 34 of 2005 as amended (the ‘NCA’).
6.6 Nothing herein or in the future conduct of the Company shall be construed as constituting the post office or any other postal or courier service as an agent of the Company, and the risk of loss of payment arising through the use of the post office or such postal or courier service shall remain with the Customer at all times.
6.7 Acceptance by the Company of any negotiable instrument shall not be deemed to be a novation or a waiver by the Company of any of its rights under this agreement.
7. WARRANTIES AND INDEMNITY
7.1 Save for any manufacturer / producer’s warranty on the goods (if any), the Company does not give or make any warranties, guarantees, undertakings or representations of whatsoever nature, whether expressly or implied, as to the quality or condition of the goods or their fitness or suitability for any purpose.
7.2 The Company’s liability for the breach of any manufacturer / producer’s warranty shall be limited to, and shall be fully discharged by, the replacement of the relevant goods: provided that regard will be had to any use of the goods by the Customer. The Company shall not under any circumstances be liable for any consequential loss suffered by the Customer from whatsoever cause arising.
7.3 Save to the extent set out above, the Customer hereby indemnifies and holds the Company harmless against any and all losses, injury, damage, fines, penalties and claims of whatsoever nature and howsoever arising from or connected with the goods, or the use or possession thereof and whether or not such claims are caused by any act or omission of the Customer or by anyone else.
8. CUSTOMER’S WARRANTIES AND UNDERTAKINGS
8.1 The Customer represents and warrants that there are no pending or threatened investigations, litigation or proceedings affecting the Customer which may adversely affect its business or its ability to meet its obligations to the Company under this agreement.
8.2 If the Customer is a company then the Customer shall provide the Company with copies of its audited annual financial statements within 3 (three) months of each of the Customer’s year ends.
8.3 The Customer undertakes to –
8.3.1 deliver to the Company, on request by the Company from time to time, its annual financial statements and/or interim financial statements and/or management accounts;
8.3.2 immediately notify the Company in writing on the occurrence of any of the events contemplated in clause 8.1, or if there is any other change in its financial or business affairs which might reasonably have the effect of prejudicing the Company’s rights under this agreement of the Customer’s ability to fully and punctually meet its obligations hereunder;
8.3.3 give the Company not less than 14 (fourteen) days prior written notice of any intended change in its shareholding, members, directors, owners or partners; and/or any intended sale of its business or the major portion of its assets; and/or any intended change of its registered or trading address, and failure to do so will constitute a material breach of this agreement.
9. CREDIT ASSESSMENT AND INFORMATION
9.1 The Customer warrants that all information and documents given by it to the Company in support of the Customer’s application for credit facilities with the Company are true and correct and complete in all respects, and that it has disclosed all facts material the Company’s assessment of the Customer’s credit and financial position.
9.2 The Customer acknowledges and agrees that, subject to the provisions of the NCA –
9.2.1 all information and documents given by it to the Company are to be used to assess the Customer’s credit and financial position for the purposes of granting it credit; and
9.2.2 the Company shall be entitled from time to time to obtain from any person or credit bureau information relevant to the Customer’s credit and financial position for the purpose of assessing the credit facilities afforded to the Customer.
9.3 The Customer authorizes the Company to furnish information concerning the Customer’s dealings with the Company to any credit bureau or other person seeking trade references or credit information on the Customer, subject always to the provisions of the NCA.
10. SECURITIES
10.1 The Customer shall provide and/or procure the signature and/or conclusion and or execution, to and/or in favour of the Company, of such securities (‘the securities’) as the Company may (in its sole and absolute discretion) from time to time consider necessary to secure the Customer’s obligations to the Company hereunder.
10.2 The securities shall be in such form and shall contain such terms and conditions as may be required and/or acceptable to
the Company (in the Company’s sole and absolute discretion) and the Customer undertakes to do all such things and to sign all such documents necessary and/or required to give effect to the preparation, signature and registration of the securities.
10.3 Notwithstanding anything to the contrary in this agreement, the Company shall not be obliged to extend or maintain any credit facilities to the Customer, or deliver any goods to the Customer, unless and until all of the securities have been provided to the satisfaction of the Company. To the extent that the Company may have already extended any credit to the Customer, the Company shall be entitled to withdraw or vary the nature and/or extent thereof as provided for in clause 2.3.
11. CESSION
11.1 The Company shall be entitled, without notice to or the consent of the Customer, to cede or sell all or any part of its rights under this agreement, or to assign or delegate any of its obligations hereunder.
11.2 The Customer may not cede any of its rights or delegate any of its obligations under this agreement.
12. CERTIFICATE OF INDEBTEDNESS
A certificate signed by any manager or director of the Company, whose capacity and authority need not be proved, shall be prima facie proof of the evidence stated therein in respect of any indebtedness of the Customer to the Company or in respect of any other fact, for the purpose of obtaining a judgement or an order against the Customer in any competent court.
13. JURISDICTION
The Customer consents to the jurisdiction of the magistrate’s court having jurisdiction over its person in respect of all legal proceedings arising from this agreement, notwithstanding that the amount of the matter in dispute exceeds the court’s jurisdiction: provided that the Company shall be entitled to institute such proceedings in any High Court having jurisdiction.
14. BREACH
14.1 If the Customer should –
14.1.1 breach any provision of this agreement; or
14.1.2 make any incorrect or untrue statement or representation to the Company in connection with this agreement and/or the Customer’s application for credit facilities; or
14.1.3 be sequestrated or liquidated, whether provisional or final or whether compulsory or voluntary; or
14.1.4 in the case of a natural person, commit an act of insolvency as contemplated in section 8 of the Insolvency Act, No. 24 of 1936, as amended (‘the Insolvency Act’); or
14.1.5 in the case of a company or close corporation, commit an act which would constitute an act of insolvency as contemplated in section 8 of the Insolvency Act if committed by a natural person, or commit an act defined in terms of section 344 of the Companies Act, No. 61 of 1973; or
14.1.6 be placed under judicial management, whether provisional or final or whether compulsory or voluntary, or pass a resolution for its winding up or for the appointment of a judicial manager; or
14.1.7 suffer any judgement to be entered against it and fail to take steps to rescind such judgement within 14 (fourteen) days of the judgement coming to its knowledge, or fail to satisfy any such judgement within 14 (fourteen) days of the date of refusal of rescission thereof.
then and upon the happening of any of these events the Company shall be entitled in its election and without prejudice to any of its other rights at law or hereunder, to forthwith enforce specific performance or to cancel this agreement, and in either event to claim damages.
14.2 The Customer shall be liable to pay the Company all costs and disbursements incurred by the Company in enforcing its rights under this agreement, in trading the Customer including (without limitation) legal costs on the scale as between attorney and client.
15. DOMICILIUM
15.1 The Customer chooses as its domicilia citandi et executandi, the physical and postal address/es and the telefax number (if any) set out in section A hereof, for all purposes arising out of or in connection with this agreement, at which address/es all notices and processes arising out of or in connection with this agreement, its breach or termination, may validly be served upon or delivered to the Customer.
15.2 The Customer may, by giving written notice thereof to the Company, change its domicilium to any other address provided that such new address is or includes a physical address (which is not a poste restante) within South Africa.
15.3 Any notice given by the Company to the Customer in terms of this agreement shall, unless the Customer proves otherwise –
15.3.1
if delivered by hand, be deemed to have been received by the Customer on the 1st (first) business day following the date of delivery thereof (for the purposes of this agreement a ‘business day’ means any day other than a Saturday, Sunday or official public holiday in South Africa); and
15.3.2 if delivered by recognized international courier service, be deemed to have been received by the Customer on the 1st (first) business day following the date of such delivery by the courier service concerned; and
15.3.3 if sent by pre-paid registered post, be deemed to have been received by the Customer on the 5th (fifth) business day following the date of posting thereof; and
15.3.4 if transmitted by fax or email, be deemed to have been received by the Customer on the 1st (first) business day following the date of transmission thereof.
15.4 Notwithstanding anything to the contrary herein, a written notice or communication actually received by the Customer from the Company shall be adequate written notice or communication to the Customer.
16. GENERAL
16.1 Whole Agreement – this agreement is the whole agreement between the parties and no variation or amendment thereof will be of any force and effect unless reduced to writing and signed by both parties.
16.2 Indulgences – No relaxation or indulgence granted by the Company to the Customer in regard to any of the terms and conditions herein shall be deemed to be a waiver of any of the Company’s rights in terms of this agreement.
16.3 Severability – If any provision of this agreement is or becomes illegal, invalid or unenforceable, such provision shall be severed and the remaining provisions of the agreement shall continue unaffected.
16.4 Applicable Law – This agreement is in all respects governed and construed in accordance with the laws of the Republic of South Africa, in force from time to time.
16.5 Warranty of Authority – If the Customer is a juristic person then the person signing this agreement on behalf of the Customer expressly warrants his authority to do so.
16.6 Execution – This agreement may be signed by fax or email. In that event, the parties will endeavour to sign an original hereof to replace the faxed/emailed document as soon as is reasonably possible, but the failure to do so shall not constitute a breach of this agreement nor shall it invalidate this agreement in any way.