TERMS AND CONDITIONS OF TRADE
The APPLICANT or its duly authorised agent does hereby apply for credit facilities with the CREDITOR and in consideration thereof the APPLICANT(as well as any surety for the APPLICANT – whose signature appears below) does hereby irrevocably accept the following terms and conditions.
1. These terms and conditions of trade (“the terms and conditions”) override and supersede all terms conditions forming any agreement of trade between the APPLICANT and CREDITOR and are without prejudice to any securities and/or guarantees previously granted by the APPLICANT to the CREDITOR.
2. A certificate signed by the manager and/or any director of the CREDITOR reflecting the amount owing by the APPLICANT to the CREDITOR in respect of the credit facilities, granted to the APPLICANT in terms hereof relating to the APPLICANT’S dealings with the creditor and of the fact that such amount is due, owing and unpaid will be prima facie proof of the facts therein stated for the purposes of any action (whether by way of provisional sentence or otherwise) proof of a debt or of insolvency or for any purpose whatsoever where the amount of such claim is required to be established and it shall rest with the APPLICANT to prove that such amount is not owing and/or due and unpaid.
3. All overdue sums/amounts shall bear interest at the maximum permissible rate of interest as determined by the relevant legislation in respect thereof.
3.1 Notwithstanding the amount which may at any time be owing by the APPLICANT to the CREDITOR, the parties do hereby consent, in terms of Section 45 of the Magistrates Court Act (No 32 of 1944 as amended), to the jurisdiction of the Magistrate’s Court having jurisdiction for the determination of any action proceeding otherwise beyond the Jurisdiction of the said court which may be brought by the CREDITOR against the APPLICANT and/or the surety/arising out of any transaction between the parties. It being recorded that THE CREDITOR shall be entitled, but not obliged, to bring any action or proceeding in the said court and that all costs incurred in any action against the APPLICANT in any competent court including costs on an attorney/client scale and attorneys collection commissions will be paid by the APPLICANT. The APPLICANT and the CREDITOR agree that the laws of South Africa will govern any dispute between the parties.
3.2 Notwithstanding the terms of clause 3.1 above the CREDITOR shall be entitled, but not obliged, whether legal action has commenced or not, to submit any dispute between the parties to arbitration. The arbitration shall be held in the town/city of principle business of THE CREDITOR within 60 (sixty) days after it has been demanded before a mutually agreed person. The arbitration shall be held in a summary manner and the strict rules of evidence shall not apply. The arbitrator shall decide on the issues of pleadings and discovery but shall do so on the basis that the matter is to be expedited and brought to arbitration within the 60 (sixty) day period and in an informal manner. The arbitrator shall decide the matter submitted to him according to what he considers just and equitable in the circumstances and therefore the strict rules of law need not be observed or taken into account by him arriving a these decisions. The parties hereto agree that the decision of the arbitrator shall be binding on each of them, and shall be made an Order of any Court of competent jurisdiction should it be necessary to execute under the arbitrator’s order. The arbitrator’s decision shall further be final and binding upon the parties and the arbitrator shall be entitled to make an order for costs in regard to the arbitration.
4. In the event of the APPLICANT defaulting in making payment of any amounts on due date or should the APPLICANT commit an act of insolvency as envisaged in terms of the Insolvency Act, 24 of 1936 (as amended) and/or should the APPLICANT be placed into liquidation either provisionally or finally), or should the APPLICANT be sequestrated (either provisionally or finally) or should the APPLICANT be placed into judicial management (either provisionally or finally), then the whole balance outstanding to the CREDITOR including both capital and interest will immediately become due and payable.
DEED OF SURETYSHIP
5.1 I, by my signature hereto (which appears below) do, in addition to the above, hereby bind myself in my private and individual capacity as surety for an co-principle debtor in solidum with the APPLICANT in favour of the CREDITOR for the due performance of any obligation of The APPLICANT and for the payment of the CREDITOR by the APPLICANT of any amounts which may at any time become owing to the CREDITOR by the APPLICANT acquired by way of cession. This suretyship shall be a continuing covering guarantee/surety which may only be cancelled, in writing, by the CREDITOR and then only, provided that all sums then owning by the APPLICANT (whether due or not) to the CREDITOR have been paid in full. I hereby renounce the benefits of the legal exception “Ordinis Seu Excussionis Et Divisionis” and “Cession of Action”, with the force, meaning an effect of which I declare myself to be fully acquainted. I furthermore bind myself irrevocably to all the terms and conditions set out herein I agree that the amount recoverable from me in terms of the suretyship shall, notwithstanding anything to the contrary herein and, in particular notwithstanding the reference to a credit limit under A above, be the full amount owing by the APPLICANT to the CREDITOR at any time and not be limited as to the amount or in any other manner whatever.
5.2 I furthermore record that if more than one person has appended his signature hereto, there shall come into existence a separate distinct and independent contract of suretyship/guarantee, which is brought into existence by each separate signatory hereto. If for any reason this suretyship/guarantee is not binding (for whatsoever reason) on any one signatory than the obligations of the remaining signatories shall nevertheless be and remain of full force and effect.
FURTHER TERMS AND CONDITIONS OF SALE
6.1 The APPLICANT and I (the signatory hereof) hereby choose our Domicilium Citandi et Executandi for all purposes arising out of this application and Deed of Suretyship at the address stipulated on page 2 point 8 hereof.
6.2 The APPLICANT and I undertake to notify the CREDITOR forthwith and by no later than within 7 days, and in writing, of any change of address.
6.3 If the APPLICANT should fail to object to any item appearing on the CREDITOR’S statement of account and/or invoice within 14 days of the date of the dispatch of the statements, the accounts shall be deemed to be in order.
6.4 Unless the context otherwise requires, the words importing the singular shall include the plural and vice versa, a natural person shall include an artificial person and vice versa and the one gender shall include the other gender and vice versa.
6.5 The APPLICANT undertakes to notify the CREDITOR, in writing, within 7 days of any change in ownership of the APPLICANT’S business, or should the APPLICANT be a company, of its share transactions whereby the majority shareholding is affected, failing which notice the entire balance owning, whether due or not, will immediately be deemed to be due and payable by the APPLICANT, in addition to the aforegoing, the APPLICANT acknowledges that immediately upon any change of ownership in the APPLICANT any outstanding amount whether due or not shall be deemed to be forthwith payable by the APPLICANT to the CREDITOR.
6.6 Until such time as the APPLICANT has paid the purchase price in full in respect of any purchase of goods, the ownership in and to all such goods shall remain vested in The CREDITOR. The CREDITOR shall, in its sole discretion, be entitled to take possession at the APPLICANT’S cost of any such goods which have not been paid for and in respect of which payment is overdue, in which event the APPLICANT shall be entitled to a credit in respect of the goods so returned being the price at which the goods are sold or the value thereof as determined by the CREDITOR. The APPLICANT hereby waives any right it may have for a spoliation order against the CREDITOR in the even that the CREDITOR takes possession of any goods.
6.7.1 The APPLICANT does hereby irrevocably and in ram suam cede, pledge, assign, transfer and make over unto and in favour of the creditor, all of its right, title and interest claim and demand in and to all claims, debt, book debt of whatsoever nature and description how so ever arising which the APPLICANT may now or at any time hereafter have against all, one, or any persons, corporations, firms, partnership associations, syndicates and other legal personae whomsoever (the APPLICANT’S debtors) without exception as a continuing covering security for the due payment of every sum of money which may now or at any time thereafter be or become owing by the APPLICANT to the CREDITOR from whatsoever cause or obligation arising which the APPLICANT maybe or become bound perform in favour of the CREDITOR.
6.7.2 Should it transpire that the APPLICANT at any time entered into prior deeds of cession or otherwise disposed of any of the right, title and interest in and to any of the debts which will from time to time be subject to the cession, then this cession shall operate as a cession of all the APPLICANT’S reversionary rights. Notwithstanding the terms of the aforegoing cession the APPLICANT shall be entitled to institute action against any of its debtors provided that all sums of money which the APPLICANT collects from its debtors shall be collected on the CREDITOR’S behalf and provided further that the CREDITOR shall at any time be entitled to terminate the APPLICANT’S right to collect such monies / debts.
6.7.3 The APPLICANT agrees that the CREDITOR shall, be entitled at any time or times hereafter to give notice of this cession to all or any of the APPLICANT’S debtors.
6.7.4 The APPLICANT further agrees that the CREDITOR shall, at any time, be entitled to inspect any of the APPLICANT’S books or records and in addition shall be entitled to take possession of such books and records (of whatsoever nature) to give effect to the terms of this cession.
6.8 The goods and/or products of the CREDITOR shall be regarded as being sold (“voetstoots”) without warranty against latent defects therein. No liability including direct damages or consequential damages shall arise or be claimed from the creditor for any representation or warranty made or alleged to have been made at any time and respect of the goods and/or products sold by the CREDITOR to the APPLICANT.
6.9 The APPLICANT hereby warrants that it is familiar with the technical specifications of the goods and/or products ordered from the CREDITOR, as well as the technical instructions for its usage. The APPLICANT undertakes to comply with such specifications and technical instructions and to use the goods/products soley for the specified purpose. Other than what is provided for in the Consumer Protection Act, the CREDITOR shall not be liable to the customer for any consequential loss or damage arising out of when connection within any act or omission or the CREDITOR or related to the products and/or goods.
6.10 Unless specifically agreed otherwise, the APPLICANT is responsible for compliance with all legislation regulations regarding import, transport, storage use of the goods/products;
6.11 In the event of any order being given to the CREDITOR on an order form reflecting the APPLICANT’S name as the entity from which the order emanates, such order shall be deemed to have emanated from the APPLICANT, notwithstanding the fact that such order may have been given or signed by a person not authorized by the APPLICANT and such order will be deemed to constitute valid delivery.
6.12 The APPLICANT shall under no circumstances be entitled to deduct, set off any amount, defer or withhold payments of any amounts due to the CREDITOR in terms of the agreement of sale. The APPLICANT will not be entitled to withhold payment of any amounts pending finalization of any dispute.
6.13 Signature by the APPLICANT of by any representative of the APPLICANT of the CREDITOR’S delivery note shall be regarded as acceptance by the APPLICANT that the goods reflected in such delivery note have been properly and completely delivered.
6.14 In the event of any order being given to the CREDITOR on an order form reflecting the APPLICANT’S name as the entity from which the order emanates, such order shall be deemed to have emanated from the APPLICANT, notwithstanding the fact that such order may have been given or signed by persons not authorszed by the APPLICANT and, such order will be to constitute a valid order.
6.15 The risk in and to the goods shall pass from the CREDITOR to the APPLICANT on the date of delivery notwithstanding that ownership will not pass to the APPLICANT until full payment of the purchase price. Delivery shall be deemed to have taken place against signature of the CREDITOR’S delivery note, proof of posting if the goods are posted to the customer or delivery to the South African Transport Services or Road Carrier if the goods are railed or transported by the CREDITOR. The Post Office/South African Transport Services or Road Carrier shall act as the agent of the APPLICANT.
6.16 The CREDITOR shall, at any time, in its sole discretion, be entitled to cede all or any of its rights in terms of this application for credit facilities and deed of suretyship to any third party without prior notice to the APPLICANT.
6.17 Any condonation of any breach of any of the provisions hereof or other act or relaxation, indulgence or grace on the part of the CREDITOR shall not in any way operate as or be deemed to be a waiver by the CREDITOR of any rights under this contract, or be construed as a novation thereof.
6.18 Each clause of the Agreement of Trade is severable, the one from the other and if any one or more clauses are found to be invalid or unenforceable, that clause / clauses shall not affect the balance of these conditions of sale, which shall remain of full force and effect.
6.19 This contract contains the entire agreement between the parties and any other terms thereof whether expressed or implied or excluded here from and any variations, cancellations or additions to this contract shall not be of any force or effect unless reduced to writing and signed by the parties or their duly authorised signatories.
6.20 Should the APPLICANT at any time be wound up, whether provisionally or finally, (which liquidation or sequestration shall be deemed to be a material breach by The APPLICANT) or in the event of the APPLICANT being an individual or partnership and having his / its estate sequestrated, whether provisionally or finally, any goods delivered by the CREDITOR to the APPLICANT and in respect of which payment has not been made at the date of the winding up or sequestration (whether payment in respect thereof be due or not) shall immediately be returned to and recoverable by the CREDITOR and the agreement pursuant to which such goods were sold shall be deemed to have been
cancelled in respect of the goods so returnable / recoverable.
6.21 The APPLICANT acknowledges that in the event of it being a proprietorship, partnership a company or close corporation and converting from a proprietorship, partnership or company to a close corporation or from a proprietorship, partnership or a close corporate to a company at any time hereafter, as the case may be, any surety / signatory in terms of this application for credit shall nevertheless still remain bound as a surety.
6.22 The APPLICANT acknowledges that no terms at variance with the terms and conditions of this application for credit and which have been sought to be introduced by the APPLICANT at any time shall be of any force or effect unless the CREDITOR has, in writing, expressly and unambiguously agreed that the terms so sought to be introduced by the APPLICANT shall apply. Without derogating from the generality of the aforegoing, the CREDITOR shall not be regarded as having so expressly agreed by virtue merely of the CREDITOR having agreed to execute an order in which inconsistent terms have been introduced by the APPLICANT and notwithstanding that the CREDITOR has not rejected such inconsistent terms.
6.23 The APPLICANT acknowledges that should the correct goods be supplied and delivered and should these be returned at the APPLICANT’S request due to no fault accruing to the CREDITOR, then such goods will be subject to a 10% handling charge, which shall immediately become due and payable by the APPLICANT. All payments and returns of goods to the representatives or agents of the CREDITOR are entirely at the risk of the APPLICANT. Goods should be returned directly to the CREDITOR’S place of business from where the goods were ordered.
6.24 The CREDITOR does not appoint the Post Office or its agents for payments by post. All payment shall be made to the CREDITOR’S place of business from where the goods were ordered. In the event of any payments being mislaid or lost in the post, the APPLICANT shall still be liable to the CREDITOR for payment.
6.25 The credit terms granted are, unless amended in writing by a director / manager of the CREDITOR, 30 days net.
6.26 The CREDITOR shall have the right to cancel any order without incurring any liability of whatever nature if for any reason the CREDITOR is prevented from executing the order and / or delivery of goods or if it becomes impossible for the CREDITOR to perform and to effect delivery.
7.1 The contract price shall be paid to the CREDITOR without any deduction or set off within the period stipulated on the face hereof following the date appearing on the statement;
7.2 If more than one delivery and/or collection is made then each delivery and/or collection will be invoiced and paid for separately but otherwise in accordance with the provisions hereof;
7.3 The CREDITOR shall be entitled to charge interest at the maximum rate possible, from time to time on all overdue amounts as per any applicable legislation.
7.4 Should the APPLICANT default in paying its account then the supplier shall be entitled, but not compelled, to forthwith demand the whole amount outstanding by the Applicant, from whatsoever cause arising, which will immediately become due and payable notwithstanding the fact that the portion of the amount would not be owing in accordance with the agreed terms of payment;
7.5 The APPLICANT agrees that in the event of any portion of an invoice indebtedness being disrupted then, in that event, the APPLICANT will nevertheless forthwith pay the undisputed amount of such indebtedness according to the agreed terms of credit allowed to the APPLICANT.
7.6 Where payment has been arranged on a promissory note/bills bases, the APPLICANT undertakes to furnish the CREDITOR with such instruments by the 14th of the month following upon that in which the products and/or goods are dispatched from the CREDITOR’S premises. Should the purchaser dispute any amount due for inclusion in all or promissory note the APPLICANT shall nevertheless be obliged to furnish the bill or promissory note in respect of the undisputed sum. The term, bill or promissory note shall extend to any negotiable or non-negotiable instruments of debt or Capital bill of Capital exchange.
7.7. If the purchase price is not paid on the due date and remains unpaid for 12 hours after the receipt of written notice demanding payment, or if the purchaser ceases to carry on business, the CREDITOR without prejudice to any other rights which it may enjoy in terms of the terms and conditions and/or common law may cancel the sale, retain all payments made and recover possession of the goods and/or the products.
7.8 Until the purchase price of any goods has been paid, the purchaser shall ensure that the goods are adequately insured against the usual risk and furnish the CREDITOR conclusive risk of such insurance whatever called for to do so by the CREDITOR.
8.1 Unless another price has been quoted by the CREDITOR (which will then apply) the price of goods or services will be the Creditor’s current price ruling on the date they are delivered and rendered to the APPLICANT. The CREDITOR may vary any quoted priced by adding therein the increased cost to it of any goods and/or products and/or components which are supplied to or from a part of goods supplied to the APPLICANT resulting from any adverse fluctuation in the rate of exchange between the date of the quotation and the date of supply and/or delivery.
8.2 If the APPLICANT fails to take delivery of the goods and/or products on due date
8.2.1 The risk shall immediately pass from the CREDITOR the APPLICANT;
8.2.2 The APPLICANT shall refund to the CREDITOR on demand the reasonable costs (including storage and insurance)
of keeping the goods for the period of that delay;
8.2.3 The CREDITOR shall be exempted from and shall not be liable under any circumstances for any complaints or claim for any alleged shortage or failure of the alleged goods and/or products that comply with the contract unless written notice received by the CREDITOR within 7 days after delivery of the goods and/or products of the APPLICANT.
8.2.4 The signature of any employee/agent of the APPLICANT which appears on the CREDITOR’S official delivery note or waybill or receipt of collection or the delivery note of any authorising dependent carrier, will constitute exclusive evidence of delivery of the goods and/or products so purchased.
8.3 If more than one delivery is to be made then the provisions of above shall apply to each delivery.
8.4 Notwithstanding any other provisions in the terms and conditions and/or contract to the contrary the CREDITOR’S obligation to deliver the goods shall in all cases be subject to the following conditions precedent;
8.4.1 The availability to the CREDITOR of any materials and supplies required for the supply of the goods and/or services;
8.4.2 The timeous receipt by the CREDITOR of any orders instructions required by the CREDITOR for the supply of the goods and/or products.
9.1 All specifications, illustrations, drawings, diagrams, price lists, dimensions, performance figures, advertisements, brochures other technical data and quotes furnished by the CREDITOR in respect of the goods and/or products, and whether in writing or not, are furnished only on the basis that they will not form part of the contract and/or terms of the conditions will be relied upon the APPLICANT for any purpose;
9.2 If any goods and/or products or any part of them are to be supplied to in accordance with specifications measurements or the instructions furnished by the APPLICANT, the APPLICANT shall not have any claim of any nature whatever against the CREDITOR for;
9.2.1 any loss and/or damages claimed by the APPLICANT as a result of any error, discrepancy or defect in those specifications or instructions;
9.2.2 If the goods and/or products in question are not suitable for the purpose of which they are required whether those purposes are known to the Purchase or not;
9.3 The debtor’s liability to the APPLICANT for any damages sustained by the APPLICANT for any cause whatever, including any damage arising out of the CREDITOR’S negligence of that of its servants, agents or sub contractor shall in any event under all circumstances be limited to the replacement of goods which, at the date of delivery there are subject to patent defect arising from defective material at the CREDITOR’S premises.
9.4 Except as provided for therein in paragraph 9.3.2 above the CREDITOR shall in no circumstances whatsoever be liable for any loss or profit or any damage direct or indirect, consequential or otherwise, sustained by the APPLICANT whether or not caused by the negligence of the CREDITOR, its Agents of Employees;
9.5 Insofar as any of the CREDITORS obligations under the contract and/or terms and conditions are carried out by any of its servants, agents or sub-contractors, associates or subsidiaries, provisions are stipulated for the benefits as well as for their benefits as well as the Creditor’s and each of them shall be exempted accordingly;
9.6 The APPLICANT shall not have any claim of any nature whatsoever against the CREDITOR for any failure by the CREDITOR to carry out any of its obligations under the contract and/or terms and conditions as a result of causes beyond the CREDITOR’S control, including but without limited to any strike, lock/out, shortage of labour or materials, delays in transport, accidents of any kind, any default or delay by any subcontractor or supplier of the CREDITOR, riot, political civil disturbances, the elements, any act of any state or government, any delay in securing any permit, consent or approval required by the CREDITOR for the supply of goods and/or products under the contract or terms and conditions or any other authority, or any other cause whatsoever including force majeure which is out of the CREDITOR’S absolute and direct control.
10. SUSPENSION OF SUPPLIER’S OBLIGATIONS
10.1 If any amount owed by the APPLICANT is not paid on the due date, then without prejudice to any other right it may have, the CREDITOR may immediately suspend the carrying out of any its then uncompleted obligations until the payment is made.
11.1 All documentation, including Photostat copies thereof, which at face value appears to have been compiled by the CREDITOR in the execution of any services in respect of which debits have been raised to be admissible in any litigation between the parties which is service prima facie proof of the contents thereof.
12.1 The CREDITOR may cancel the contract and/or terms and conditions and any completed part thereof if the APPLICANT commits breach of any of terms and conditions of the contract; or being an individual , dies or is provisionally or finally sequestrated or surrenders or makes application to surrender his/her state or; being a partnership, the partnership is terminated; or being a company, is placed under provisional final liquidation or judicial management or; has a judgment recorded against it which remains unsatisfied for 7 days or compromises or
attempts to compromise generally with any purchases with any of the APPLICANT’S creditors.
12.2 The CREDITOR’S rights in terms of shall not be exhaustive and shall be in addition to its common law rights;
12.3 Upon the cancellation of the contract and/or the terms and conditions for any reason whatsoever;
12.3.1 All amounts then owed by the Application to the CREDITOR in terms of the contract become due and payable forthwith;
12.3.2 The Creditor may retake possession of the goods in respect of which ownership has not passed. The forum for any dispute and/or litigation will be within the jurisdiction of the CREDITOR’S principal place of business.
13.1 Delivery shall be completed when goods are offloaded at their destination if goods and/or products are to be transported by means of the CREDITOR’S vehicle or when the goods are loaded that the goods are to be transported by the APPLICANT’S or a carrier engaged (whether by the CREDITOR or the APPLICANT to transport the goods for the APPLICANT)
13.2 Should the CREDITOR at the APPLICANT’S request agree to engage a carrier to transport the goods and/or products for the APPLICANT;
13.2.1 The CREDITOR is authorised to engage to carry on such terms and conditions as it deems fit;
13.2.2 The APPLICANT shall indemnify the credit against all demands and claims which may be made against it by the carrier so engaged and all liabilities which the CREDITOR may incur to the carrier arising out of the transportation of goods;
13.2.3 The risk in the goods shall pass to the APPLICANT on delivery of the goods to the APPLICANT, its agent or carrier referred to in.
14. CONSENT CLAUSE – DISCLOSURE OF PERSONAL INFORMATION
14.1 The APPLICANT understands that the personal information given herein is to be used by the CREDITOR for the purposes of assessing his creditor worthiness. The APPLICANT confirms that the information given by him is accurate and complete. The APPLICANT further agrees to update the information supplied, as and when necessary, in order to ensure the accuracy of the above information, failing which the CREDITOR will not be liable for any inaccuracies.
14.2 The CREDITOR has the APPLICANT’S consent at all time to contact and request information from any persons, credit bureaus or businesses, including those mentioned in this Credit Application form and to obtain any information relevant to the APPLICANT’S credit assessment including, but not limited to, information regarding the amounts purchased from supplier’s per month, length of time the APPLICANT has dealt with such supplier, type of goods or services purchased and manner and time of payment.
14.3 The APPLICANT agrees that information given in confidence to the CREDITOR by a third party on the APPLICANT will not be disclosed to the APPLICANT.
14.4 The APPLICANT hereby consents to and authorises the CREDITOR at all times to furnish personal and credit information concerning the APPLICANT’S dealing with the CREDITOR to a credit bureau and to any third party seeking a trade reference regarding the APPLICANT in his dealings with the CREDITOR.
TERMS AND CONDITIONS OF TRADE