Terms and Conditions of Sale
- Definitions Clause
In this agreement unless the context otherwise requires, the words, expressions and phrases set out below have the meanings hereunto ascribed to them.
1.1 “the Applicant” – the party expressed as the Applicant on the face hereof.
1.2 “the Creditor” – company name of the seller and/or any of its subsidiaries.
1.3 “goods” – the goods sold by the Creditor to the Applicant from time to time.
1.4 “the price” – the Creditors usual selling price of its goods.
1.5 “the Surety” – the party expressed as the Surety in the deed of surety to the credit application.
The Applicant and the Surety/s hereto choose their domicilium citandi et executandi for all purposes arising out of this application the physical address stipulated in clause 5, part A of this credit application.
- Proof of Claims
A certificate signed by a manager, any member 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 relating to the Applicant’s dealings with the Creditor, and of the fact that such amount is due, owing and unpaid shall be prima facie proof of the effects therein stated for the purpose of any action (whether by way of provisional sentence or otherwise), proof of debt on insolvency or for any purpose whatsoever where the amount of such claims is required to be established, and it shall rest with the Applicant to prove that such amount is not owing and/or due and paid.
- Consent to Jurisdiction
4.1 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 for the determination of any action or proceeding which may be brought by the Creditor against the Applicant arising out of any transaction between the parties, it being recorded that the Creditor shall be entitled, but not obliged, to launch any action or proceeding out of the said court and that all costs incurred in any action against the Applicant in any competent court including costs on attorney and own client scale and attorney collection commissions will be paid by the Applicant.
4.2 Notwithstanding the terms of clause 4.1 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 at Sandton, Johannesburg within 60 (SIXTY) days after it has been demanded before a mutually agreed person, and failing agreement, to be selected by the President of the Law Society of Gauteng. 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 to be observed or taken into account by him in arriving at his decision. 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.
- Default in Payment
In the event of the Applicant defaulting in making payment of any amount that has become due and owing, then the full balance outstanding (whether due or not) will immediately become due and payable without notice to the Applicant.
- Change of Address
The Applicant and the Surety undertakes to notify the Creditor forthwith in writing of any change of address.
- Objections to Statement
Should the Applicant fail to object to any item appearing on the Creditor’s statement of account within fourteen days of statement date, the account shall be deemed to be in order.
- Change of Ownership
The Applicant undertakes to notify the Creditor, in writing, within seven 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 owing, whether due or not, will immediately be deemed to be due and payable by the Applicant. In addition to the afore going, 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.
- Reservation of Ownership
Until such time as the Applicant has paid the purchase price in full in respect of any purchase of goods, the ownership of all such goods shall remain vested in the Creditor. The Creditor shall, in its sole discretion, without notice to the Applicant, be entitled to take possession of any such goods which have not been paid for and in respect of which payment is overdue. The Applicant hereby waives any right it may have for a spoliation order against the Creditor in the event that the Creditor takes possession of any goods.
- Valid orders
In the event of any order 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 authorised by the Applicant and such order will be deemed to constitute valid delivery. It is further the sole responsibility of the Applicant to determine that goods ordered are suitable for the purpose of the intended use.
- Non-waiver of Rights
Any condonation of any breach of any of the provisions hereto 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.
- Credit Terms
The purchase price of goods sold shall be as agreed and failing such agreement the company’s usual price in respect of such transactions. The Credit terms granted are, unless amended in writing by a director/manager of the creditor, 30 (thirty) days net from the date of such statement. Any credit facilities granted to the Applicant by the Creditor is entirely at the discretion of the Creditor, and may be withdrawn at any time.
- Interest on overdue accounts
The Creditor shall be entitled to charge the Applicant interest at the current prime rate plus 2% per annum a tempora morae provided however, that nothing contained herein shall be interpreted as obliging the Creditor to afford the Applicant any such indulgence to affect payment after due date.
- Consent to Sharing Information
The Applicant specifically warrants that the Creditor has consent to:
14.1 Carry out a credit enquiry from time to time with one or more credit bureaus, credit information agents, credit insurance companies or other creditors of the Applicant’s in terms of this agreement.
14.2 The Creditor may transmit details to credit bureaus, credit information agents, credit insurance companies or other creditors of the Applicant’s of how the Applicant has performed in meeting his/her/its obligations in terms of this agreement.
14.3 If the Applicant fails to meet his/her/its commitments to the Creditor, the Creditor may record the Applicant’s non–performance with credit bureaus, credit information agents, credit insurance companies or other creditors of the Applicant.
14.4 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.
15.1 The Applicant agrees that the signature of any agent, contractor, sub-contractor or employee of the Applicant on the Creditor’s official delivery note/invoice/waybill, or the delivery note of any authorised independent carrier will constitute delivery of the goods purchased.
15.2 Whilst the Creditor will endeavour to ensure that goods are delivered timeously, it shall not be responsible for any delays in the delivery of such goods, and the Applicant shall not be entitled to refuse acceptance of such late deliveries. The Creditor shall in any event not be liable to the Applicant, or to any third party, for any loss of whatsoever nature as a result of goods not being delivered timeously.
15.3 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.
- Recovery of Legal/Collection Costs
Should the Creditor instruct its attorneys or collection agent to collect any overdue amounts, or take any action against the Applicant in the implementation or protection of the Creditor’s rights, the Creditor shall be entitled to the recovery of all legal and/or collection costs arising there from, on the scale as between attorney, agent or collection agency and own client.
- Warranties and Limitation of Liability
Goods supplied by the Creditor are supplied in accordance with the Creditor’s usual standard of quality; however the Creditor does not provide any warranty, whether express or implied, that the goods supplied are suitable for the purpose for which they were purchased, or that the goods will perform in accordance with the function for which they were designed. The Creditor shall not be liable to the Applicant or any other party for any direct or consequential losses whatsoever including any losses to the Applicant arising from third party claims.
The Creditor shall be entitled to cede, assign or delegate any of its rights and obligations under these terms and conditions to any third party without the consent of the Applicant. The Applicant shall not be entitled to cede, assign or delegate any of its rights and obligations under these terms and conditions to any third party without the written consent of the Creditor.
- Severability of Clauses
Each clause of these conditions of sale and purchase 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 and purchase, which shall remain of full force and effect.
The Creditor has the right to waive any of the provisions herein contained subject to the Creditor communicating such waiver, in writing, to the Applicant.
This agreement has been created in the English language. In the event of any conflict between any other text of this agreement, the English version of the agreement shall prevail. If any document provided in terms of this agreement is not in the English language, the party providing such document shall forthwith at the other party’s request, provide the other party with translations of such documents into the English language.
22. Applicable Law
Regardless of the place of execution, performance or domicile of the Applicant, this agreement and all modifications and amendments hereto shall be governed by and construed under and in accordance with the laws of the Republic of South Africa.
The Applicant consents to submit to the jurisdiction of any court of competent jurisdiction located in the Republic of South Africa, in any action or proceeding arising out of or relating in any manner to this agreement.
24.1 The Applicant does hereby irrevocably and in rem suam cede, pledge, assign, transfer and make over unto and in favour of the Creditor, all of it right, title, interest, claim and demand in and to all claims/debts/book debts of whatsoever nature and description and howsoever arising which the Applicant may now or at any time hereafter have against all and any persons, companies, corporations, firms, partnerships, associations, syndicates and other legal persona 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 hereafter be or become owing by the Applicant to the Creditor from whatsoever cause or obligation, howsoever arising, which the Applicant may be or become bound to perform in favour of the Creditor.
24.2 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 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 afore going 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 that the Creditor shall at any time be entitled to terminate the Applicant’s right to collect such money / debts.
24.3 The Applicant agrees that the Creditor shall be entitled at any time or times to give notice of the Cession to all or any of the Applicant’s debtors.
24.4 The Applicant further agrees that the Creditor shall, at any time, be entitled to, in respect of 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 the Cession.
25.1 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.
25.2 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 of 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.
25.3 The Applicant acknowledges that in the event of it being a proprietorship, partnership, company or close corporation and converting from a proprietorship, partnership or company to a close corporation or from a proprietorship, partnership or close corporation 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.
25.4 The Applicant acknowledges that no terms at variance with the terms and conditions of this Application for Credit and which have been sought to have been 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 afore going, 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 the Creditor has not rejected such inconsistent terms.
25.5 The parties hereby agree that any claim that the Creditor may have against the Applicant and surety/ies shall only prescribe within 5 (FIVE) years of such cause of action having arisen.
25.6 Notwithstanding any provisions of this agreement, this agreement is subject to the provisions of the National Credit Act No 34 of 2005 (“the National Credit Act”) and in particular Chapter 1 Part B, clause 5 and the relevant Chapters and Parts referred to therein. If there is any conflict between the provisions of this agreement and the National Credit Act, the provisions of the National Credit Act will prevail.