Terms & Conditions of sale
1. Any order resulting here from shall be subject to the conditions stated herein unless specifically varied by the creditor in writing, and these conditions shall at all times take precedence over any terms, conditions or stipulations contained in any of the debtor’s documentation as may be in conflict herewith. Should the debtor in any way purport to attach any conditions which vary, amend or are in conflict with the conditions set forth herein, then, notwithstanding anything to the contrary stipulated by the debtor, the conditions set forth herein shall prevail and be of full force and effect unless specifically varied by the creditor in writing with specific reference to the debtor’s contrary documentation.
2. The debtor acknowledges that credit facilities granted are payable within thirty (30) days from the date of statement, which date shall be deemed to be the last day of every month.
3. Credit facilities shall be withdrawn by the creditor at any time without prior notice, and the creditor reserves the right to review the extent, nature and duration of such facilities at all times.
4. If any amount is not paid within the agreed terms the debtor shall be liable for interest at the maximum rate permitted, in terms of the Usury Act, No. 73 of 1968, as amended from time to time. Such interest shall be calculated and paid monthly in advance, provided that if the interest is not paid as aforesaid, the interest shall be added to the principal sum and the whole amount shall form the principal debt which shall bear interest as aforesaid.
5. The signatory hereto binds himself as surety and co-principal debtor in solidum in favour of the creditor for the due payment of all amounts which may at any time be payable by the debtor to the creditor from any cause of action whatsoever and whether acquired by the creditor by way of cession of otherwise. He further waives the benefits of exclusion and division and of the legal exceptions non numerate pecuniae and non causa debiti and acknowledges himself to be fully acquainted with the meanings of these terms. The terms and conditions of this application shall apply Mutatis Muandis to this suretyship.
6. This suretyship is a continuing suretyship and shall remain of full force and effect notwithstanding any fluctuation in, or temporary extinction of the debtor’s indebtedness to the creditor. It may not be withdrawn, revoked or cancelled by me / us without the creditor’s prior written consent. Any consensual cancellation or withdrawal of this suretyship by me / us and the creditor shall only be valid and effective if reduced to writing and signed by both parties concerned.
7. A certificate under the hand of any director or manager of the creditor (whose appointment need not be proved) as to the existence and the amount of the debtor’s indebtedness and the surety’s indebtedness to the creditor at any time, as to the fact that such amount is due and payable, the amount of interest accrued thereon and as to any other fact, matter of thing relating to the debtor’s indebtedness to the creditor and the surety’s indebtedness to the creditor, shall be sufficient and satisfactory proof of the contents and the correctness thereof for the purpose of provisional sentence, summary judgement or any other proceedings of whatsoever nature against the debtor and / or the surety in any competent court and shall be valid as a liquid document for such purpose.
8. Any admission made by the debtor as to the fact that it is indebted to the creditor or as to the amount of such indebtedness to the creditor shall be binding upon the surety.
9. Notwithstanding any other provision to the contrary, the obligation to deliver goods shall in all cases be subject to the following conditions precedent:
9.1 The availability to the creditor of the goods ordered.
9.2 Time shall be not of the essence of the contract and delivery dates shall be treated as approximate only based on the latest information available to the creditor. Under no circumstances shall the debtor be entitled to withdraw from or terminate the contract on account of any delay in delivery or have any claim of any nature whatsoever against the creditor arising from the delivery.
9.3 The creditor shall be exempted from and shall not be liable under any circumstances whatsoever for any indirect or consequential damages of any nature whatsoever or any loss of profit or special damages of any nature whatsoever and whether in the contemplation of the parties or not which the debtor may suffer as a result of any delay in delivery of the goods ordered.
10. Ownership in goods sold and delivered to the debtor on account shall pass in the debtor only when all amounts due by the debtor to the creditor shall have been paid, notwithstanding delivery of the said goods to the debtor. Risk in and to the goods shall however pass to the debtor on delivery.
11. The debtor agrees and acknowledges that in the event of:-
11.1 the debtor breaching any conditions contained in these conditions;
11.2 the debtor failing to pay any amount due and payable on due date;
11.3 the debtor suffering any civil judgement to be taken or entered against it;
11.4 the debtor causing a notice of surrender of its estate to be published in terms of the Insolvency Act No. 24 for 1936, as amended;
11.5 the debtor dying;
11.6 the debtor’s estate being placed under any order of provisional or final sequestration, provisional or final winding up, or provisional or final judicial management, as the cae may be; then and in the event the creditor shall, without detracting from any other remedies which may be available to it, be entitled to summarily cancel the sale of any goods to the debtor without notice to the debtor, and to rely on the provisions of clause 9, and to re-possess those goods sold and delivered by the creditor to the debtor, or to claim specific performance of all the debtor’s obligations whether or not such obligations would otherwise then have fallen due for performance, in either event without prejudice to the creditor’s right to claim damages.
12. Should the creditor agree to accept the return of any goods for credit, the debtor shall be liable to pay the creditor a handling charge of not less than 10 % on the invoiced price of the goods so returned.
13. In the event of the creditor instructing attorneys to collect from the debtor an amount owing to the creditor, the debtor agrees to pay all costs on the scale as between attorney and own client, including collection charges.
14. The debtor consents to the jurisdiction of the Magistrate’s Court in terms of Section 45 of the Magistrate’s Court Act No. 32 of 1944 (as amended) having jurisdiction under Section 28 of the said Act, notwithstanding that the claim by the creditor exceeds the normal jurisdiction of the Magistrate’s Court as to amount. The creditor shall, in its discretion, be entitled to proceed against the debtor in any other Court of competent jurisdiction, notwithstanding the foregoing.
15. The debtor nominated as its domicilium citandi et executandi the address reflected on the face hereof under the heading registered office / business physical address, and the surety nominates as his domicilium citandi et executandi the address on the face hereof alongside his name, for service upon them of all notices and processes in connection with any claim for any sum due to the creditor arising out of credit granted by the creditors to the debtor.
16. No relaxation or indulgence granted to the debtor by the creditor, at any time, shall be deemed to be a waiver of any of the creditor’s rights in terms hereof, and such relaxation or indulgence shall not be deemed a novation of any of the terms and conditions set out herein, or create any estoppel against the creditor.
17. The Debtor shall be liable for and undertakes to pay the stamp duty applicable to this deed.
18. It is condition of each sale that goods are sold voetstoots and without any warranties whatsoever. In addition the debtor shall be precluded from raising any complaints or disputing liability to the creditor in any way unless it shall have notified the creditor of its complaints or grounds of dispute in writing within 7 days of receipt of the goods in question. Notwithstanding the timeous raising of a complaint or dispute of liability by the debtor, the debtor shall, under no circumstances, be entitled to withhold payment in respect of the goods from the creditor pending the resolution of such dispute or complaint, subject to the aforegoing, the creditor shall, in its discretion, be entitled to either remedy any failure by adjusting, repairing or replacing the goods in question, or refunding the whole or part (as the case may be) of the contract price paid to it by the debtor in respect of such goods.
19. Should the debtor have any complaint of whatsoever nature concerning any of the goods which are not manufactured by the creditor, it shall be entitled to required the creditor to cede to it any rights which the creditor may have against the supplier of those goods but shall have no other claim against the creditor in respect of the matter complained of. The debtor shall not be entitled to withhold payment from the creditor in respect of such goods for any reason whatsoever.
20. Save as otherwise specifically provided for herein, the creditor shall not be liable to the debtor or to any other, person for any indirect or consequential damages of any nature whatsoever or any loss of profit or special damages of any nature whatsoever and whether in the contemplation of the parties or not which the debtor may suffer as a result of any breach by the creditor of any of its obligations under these conditions or out of any other court whatsoever. The debtor hereby indemnifies the creditor against any claim which may be made against the creditor by any other person in respect of any matter of which the liability of the creditor is excluded in terms of the aforegoing.
21. Any agreement purporting to vary the terms of this agreement, or any consequential cancellation, shall not be valid unless reduced to writing and signed by both the debtor and the creditor.
22. In these conditions, words importing one gender shall include the other gender, and words importing the singular, shall include the plural (and vice versa).
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