Terms of Use

  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 full of 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 in terms of the credit facilities hereby granted, all purchases made by the Debtor are payable within 30 days of the date of the Creditor’s invoice.
  3. Credit facilities may be withdrawn by the Creditor at any time without prior notice and the Creditor reserves the right to review the extend, nature and duration of such facilities at all times.
  4. If any amount is not paid within the agreed term, the Debtor shall be liable for interest at the bank overdraft rate paid by the Creditor to its bankers at the time plus 2%. 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. i) the signatory hereto binds himself as surety an co-principal Debtor in solidium with the Debtor 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 the way of cession or otherwise.  He further waives the benefits of excussion and division and of the legal exceptions non numeratae pecuniae and non causa debiti and acknowledges himself to be fully acquainted with the meanings of those terms.  The terms and conditions of this application shall apply mutatis mutandis to this surety ship.
    1. ii) This surety ship is a continuing surety ship 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  It may not be withdrawn, revoked or cancelled by me/us without the Creditor’s prior written consent.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 surety ship by me/us and the Creditor shall only be valid and effective if reduced to writing.
  6. 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 or 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 judgment 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.
  7. Any admission made by the Debtor as to the fact that it is indebted to the Creditor or as to the amount of any such indebtedness to the Creditor shall be binding upon the surety.
  8. Notwithstanding any other provision to the contrary, the Creditor’s obligation to deliver goods shall, in all cases, be subject to the following conditions precedent:
    1. The availability to the Creditor of the Goods ordered;
    2. Time shall not be 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 late delivery;
    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.
  9. Ownership in the goods sold and delivered to the Debtor on account shall pass to 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.
  10. The Debtor agrees and acknowledges that in the event of:
    1. The Debtor breaching any of the terms and conditions herein set out;
    2. The Debtor failing to pay any amount due and payable on due date;
    3. The Debtor suffering any civil judgment to be taken or entered against it;
    4. The Debtor causing a notice of surrender of its estate to be published in terms of the Insolvency Act No 24 of 1936 as amended;
    5. The Debtor dying;
    6. The Debtor’s estate being placed under any order of provisional or final sequestration, provisional or final winding up, or provincial or final judicial management, as the case may be;
    7. then and in that 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 in order to repossess 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 to performance; in either event, without prejudice to the Creditor’s right to claim damages.
  11. 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.
  12. In the event of the Creditor instructing attorneys to collect from the Debtor an amount owing to the Creditor, the Debtors agrees to pay all costs on the scale as between attorney and own client, including collection charges, plus Value Added Tax on such costs and charges.
  13. 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 aforegoing.
  14. The Debtor and the surety nominate as domicilium citandi et executandi the address reflected in Clause 5.1 on the face of this application form under the heading “Business Address”, for service upon them af all notices and processes in connection with any claim for any sum due to the Creditor arising out of credit granted by the Creditor to the Debtor.
  15. 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 indulgences shall not be deemed a novation of any of the terms and conditions set out herein, or create any estoppels against the Creditor.
  16. It is a condition of each sale that goods are sold with a 2 year warranty against defective materials and faulty workmanship, fair wear and tear, misuse and abuse excluded. 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 concerned to the Creditor.
  17. 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 cause 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 for which the liability of the Creditor is excluded in terms of the aforegoing
  18. Any agreement purporting to vary the terms of this agreement, or any consensual cancellation, shall not be valid unless reduced to writing and signed by both the Debtor and the Creditor.
  19. In these conditions, words importing one gender shall include the other gender and words importing the singular shall include the plural (and vice versa).