Including reservation of ownership and cession of book debts
In these terms and conditions:- 1.1 “the GOODS” means the goods, products and services of THE COMPANY as indicated on any Company forms, price lists, quotations, orders or invoices, including the documents of any of the transport agents of THE COMPANY; 1.2 “the EQUIPMENT” means the equipment identified in the manifold or dealer agreement concluded between THE COMPANY and THE CUSTOMER, which shall remain the property of THE COMPANY at all times.
These terms and conditions take precedence over any terms and conditions which may be contained in any Company forms, price lists, quotations, delivery notes, orders or invoices as well as any of THE CUSTOMER’s documentation and will govern all transactions between THE COMPANY and THE CUSTOMER unless otherwise recorded in writing in a single document and signed by both parties. THE CUSTOMER has concluded or will conclude a dealer agreement or a manifold agreement with THE COMPANY regulating inter alia the supply of EQUIPMENT to THE CUSTOMER and in the event of a conflict between the terms and conditions of the dealer agreement or the manifold agreement with these terms and conditions of sale, these terms and conditions of sale will take precedence in respect of the sale of the GOODS, all credit transactions, payment terms and collection of overdue and outstanding amounts.
THE CUSTOMER understands that THE COMPANY’s decision to grant credit facilities to THE CUSTOMER is at the sole discretion of THE COMPANY. THE COMPANY reserves the right to withdraw, increase or decrease any credit facilities at any time and without prior notice and the nature and extent of such facilities shall at all times be in THE COMPANY’s sole discretion. The credit limit shall not be deemed to be a limit of THE CUSTOMER’s indebtedness to THE COMPANY. The signatory hereto and THE CUSTOMER warrant that they have disclosed to THE COMPANY all material facts which may affect the granting of credit facilities to THE CUSTOMER.
THE COMPANY’s price lists shall be considered merely as a guide by THE CUSTOMER and THE COMPANY has the right, from time to time, for any reason and without notice to THE CUSTOMER to change the prices of its GOODS without reflecting such changes on any price lists. THE CUSTOMER shall only be entitled to insist upon a specific price for the GOODS in circumstances where THE COMPANY has rendered THE CUSTOMER a written quotation for such price duly authorised by THE COMPANY.
Payment is to be made within 30 (thirty) days from date of THE COMPANY’s invoice by means of a direct debit order or such other payment method as agreed to in writing by THE COMPANY. No discounts may be claimed or taken unless THE COMPANY has agreed to such discount in writing and THE CUSTOMER shall have effected payment within the payment period allowed for such discount.
In all cases where THE CUSTOMER uses a postal, banking, electronic or similar such service to effect payment, such services shall be deemed to be utilised at the instance of THE CUSTOMER and as such the service provider thereof deemed to be the agent of THE CUSTOMER. Any promissory note, cheque or bill of exchange shall be accepted by THE COMPANY without prejudice to its rights against THE CUSTOMER in relation to the original cause of action and THE CUSTOMER waives presentation, notice of dishonour and protest in respect of any promissory note, cheque or bill of exchange of which it is the endorser, surety or party thereto and of which THE COMPANY is the holder.
Should any amount not be paid by THE CUSTOMER on due date, then the whole amount in respect of all purchases by THE CUSTOMER shall become due, owing and payable irrespective of the dates when the GOODS were purchased and THE CUSTOMER shall be liable to pay compound interest in respect of amounts unpaid as at the due date at maximum rate permissible in terms of the Usury Act 73 of 1968, as amended, from due date until date of final payment, calculated and payable monthly in advance. Furthermore THE COMPANY may suspend or cease performance of any of its obligations to THE CUSTOMER until all amounts have been paid and shall not be liable for any loss or damage that may be suffered by THE CUSTOMER as a result thereof.
THE CUSTOMER shall not be entitled, for any cause whatsoever, to withhold, deduct from or defer any amount due by it to THE COMPANY and shall pay such amount free of exchange and set off. THE COMPANY may appropriate all payments made by THE CUSTOMER to such invoices or accounts, capital, interest, costs or any other item of indebtedness of THE CUSTOMER to THE COMPANY as it may in its sole and absolute discretion decide, notwithstanding any attempt by THE CUSTOMER to make any allocation in respect of such payment.
Orders by THE CUSTOMER for the GOODS shall, unless specified by THE COMPANY to be otherwise, be made in writing to such address, electronic or otherwise, as may be nominated by THE COMPANY from time to time. All of THE CUSTOMER’s orders must contain valid order numbers, which are not the names of contact persons, as well as THE CUSTOMER’s business hours and must reach THE COMPANY by 15h00 in order to secure delivery of the GOODS the following business day. THE COMPANY reserves the right to alter the manner in which orders are made as and when this is necessary. Orders shall constitute irrevocable offers to purchase the GOODS in question at the usual prices of THE COMPANY and shall be capable of acceptance by THE COMPANY by delivery of the GOODS to THE CUSTOMER, or by the written acceptance or confirmation of the order, or by THE COMPANY notifying THE CUSTOMER that the GOODS are ready for removal from THE COMPANY’s premises by THE CUSTOMER. Oral orders shall similarly be capable of acceptance by THE COMPANY, but THE COMPANY will not be responsible for any errors or misunderstandings occasioned by THE CUSTOMER’s failure to make orders in writing.
The risk in and associated with the GOODS and EQUIPMENT shall pass to THE CUSTOMER upon delivery. For the purposes hereof, delivery shall be deemed to have taken place when the GOODS and/or EQUIPMENT are dispatched ex factory/depot or when THE COMPANY gives written notice to THE CUSTOMER that the GOODS and/or EQUIPMENT are ready for collection, whichever of the two shall occur first. The means of transportation of the GOODS and/or EQUIPMENT and the driver thereof shall be deemed to be the agent of THE CUSTOMER. It shall be the responsibility of THE CUSTOMER to insure the GOODS and EQUIPMENT. THE CUSTOMER warrants that the signatory to any tax invoice, delivery note or other documentation of THE COMPANY made out in the name of THE CUSTOMER is duly authorised to bind THE CUSTOMER in relation the transaction and shall also constitute prima facie proof of the proper delivery of the GOODS and EQUIPMENT.
Whilst every effort will be made to dispatch the GOODS and/or EQUIPMENT as advised, THE COMPANY does not guarantee dispatch or availability on any specific date and shall not be liable for any damages for failure to effect delivery/dispatch timeously for any reason. THE CUSTOMER shall not be entitled to cancel any order by reason of such delay. THE CUSTOMER agrees that time shall not be of the essence in respect of the orders that it places with THE COMPANY.
If THE CUSTOMER fails to take delivery of the GOODS or EQUIPMENT ordered or in any way delays the delivery of GOODS or EQUIPMENT ordered, then the risk in the GOODS and EQUIPMENT shall immediately pass to THE CUSTOMER and THE CUSTOMER shall pay THE COMPANY the reasonable costs of storing, insuring and handling the GOODS and/or EQUIPMENT until delivery takes place.
GOODS sold by THE COMPANY are sold voetstoots and are not returnable save with the consent of THE COMPANY. Should THE COMPANY in its absolute discretion elect to accept the return of any GOODS, all GOODS must be returned to THE COMPANY’s premises within 48 (forty eight) hours of the GOODS being delivered to THE CUSTOMER, all GOODS returned must be complete, clean, saleable and undamaged, the value of credit for GOODS returned will be calculated at the invoice value when the GOODS were purchased less the value of the liquefied petroleum gas and less 20 % handling charge, the credit control department must be notified of the relevant invoice, packing slip and batch numbers before any claim will be considered and all GOODS are to be returned at THE CUSTOMER’s expense and the risk in the GOODS shall remain with THE CUSTOMER until the GOODS are received by THE COMPANY.
Notwithstanding that all risk in and to the GOODS sold and the EQUIPMENT supplied by THE COMPANY to THE CUSTOMER shall pass on delivery, ownership in the GOODS shall remain vested in THE COMPANY until the full purchase price has been paid and THE COMPANY shall remain the owner of the EQUIPMENT at all times. In the event of a breach of these terms and conditions by THE CUSTOMER, or if THE CUSTOMER is sequestrated or placed under liquidation or judicial management or commits any act of insolvency or enters into any compromise with its creditors or fails to satisfy judgment granted against it within 7 (seven) days of the date of judgment, THE COMPANY shall be entitled to take possession of the GOODS and EQUIPMENT, without prejudice to any further rights vested in THE COMPANY, and is hereby irrevocably authorised to enter upon THE CUSTOMER’s premises to take possession of such GOODS and EQUIPMENT without a court order. In the event of THE CUSTOMER obstructing THE COMPANY in the process of removing the GOODS and EQUIPMENT necessitating the obtaining of a court order, THE COMPANY shall be entitled to obtain an award of costs against THE CUSTOMER on a punitive scale. Furthermore THE CUSTOMER shall have no claim against THE COMPANY for damages caused due to loss of profits or otherwise occasioned by the removal of the GOODS and EQUIPMENT from THE CUSTOMER’s premises as aforesaid, even if such removal was effected without a court order. THE COMPANY shall be entitled to identify the GOODS and EQUIPMENT in the possession of THE CUSTOMER by way of THE COMPANY’s name, trademarks and labels.
THE CUSTOMER shall fully insure the GOODS purchased from and the EQUIPMENT supplied by THE COMPANY against loss or damage until the full purchase price has been paid by THE CUSTOMER for such GOODS or for the period that THE CUSTOMER remains in possession of the EQUIPMENT. Pending payment to THE COMPANY for GOODS purchased or for the period that THE CUSTOMER remains in possession of the EQUIPMENT, all benefits in terms of such insurance policy are ceded to THE COMPANY. Furthermore, if the GOODS and/or EQUIPMENT are stored on rented premises, THE CUSTOMER shall notify the landlord or owner of such premises of THE COMPANY’s reservation of ownership in the GOODS and the EQUIPMENT.
THE CUSTOMER will be deemed to be the “user” of the GOODS and EQUIPMENT in terms of the Occupational Health and Safety Act 85 of 1993, as amended (“the Act”). THE COMPANY will supply the GOODS and EQUIPMENT on condition that the GOODS and EQUIPMENT and the use thereof by THE CUSTOMER will be in accordance with the requirements laid down in the Act. Furthermore THE CUSTOMER undertakes to take all steps necessary to ensure that the operation of the GOODS and EQUIPMENT supplied by THE COMPANY will be carried out in accordance with the operational instructions furnished to THE CUSTOMER by THE COMPANY and any non-compliance with these instructions will constitute a breach of these terms and conditions. THE COMPANY shall be entitled to inspect and audit the installation of the GOODS and EQUIPMENT from time to time in order to ensure that the GOODS and EQUIPMENT are maintained in a safe and serviceable condition by THE CUSTOMER at all times. THE COMPANY reserves the right, which it shall exercise in its sole discretion, not to supply any GOODS or EQUIPMENT to any installation that does not comply with the safety requirements as laid down in the Act and the SABS 087 standards.
These terms and conditions and all modifications and amendments hereof, shall be governed by and decided upon and construed under and in accordance with the laws of the Republic of South Africa. THE CUSTOMER consents in terms of Section 45 of the Magistrate’s Court Act 1944, as amended, to THE COMPANY, at its sole election and notwithstanding that the amount of its claim exceeds the jurisdiction of the Magistrate’s Court, instituting action out of such Court.
A certificate issued under the signature of any director or manager of THE COMPANY whose authority, appointment and signature it shall not be necessary to prove, that purports to certify any indebtedness by THE CUSTOMER to THE COMPANY, any interest rate applicable in terms of the Usury Act, delivery of the GOODS or EQUIPMENT to THE CUSTOMER, that THE COMPANY is the owner of the EQUIPMENT in question or that payment in respect of the GOODS or EQUIPMENT has not been made, shall constitute prima facie proof of such indebtedness or interest rate or delivery of GOODS or EQUIPMENT or ownership in the EQUIPMENT or non-payment, as the case may be.
THE CUSTOMER chooses its domicilium citandi et executandi for all purposes arising herefrom, including for the service of any notice and Court process, at the physical address as given on the front page of this document.
In the event of THE COMPANY proceeding against THE CUSTOMER for recovery of any amounts due in terms of this agreement, or proceeding to enforce any of its rights arising herefrom, then and in such event THE CUSTOMER shall be liable for the legal costs incurred by THE COMPANY on the attorney and own client scale, including Counsel fees (whether or not legal proceedings are instituted) as well as collection costs, tracing fees and any other costs incidental thereto.
THE COMPANY gives no warranty, express or implied, nor any representation that the GOODS or EQUIPMENT are suitable for the purposes for which they have been ordered and any advice or opinion given by THE COMPANY’ employees is for THE CUSTOMER’s benefit only and THE COMPANY accepts no responsibility for any damages that THE CUSTOMER may incur as a result of THE CUSTOMER relying upon such advice.
THE COMPANY shall not be liable for any consequential or indirect loss or damage of any nature and howsoever arising which may be suffered by THE CUSTOMER or any third party in connection with THE COMPANY’ services and performance in terms hereof. Any liability of THE COMPANY for breach of contract will not exceed in the aggregate of damages, costs, fees and expenses capable of being awarded to THE CUSTOMER, the total price paid or due to be paid by THE CUSTOMER for the GOODS and EQUIPMENT. THE CUSTOMER hereby indemnifies THE COMPANY and holds it harmless against any claims of whatever nature arising from or associated with THE CUSTOMER’s use, operation, storage or installation of the GOODS and EQUIPMENT.
This agreement constitutes the entire agreement between the parties. No party may be entitled to rely upon any term, warranty, guarantee, condition or representation, unless it is herein contained. No amendment of, addition to, deletion from or consensual cancellation of this agreement or any provision or term thereof (including this clause) and no extension of time, waiver or relaxation of any of the provisions or terms of this agreement shall be binding, unless recorded in a single written document signed by both of the parties. Any such extension of time, waiver or relaxation which is so given or made shall be construed as relating strictly to the matter in respect whereof it was made or given.
Each paragraph, sub-paragraph, clause, sub-clause and sentence in this agreement is severable, the one from the other. If any paragraph, sub-paragraph, clause, sub-clause or sentence is found to be defective, unlawful or unenforceable for any reason, the remaining paragraphs, sub-paragraphs, clauses, sub-clauses and sentences shall continue to be of full force and effect.
THE CUSTOMER hereby consents and grants authority to THE COMPANY to conduct credit checks, searches and the like with any credit agency or party which THE COMPANY may at its discretion consider expedient or necessary, inter alia, for the purpose of ascertaining the credit worthiness of THE CUSTOMER or in order to trace THE CUSTOMER or any of its assets. THE COMPANY shall be entitled to record any adverse credit reports with any agency or person. THE CUSTOMER acknowledges that the application for and the existence of any account with THE COMPANY may be recorded by credit agencies and details of the conduct of the account may be given to and duly recorded by and shared with other persons for various purposes. THE CUSTOMER hereby waives any claim and indemnifies and holds THE COMPANY harmless against any claim of any nature and howsoever arising from the aforesaid instances.
THE CUSTOMER does hereby irrevocably cede, pledge, assign, transfer and make over unto and in favour of THE COMPANY all of its right, title, interest, claim and demand in and to all book debts of whatsoever nature and description and howsoever arising which THE CUSTOMER may now or at any time hereafter have against all and any persons, entities, firms, partnerships, associations, syndicates and other legal personae whomsoever (“THE CUSTOMER’s debtors”) without exception as a continuing covering security for the due payment of every sum of money which may now be due or at any time hereafter be or become owing by THE CUSTOMER to THE COMPANY. Should it transpire that THE CUSTOMER 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 this cession, then this cession shall operate as a cession of all THE CUSTOMER’s reversionary rights. Notwithstanding the terms of the aforegoing cession, THE CUSTOMER shall be entitled to institute action against any of its debtors provided that all sums of money which THE CUSTOMER collects from its debtors shall be collected on THE COMPANY’s behalf and provided further that THE COMPANY shall at any time be entitled to terminate THE CUSTOMER’s right to collect such monies/debts. THE CUSTOMER shall be obliged to deliver all relevant information in documentary form or otherwise to THE COMPANY upon demand to enable THE COMPANY to claim monies owed to THE CUSTOMER from third parties.