STANDARD TERMS AND CONDITIONS OF SALE
The following terms and conditions shall apply to the exclusion of all other terms and conditions, whether express or implied, unless the CREDITOR specifically agrees in writing to accept any variation hereto. The PURCHASER, having applied for a credit facility agrees that all dealings between the CREDITOR and the PURCHASER shall be subject to these standard terms and conditions and acknowledges that no terms and/or conditions which the PURCHASER may seek to attach to any order, shall be binding on the CREDITOR.
1. Definitions
1.1 “The CREDITOR” shall mean SHARP METAL PRESSINGS CC including the successor-in-title to such entity or any other corporate entity to which the CREDITOR may be affiliated or interested in.
1.2 “The PURCHASER” shall mean the person/s or entity/ies as set out in the application for credit.
1.3 “Goods” shall mean any goods sold and delivered and/or services rendered by the CREDITOR to the PURCHASER.
2. Price and Payment
2.1 The price of goods sold by the CREDITOR in terms of any order placed by the PURCHASER will be in accordance with the CREDITOR’S prevailing price as at date of delivery unless specified to the contrary in writing in the CREDITOR’S acceptance of that order.
2.2 Payment shall be made free of exchange, deduction or set off and the full balance reflected in the month end statement rendered by the CREDITOR shall be paid within 30 (THIRTY) days of date of such statement.
2.3 Should the PURCHASER fail to effect payment within 30 (THIRTY) days of date of statement then interest shall accrue at the rate of 15.5% (FIFTEEN AND A HALF PERCENTUM), per annum from due date for payment to date of actual payment in full.
2.4 Unless otherwise agreed in writing between the CREDITOR and the PURCHASER, all quotations and / or prices are subject to change prior to delivery and all invoices will be rendered at the ruling price as at date of delivery of all goods.
2.5 Unless written objections are delivered to the CREDITOR within 7 days of date of invoice and / or statement, the correctness of such invoice and / or statement shall be deemed to be accepted by the PURCHASER and the onus to prove the incorrectness thereof shall therefore rest on the PURCHASER.
2.6 Payment will only be credited to the PURCHASER’S account once the amount is cleared into the CREDITOR’S bank account. Any payments made into an incorrect bank account, will not discharge the PURCHASER’S liability.
3. Orders
3.1 All orders or variations to orders, whether oral or in writing, shall be binding on the PURCHASER and subject to these terms and conditions and the PURCHASER shall be estopped from denying the validity of such order, notwithstanding that it may have been given or signed by a person not authorized by the PURCHASER.
4. Delivery
4.1 In the event that it has been agreed that any goods are to be railed or transported by an independent carrier then, the railways or the carrier, as the case may be, shall be the PURCHASER’S agent and delivery to the railways or the carrier shall be deemed to be delivery to the PURCHASER. Any cost incurred by the CREDITOR in connection with the delivery of goods to the PURCHASER’S agent shall be paid by the PURCHASER upon presentation of invoice.
4.2 The CREDITOR shall have the right to deliver the goods in parts or in whatever quantities and on however many separate occasions as it in its discretion may decide.
4.3 The delivery note signed by the PURCHASER or its agent or employee shall be deemed to be accurate in all respects and binding on the PURCHASER.
4.4 Time shall not be of the essence of any contract between the CREDITOR and the PURCHASER and in the event of any delay by the CREDITOR to effect delivery then the PURCHASER shall not be entitled to cancel the order and shall have no claim for any loss or damages of whatever nature against the CREDITOR.
4.5 If any amount due and payable by the PURCHASER to the CREDITOR is in arrear, the CREDITOR shall have the right, until such amount has been paid, to suspend any delivery under any contract then in force between, or order placed upon the CREDITOR by the PURCHASER.
4.6 In the case of the export of goods to PURCHASER’S outside the Republic of South Africa, delivery and risk shall be governed by the Incoterms specified on the Commercial invoice of the Company.
5. Passing of Ownership and Risk
5.1 Ownership of the goods shall not pass to the PURCHASER until the purchase price has been paid in full including any additional charges and/or interest. Notwithstanding the reservation of ownership, the risk in and to the goods shall pass to the PURCHASER upon delivery; which shall be, when delivered by the CREDITOR, when off loaded at the PURCHASERS premises; provided that should the PURCHASERS employees or agents off load then risk shall pass upon the arrival of the goods at the PURCHASERS premises prior to off loading commencing and where collected from the CREDITOR’S premises upon completion of loading at the CREDITOR’S premises.
6. Warranties and Representations
6.1 The CREDITOR does not make any warranties, express or implied nor does it may any representation other than those contained herein, in respect of the goods. More particularly goods information produced by the CREDITOR are intended merely to present a general idea of the goods described therein and do not constitute a warranty or representation that the goods will conform to any particular specification or representation.
6.2 The CREDITOR gives no warranty, express or implied, that the goods is suitable for the purpose for which they have been ordered, it being the sole responsibility of the PURCHASER to ensure that the goods is compatible with the PURCHASER’S goods or requirements.
6.3 The CREDITOR shall not be liable for any loss or damage, including consequential loss, of whatsoever nature should the goods fail to meet any specifications or technical data furnished by the PURCHASER or to any specified quality standards.
6.4 Notwithstanding anything to the contrary provided for herein, no claim in terms of the Consumer Protection Act in respect of retail PURCHASERS shall be entertained after a period of 6 (SIX) months from date of sale, and the CREDITOR shall determine in its sole discretion whether to repair, replace or refund in response to claims made in terms of the Consumer Protection Act.
6.5 The PURCHASER warrants that:-
6.5.1 It has taken all necessary actions to authorize the execution of this agreement and has full power and authorization to comply with its obligations in terms of this agreement.
6.5.2 The terms of this agreement do not conflict with and do not breach the terms of any other agreement or undertaking that is binding on you.
6.5.3 All the information that it has given the CREDITOR in connection with this agreement is in all aspects true, complete and accurate and that it is not aware of any facts or circumstances not disclosed to the CREDITOR which, if made known, could have negatively affected the CREDITOR’S decision to conclude this agreement with you.
6.5.4 It is not in default in any of its obligations to the CREDITOR or any other creditor.
6.5.5 It is not insolvent, neither has it or anyone else applied for a sequestration, business rescue or liquidation order against it (whether provisional or final).
6.5.6 It has not received any compliance notices from the Companies and Intellectual Property Commission.
7. Indemnity and Waiver
7.1 The PURCHASER hereby irrevocably indemnifies the CREDITOR against any claim brought against the CREDITOR by any third party and including costs incurred by the CREDITOR in defending or settling such claim, arising from any cause whatsoever, howsoever arising from this agreement and/or the goods.
7.2 The PURCHASER hereby waives and abandons any claim it may have against the CREDITOR in respect of any claim of whatsoever nature and howsoever arising from this agreement and/or the goods.
8. Returns
8.1 Should the CREDITOR consent to accept return of any of the goods sold and delivered to the PURCHASER, it being recorded that no agent acting or purporting to act on behalf of the CREDITOR is authorized to issue such consent, the PURCHASER shall be liable to pay to the CREDITOR a handling fee of no less than 10% on the invoice price of the returned goods.
8.2 Consent by the CREDITOR shall apply only under the following conditions:-
8.2.1 If the PURCHASER is credited with the lower of the price of the goods invoiced and the ruling price at the point of return; and
8.2.2 The goods credited are received from the PURCHASER within three months of such consent being granted by the CREDITOR in good condition determined in the discretion and to the satisfaction of the CREDITOR; and
8.2.3 Transport in respect of the goods shall be prepaid by the PURCHASER.
9. Force Majeure
9.1 The CREDITOR shall not be in default of its obligation to perform any obligation in terms of this agreement where circumstances outside its control delay or preclude performance by the CREDITOR. Such events shall include but not be limited to, industrial action and labour disputes, fire, flood, embargo, currency restrictions, general shortage of labour, transport, materials, energy and/or water, obstruction of railways, road or ports of shipment, non delivery or faulty or delay delivery of raw materials and/or Acts of God.
9.2 Upon the happening of such force majeure event, or such circumstances coming to the notice of the CREDITOR, it shall immediately notify the PURCHASER and the anticipated duration of the event. Should the event endure beyond that date then either party shall be entitled to cancel the relevant order forthwith by written notice and neither party shall be liable for damages of whatever nature pursuant to the cancellation of that order/s.
10. Patents, Copyright and Confidentiality
10.1 The PURCHASER shall indemnify and hold harmless the CREDITOR against all claims and expenses of whatsoever nature and description arising from the alleged or actual infringement of any patents, trademarks, designs or copyright occasioned by the CREDITOR’S performance of the contract.
11. Legal Charges
11.1 In the event of the CREDITOR being obliged to instruct attorneys to recover any amounts due by the PURCHASER arising out of this contract, irrespective of whether legal proceedings or proceedings of any other nature are actually instituted or not, the PURCHASER hereby agrees to pay the legal costs and disbursements incurred by the CREDITOR on a scale as between attorney and own client, including collection commission.
12. Domicilia
12.1 All notices by the one party to the other shall be given in writing by electronic mail or delivery by hand
12.1.1 to the CREDITOR at Sharp Metal Pressings, No. 2 D806, Umlaas Road, KwaZulu-Natal, 3730. Email address : [email protected]
12.1.2 to the PURCHASER at the physical address and email address set out in the application for credit or failing such address any other address set out therein, which address is the parties choose as their domicilium citandi et executandi where they will accept service of any notice or legal process.
12.2 The parties shall be entitled to change the address referred to above from time to time provided that any such address selected by either of them shall be situated in the Republic of South Africa and any such change shall only become effective upon receipt of notice in writing by the other party of such change.
12.3 The PURCHASER agrees to always provide the CREDITOR with its current physical and postal addresses, a functioning telephone number and a functioning email address and cell phone number.
12.4 The PURCHASER also agrees that the CREDITOR may use the contact details that were last provided to it for all legal purposes.
12.5 Should the PURCHASER be domiciled outside of the Republic of South Africa, this Agreement and all contracts of sale between the PURCHASER and the Company shall be governed and interpreted in accordance with the laws of the Republic of South Africa and the South African Courts shall have sole jurisdiction in respect thereof.
13. Enforcement
13.1 A certificate issued under the signature of the CREDITOR certifying the amount due in terms of this agreement, shall be accepted as prima facie proof of such indebtedness and shall have sufficient probative value to enable the CREDITOR to obtain summary judgment or provisional sentence against the PURCHASER and / or the sureties in any competent court for the amount stated in such certificate, and the PURCHASER accepts the onus of disproving the amount as stated as not being the amount owing.
14. Jurisdiction
14.1 Notwithstanding the aforegoing, the CREDITOR at its option, may bring any claim against the PURCHASER in any Magistrate’s Court having jurisdiction, notwithstanding that the amount of that claim may exceed the jurisdiction of the Magistrate’s Court and a referral to arbitration shall not preclude the CREDITOR from applying to court for interlocutory or injunctive relief.
15. Personal Information
15.1 The CREDITOR shall ensure the PURCHASER’S personal information will be kept confidential, will be kept in a secure manner, will be processed in terms of the provisions of POPIA and for the purposes for which the CREDITOR has been authorised, and will be processed lawfully and in a reasonable manner that does not infringe upon its privacy. The PURCHASER’S personal information will not be disclosed to anyone else without its consent, unless the CREDITOR is legally required or permitted to disclose it. The PURCHASER has the right to contact a credit bureaux to have its credit record disclosed and to correct any inaccurate information.
16. Entire Agreement
16.1 The terms and conditions set out herein and on the face hereof are the only conditions which shall apply to the contract and no other terms and conditions or representations shall be of any effect whether made prior to or subsequent to the date hereof unless reduced to writing and signed by both parties.
16.2 No relaxation or indulgence granted of any kind by the CREDITOR shall be deemed to be a waiver of its rights nor shall this constitute a novation of the terms and conditions of this agreement.
