11.1. The Applicant shall affect payment to the Company in cash or in cleared funds on delivery unless the Company has granted the Applicant credit facilities.
11.2. If the Company has granted the Applicant credit facilities, the Applicant shall affect payment to the Company within 30 (thirty) days from the date of the Company’s statement, provided that, the Company may, in its sole and absolute discretion, extend different payment terms to the Applicant who must have these terms recorded in writing from the Company.
11.3. No discounts may be claimed or taken, under any circumstances, unless the Company has agreed to such discount in writing and the Applicant shall have affected payment within the payment period allowed for such discount.
11.4. The Applicant shall be liable to pay the Company any taxes and/or levies applicable to the Goods at the then prevailing rate. If any payments due to the Company are subject to withholding tax, the Applicant shall pay the Company an additional amount so that the Company receives the full payment that is due to it.
11.5. Unless otherwise expressly agreed in writing, all payments are to be in the currency of the Country you purchased the goods.
11.6. The Applicant carries any risk associated with or arising from the method elected to effect payment to the Company.
11.7. The Applicant shall not be entitled, for any cause whatsoever, to withhold, deduct from or defer any amount due by it to the Company. All payments shall be free of exchange and set off, however the Company shall be entitled, at its sole discretion, to set off any amounts that it owes to the Applicant against any amounts that the Applicant owes to the Company and such set off shall be effective as soon as the Company notifies the Applicant in writing of the set off.
11.8. The Company may appropriate and/or apply all payments from the Applicant to any amounts as it in its sole and absolute discretion deems fit, whether or not such amounts were outstanding as at the date of such payment or if such amount only became outstanding thereafter. Payments shall, in the sole and absolute discretion of the Company, be applied first toward interest, costs (if any) and then toward capital.
11.9. The COMPANY shall be entitled to charge the APPLICANT interest at the rate of 2% (two percent) per month from the moment any debt becomes overdue, provided however that nothing contained herein shall be interpreted as the COMPANY affording the APPLICANT any indulgence to make payment after due date.
11.10. The Applicant must notify the COMPANY of any error in any invoice and/or statement submitted to it by the Company within 30 (thirty) days from the date of the invoice, failing which the invoice will be deemed to be free of any errors.
11.11. The COMPANY does not appoint the Post Office as its agents for payments by post. All payments shall be made to the Company’s place of business from where the goods were ordered. In the event of any payments being mislaid; lost in the post; or transferred to the incorrect banking account the APPLICANT shall still be liable to the COMPANY for payment. Should the COMPANY at any time advise the APPLICANT of any change with a Manager of the COMPANY before effecting any further payments, provided however that nothing contained herein shall be interpreted as obliging the COMPANY to afford the APPLICANT any such indulgence to effect payment after due date.
11.12. 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.
12.1. Unless the Company provides the Applicant with a pro-forma quotation, written or verbal, the price of the Company’s Goods and/or Services will be the Company’s official list price in place at the date order of the Goods and/or the date of rendering the Services, subject to clause 12.2 below.
12.2. The Company reserves the right, prior to delivery of the Goods and/or rendering the Services, to vary any quoted price by adding thereto the increased costs to it of any Goods and/or Services. In this regard, the Applicant acknowledges that various factors may be considered in determining pricing, including but not limited to, the urgency with which the Goods and/or Services are required, the time of delivery, the availability and/or exclusivity of the Goods ordered and/or Services required.
12.3 Where prices are based upon a currency other than the South African Rand, any fluctuations in the exchange rate of such currency against the Rand between the date of the Applicant’s order and the date of the Company’s invoice shall be passed on to the Applicant who shall be liable for payment thereof.
13. DELIVERY OF GOODS AND SERVICES
13.1. The date of delivery of the Goods and/or Services will be deemed to be the date when the Goods and/or Services are delivered to the Applicant’s nominated delivery address or the date on which the Company notifies the Applicant that the Goods are available for collection. Any third party who accepts delivery or who collects the Goods from the Company will be deemed to be the Applicant’s agent and it shall not be necessary for the Company to prove the authority of such person, who shall be deemed to have been duly authorised for such purpose.
13.2. The Applicant warrants that the signatory to any tax invoice, delivery note or any other documentation of the Company made out in the name of the Applicant is duly authorised to bind the Applicant in relation to the transaction and shall also constitute prima facie proof of the proper delivery of the Goods and/or Services to the Applicant.
13.3. The Company will endeavour to deliver the Goods and/or Services to the Applicant within a reasonable period. The Applicant shall not be entitled to cancel any order by reason of any delay and the Company shall not be liable for any damages for failure to timeously effect delivery of the Goods and/or Services for any reason.
13.4. The Applicant undertakes to notify the Company in writing within 7 (seven) days of ANY change of address.
13.5. Appointment and Agency – The Applicant hereby appoints the Company as their agent with authority to clear and deliver all shipments being imported or exported and requiring customs clearance and to do all things necessary, including the payment of fees, tariffs, duties and amounts in this regard.
13.6. Insurance – The Applicant acknowledges that no goods in transit insurance or any other form of marine insurance will be affected by the Company for the carriage of such goods unless insurance cover has been specifically requested in writing by the Applicant and such request has been acknowledged by the Company in writing.
13.7. Means, Procedures and Routes - The Company shall be entitled at its own discretion to determine the subcontractors, means, procedures and routes to be followed in performing any or all of the services required unless the Applicant furnishes specific written instructions prior to the commencement of the carriage,
and such instructions has been acknowledged by the Company in writing. Time shall not be of the essence.
13.8. Accuracy of descriptions – The Applicant warrants the accuracy of all descriptions, tariff headings, values and other particulars furnished to the Company.
13.9. Disbursement by the Company and lien over goods - In the absence of any written agreement to the contrary, the remuneration payable to the Company by the Applicant shall be in accordance with the standard tariffs of the Company calculated on:
13.10. the chargeable weight of the goods;
13.11. the destination of the goods;
13.12. the service level selected by the Applicant for the courier of the goods;
13.13. the Company’s standard tariffs are subject to review by the Company without prior notice to the Applicant;
13.14. THE Applicant shall be liable for any duty, tax, fine or other outlay of whatsoever nature levied by authorities at any port or place in connection with the goods, and shall reimburse the Company for any such amount sustained by the COMPANY in connection therewith;
13.15. In the event of the Company being obliged to take out or obtain any licences or permits or to comply with any lawful authority, the Company shall be entitled to make an additional charge to cover any expenses resulting therefrom if not already included;
13.16. In the event that the Company is required, due to circumstances including but not limited to natural disasters, strikes, lock-outs and other such occurrences, to change the routing of the courier of the goods, resulting in additional charges, the Company shall be entitled to recover such additional charges from the Applicant.
13.17. Goods - The Company shall be under no obligation to take any action in respect of any goods, which may be recognizable as belonging to the Applicant unless it has received adequate instructions relating to such goods together with all necessary documents. In particular, the Company shall not be obliged to notify the Applicant of the existence or whereabouts of goods or to examine them or to take any other steps for their identifications, protection or preservation, or for the preservation of any claim by the Applicant or any other party against the carrier, insurer or any third party unless the Company has expressly agreed to do so.
13.18. Where it is necessary for an examination to be held or other action to be taken by the Company in respect of any discrepancy in or damage to goods which are landed from any vessel, aircraft, vehicle or container, no responsibility shall attach to the Company for the failure to hold such examination or to take any other action unless the Company has been advised timeously by the landing agent that such goods have been landed and that they reflect a discrepancy or appear to be damaged.
14.1. The Applicant must inspect the Goods on delivery. Unless the Applicant notifies the Company, on delivery, that the Goods delivered are defective, short delivered, damaged or not in accordance with the order, the Company shall not be liable for any of the aforesaid discrepancies, provided that the aforesaid notice shall not constitute an admission of the discrepancy.
14.2. Once the Company has satisfied itself of the validity of the Applicant’s complaint, it will determine, in its absolute discretion, the manner in which it resolves such complaint, in accordance with all applicable legislation at that time.
15.1. Goods sold as “repaired/damaged” may not be returned;
15.2. The Company will accept the return of purchased goods subject to:
- 15.2.1. The returned goods being returned in the original packaging, complete with all accessories supplied;
- 15.2.2. The returned goods are to be accompanied by the original invoice;
- 15.2.3. Proof of payment is provided for all returned cash sales;
- 15.2.4. Only stock returned will be credited, additional charges like delivery will not be refunded;
- 15.2.5. The Company reserves the right to levy a handling fee of 10% (ten percent) in respect of any Goods returned;
- 15.2.6. Should the Company in its absolute discretion elect to accept the return of any Goods, the risk in the goods shall remain with the Applicant until the Goods are received and accepted with no defects by the Company.
16.1 The Company provides a 12 (twelve) month warranty for goods sold.
- 16.1.1. An assessment of warranty claims will be conducted by the Company whose decision as to the validity of the warranty is final;
- 16.1.2. Visible/genuine manufacturing defects on components and assembly process faults are included in the assessment in 16.1.1 above;
- 16.1.3. Liability under clause 16.1 is restricted to the cost of replacement of faulty goods or granting of a credit note to the value of such goods;
- 16.1.4. Credit notes issued for approved warranty claims will not exceed the original invoice value, with all liability limited as per Clause 17 hereof.
16.2 All warranties shall become immediately null and void should any goods/equipment:
16.2.1 Be tampered with; seals broken; or should the goods be operated outside of specifications.
16.2.2 Be damaged due to lightning strikes, power surges, power spikes, or other incidents/accidents beyond the control of the Company are not covered
in any warranties.
16.2.3 Be used for a purpose other than the purpose it was manufactured for; where there has been fair wear and tear; below standard installation,
and contrary to the instruction manuals and guidance.
17. LIMITATION OF LIABILITY AND INDEMNITY
17.1. The Company will NOT be liable for any direct, indirect, consequential, special or delictual loss or damage of any nature and howsoever arising which may be suffered by the Applicant or any third party as a result of or in connection with any transaction contemplated herein.
17.2. Notwithstanding 17.1 above, should the Company be found to be liable at any stage by a Court of Law, the Applicant agrees that such liability, if any will not exceed the total price paid or due to be paid by the Applicant for the Goods and/or Services that form the subject matter of such claim.
17.3. The above exclusions and limitations of liability shall apply regardless of how the loss or damage may be caused and whether based in contract, delict or otherwise.
17.4. The Applicant hereby indemnifies the Company for and holds it harmless against any claim, damage, loss, cost or expense of what-so-ever nature made against the Applicant by any third party arising from or associated with the Goods supplied and/or Services rendered by the Company to the Applicant, the Applicant’s or a third party’s use of the Goods and/or Services, the Applicant’s representations given to third parties in respect of the Goods and/or Services or any other matter for which the Company would not be liable to the Applicant under this Agreement.
17.5. If any Goods and/or Services are to be supplied in accordance with specifications or other instructions furnished by the Applicant, the Applicant shall not have any claim of any nature whatsoever against the Company for any loss or damage sustained by the Applicant or any third party as a result of any error, discrepancy or defect in those specifications and/or other instructions, or if the Goods in question are not suitable for the purpose for which they are required, whether that purpose was known to the Company or not.
17.6. The Applicant hereby waives any rights which it may have in terms of the Consumer Protection Act 68 of 2008 and shall not have any claim of any nature
whatsoever against the Company if the Goods and/or Services in question are not suitable for the purpose for which they are required, whether that purpose
was known to the Company or not.
17.7. Notwithstanding the above, the Company does not exclude or limit its liability, if any, for any matter for which it would be illegal for the Company to do so.
18. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIAL INFORMATION
18.1. The Company is the owner of all intellectual property rights in respect of the Goods and/or Services that the Company supplies and/or renders. The Applicant shall not at any time acquire any right or title in or to the intellectual property rights of the Company.
18.2. The Applicant shall not at any time use, exploit or disclose any of the Company’s confidential information as to its business processes, including but not limited to plans, price lists, documents or any other information relating to the Goods and/or Services.
19.1. If the Applicant breaches any provision of this Agreement, or fails to pay any amount on its due date, or suffers any civil judgment being taken and does not take steps to rescind such judgment with 7 (seven) days of the judgment coming to its knowledge, or commits an act of insolvency, or is placed under sequestration, liquidation (whether provisional or final, voluntary or compulsory) or business rescue, or makes or attempts to make any general offer of compromise with any of its creditors or sells its business or changes the structure of its ownership, the Company shall, without prejudice to any other remedies that it has available to it inter alia the right to claim damages, be entitled to:
- 19.1.1. suspend or cease performance of its obligations to the Applicant until the Applicant’s breach has been remedied; and/or
- 19.1.2. summarily cancel the sale of any Goods and/or Services to the Applicant; and/or
- 19.1.3. repossess, to the extent possible, any Goods which have not been paid for; and/or
- 19.1.4. exercise its rights by perfecting the cession of book debts authorizing the Applicants debtors to pay the Company directly and/or
- 19.1.5. exercise its lien over any of the Applicant’s property in its possession or under its control; and/or
- 19.1.6. summarily cancel this Agreement or claim specific performance of all of the Applicant’s obligations whether or not such obligations have fallen due for performance, in all instances without prejudice to the Company's right to claim damages.
20. DISPUTE RESOLUTION
20.1. Should any dispute or difference whatsoever arise at any time hereafter between the parties hereto concerning this Agreement, or its construction or effect, or the validity of the Agreement, or as to the rights, duties and/or liabilities of the parties hereto or either of them under or by virtue of this Agreement or otherwise, or as to any other matter in any way arising out of the subject matter of this Agreement, either during the currency of the Agreement or after the completion thereof, then the Company may declare a dispute by delivering the details thereof to the Applicant ("notice of dispute").
20.2. The Company may refer the dispute for the arbitration and final decision of a single arbitrator and the parties agree to accept his award as final and binding upon them.
20.3. The arbitrator shall be selected by agreement between the parties within 10 (ten) days of the notice of dispute or failing such agreement, appointed at the request of either party by the Chairman for the time being of the Arbitration Foundation of Southern Africa.
20.4. The arbitration shall be conducted in terms of the rules of the Arbitration Foundation of Southern Africa.
20.5. The cancellation of this contract by either party for whatever reason shall not affect the validity of this clause.
21. FORCE MAJEURE AND SUPERVENING IMPOSSIBILITY
21.1. The Applicant acknowledges and agrees that this clause is applicable to all force majeure events and/or supervening impossibilities as well as any other causes beyond the control of the Company.
21.2. The Company will not be liable to the Applicant for failing to perform its obligations in terms of this Agreement as a result of an act of God and/or force majeure event(s) and/or supervening impossibilities and/or any cause(s) beyond its control.
21.3. Subject to the provisions of this Agreement, in the event of delays in delivery or performance caused by an act of God and/or force majeure event(s) and/or supervening impossibility(ies) and/or any cause(s) beyond its control or the Applicant, the estimated date of delivery or performance shall be extended by the period of time that the Company is actually delayed.
22. LEGAL PROVISIONS
22.1. This Agreement and all transactions between the Applicant and the Company shall be governed by and decided upon in accordance with the laws of the Republic of South Africa. The Applicant (and Surety/ies) specifically consent to the jurisdiction of the relevant South African Court despite the Applicant (and/or Surety/ies) not being permanently resident in the Republic of South Africa at that time.
22.2. The Applicant hereby irrevocably consents to the jurisdiction of the Magistrate’s Court in respect of any dispute which may arise between the parties at any time, notwithstanding that the amount of any claim which may form the subject matter of such dispute exceeds the jurisdiction of such Court. This provision shall not preclude the Company from instituting action against the Applicant in any other competent court with jurisdiction, and in such event, the Applicant agrees that the Company shall not be limited to recovering any costs occasioned thereby on the magistrate’s court tariff.
22.3. A certificate issued by any manager of the Company, whose authority, appointment and signature it shall to be necessary to prove, that certifies any indebtedness of the Applicant to the Company, delivery of the Goods to the Applicant or any other fact shall constitute prima facie proof of such indebtedness or delivery or such other fact.
22.4. The Applicant and/or co-principal debtor(s) and/or its duly authorised representative, shall be liable for the Company’s legal fees in the event of the Company enforcing or defending its rights hereunder on the attorney and own client scale, including Counsel’s fees, tracing agent’s fees and collection charges.
23.1. THE APPLICANT acknowledges the COMPANYS intellectual property rights in the goods and shall not infringe such intellectual property rights.
24. ELECTRONIC FORMAT SUPPORTING DOCUMENTS
24.1. THE APPLICANT agrees to accept the receipt of electronic format statements, tax invoices, shipment documents (proof of delivery), credit and debit notes from the Company, which will be transmitted via email, and the following conditions thereto as required by South African Revenue Services and in terms of the provisions of the Value-Added Tax Act for the issuing of tax invoices, credit and debit notes:
24.2. Electronic documents (tax invoices, credit, and debit notes) will be transmitted and issued to THE APPLICANT in 128bit encrypted PDF file format.
24.3. Both THE APPLICANT and the Company shall retain the electronic documents in its original encrypted format for a period of five years from the date of the delivery to which it relates.
24.4. The transmitted electronic document will constitute the original statement, tax invoice, credit, or debit note. No other tax invoice, credit or debit note will be issued in respect of any specific delivery, unless as a copy of the original document.
25. DISCLOSURE OF INFORMATION
25.1. The Applicant as well as the surety(ies) and/or co-principal debtor(s) hereby consent(s) and grant(s) authority to the Company and/or its duly authorised agents and/or representatives (including its legal representatives) to conduct credit checks, searches and the like with any credit agency or party which the Company may at its sole discretion consider expedient or necessary, inter alia, for the purpose of ascertaining the credit worthiness of the Applicant as well as the surety(ies) and/or co-principal debtor(s) or in order to trace the Applicant as well as the surety(ies) and/or co-principal debtor(s)or any of their assets.
25.2. The Company shall be entitled to record any adverse credit report with any agency or person. The Applicant as well as the surety(ies) and/or co-principal debtor(s) acknowledge(s) that the application for and 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 reasons.
25.3. The Applicant as well as the surety(ies) and/or co-principal debtor(s) hereby waive(s) any claim and indemnifies and holds the Company and/or its duly authorised agents and/or representatives (including its legal representatives) harmless against any claim for any nature and howsoever arising from the aforesaid instances.
26.1. The Applicant as well as the surety(ies) and/or co-principal debtor(s) choose as their domicilium citandi et executandi for all purposes under this agreement, the physical addresses, email addresses and facsimile numbers as set out in the application section of this Agreement.
26.2. Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing, provided that it shall be competent to give notice by way of email or facsimile.
26.3. A party may change its domicilium citandi et executandi (its physical address and/or email address and/or facsimile number) by furnishing the other party with 5 (five) days written notice of its new physical address, provided that the change will only become effective from the seventh business day from the deemed receipt of the notice by the other party.
26.4. A party will be deemed to have received a notice at its domicilium citandi et executandi on:
- 26.4.1. the 7th day after posting if sent by prepaid registered post in a correctly addressed envelope to the address provided;
- 26.4.2. the day of delivery, if delivered by hand to the address provided;
- 26.4.3. the day of dispatch, if sent by email or facsimile to its chosen email address or facsimile number.
26.5. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by the Applicant as well as the surety(ies) and/or co-principal debtor(s) shall be adequate and valid, notwithstanding that it was not sent or delivered at its chosen domicilium citandi et executandi.
27. METRACLARK CUSTOMER CARD PROGRAM - INDEMNITY
27.1. In the event that the Applicant elects not to make use of the COMPANY’S Customer CARD PROGRAM the Company will not be held liable for losses or damages which the Applicant may suffer, directly or indirectly, as a result of such fraud on the Applicant’s account.
27.2. No diversion of the authorization process is allowed. If options are made to divert or avoid the Customer Card authorization SMS process, the Company will not
be held liable for losses or damages which the Applicant may suffer, directly or indirectly, as a result of such fraud on the Applicant’s/Customer’s account.
28.1. This Agreement constitutes the entire agreement between the parties. No party shall be entitled to rely upon any term, warranty, guarantee, condition or representation, unless it is contained herein.
28.2. No amendment of this Agreement and no extension of time, waiver or relaxation of any of the provisions of this Agreement shall be binding, unless recorded in a single document signed by both of the parties.
28.3. No relaxation or indulgence shall prejudice or be deemed to be a waiver of any of the Company’s rights hereunder.
28.4. Each provision of this Agreement is severable, the one from the other. If any provision is found to be defective, unlawful or unenforceable for any reason, the remaining provisions shall continue to be of full force and effect.
28.5. The rule of construction that this Agreement be interpreted against the party responsible for drafting this document shall not apply.
28.6. Neither the Applicant nor the surety(ies) and/or co-principal debtor(s) shall be entitled to cede any rights or assign any obligations under this Agreement.
28.7. The Company shall be entitled to cede its rights or assign its obligations under this Agreement and the suretyship, without notice to the Applicant as well as the surety(ies) and/or co-principal debtor(s)or any other person and such cessionary shall be entitled to enforce its rights hereunder against the Applicant and the surety in respect of any Goods and/or Services that it supplies to the Applicant.
29. CONSENT TO OBTAINING AND SHARING INFORMATION INCLUDING RETENTION PERIODS
29.1. For the purposes of making credit risk management decisions and preventing fraud, the Applicant hereby warrants that the Company has consent to:
- 29.1.1. Carry out a credit enquiry on THE APPLICANT and the Directors/Members/Partners/Trustees/Principals of the Applicant from time to time with one
or more credit bureaus, credit information agents, credit insurance companies or other creditors (trade references) of the Applicant’s in terms of this
- 29.1.2. The Company may transmit details to credit bureaus, credit information agents, credit insurance companies or other creditors of the Applicants of
how the Applicant has performed in meeting his/her/its obligations in terms of this agreement.
- 29.1.3. If the Applicant fails to meet his/her/its commitments to the Company may record the Applicant’s non-performance with credit bureaus, credit
information agents, credit insurance companies or other creditors of the Applicant.
29.2. Such information shall be retained for periods as stipulated in any applicable law, but no longer than the duration of the validity of this agreement. Where the
Applicant has not used a facility under this agreement for 6 months, the Applicant will be required to re-apply for such a facility by formally submitting a letter
confirming this agreement is to be re-activated, rendering it valid.
29.3. The COMPANY is required to collect, process and share THE APPLICANT’S personal information. The Applicant personal information is collected and process by
Company’s staff and the Company makes every effort to protect and secure the Applicant’s personal information. The Applicant is entitled at any time to
Request access to the information the COMPANY has collected, processed and shared.
29.4 By submitting this credit application form you agree to the storage and handling of your data by the Company’s website;
29.5 The approval of any credit application is subjective to a credit worthiness check. By submitting this application, the Applicant provides consent for
the Company to utilize the submitted information to make enquires regarding the Applicants credit history with any credit bureau, bank and suppliers.
30. CARD ACQUIRING AND SECURITY
30.1. Card transactions will be acquired for Metraclark (A Division of Beijer Ref Africa (Pty) Ltd) via PayGate (Pty) Ltd who are the approved payment gateway for all South African Acquiring Banks. PayGate uses the strictest form of encryption, namely Secure Socket Layer 3 (SSL3) and no Card details are stored on the website. Users may go to www.paygate.co.za to view their security certificate and security policy.
31. CUSTOMER DETAILS SEPERATE FROM CARD DETAILS
31.1. Customer details will be stored by Metraclark (A Division of Beijer Ref Africa (Pty) Ltd) separately from card details which are entered by the client on PayGate’s secure site. For more detail on PayGate refer to www.paygate.co.za