STANDARD TERMS & CONDITIONS OF SALE
DIAMOND PRODUCTS CAPE (PTY) LTD
The Debtor hereby declares as follows;
1.1 In my/our capacity/ies of the DEBTOR to make and sign this application on its behalf and that the above information is true/correct.
1.2 I/We have read, understood and accept the Creditors standard terms and conditions of sale, as per page 3 & 4 hereof. I/We agree that all business under quotation, order, contract of sale, or otherwise shall be in terms of this documentation, consent and cession and in terms of the said standard terms and conditions of sale. It is hereby confirmed that Diamond Products shall sell
and the Debtor shall purchase in accordance with these terms and conditions which shall override anything contained in marketing collateral, price lists or any other documentation furnished by the Creditor prior to the conclusion of the contract. It is agreed that these terms and conditions will override any specification made by the Debtor in respect of purchase, acceptance order or any
discussion to the contrary that might ensue; this being the only basis under which the Creditor is willing to do business. This contract comes into existence upon the signature in acceptance by the Director/s of Diamond Products.
1.3 The Debtor agrees via the above declaration to:
1.3.1 Notify the creditor, in writing by registered mail; alternatively obtain a written acknowledgement of such notice from the Creditor, of any changes of the information contained in this document within seven (7) days from such change/s taking place.
1.3.2 That I/We are authorised to submit this application, to sign it and to bind the Debtor to these terms.
1.3.3 If the credit facility is granted, payment will be made promptly within thirty (30) days from date of statement from the Creditor, or unless otherwise agreed to by the directors of the Company and stipulated on this agreement. Payment will be made in South African Rands (ZAR) and no deductions or withhold or set-off payment will be permitted. The Director/s shall have final and
absolute ruling over any pricing that may have been quoted in error as error and omission is reserved at all times. All prices quoted in writing are valid for 30 days only, unless otherwise specified; oral quotations are valid only for the day they are given. All prices exclude charges for transport, insurance, exclusive of customs, excise, or other duties payable in respect of any part of the product that may imported into ZAR. The Creditor reserves the right to adjust any cost it places on its products in accordance with any factor which is deemed to be an effect of environment, economies, exchange rates and/or macro & micro economic trends. The
price and any additional charges payable under the contract are exclusive of Value Added Tax (VAT).
1.3.4 Should any payment not be received on or before due date of payment, in terms of the credit facilities granted, or upon any breach of provisions of this agreement or of the said credit facilities, the creditor shall have the election, without prejudice to any of its other rights, to cancel or suspend the credit facilities granted, to suspend further supplies of goods, to require immediate
payment of all amounts owing by the Debtor, whether or not those amounts are actually due and payable, or to take any other
action it may deem necessary, in accordance with these provisions and conditions, until such payment is received or the breach in question is remedied. The Debtor warrants that the creditor will not be liable for any damages of whatsoever nature and howsoever arising suffered by the debtor as a result thereof.
1.3.5 The Creditor shall have the right to recover interest on any or all overdue amounts at a rate of 24% per annum or prime overdraft rate charged by the Creditor’s bankers as may change from time to time, or such other rate determined by the Board of Directors of the Creditor from time to time, subject to the provisions of the Usury Act No. 73 1968, as amended. Interest shall be calculated from the due date of payment of the overdue amount until the date on which all overdue amounts are paid in full.
1.3.6 Should it become necessary for the Creditor to institute legal proceedings of any nature against the Debtor for any reason whatsoever pursuant to this agreement, including but not limited to any breach by the Debtor of the terms of this agreement or any default by the Debtor in respect of the due and punctual payment of any amount due and owing by it to the Creditor,or any litigation with regard to the validity and level of enforcement of this agreement, the Debtor shall be liable to the Creditor for any and all legal costs incurred by it on the attorney-and-own-client scale, including council as per marked brief. The Debtor shall be liable for any tracing, collection or valuation fees incurred, as well as any costs for any security the Creditor may demand.
1.3.7 In terms of section 28 of the aforementioned Act, with regards to any action which may be instituted against the Debtor by the Creditor in respect hereof; the Creditor shall be entitled, at its sole discretion, to institute said action against the Debtor out of any Court jurisdiction. The Debtor consents to the jurisdiction of any such Court nominated by the Creditor.
1.3.8 Supply of products shall be deemed to have taken place should the Debtor and/or an employee thereof, sign the Creditors’ delivery note. Should lesser quantities of product be delivered than ordered for the avoidance of doubt, the Debtor shall only be obliged to pay for the products delivered. Any dates quoted for delivery are approximate only and shall not form part of the
contract or service level agreement. The Debtor shall have no right to renege from the contract nor withhold payment or defer payment or exercise any other remedy for late delivery, non-delivery and/or partial delivery by the Creditor or its agents. Once
delivery has been received, the customer covers the risk of the products for loss or damage until ownership passes to the Debtor, which is until full payment is received. Any storage of product on behalf of the Debtor will be billed in full in the month of delivery.
1.3.9 The Debtor agrees that all assets and property in the possession of the Creditor shall be held by the Creditor at the Debtors risk and shall be subject to a special and general lien and/or pledge as security for all amounts (whether past or present) due and/or owing to the Creditor from any cause whatsoever.
1.3.10 All supplies remain the sole and absolute property of the Creditor until such time as full payment in respect thereof has been received by the Creditor and until such time the Debtor shall safely store and shall mark the products so that they can at all times be identified as the property belonging to the Creditor. The Debtor shall bear no right to sell the products until full payment has
been received by the Creditor and the Creditor shall reserve the right to remove, however it sees fit, the products under itsownership. The Creditor shall have right to claim monies received by the Debtor in respect of the sale of product for which the Debtor has not made full payment.
1.3.12 It is agreed that the address of the Debtor’s principle place of business shall be the domicilium citandi et executandi for all purposes, whether in respect of court process, notices or other documents or communications, of whatever nature.
1.3.13 No relaxation, indulgence or increase in the amount of credit granted by the Creditor to the Debtor and/or the sureties shall be deemed to be a waiver of any of the rights of the Creditor in terms of this agreement and such relaxation or indulgence shall not be deemed to be a notation of any of the terms and conditions of this agreement.
1.3.14 The Debtor hereby acknowledges and consents that Diamond Products Cape (PTY) Ltd; may perform various credit enquiries in respect of the Debtor and that I/We understand that the personal information given in this credit application for incidental credit, is to be used by the Creditor solely for the purposes of assessing creditworthiness and capacity to repay.
1.3.15 I/We agree that the Creditor will not be liable for any inaccuracies resulting from the provision of information in this application or for any failure to notify the Creditor in writing of any change in the information supplied herein in accordance with clause 1.3.1.above and where the Debtor fails to meet its financial commitments to the Creditor, to record the Debtors defaults or otherwise
with Credit Bureaux, and agree no liability against the Creditor if such information is deemed to be incorrect.
1.3.16 The Creditor undertakes to grant the debtor 28 days written notice prior to forwarding any adverse details to Credit Bureaux.
1.3.17 Only goods returned within 7 days or 168 hours of issue of delivery with a motivation letter of return included will be accepted by the Creditor. Any goods returned and accepted by the Creditor shall in no way be construed as admission of any facts or a waiver of any rights. The onus of proving that upon delivery any products are missing or damaged is on the Debtor. The Debtor may not withhold payments whilst any claim is being investigated by the Creditor.
1.3.18 The Creditor reserves the right to charge a 10% handling fee on all goods returned against orders correctly executed.
1.3.19 The Debtor consents to the jurisdiction of any Court having competent jurisdiction for all amounts or causes of action arising out of the sale and supply of goods, even though the amount involved might exceed the jurisdiction of such court.
1.3.20 The Debtor agrees that payments made by him/her may be used by the Creditor in his/her sole discretion to liquidate interest outstanding on any amounts due, owing and payable before liquidating the capital outstanding.
1.3.21 A certificate of balance signed by Credit Manager or Financial Director of the Creditor shall be prima facie proof of indebtedness.
1.3.22 Neither this agreement nor any interest therein nor any rights or obligations hereunder may be ceded, assigned or otherwise transferred without the prior written consent of the Creditor.
1.3.22 Our liability in respect of defective goods is limited to the replacement of goods proved to have been faulty on delivery and/or collection from the Creditor’s premises and we shall not be liable for any loss and/or damage, nor shall we be liable for any consequential or indirect damages or loss from whatsoever cause or however arising.
1.3.23 The Debtor agrees that this agreement is governed by and construed in accordance with the laws of the Republic of South Africa and shall be subject to the jurisdiction of a magistrate or appointed arbitration officer.
1.3.24 Disclaimer: The Creditor is not liable for loss of any kind or any death or injury, damage to property or possessions, or loss of profits, loss of operation time, loss of information or contracts belonging to the Debtor by reason of inter alia, accidental damage; negligence by its employees; viz. force majeure.
1.3.25 The Creditor reserves the right to require satisfactory security from the Debtor including but not limited to the payment of the price.The Debtor shall deliver to the Creditor confirmed irrevocable letters of credit by financial institutions acceptable to the Creditor within 7 days of such demand; the Creditor shall be entitled to withdraw from the contract in whole or in part.
1.3.26 The Creditor offers no warranties or undertakings as to the products supplied. All products are sold by reference to their specifications and not by sample, are unexamined and it is for the Debtor to examine and test. The Debtor is responsible for correspondence to regards to specification, impurities, suitability for purpose and safety. The Creditor does not warrant that the products are free of infringement of any patents of any country.
1.3.27 Each party shall, in respect of the Confidential Information for which it is the recipient: keep the Confidential Information strictly confidential and not disclose any part of such Confidential Information to any person except as permitted by or as required for the performance of the recipient’s obligations under this Agreement.
1.3.28 If the Debtor is in breach of any of the clauses in this agreement, the Creditor reserves the right to cancel the agreement forthwith and to treat all amounts owed to it by the Debtor as immediately due and payable; as well as reserve the right to retake possession of products sold. Where the Debtor is in breach the Creditor is not obliged to carry out any of the obligations made hereunder.
1.3.25 In the event that a dispute should arise between the parties, either party shall be entitled to require, by written notice to the other, that the dispute be submitted to arbitration in terms of this clause within seven (7) calendar days. Subject to the provisions of this clause, arbitration shall be held under the provisions of the arbitration laws of the time in force in the Republic of South Africa, provided that the arbitrator shall be a practising attorney of not less than ten years standing, agreed upon by the parties, or failing agreement within five (5) days after the date on which the arbitration is demanded appointed by the Chairperson of the Law Society of Gauteng. The arbitration shall be held in Sandton, at a venue and in accordance with formalities and procedures determined by the Arbitrator.