PART B: TERMS AND CONDITIONS OF PURCHASE AND SALE
1. THESE TERMS AND CONDITIONS PREVAIL
Notwithstanding anything to the contrary contained in the Applicant’s enquiry, specification, acceptance of quotation, order or any other documentation to the contrary, these Terms and Conditions (from herein referred to as “Conditions”) alone shall constitute the contract between Steel and Pipes for Africa Cape Town and the Applicant and further constitute the only basis upon which Steel and Pipes for Africa Cape Town is prepared to do business with the Applicant.
2. QUOTATION
2.1 A quotation is not an offer by Steel and Pipes for Africa Cape Town to sell its products to the Applicant but constitutes an invitation by Steel and Pipes for Africa Cape Town to the Applicant to do business with Steel and Pipes for Africa Cape Town. Accordingly, notwithstanding the acceptance by the customer of a quotation and the receipt of such acceptance by Steel and Pipes for Africa Cape Town in a form acceptable to Steel and Pipes for Africa Cape Town, a contract between the Applicant and Steel and Pipes for Africa Cape Town shall only come into force if, after receipt by Steel and Pipes for Africa Cape Town of a quotation, it accepts and subsequently confirms to the Applicant that such a contract has been concluded in writing.
2.2 A quotation shall be deemed to include acceptance by Steel and Pipes for Africa Cape Town of an order from the Applicant where no quotation has in fact been given by Steel and Pipes for Africa Cape Town.
2.3 Where goods are imported (those manufactured in any country other than in the Republic of South Africa), the prices quoted are based on the export prices of the manufacturing plants from which the goods are obtained in effect on the date on which the quotation is given by Steel and Pipes for Africa Cape Town plus foreign exchange rates, ocean freight rates, marine insurance rates, war risk insurance rates, custom duties, clearing charges, dock dues and railage rates in effect at the date when the quotation was given, and save for any agreement to the contrary between Steel and Pipes for Africa Cape Town and the Applicant, the price of such goods shall be subject to adjustment for the amount of any increased cost to Steel and Pipes for Africa Cape Town resulting from an increase to any such items. The increased price payable in accordance with this provision shall be certified by Steel and Pipes for Africa Cape Town’s auditors for the time being if required and shall thereupon be binding upon both Steel and Pipes for Africa Cape Town and the Applicant.
2.4 The adjustment in price resulting from each of the aforegoing provisions may be invoiced by Steel and Pipes for Africa Cape Town to the Applicant as soon as the amount thereof is ascertainable and shall thereupon become payable by the Applicant in accordance with Clause 4 hereof.
3. PLACING OF ORDERS
3.1 Any order placed by the Applicant to Steel and Pipes for Africa Cape Town, including any order placed accepting any quotation as contemplated in Clause 2 above, shall be placed in such form as Steel and Pipes for Africa Cape Town may require from time to time in its sole discretion. If the Applicant places a telephone order, Steel and Pipes for Africa Cape Town may require such order to be confirmed in writing in such form as Steel and Pipes for Africa Cape Town specifies.
3.2 Steel and Pipes for Africa Cape Town may accept or reject, in whole or in part, any order placed by the Applicant.
3.3 All orders, whether oral or in writing, placed with Steel and Pipes for Africa Cape Town will be regarded as firm and irreversible and may not be cancelled without the prior written consent of Steel and Pipes for Africa Cape Town.
4. PRICE AND PAYMENT
4.1 All prices are exclusive of Value Added Tax, which will be levied unless the Applicant has provided proof of an exemption acceptable to Steel and Pipes for Africa Cape Town.
4.2 Payment of all amounts outstanding to Steel and Pipes for Africa Cape Town shall be strictly due within THIRTY (30) days of the date of invoice unless otherwise agreed in writing.
4.3 Should any amount not be paid timeously then the Applicant shall be liable to pay interest on all outstanding amounts, from the date of invoice at the maximum rate permitted by law.
4.4 The interest shall be calculated monthly in advance and is payable by the Applicant on the first day of each month following the month in which the account is overdue.
4.5 Should a quotation or agreement with Steel and Pipes for Africa Cape Town include a discount, such discount will be allowed only if payment is made on or before the due date for payment, failing which the full amount quoted will be due and payable by the Applicant.
4.6 A certificate issued by any director of Steel and Pipes for Africa Cape Town shall be prima facie proof of the amount due by the Applicant and shall be valid as a liquid document in any competent court for legal purposes including provisional sentence or judgment (summary or in default).
5. DELIVERY
5.1 Any delivery date given by Steel and Pipes for Africa Cape Town, whether in a quotation or agreement, will be an estimation only and will not be binding on Steel and Pipes for Africa Cape Town, the Applicant agreeing that a delivery date or time is not of the essence in this contract.
5.2 The Applicant shall not be entitled to withhold or defer payment or to a reduction in the price or any other remedy against Steel and Pipes for Africa Cape Town incurred as a result of delay in delivery of the goods through delays in manufacturing or delivery of the goods to Steel and Pipes for Africa Cape Town, or any cause which is entirely or partly beyond the control of Steel and Pipes for Africa Cape Town or that of the manufacturer of the goods, and the Applicant shall be obliged to accept delivery of all or any part of a consignment of goods when Steel and Pipes for Africa Cape Town tenders delivery.
5.3 If the Applicant is unable to take delivery of the goods or any part thereof, or fails to furnish such information as may be necessary for Steel and Pipes for Africa Cape Town to affect delivery thereof, the goods shall be deemed to have been delivered to the Applicant upon notification by Steel and Pipes for Africa Cape Town to the Applicant to such effect.
5.4 The signature of any employee of the Applicant, or any person purporting to be an employee of the Applicant where goods have been delivered to the address for delivery given by the Applicant in the credit application, on Steel and Pipes for Africa Cape Town’s official delivery note, or a delivery note of any independent carrier authorised by Steel and Pipes for Africa Cape Town to deliver goods, will constitute effective delivery of the goods ordered.
6. WARRANTIES AND INDEMNITIES
6.1 Steel and Pipes for Africa Cape Town shall not be liable under any circumstances whatsoever for any loss of profit or damage of whatever nature and kind, whether direct or indirect, consequential or otherwise alleged to have been sustained by the Applicant as a result of, but not limited to:
6.1.1 Any delay in manufacturing or delivery of the goods by Steel and Pipes for Africa Cape Town or any manufacturer from whom Steel and Pipes for Africa Cape Town has ordered the goods for delivery to the Applicant, and/or
6.1.2 Failure by Steel and Pipes for Africa Cape Town to deliver goods as a result directly or indirectly of force majeure, delay in manufacture or transportation, shortage of material or labour, any act, demand or requirements of any state of government or any other authority whatsoever, lack of shipping space, embargoes, strikes, lockouts, fire, explosion, theft, floods, riot, civil commotions, war boycotts, malicious mischief, sabotage, rebellions, or any other cause of whatsoever nature and kind, nothing excepted, which is directly or indirectly or entirely or partly beyond the control of Steel and Pipes for Africa Cape Town or the manufacturer of the goods.
6.2 Where Steel and Pipes for Africa Cape Town supplies goods to the specifications furnished by the Applicant, no liability whatsoever shall attach to Steel and Pipes for Africa Cape Town in the event of the goods failing to perform the services or the function for which they were acquired to the satisfaction of the Applicant, or at all.
6.3 Steel and Pipes for Africa Cape Town gives no guarantees or warranties, expressed or implied, nor makes any representation of any nature whatsoever in respect of the goods supplied by it or the materials utilised in the manufacture of any goods supplied by it, nor as to the fitness of any such goods for any purpose for which they are required, whether such purposes be communicated to Steel and Pipes for Africa Cape Town or not.
6.4 Without derogating from what is set out in the remainder of Clause 6, Steel and Pipes for Africa Cape Town will not be liable in respect of any claim for shortfalls in its performance of the contract unless such a claim is made in writing to Steel and Pipes for Africa Cape Town within 7 days of delivery of the goods in question. Goods shall only be returnable with Steel and Pipes for Africa Cape Town’s prior written consent.
7. BREACH
Should the Applicant fail to make any payment on the due date for such payment, be placed in liquidation or commit an act of insolvency, have any of its cheques returned or unpaid by its bankers for any reason, fail to notify Steel and Pipes for Africa Cape Town of any change in information furnished in the Credit Application form in accordance with Clause 11 of the Conditions, and/or generally commit any other breach of the conditions herein then, without prejudice to Steel and Pipes for Africa Cape Town, all amounts owing to Steel and Pipes for Africa Cape Town by the Applicant at the date thereof from whatsoever cause arising shall immediately become due and payable without notice to the Applicant.
Steel and Pipes for Africa Cape Town shall further have the right to refuse to deliver goods to the Applicant and/or immediately cancel the agreement between itself and the Applicant, in which event Steel and Pipes for Africa Cape Town shall not be liable for loss of any kind sustained by the Applicant as a result of the cancellation or refusal to deliver the goods to the Applicant.
8. RISK
The risk in and to the goods shall pass to the customer upon the dispatch thereof from the premises or warehouse of Steel and Pipes for Africa Cape Town or upon the deemed delivery thereof as set out in Clause 5.3 hereof.
9. OWNERSHIP
9.1 Ownership in any goods delivered to the Applicant or held by Steel and Pipes for Africa Cape Town on behalf of the Applicant shall not pass to the Applicant, but shall remain vested in Steel and Pipes for Africa Cape Town, until all amounts, including interest, have been paid in full in respect of the entire order.
9.2 Notwithstanding this provision, the Applicant shall have the right to dispose of the goods or materials in the ordinary course of business provided the Applicant and Steel and Pipes for Africa Cape Town expressly agree that the claim to any right to recovery of the purchase price shall be ceded to Steel and Pipes for Africa Cape Town as security for the payment of any amount outstanding on such goods and materials.
10. WAIVER OF PRESENTMENT
Any promissory note, bill of exchange, cheque or other instrument made, drawn, accepted, endorsed or discounted by the Applicant (“the instruments”), will be deemed to have been accepted by Steel and Pipes for Africa Cape Town without prejudice to its claim against the Applicant in respect of the original cause of the debt, and the Applicant hereby waives presentment (presentation for payment), notice of dishonour and protest of the instruments.
11. CHANGE OF DETAILS
11.1 The Applicant will notify Steel and Pipes for Africa Cape Town of any change of whatsoever nature in the information furnished by the Applicant in its credit application or, should the Applicant be a company, any share transaction where the majority shareholders are affected.
11.2 Notification of a change shall be furnished to Steel and Pipes for Africa Cape Town in writing within 10 (ten) working days of such a change.
12. JURISDICTION
The Applicant hereby consents to the jurisdiction of the Magistrates’ District Court in terms of Section 45 of Act 32 of 1944 as amended, for any claim arising under the credit application. Notwithstanding this, Steel and Pipes for Africa Cape Town shall not obliged to institute legal proceedings in the Magistrates’ Court.
13. COSTS
The Applicant agrees that, in the event of Steel and Pipes for Africa Cape Town instituting any legal proceedings against the Applicant in connection with this credit application, it will pay the costs of such legal proceedings on the attorney and client scale.
14. WHOLE AGREEMENT
This credit application constitutes the whole agreement between the parties, to the exclusion of any terms and conditions of the Applicant. No party will have any right or remedy arising from any undertaking, warranty or representation which is not included in this credit agreement.
15. NO VARIATION
No variation, amendment, addition, deletion or change to this credit application shall be valid and binding on the parties hereto unless reduced to writing and signed by or on behalf of the parties.
16. SEVERABLIITY
All terms and conditions of this credit application are severable and in the event of any term or condition or portion thereof being declared to be void, illegal or unenforceable, the remainder shall remain of full force and effect.
17. DOMICILIUM CITANDI ET EXECUTANDI
The Applicant appoints the physical address as set out in Part A of the Credit Application as its chosen domicilium citandi et executandi for all purposes in connection with this credit application.
18. NO WAIVER
No waiver or indulgence of any part of this credit application, of whatever nature, shall be of any force or effect, including a waiver or indulgence in respect of this clause, unless it is reduced in writing and signed by or on behalf of the parties.
19. FURNISHING OF INFORMATION BY CUSTOMER AND CONSENT
19.1 The Applicant shall forthwith upon demand, in respect of any contract entered into between Steel and Pipes for Africa Cape Town and the Applicant, furnish Steel and Pipes for Africa Cape Town with all information reasonably required by Steel and Pipes for Africa Cape Town to enable it to comply with its obligations.
19.2 Subject to the provisions of the National Credit Act 34 of 2005, the Applicant hereby grants consent to Steel and Pipes for Africa Cape Town to contact and request such information as Steel and Pipes for Africa Cape Town considers relevant in respect of the application for credit facilities from any persons, credit bureaus or trade references including those listed in the application for credit facilities form.
19.3 The Applicant hereby authorises any bank or other financial institution where it conducts an account to disclose to Steel and Pipes for Africa Cape Town such details of the account as Steel and Pipes for Africa Cape Town may require.
20. AUTHORITY
The signatory hereto warrants that he or she is authorised by the Applicant to sign and submit to Steel and Pipes for Africa Cape Town this application for credit facilities, that the information set out therein is true and correct, that he or she has read the credit application, the General Terms and Conditions of Purchase and Sale and the Suretyship and that he or she agrees and consents thereto for and on behalf of Applicant.