CONDITIONS OF SALES
The Supplier:
Progressive Energy (Pty) Ltd, its successors in title, order or assigns, reserves the right, in its exclusive discretion, to grant or decline the credit account and if granted to revoke the credit account or to alter and amend the terms of the credit account from time to time without prejudice to the rights of Progressive Energy (Pty) Ltd, its successors in title, order or assigns, in respect of the standard terms of agreement reproduced below.
The Customer:
- Warrants the truth and accuracy of the information given above.
- Acknowledges that he/she has read the Standard Terms of Agreement reproduced below and agrees that they shall be deemed to be incorporated in and shall consistently apply to every agreement entered into between Progressive Energy (Pty) Ltd, its successors in title, order or assigns and the customer.
- Precludes from raising any defence as to the locus standi of Progressive Energy (Pty) Ltd.
- Accepts the Terms and Conditions and Suretyship attached/on request.
- Acknowledges that any amount for goods and services will be due unconditionally within the approved credit period from the date of any invoice being issued by the suppliers.
- Declares that no cheque will be issued in payment unless there are sufficient funds available and that such funds will remain available in order that all payments will be honoured and that under no circumstances will any cheque be stopped.
- Consents that and authorizes Progressive Energy (Pty) Ltd or an agent, to at all times:
> contact, request and obtain information from any credit provider (or potential credit provider) or registered credit bureau relevant to an assessment of the behaviour, profile, payment patterns, indebtedness, whereabouts, and creditworthiness of the applicant;
> furnish information concerning the behaviour, profile, payment patterns, indebtedness, whereabouts, and creditworthiness of the applicant to any registered credit bureau or to any credit provider (or potential credit provider) seeking a trade reference regarding the applicant’s dealings with Progressive Energy (Pty) Ltd
STANDARD TERMS OF AGREEMENT
1. INTERPRETATION
1.1 “Customer” means the person whose name appears on the credit application or any other person or persons at whose request or on whose behalf the supplier undertakes to supply any goods, do any business, or provide any advice or service;
1.2 “Signatory” means the individual who signs this agreement and/or credit application on behalf of the customer;
1.3 “Supplier” means Progressive Energy (Pty) Ltd.
1.4 “Goods” means any items or services supplied to the customer in terms of this agreement;
1.5 “Agreement/Contact” shall mean the Standard Terms of Agreement read with the supplier’s tender (if any), the technical specifications of the customer’s order as have been agreed by the suppliers and such other terms and conditions of agreement as may be agreed between the parties.
2. TERMS AND CONDITIONS OF PREVAIL
These standard terms of agreement shall be deemed to be incorporated in and shall apply consistently to every agreement entered into between the supplier and the customer.
3. NO VARIATIONS OR AMENDMENTS
This agreement constitutes the whole agreement between the customer and the supplier and no amendment or consensual cancellation and no extension of time, waiver or relaxation of any of the provisions or terms of this agreement shall be binding unless recorded in writing and signed by the authorised representative of the supplier.
4. PURCHASE PRICE AND PAYMENT
4.1 Prices are nett and exclusive of value added tax (VAT). The purchase price shall be payable by the customer to the supplier at the supplier’s Head Office in cash and in South African currency without deduction or set-off and free from any exchange within (30) thirty days. This period shall commence upon the issuing of a statement by the supplier.
4.2 The purchase price does not include charges for delivery or off-loading of the goods;
4.3 The customer has no right to withhold payment for any reason whatsoever. The customer is not entitled to set-off any amount due to the customer by the supplier against any debt owed by the customer to the supplier nor shall any payment be withheld by virtue of any counterclaim against the supplier by the customer.
4.4 If the goods or any component thereof are to be imported, the contract price will be based on the rates of exchange, freight, insurance premium literage, landing charges, port dues, custom duty and railage at the date of the agreement. Should these rates vary between the date of the agreement and the date upon which the charges are actually incurred by the supplier, the price shall be adjusted by the amount of the increase or decrease in such charges as finally determined by the supplier’s auditors in the event of any dispute.
4.5 Claims arising from invoices must be made within seven (7) days.
4.6 Overdue accounts will attract interest of 2.5% per month.
5. WARRANTIES
5.1 No warranties, guarantees or representations, express or implied whether by law, contract or otherwise, which are not set forth in this agreement shall be binding on the supplier. The goods are purchased “voetstoots”. The supplier shall not be liable for any inaccuracies in any drawing, specifications or other information supplied by the customer;
5.2 The supplier’s equipment is warranted against malfunction or defect for a period of six (6) months from date of sale, fair wear and tear, and damage through misuse or faulty applications being excluded. During the said guarantee period the supplier will replace or repair the goods to eliminate any defect in workmanship or materials found to be due exclusively to any acts or omissions on the part of the supplier, in the supplier’s sole opinion, of which defect the supplier shall have been notified in writing by the customer within ten (10) days after the defect arises. A claim under the guarantee must be in writing, specifying the alleged defect, and supported by the original tax invoice;
5.3 In the case of goods not manufactured by the supplier, the customer shall only be entitled to the benefit of any guarantee given by the supplier’s manufacturer. The supplier’s liability is limited by making the benefit of the manufacturer’s guarantee available to the customer.
5.4 Customers who acquire goods for the purposes of on-selling those goods shall not advertise or issue any warranties, guarantees or representations as to the goods in any form whatsoever which could result in liability being imposed upon the supplier.
5.5 The parties agree that the supplier shall have no liability in respect of any loss or damage (direct, indirect or consequential) arising out of any patent or trade mark relating to any of the goods sold being infringed, cancelled, breached or otherwise set aside or declared invalid.
5.6 The customer indemnifies and holds the supplier or its shareholders harmless against any claim that may arise or be brought against it, in consequence of such goods being defective and causing any damage to equipment or persons whether through accident, negligence, defects, incorrect installation or any other cause.
5.7 The supplier does not take responsibility for repairs and the cost thereof carried out by any third party without their prior written consent.
6. BREACH
6.1 If the customer breaches any of the terms and conditions hereof or commits any act of insolvency or endeavours to compromise generally with its creditors, or allows any judgment against it to remain unsatisfied for seven (7) days or is placed under provisional or final liquidation or judicial management or its estate is voluntarily surrendered, the supplier shall have the right, without prejudice to any of its other rights, to elect to:
6.2 Treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the expired period of this agreement;
6.3 cancel this agreement and retake possession of any goods sold;
6.4 The customer agrees that the amount due and payable to the supplier shall be determined and proven by the certificate issued by the supplier and signed on its behalf by any person duly authorised, which authority need not be proven, such certificate being binding and prima facie proof of the indebtedness of the customer.
7. DOMICILIUM AND NOTICE
7.1 The customer including the Sureties choose DOMICILIUM citandi et executandi for purposes of the giving of any notices, the payment of any sum, the serving of any process and for any other purpose, the delivery address as set out in the Credit Application form. Notice sent by pre-paid post, and if sent by email or tele facsimile, on the first business day after the date of transmission, and if delivered by hand during normal hours, shall be deemed to have been received by the addressee at the time of delivery.
7.2 The parties consent to the jurisdiction of the High Court of South Africa in respect of all matters arising out of and disputes in connection with or in relation to this agreement. Notwithstanding such consent, should the customer be in default of the terms of this agreement, the supplier will be entitled in its sole discretion to institute action against the customer in any competent court of law and the customer hereby consents to the jurisdiction of the Magistrate’s Court in terms of Section 45 of Act 32 of 1944 as amended.
8. COSTS
The customer shall be liable for all costs incurred by the supplier in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale and costs of counsel as on brief, whether incurred prior to or during the institution of legal proceedings or, if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
9. SURETYSHIP AND WARRANTY OF AUTHORITY
The signatory, by his signature hereto, binds himself in favour of the supplier, its successors-in-title and assigns as surety for and co-principal debtor in solidum with the customer for the due and punctual performance by the customer of all its obligation to the supplier in terms of this agreement.