Terms & Conditions of Sale
STANDARD CONDITIONS OF SALE
(which apply to the invoice on the face hereof)
Magnitech (Pty) Limited (“the Seller”) hereby sells to you (“the Purchaser”) the goods described in the Seller’s invoice on the terms and conditions as stated herein. Where the Purchaser’s own conditions of purchase conflict with this agreement, the provisions hereof shall prevail.
- In these conditions, “the Goods” means the goods indicated on any forms of the Seller, price lists, quotations, orders or invoices.
- An order for the Goods will not be subject to cancellation or variation in whole or in part without the Seller’s prior written consent.
- The Seller shall at its discretion at any time and without notice, be entitled to replace components of the Goods, with other components which do not impact the essential performance of the Goods.
- All orders submitted by the Purchaser pursuant to any quotation submitted by the Seller, constitutes an unconditional acceptance of the terms and conditions set out herein, and each order is subject to written acceptance by the Seller.
- Save where the Seller has approved a credit facility in advance, all sales are transacted on a cash basis and payment for the Goods ordered shall become due and payable on delivery. Where orders are executed in instalments, payments shall be made in instalments in respect of each part delivery.
- In the event that the Seller has approved a credit facility, payment for the Goods must be made within 30 (thirty) calendar days following the date upon which the Goods were ordered.
- The Purchaser shall not claim the right to any rebates and/or discounts on any basis of whatsoever nature unless a director or manager of the Seller shall have agreed to such rebates and/or discounts in writing and further provided always that such amount shall not be allowed on any Goods dispatched if payment for any Goods is overdue.
- In all cases where the Purchaser uses a postal service to effect payment, to deliver or return Goods, such postal services shall be deemed to be the agent of the Purchaser.
- Should the Purchaser dispute any invoice issued by the Seller, the Purchaser shall be obliged to notify the Seller, in writing, setting out full particularity of the dispute, within 7 (seven) calendar days from the date on which the said invoice was issued by the Seller, and failing which, such invoice shall be deemed to be accepted by the Purchaser.
- All quotations given by the Seller shall be valid for a period of 30 days and shall be based as at the date thereof on delivery charges, ruling costs with regard to wages, materials, freight, applicable insurance, coastal and landing charges, customs, dock and import duties, cartage and rail age, rates of exchange and all other similar encumbrances but, if before delivery of the Goods, there is any increase in respect of the agreed cost or charges then such increase shall be for the Purchaser's account. Although a definite purchase price may have been provided, the Seller reserves the right to increase such purchase price in accordance with its updated price list by notifying the Purchaser of such price increases subsequent to the date of placement for the order. The Purchaser shall be entitled to cancel the order within 10 days of the date of a notice informing the Purchaser of the price increase as aforesaid, failing which the Purchaser shall be deemed to have consented and the agreement of purchase and sale shall be deemed amended in accordance with such price increase.
- Unless otherwise stated, all prices shall exclude any sales taxes, value added taxes, levies or other charges by Government, regional or local authority, all costs of freight and transport, applicable insurance, coastal and landing charges, customs, dock and import duties, cartage and rail age, rates of exchange and all other similar encumbrances.
- All amounts payable by the Purchaser to the Seller, together with the costs of packaging and delivery, unless specifically stated at being included, will be payable by the Purchaser to the Seller free of exchange, set-off or any other deduction at the Seller’s premises situate at 5 Raebor Road, Benrose, Johannesburg (“the Seller’s Premises”). Only payment made to the Seller at its offices and duly receipted, or payment made by direct deposit into the Seller’s nominated bank account, will be recognised.
- The Purchaser shall be liable for all transportation costs, including incidental charges, as well as any costs related to insurance and testing, and the Purchaser indemnifies the Seller against same.
- Payment may not be withheld by the Purchaser, pending the settlement of any disputes and the Purchaser hereby abandons all or any claims of set-off, exchange and deduction.
- The computer accounts or a certificate signed by any director of the Seller, whose appointment need not be proved, will be prima facie proof for the purposes of any legal proceedings of all monies due by the Purchaser to the Seller as well as the rate of interest payable by the Purchaser to the Seller.
- In the event of any claim being handed to attorneys for collection, the Purchaser agrees that it will be liable for all costs incurred in the collection of the amount claimed on the scale as between attorney and own client including collection charges and tracing fees.
- All payments will be allocated firstly towards fees and charges referred to in 6.12 above, and thereafter to interest and finally to capital. The Seller shall be entitled to appropriate any monies or benefits received by it from the Purchaser, to any cause of indebtedness due and owing by the Purchaser to the Seller.
- The Purchaser shall not claim the right to any rebates and/or discounts on any basis of whatsoever nature unless a director or manager of the Seller shall have agreed to such rebates and/or discounts in writing and further provided always that such amount shall not be allowed on any Goods dispatched if payment for any Goods whatsoever invoiced prior thereto is overdue.
- Any discounts offered by the Seller shall be strictly subject to such special conditions as the Seller shall attach thereto.
- Without prejudice to any other rights which the Seller may have in terms of this agreement or at law, should the Purchaser fail to timeously pay any amount due to the Seller as and when same falls due, the Seller shall, on notice to the Purchaser, be entitled to:
- claim immediate payment of all other outstanding amounts;
- suspend all pending orders and deliveries until the amount due is paid in full, including interest and costs;
- recover possession of the Goods at the Purchaser’s expense;
- require guarantees or adjust the Purchaser’s payment terms.
- In the event of any disposal by the Purchaser of the greater part or more of the Purchaser’s assets, all outstanding amounts due to the Seller shall become immediately due.
- the Purchaser resolve that the Purchaser voluntarily institutes business rescue proceedings and/or be placed under business rescue;
- the Purchaser be placed under provisional or final liquidation or sequestration;
- the Purchaser be (or is deemed by any authority or legislation to be) financially distressed, as contemplated in section 128 (1) of the Companies Act number 71 of 2008 (as amended);
- the Purchaser’s liabilities exceed its assets;
- the Purchaser commit an act of insolvency in terms of Section 8 of the Insolvency Act, No 24 of 1936 or commits an act which would have constituted such an act of insolvency if it had been a natural person;
- any of the assets of the Purchaser become judicially attached; the Seller shall be entitled to require additional security or to modify payment terms or to suspend delivery of the Goods, alternatively to terminate any pending order upon notice, without prejudice to the Seller’s rights.
- Should any amount not be paid by the Purchaser on the due date, then the whole amount in respect of all purchases by the Purchaser shall become due, owing and payable irrespective of the dates when the Goods were purchased and the Purchaser shall be liable to pay interest in respect of amounts unpaid as at the due date compounded monthly at the rate of 2 % above the prime overdraft lending rate of the Seller’s bank on all overdue amounts from due date until date of payment, calculated and payable monthly in advance and should the said interest not be paid in full as aforesaid, the same shall be added to the principal sum, and the total shall form the principal debt which shall then bear interest in the manner set out above.
- Unless otherwise specified by the Seller in writing, delivery will take place at the Seller’s Premises.
- The date for delivery of the Goods shall be as and when the Goods become available for delivery, unless a specific date for delivery is accepted by the Seller in writing.
- All dates of delivery must be treated as approximate dates only and the Purchaser shall not be entitled to cancel this agreement, nor bring any claim of whatsoever nature against the Seller as a result of a delay/s in delivery, howsoever arising, save insofar as the Seller has agreed thereto in writing. Whilst every effort will be made to dispatch the Goods as advised, the Seller does not guarantee dispatch on any specific date and shall not be liable for any damages for failure to effect deliver/dispatch timeously for any reason beyond the Seller’s control, including but not limited to, inability to secure labour, power, materials, equipment or supplies or by reason of an act of God, war, civil disturbance, riot, state emergency, strike, lockout or other labour disputes, fire, flood, drought or legislation. The Purchaser shall not be entitled to cancel any order by reason of such delay and time of delivery shall not be a material term of this agreement.
- If within 72 hours after delivery of the Goods, no claims are received from the Purchaser regarding the subject matter of the delivery, same will be deemed to be accepted in good condition and in all other respects.
- Should the Purchaser be unable to take delivery when tendered, the Purchaser shall nevertheless pay the amount due notwithstanding non-delivery. Storage costs shall be charged to the Purchaser should it fail to take delivery on the date that delivery is tendered by the Seller. The Purchaser bears all risks of loss of or damage to the Goods from the date of delivery and/or storage.
- The Purchaser shall not be entitled to suspend or delay delivery of the Goods, and the Purchaser shall be liable for all damages sustained as a result of the Purchaser’s failure to accept delivery as tendered.
- Proper delivery of the Goods invoiced shall be deemed to have taken place when any employee of the Purchaser signs the delivery note or invoice, alternatively when the Seller tenders the Goods for delivery in writing and the Purchaser fails to collect the Goods within 72 hours thereafter.
- A carrier engaged by the Purchaser, or on behalf of the Purchaser by the Seller, shall be deemed to be the agent of the Purchaser and the risk of the Goods ordered shall pass to the Purchaser upon delivery to such carrier. The signature of any employee of the carrier on the Seller’s invoice or delivery note, shall be deemed to be proof of delivery.
- Should the Seller, at the Purchaser’s request and on the Purchaser’s behalf, agree to engage a carrier to transport the Goods ordered to the Purchaser, the Seller shall engage the carrier on such terms and conditions as it deems fit and the Purchaser indemnifies the Seller against all demands which may be made against it by the carrier so engaged and all liability which the Seller may incur to the carrier arising out of the transportation of the Goods.
- Where the Seller agrees in writing to consign on a cost insurance and freight (CIF) or a cost and freight (C&F) basis, the Seller or its insurers shall under no circumstances be responsible for losses incurred in transit.
- Notwithstanding anything contained herein, the Seller shall be under no obligation to supply or deliver the Goods where the Purchaser is in arrears with any payment to the Seller, howsoever arising, and the Purchaser shall not be entitled to uplift the Goods until payment is made in full for the Goods. The Seller reserves the right to cancel any order and cease delivery of the Goods in the event of such non-payment.
- All Goods sold in terms hereof will remain the exclusive property of the Seller until the purchase price is paid in full by the Purchaser. The risk in the Goods shall pass to the Purchaser upon delivery. The Purchaser shall not dispose of the Goods until such time as the Purchaser has paid the Seller in full for such Goods. Whilst ownership remains vested in the Seller, the Purchaser undertakes to do all that is necessary to ensure that the Goods remain unencumbered and, inter alia, do no not become the subject of any lien, hypothec, pledge or other encumbrance or judicial attachment from whatsoever cause arising.
- The Seller shall not accept return of any Goods sold and delivered. Accordingly, Goods shall not be returned for credit and any deposits paid will be forfeited should the Purchaser purport to cancel any sale.
- The Seller accepts no liability for Goods damaged or lost in transit, and the Purchaser is responsible for signing all proofs of deliveries pertaining to Goods sold.
- The Purchaser hereby indemnifies the Seller against all claims which may be brought against the Seller arising from delays or failure to deliver, and against all claims which may be brought against it for damage to property or injury to persons arising out of or incidental to the sale of the Goods.
- Goods are packed according to the Seller’s ordinary standards.
- Goods may be disassembled for packing and shipping and may be delivered as such.
- Goods may be delivered in one or more consignments.
9. NEGOTIABLE INSTRUMENTS
- Acceptance of negotiable instruments by the Purchaser shall not be deemed to be a waiver of the Seller’s rights under this agreement. In relation to cheques furnished by the Purchaser to the Seller, the Purchaser waives its right to insist on notice of dishonor or protest being given to it in the event that the cheque is dishonored.
10. OWNERSHIP & RISK
- Notwithstanding that all risk in and to all Goods sold by the Seller to the Purchaser shall pass on delivery, ownership in all Goods sold and delivered shall remain vested in the Seller until the full purchase price has been paid. In the event of a breach of contract by the Purchaser or if the Purchaser is sequestrated or placed under liquidation or business rescue, or commits any act of insolvency or enters into any compromise with its Sellers or fails to satisfy a judgment granted against it within 7 days of the date of judgement or changes the structure of its ownership, the Seller shall be entitled to take possession of the Goods without prejudice to any further rights vested in the Seller, and the Seller is hereby irrevocably authorised to enter upon the Purchaser’s premises to take delivery of such Goods without a court order. In such event the Purchaser shall have no claims whatsoever against the Seller including without limitation any claims for consequential loss arising therefrom.
- Until such time as the Purchaser becomes the owner of the Goods, and should the Purchaser take delivery of the Goods on credit, it will store same at its premises separately from its own goods or those of any other person and in a manner which makes them readily identifiable as the Goods of the Seller.
- The Purchaser shall, at the cost of the Purchaser, fully insure the Goods against any loss or damage of whatsoever nature and howsoever arising, until the full purchase price has been paid by the Purchaser for such Goods. Pending payment to the Seller for the Goods purchased, all benefits in terms of the insurance policy relating to the insurance of such Goods are ceded to the Seller, and the Purchaser shall be obliged to note the Seller’s interest as owner on the insurance policy, and ensure that the Goods are separately identified as the Goods of the Seller.
11. WARRANTIES & INDEMNITY
- No warranties, representations or guarantees have been made by the Seller or on its behalf which may have induced the Purchaser to sign this agreement.
- All warranties of the Seller shall be confined to the terms of warranties provided by each manufacturer of the Goods, and the Seller shallnot under any circumstances be liable for any warranties which extend any more broadly than those provided by the manufacturers of the Goods concerned.
- The Seller hereby gives to and in favour of the Purchaser the warranties set out herein together with the warranties set out in annexure “A” hereto.
- The Seller warrants the fitness of the Goods in accordance with the standard specifications applicable to the Goods, and subject to the conditions of sale, for a period of 12 months after the delivery of the Goods unless otherwise agreed to in writing.
- The Seller undertakes for a period of twelve (12) months from the date of delivery, tender of delivery, or storage, as the case may be (“the Period”) that it will at its discretion repair or replace, at theSeller’s premises, any Goods which are defective due to defective material supplied by the Seller, provided that:
- the Purchaser has notified the Seller in writing within thirty (30) calendar days after the Purchaser detected or ought to have detected thedefect;
- the Purchaser shall bear any and all shipping, disassembly, reassembly and other like costs;
- the Purchaser satisfies the Seller that the Goods have not been subject to abnormal use, abuse, wilfuldamage or negligence, were not used for a purpose not stipulated, and not in accordance with the intended purpose of the Goods, and that the Goods have been exposed only to normal wear and tear;
- the Purchaser has not made or caused to be carried out any repairs, replacements, adjustments or alterations in respect of the Goods;
- the Purchaser has installed the Goods strictly in accordance with the Seller’s instructions and the defect or fault has not been caused by the careless or incorrect installation or maintenance of the Goods concerned by the Purchaser or anyone else;
- the Purchaser bears exclusive and full responsibility for any and all electrical problems that may arise should the Purchaser assemble the control gear pertaining to the Goods;
- the Purchaser has not continued the use of the Goods after having notified the Seller of the defect. The replaced Goods or parts shall become the Seller’s property and, if repairs or replacements take place at the Purchaser, such Goods or parts shall be returned to the Seller at the Seller’s request on demand.
- The above warranty does not apply to malfunctions caused by:
- failures in performance, structural defects, or functional deficiencies attributable to the Purchaser’s designs and/or specifications, which specifications subsequently are found to be inadequate or defective;
- electrical surges or other variations in the electrical supply, or the supply of electricity at a level which exceeds the maximum recommended supply to enable the Goods to perform optimally;
- corrosion due to an abnormal environment or hazard, or to chemical or other elements extraneous to manufacturing.
- The warranty shall apply to the replaced Goods or part(s) thereof until expiry of the remaining duration of the Period. LED luminaires shall not be considered defective solely as a result of the failure of individual LED components if the number of inoperable components is less than 10% of the total number of LED components in the LED luminaire.
- Goods returned under the terms of this clause and found not to be defective due to faulty design, material or workmanship will be returned to the Purchaser at the Purchaser’s expense and subject to a charge of 10% of the invoice value to cover testing by the Seller.
- Save as aforesaid, the Seller disclaims all liability to the Purchaser in connection with the Seller’s performance or the Purchaser’s use of the products supplied.
- Subject to any specific warranties given by the Seller in terms hereof, the Seller gives no other warranties whether expressed or implied in respect of the Goods sold hereunder and shall under no circumstances be liable for any direct or indirect damages or losses of whatsoever nature and howsoever arising, including but not limited to consequential damages or loss of profits.
- The Purchaser hereby warrants that the:
- The Purchaser is a juristic person whose asset value or annual turnover, together with the combined asset value or annual turnover of all related juristic persons, at the time this agreement is made, equals or exceeds R2 000 000.00 (Two Million Rand); and/or:
- This agreement constitutes a large agreement, as described in section 9(4) of the Act, in that it is a credit transaction in terms whereof the principal debt equals or exceeds R250 000.00 (Two Hundred and Fifty Thousand Rand), in terms of which the Purchaser is a juristic person whose asset value or annual turnover is, at the time this agreement is made, below the abovementioned threshold value determined by the Minister in terms of section 7 (1) of the National Credit Act 34 of 2005 (as amended), as contemplated in terms of section 4 of such Act.
- No warranty, guarantee, or representations whether express or implied, has been made by the Seller or any of its employees in respect of the fitness of the Goods for any particular purpose whether or not that purpose is known to the Seller and no representations of whatever nature which may be made by the Seller or any of its employees shall be binding unless reduced to writing and signed by the duly official of the Seller.
- Notwithstanding anything else contained herein, the Seller shall not be held liable for damages resulting from events over which it has no control. Such events shall include, but are not limited to, acts of God or Government, wars, strikes, lockouts, civil commotion, embargoes, sanctions, epidemics, crude oil and associated by-products shortages or delays/damages or loss during transit, roads being impassable, unavailability of transport, general lack of supplies, interruption of power supplies, or any other event that can be qualified as event of force majeure.
- The Purchaser shall comply with all legal restrictions applicable to the sale of the Goods, including export regulation. Should delivery of the Goods be restricted due to export/import control regulations, the Seller shall be entitled to cancel this agreement or suspend its obligations until such restrictions are removed, without liability to the Purchaser.
- The Purchaser represents and warrants that it is not subject to any impediment which would prevent the Seller from entering into this agreement. Should the Purchaser be or become subject to any such impediment, the Seller shall be entitled to suspend or terminate this agreement forthwith without notice or indemnification. In such case, the Purchaser shall be responsible for any damages or losses that may be suffered by the Seller.
- Any liability of the Seller for breach of contract will not exceed in the aggregate of damages, costs, fees, and expenses capable of being awarded to the Purchaser, the total price paid or due to be paid by the Purchaser for the services rendered or Goods supplied.
- The Purchaser shall have no claim for any injury, loss or damage of any kind, suffered by the Purchaser and/or any other person by reason of the Seller failing to carry out its obligations in terms of this agreement and or by reason of any defect in the Goods supplied by the Seller to the Purchaser.
- Insofar as any of the Seller’s obligation under the contract are carried out by any of its employees, sub-contractors, or subsidiaries, the provisions contained in clause 12 are stipulated for their benefit as well as for the Seller and each of them shall be exempted accordingly.
- The Purchaser indemnifies and holds the Seller (including its employees, sub-contractors, or subsidiaries) harmless against all claims of whatsoever nature that may be brought or threatened against the Seller or its employees by any third party arising from or in connection with any breach of the aforementioned warranties by the Purchaser.
- The Purchaser indemnifies the Seller against any claims that may be made against the Seller arising from any purported infringement of any patent, trade mark or copyright in respect of the Goods.
- Save as aforesaid, all Goods are sold voetstoots and without any warranties whatsoever, whether express or implied.
12. LIMITATION OF LIABILITY
- Save as may be stated to the contrary herein:
- the Seller shall not be liable to the Purchaser or any other person for any losses whether direct, indirect, incidental, special, consequential or otherwise, arising out of any cause whatsoever, sustained by the Purchaser or by any third party by reason of the Goods, or use thereof or any defect therein or by reason of any act or omission by the Seller in regard thereto, or arising out of any advice given or service rendered by the Seller, whether such loss, claims or damages arise out of this agreement or any warranty given by the Seller or out of delict;
- the Purchaser indemnifies and holds harmless the Seller against any claim for any of the losses contemplated in clause 13.1.1 above.
- Without prejudice to any other rights which the Seller may have in terms of this contract or at law, the company shall be entitled to cancel this contract or any part thereof without notice if:
- the Purchaser commits any breach of any of the terms and conditions of this agreement, all of which are deemed material;
- the Purchaser is financially distressed, as contemplated in section 128 (1) of the Companies Act 71 of 2008 (as amended);
- the Purchaser commits an act of insolvency in terms of Section 8 of the Insolvency Act, No 24 of 1936 or commits an act which would have constituted such an act of insolvency if it had been a natural person;
- any of the assets of the Purchaser are judicially attached, or any assignment is made for the benefit of the Purchaser’s Sellers;
- being an individual, the Purchaser is provisionally or finally sequestrated or surrenders his/her estate;
- being a partnership, the partnership is terminated;
- being a company or close corporation, such entity is placed under provisional or final order of liquidation or business rescue;
- any judgment is granted against the Purchaser;
- any interdict is granted against the whole or any portion of the Purchaser’s assets;
- the Purchaser make or attempt to make any composition or arrangement with its Sellers;
- the Purchaser advertises its intention to sell or dispose of its assets or any portion thereof save in the ordinary course of business;
- the Purchaser ceases to carry on business;
- the Purchaser fails to comply with anti-bribery legislation;
- the Purchaser furnishes the Seller with any information, returns, budgets or accounts which are incorrect or misleading.
- This agreement shall be governed by the laws of the Republic of South Africa.
- The Seller shall, at its option and notwithstanding that the amount of its claim exceeds the jurisdiction of the Magistrate’s Court, be entitled to institute action out of such Court.
- Notwithstanding clause 15.2 above, the Seller may, at it its sole and absolute discretion, elect to refer any dispute to arbitration to be finally resolved in accordance with the expedited rules of the Arbitration Foundation of Southern Africa (AFSA) by an arbitrator appointed by the Foundation.
15. DISCLOSURE OF PERSONAL INFORMATION
- The Purchaser understands that the personal information given in this credit application form is to be used by the Seller for the purposes of assessing its credit worthiness. The Purchaser confirms that the information given by it in its credit application form is accurate and complete. The Purchaser further agrees to update the information supplied as and when necessary, in order to ensure the accuracy of the above information, failing which the Seller will not be liable for any inaccuracies.
- The Seller has the Purchaser’s consent at all times to contact and request information from any persons, credit bureaus or businesses, including those mentioned in the Seller’s application form and to obtain any information relevant to the Purchaser’s credit assessment, including but not limited to, information regarding the amounts purchased from suppliers per month, length of time Purchaser has dealt with such supplier, type of goods or services purchased and manner and time of payment.
- The Purchaser agrees and understands that information given in confidence to the Seller by a third party on the Purchaser will not be disclosed to the Purchaser.
16. CHANGE OF INFORMATION
- The Purchaser undertakes to notify the Seller within a period of ten days of any change of address or any changes in the information as set out in this agreement. The Purchaser agrees that in the event of any information set out above being not true and correct or should any information be altered by the Purchaser or its representatives, all of which information is deemed to be material, and should the Purchaser fail to advise the Seller in writing by prepaid registered post within ten (10) days of the said change and of the new details, then the signatories hereto will be jointly and severally liable with the Purchaser in their personal capacities for any amounts, interest and costs which may be outstanding.
17. INTELLECTUAL PROPERTY
- All intellectual property rights of whatsoever nature whether registered or not, and all technology and know-how in respect of the Goods shall remain the exclusive property of the Seller. The Purchaser shall not use the Goods for any unauthorised purpose. Nothing in this agreement shall be construed as an express or implied license, right or immunity, directly or by implication, estoppel or otherwise, to the Purchaser, under any patent, copyright, trademark or other intellectual right owned or controlled by the Seller or any third party. The Seller shall not be liable for the infringement of intellectual property rights of any third party pertaining to the Goods, or any method or process in which the Goods may be used.
- The Purchaser acknowledges that all documentation, technical, commercial and financial data and information belonging to the Seller, as well as all the Seller’s intellectual property rights which are not already in the public domain at the time same are communicated to the Purchaser, are communicated by the Seller in strict confidence and remain the exclusive property of the Seller. The Purchaser agrees not to divulge any confidential information to any third party without the Seller’s prior written consent. The Purchaser indemnifies the Seller against any and all direct, indirect and punitive damages, losses, costs and other liability arising from claims resulting from the Purchaser breaching this clause.
- The Purchaser grants the Seller the right to inform third parties that the Seller has sold the Goods to the Purchaser. The Seller shall be entitled to use the Purchaser’s names or logos for promotional purposes.
- Information relating to the Seller’s Goods advertised or otherwise made available is given for illustrative purposes only and shall not be binding on the Seller.
- Samples of Goods are only for information purposes and shall not be binding on the Seller, in any circumstances.
- The contra proferentem rule shall not apply and accordingly, none of the provisions hereof shall be construed against or interpreted to the disadvantage of the Party responsible for the drafting or preparation of such provision.
- The signatory hereof for the Purchaser, when acting in a representative capacity warrants the he/she has the authority to bind his/her principal to this agreement and furthermore bind himself/herself as surety and co-principal debtor in solidium under renunciation of the benefits of division and excussion for all amounts owing hereunder by the Purchaser to the Seller.
- No extension of time or waiver or relaxation of any of the provisions or terms of this agreement shall operate as an estoppel against the company in respect of its rights under this agreement, nor shall it operate so as to preclude the Seller thereafter from exercising its rights strictly in accordance with this agreement.
- The parties choose as their domicilium citandi et executandi, for all purposes the address appearing on the application form to which these terms and conditions are annexed.
- The Purchaser shall not cede its rights nor assign its obligations. The Seller shall at any time in its sole discretion be entitled to cede all or any of its rights in terms of these conditions of sale including all terms and conditions to any third party without prior notice to the Purchaser.
- It is hereby agreed that each and every provision and charge stipulated in this agreement is severable from the rest of the agreement.
- For the purposes of this agreement –
- no data message, as defined in the Electronic Communications and Transactions Act No 25 of 2002 ("ECTA"), other than an email or facsimile, shall constitute writing;
- no electronic signature or advanced electronic signature, as defined in ECTA, shall constitute a signature, except for the purposes of varying any date referred to in this agreement or giving any consent or approval in terms of this agreement.
- Without prejudice to any other provision of this agreement, any successor in title, including any executor, heir, liquidator, business rescue practitioner, curator or trustee, of the Purchaser shall be bound by this agreement.
- No amendment, variation, addition or consensual cancellation of this contract or any provision or term thereof and no extension of time, waiver or relaxation of any of the provisions or terms of this contract shall be binding unless recorded in a written document signed by the parties. Any such extension, waiver or relaxation which is so given or made shall be construed as relating strictly to the matter in respect whereof it was made or given.
- This agreement constitutes the entire contract between the parties with regard to the matters dealt with herein and no representations, terms, conditions or warrantees in respect of the matters dealt with in this agreement, not contained in this agreement, shall be binding on the parties.
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