TRADING TERMS AND CONDITIONS

INCLUDING A DEED OF SURETY AND CESSION OF BOOK DEBTS

1. DEFINITIONS

1.1. "this Agreement" means this application for credit facilities and these terms and conditions including a cession of book debts and a deed of suretyship;

1.2. "the Company" means Metraclark (A Division of Beijer Ref Africa (Pty) Ltd), registration number 2008/016731/07, including its successors in title and assigns and hereafter referred to as METRACLARK.

1.3. "the Applicant" means the party listed as such in the credit application and/or the purchaser of the Goods and/or services supplied by the Company;

1.4. "the Goods" and/or "Services" means the Goods supplied and/or Services rendered by the Company to the Applicant;

1.5. "days" refers to business days and is exclusive of public holidays and Sundays but is inclusive of Saturdays;

1.6. "domicillium citandi et executandi" refers to the address at which the Applicant and/or surety(ies) and/or co-principal debtor(s) agree to accept service of all notices, documents, accounts and legal process.

2. INTERPRETATION

2.1. Any words referring to the singular include the plural and vice versa.

2.2. Any word that refers to one gender shall automatically include the other gender.

2.3. Reference to a person or party includes both natural and juristic persons.

3. AGREEMENT

3.1. This Agreement shall govern the supply of Goods and/or the rendering of Services by the Company to the Applicant and shall take precedence over any other terms and conditions which may be contained in any of the Company’s documentation as well as any of the Applicant’s documentation and will govern all transactions between the Company and the Applicant, not only present and future but also past, it being agreed that this agreement shall apply retrospectively to all transactions entered into between the Company and the Applicant, prior to signature hereof.

3.2. In the event of a discrepancy between this Agreement and any other terms and/or conditions contained in any of the Company’s other documentation, the provisions contained in this Agreement shall prevail.

3.3. The Company’s acceptance of the Applicant’s order is expressly conditional upon the Applicant agreeing to the provisions of this Agreement. When the Applicant places an order with the Company, the Applicant will be deemed to have knowledge of and have accepted the provisions of this Agreement.

3.4. The Applicant warrants that all of the information recorded in the application section is accurate, correct and complete in all respects. The Applicant undertakes to notify the Company of any changes to such information within 10(ten) days of such change occurring. Notwithstanding the provisions of this clause, the Company will only be deemed to have received such notification once it has acknowledged receipt of such notification in writing to the Applicant.

3.5. The Applicant undertakes to notify the Company in writing within 10 (ten) days of any change in ownership of the Applicant or should the Applicant have a juristic entity change in shareholding or members interest in excess of 25% (twenty five percent) of the issued share capital or membership contribution as at date of application.

4. CREDIT FACILITIES

4.1. The Applicant acknowledges that the granting of credit facilities to it and/or the increase or decrease of such facility is at the sole discretion of the Company.

4.2. The Company reserves the right to suspend or withdraw the Applicant’s credit facilities at any time including, but not limited to, circumstances where the Applicant is in default under this Agreement.

4.3. The credit limit granted to the Applicant shall not be deemed to be a limit of the Applicant’s indebtedness to the Company.

5. INCREASE OR DECREASE OF CREDIT LIMIT

5.1. The Applicant hereby authorises the Company to automatically increase the Applicant’s credit limit in the Company’s sole and unfettered discretion. With each adjustment to the Applicants credit limit, the Company will complete a simultaneous risk assessment as to the financial means, prospects and obligations of the Applicant, taking practicable steps to assess to determine the Applicants ability to pay the requested credit limit.

5.2. Should the Applicant wish to increase its credit limit, this request is to be completed in writing binding the Applicant and all surety and co-principal debtors to this new request and will be subject to clause 4.1 above.

5.3. The Applicant undertakes to fully and truthfully answer any requests for information and/or documentation made by the Company as part of the assessment required by clause 5.1 above within 10 (ten) days of receipt of such a request, failing which the application may be declined.

6. ORDERS

6.1. Orders made by the Applicant in writing or verbally shall constitute irrevocable offers to purchase the Goods and/or Services from the Company and shall be capable of acceptance by the Company expressly, impliedly or by the Company’s conduct.

6.2. The Applicant shall bear the risk of any errors or misunderstandings arising from oral orders.

6.3. In the event of any order being given to the Company on an order form reflecting THE APPLICANT’S name as the entity from which the order emanates, such order shall be deemed to have emanated from THE APPLICANT, notwithstanding the fact that such order may have been given or signed by a person not authorised by THE APPLICANT, and such order will be deemed to constitute valid delivery.

6.4 It is further the sole responsibility of THE APPLICANT to determine that goods ordered are suitable for the purposes of the intended use.

7. VARIATIONS

7.1. In the event of the Applicant requesting a variation to any order, and the Company agreeing to such variation, the Applicant shall bear the full risk and costs in respect of such variation. In particular, should the Company have incurred any costs or rendered any Services in respect of the order prior to variation, then in that event, the Applicant shall be liable to pay to the Company any costs so incurred and shall be liable for any Services rendered prior to the variation, whether or not the Applicant requires or is able to utilise any Goods already supplied or any Services already rendered.

7.2. In addition to the above, the Applicant shall be liable for all additional costs in respect of the varied order.

8. CESSION OF BOOK DEBTS

8.1. As security for its obligations under this Agreement, the Applicant hereby irrevocably cedes, assigns, transfers and makes over unto and in favour of the Company all of its right, title, interest, claim and demand in and to all claims of whatsoever nature and description and howsoever arising which the Applicant may now or at any time hereafter have against all and any persons, companies, corporations, firms, partnerships, associations and other legal personae whomsoever ("the Debtors") without exception as a continuing covering security for the due payment of every sum of money which may now be due or at any time hereafter be or become owing by the Applicant to the Company.

8.2. Should it transpire that the Applicant at any time entered into prior deeds of cession or otherwise disposed of any of the right, title and interest in and to any of the debts which will from time to time be subject to this cession, then this cession shall operate as a cession of all the Applicant’s reversionary rights.

8.3. The Applicant hereby grants to the Company and/or its agents and/or representatives’ full power and authority to recover in its name from all or any of the Debtors all amounts and all goods which the Applicant may be entitled to recover and/or repossess, and if so determined by the Company, to institute action in the Applicant’s name against all or any of the Debtors for the purpose of the said recovery and to retain the proceeds recovered in the exercise of such powers on account of and in reduction of the Applicant’s indebtedness to the Company, including all costs and expenses of whatsoever nature together with legal costs as between attorney and own client incurred in the exercise of any such power.

8.4. Notwithstanding the terms of the afore-going cession, the Applicant shall be entitled to institute action against any of the Debtors provided that all sums of money which the Applicant collects from the Debtors shall be collected on the Company’s behalf and provided further that the Company shall at any time be entitled to terminate the Applicant’s right to collect such monies/debts.

8.5. The Applicant undertakes on a quarterly basis, commencing on the first day of the month following its signature of this Agreement, to deliver to the Company its current age analysis reflecting all moneys owed to the Applicant by the Debtors and on demand to deliver all relevant information in documentary form or otherwise to the Company to enable the Company to claim moneys owed to the Applicant from the Debtors. However, the Company’s failure to enforce its rights under this sub-clause shall not affect the Company’s rights under this cession or the enforceability of this cession.

8.6. The applicant confirms and acknowledges the cession of book debts in favour of Carrier South Africa Proprietary Limited (“Carrier SA) have been duly ceded to the Company in accordance with the cession agreement entered into by and between Carrier SA and the Company.

8.7. The Company she be entitled, in its sole and unfettered discretion, to proceed to enforce its rights in terms of the earliest and/or any subsequent cession of the Applicant’s book debts.

8.8. The surety confirms and acknowledges the cession of the suretyships undertaken in favour of Carrier SA have been duly ceded to the Company in accordance with the Cession Agreement entered into by and between Carrier SA and the Company.

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(By signature hereto the Applicant and/or its duly authorized representative as well as the surety(ies) and/or co-principal debtor (s) hereby confirm (s) that the content of this Cession of Book Debts provision has been brought to its/their attention and further the effects thereof have been explained to the Applicant as well as the surety (ies) and/or co-principal debtors (s) and/or its duly authorised representative.)

9. RISK & OWNERSHIP

9.1. Risk in the Goods will pass to the Applicant on the date of delivery but ownership in the Goods shall where possible, remain vested in the Company until the full purchase price for such Goods is paid to the Company. If the Applicant delays or fails to accept delivery of the Goods to be delivered at its nominated address, the risk in such Goods shall pass to the Applicant as soon as the Company attempts to deliver same to the Applicant.

9.2. While any amount is owed by the Applicant to the Company in respect of any Goods, the Applicant shall be obliged to keep the Goods concerned free of any lien, hypothec, encumbrance and/or attachment.

9.3. The Applicant shall take all such steps as may be necessary to notify interested third parties and inform the owner/landlord, as the case may be, where the Goods are kept, of the Company’s ownership of such Goods.

9.4. The Applicant shall fully insure the Goods against loss or damage until it has paid the full purchase price therefor to the Company. All benefits in terms of such insurance policy shall be ceded to the Company from time to time and the Applicant may, if requested by the Company, be required to produce evidence of such cession from time to time.

9.5. The Company shall have the right to remove and/or recover the Goods from the Applicant or any third party placed in possession of the goods through the Applicant, at the Applicant’s expense, in the event of non-payment, and for such purpose the Applicant hereby irrevocably authorises the removal and/or recovery of such goods and indemnifies the Company against any and all claims, including claims for costs, whether direct, indirect or consequential, made by any person against the Company and arising out of the aforesaid removal and/or recovery.

10. SURETYSHIP

10.1. The surety by his/her/its signature of this Agreement binds himself/herself/itself in his/her/its private and individual capacity as surety for and co-principal debtor with the Applicant in favour of the Company for the due performance of any obligation of the Applicant and for the payment to the Company by the Applicant of any amount and/or sum which may have been incurred by the Applicant with the Company in the past, now or which may at any time be or become owing to the Company by the Applicant in the future. The terms of this agreement apply mutatis mutandis to the surety(ies) and/or co-principal debtor(s).

10.2. The surety’s liability to the Company shall not be limited by any credit limit granted by the Company to the Applicant.

10.3. This suretyship shall remain in full force and effect for so long as any amounts remain owing by the Applicant to the Company, notwithstanding the temporary extinction of the Applicant's indebtedness to the Company from time to time.

10.4. The surety waives and renounces the legal benefits of:

10.5. excussion (the right to require the Company to first proceed against the Applicant for payment of any debt owing to the Company before proceeding against the surety);

10.5.1. cession of action (the right to require the Company to give cession of the action for payment of debts to the surety before any action against the surety may be taken);
10.5.2. simultaneous citation and division of debt (the right of a co-surety to be liable only for his pro rata share of the principal debt); and
10.5.3. the right to an accounting from the Company.

10.6. The surety, on demand from the Company, shall furnish the Company with a declaration of the surety’s assets and other financial information.

10.7. The surety further undertakes to be bound by the remaining provisions of this Agreement mutatis mutandis and chooses his/her domicilium citandi executandi as the Applicant’s physical address set out in the application section of this Agreement

10.8. If the Applicant is placed under winding-up or business rescue, or is sequestrated (whether provisionally or finally, compulsorily or voluntarily) ; or suffers any other legal disability; or becomes subject to the provision of any law for the assistance or benefit of debtors, or a compromise, composition or other arrangement with any Creditor of the Debtor;

10.9. the Company may prove a claim against the Applicant or against the estate of the Applicant for the full amount of any indebtedness due to it, and to accept any dividend in reduction of the indebtedness without prejudice to the rights of the Company against the Surety.

10.10. The surety confirms and acknowledges the cession of the suretyships undertaken in favour of Carrier SA have been duly ceded to the Company in accordance with the Cession Agreement entered into by and between Carrier SA and the Company.

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(By signature hereto the Applicant and/or its duly authorized representative as well as the surety(ies) and/or co-principal debtor (s) hereby confirm (s) that the content of this Cession of Book Debts provision has been brought to its/their attention and further the effects thereof have been explained to the Applicant as well as the surety (ies) and/or co-principal debtors (s) and/or its duly authorised representative.)

11. PAYMENT

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. PRICES

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. DISCREPANCIES

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. RETURNS

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. WARRANTIES

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. BREACH

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. COPYRIGHT

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. DOMICILIUM

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. GENERAL

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 agreement.
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