STANDARD TERMS AND CONDITIONS APPLICABLE TO THE SALE OF GOODS AND THE PROVISION OF SERVICES
The Company’s quotation or tender for the sale and delivery of Goods and/or the provision of Services and any contract resulting therefrom shall be subject to the following terms and conditions which shall apply to the exclusion of all other terms and conditions, whether express or implied, unless the Company specifically agrees in writing to accept any variation hereto. The Customer, by accepting delivery of any Goods or the rendition of any Service pursuant hereto, acknowledges that no terms and conditions which the Customer purports to attach to its acceptance, nor any terms and conditions which might have been attached to the Customer’s order, shall be binding on the Company. The Customer agrees that all such conditions shall be deemed to have been substituted by these terms and conditions.
1. DEFINITIONS
- 1.1. “Agreement” means the Application including the terms and conditions and any additions or amendments to this Agreement;
- 1.2. “Application” means the Application by the Customer to purchase Goods on credit or on non-credit terms from the Company which is attached to these terms and conditions;
- 1.3. “Company” means LPR Lowveld (Proprietary) Limited (Registration No. 2013/128609/07)
- 1.4. “Consumer” means a consumer as defined in the CPA;
- 1.5. “CPA” means the Consumer Protection Act 68 of 2008 and any promulgated regulations thereto and as amended from time to time;
- 1.6. “Customer” means any person, including a Consumer with whom the Company concludes an Agreement for the sale of any Goods or the provision of any Services.
- 1.7. “Goods” means any tangible object supplied by the Company to the Customer in terms of this Agreement;
- 1.8. “Price” means the Price agreed between the Company and the Customer for the Goods and/or the Services, together with value added tax thereon.
- 1.9. “Services” means the Services provided by the Company to the Customer in terms of this Agreement.
2. COMMENCEMENT AND DURATION OF THIS AGREEMENT
- 2.1. This Agreement will be in force upon acceptance of the Customer’s application for credit and be binding on the Customer when the Company:
- 2.1.1. accepts the order or the Application as the case may be; and
- 2.1.2. supplies the Goods or Services to the Customer.
- 2.2. This Agreement shall, subject to the provisions of clause 6, continue for an indefinite period.
3. PAYMENT TERMS
- 3.1. In return for the supply of the Goods and Services, the Customer agrees to pay the Company the Price as set out in more detail in the quotation.
- 3.2. In the event that the Company has granted the Customer credit facilities in writing, the purchase price shall be paid by the Customer, without deduction or set-off of any claims of the Customer against the Company, within 30 (thirty) days from the date of the Company’s statement of account. However, if day 30 falls on Saturday, Sunday or public holiday, payment must be made on or before the preceding day.
- 3.3. In the event of non-credit sales or cash sales the price shall be paid by the Customer by way of electronic bank transfer or cash deposit into the bank account of the Company or, at the sole discretion of the Company without deduction or set-off, prior to dispatch or collection of the Goods or provision of the Service. The Customer must provide the Company with proof of payment within 48 hours before deliveries or collections of the Goods will be allowed. Where payment is made by means of electronic funds transfer, the delivery of the Goods shall only be made, or collections of the Goods will only be allowed once the funds reflects in the Company’s bank account.
- 3.4. The Company reserves the right to withdraw or amend any credit facilities granted at any time which may have been granted to the Customer.
- 3.5. The Company is entitled to require the Customer to furnish guarantees and/or suretyships that are acceptable to the Company for its current or future obligations.
- 3.6. The Company may charge the Customer interest on any overdue amount at the prevailing prime overdraft rate plus 3% of First National Bank, a Division of FirstRand Bank Limited, calculated from the due date to date of payment. A print-out of the aforesaid bank’s interest rates relating to the prime overdraft rate prevailing from time to time shall constitute prima facie proof (sufficient evidence) of that rate.
- 3.7. Should the Customer fail to clearly indicate to the Company which items appearing on the Company’s
- statement it is paying, the Company reserves the right to apply such payment by the Customer to those items in respect of which payment has been overdue for the longest time.
- 3.8. Payment must be made for the total amount that the Customer owes the Company as set out on the invoice(s) and statement issued to the Customer.
- 3.9. Should any amount not be received by the Company on or before the due date, all other amounts payable and
- due by the Customer to the Company, shall immediately (and without notice to the Customer) become due and payable.
- 3.10. The Customer shall not be entitled to withhold payment for any reason whatsoever notwithstanding that any dispute may be pending between the parties, nor shall the Customer be entitled to make any deduction from the Price or to set off any alleged claim against the amounts due by the Customer to the Company.
- 3.11. The Customer shall be liable to pay the Company the full amount of the order in advance if the Company has not completed its credit risk assessment of the Customer and the Customer requires urgent or immediate delivery of the Goods or provision of the Services.
- 3.12. In addition to the rights of the Company above, if the Customer:
- 3.12.1. does not pay the Company on time;
- 3.12.2. commits a material breach of this Agreement;
- 3.12.3. does not pay the required full amount in advance; then the Company may suspend any supply of Goods or provision of Services until the Customer has paid or remedied the breach to the satisfaction of the Company.
4. QUOTATIONS
4.1. Any quotation by the Company is open for acceptance for a period of 30 days from the date appearing on the quotation, unless revoked earlier in terms of written notice to the Customer or otherwise agreed to in writing between the Company and the Customer.
4.2. The Price quoted for the Company’s Goods or Services will, upon acceptance by the Customer, whether such acceptance is tacit or written, constitute the Price.
4.3. The Price quoted by the Company is based on the site location as provided by the Customer. The Company reserves the right to amend the Price quoted should the site location be different from the initial site location provided by the Customer.
4.4. The price of goods will be determined in separate sales contracts which shall be deemed to form part of and be subject to these terms and conditions of contract.
4.5. If the Customer is informed or aware that the goods sold by LPR are imported, any increase or decrease in import, excise or other duty shall be added to the quote and be for the account of the Customer.
4.6. Any order may be cancelled by LPR due to force majeure from any cause beyond the control of LPR, including (without restricting this clause to these instances) inability to secure labour, power, materials or supplies, or by reason of an act of God, war, civil disturbance, riot, state of emergency, strike, lock-out, or other labour disputes, fire, flood, drought or legislation.
5. CERTIFICATE
The Customer acknowledges that a certificate signed by any senior manager of the Company (whose authority and appointment shall not be necessary to prove) shall be prima facie proof (sufficient evidence) of the amount of such indebtedness to the Company. Such certificate shall be sufficient proof of the Customer’s indebtedness for the purposes of provisional sentence and/or summary judgment proceedings against the Customer, or for any other purpose or court proceedings whatsoever.
6. BREACH AND CANCELLATION OF THE AGREEMENT
6.1 If the Customer does not pay any and/or all amounts due to the Company on or before the due date for payment, then, subject to the provisions of clause 6.2, the Company reserves the right to, on notice to the Customer:
6.1.1 charge interest on the overdue amount at the interest rate referred to in clause 3.5 calculated from the due date of payment to the date that the actual payment is credited;
6.1.2 inform any reputable credit bureau(s) of payment default; and
6.1.3 suspend the supply of the Goods or provision of Services.
6.2 If the Customer commits a breach or if there is a failure by the Customer to comply with any of the terms and conditions of this Agreement and the Customer remains in breach for a period of 7 (seven) days after delivery of a written notice to the Customer by the Company requesting the Customer to remedy the breach:
6.2.1 the Company will be entitled to immediately cancel this Agreement;
6.2.2 the Company will be entitled to immediately charge the Customer for the use of the Goods or Services up to the date of cancellation or uplift goods not paid for; and
6.2.3 the full outstanding amount shall immediately become due and payable.
6.3 In addition to the above remedies and any other rights that the Company has in terms of the law, in the event that the Customer does not remedy such breach, the Company shall be entitled to claim damages from the Customer that it may have suffered due to the Customer’s breach of the terms and conditions of this Agreement.
6.4. All discount and rebates will be forfeited if payment in full is not made on the due date.
6.5. The Customer irrevocably authorises LPR to enter its premises to repossess any goods delivered and indemnifies LPR completely against any damage whatsoever relating to the removal of the repossessed goods.
7. USE OF CUSTOMER’S INFORMATION
7.1. The Customer warrants and guarantees that all information supplied to the Company by the Customer in the Application and in terms of this Agreement is true and correct.
7.2. The Customer agrees to inform the Company immediately should there be any change of whatsoever nature in any of its information, including its directors’, shareholding, physical address, or any information previously supplied to the Company.
7.3. As and when necessary, the Customer consents to the Company obtaining and/or disclosing the Customer’s information supplied to the Company as follows:
7.3.1. to either credit grantors and/or credit bureaux and/or banks and/or other financial institutions in order to ascertain information relating to the Customer’s creditworthiness (before acceptance of this Agreement) and for fraud prevention purposes in order to process any payment transactions necessary for and relative to this Agreement;
7.3.2. to attorneys and/or debt collection agencies in the event that the Customer is in breach of this Agreement;
7.3.3. to the Company’s agents or trade partners and/or consultants and or service providers but only to the extent necessary and in order to allow the supply of the Goods and/or provision of the Services;
7.4. The Company will not disclose the Customer’s information to any other person or institution other than as stated under clause 7.3 unless the Company is compelled to do so in terms of law and/or a court of law.
8. OWNERSHIP RESERVATION
All goods purchased from LPR will be subject to a reservation of ownership by the Company until the purchase price is fully paid, provided however that risk shall pass to the Customer upon the delivery of the goods to the Customer.
9. JURISDICTION
The Customer hereby consents, in terms of Section 45 of the Magistrate’s Court Act No. 32 of 1944 as amended, to the jurisdiction of the Magistrate’s Court having territorial jurisdiction in respect of any action instituted against the Customer by the Company for the recovery of monies or for legal action in terms hereof. It shall nevertheless be entirely within the discretion of the Company as to whether to proceed against the Customer in such Magistrate’s Court or any other court having jurisdiction.
10. WHOLE AGREEMENT
This Agreement constitutes the whole Agreement between the parties and no variation, alteration, cancellation, deletion of or addition to these terms will bind the parties unless it is stipulated in writing and agreed to by both parties.
11. LEGAL COSTS
To the extent permitted by law, should the Company elect to take any legal action against the Customer arising from breach of any terms and conditions of this Agreement where the Company appointed an attorney and/or advocate and/or debt collector and/or tracing agent then the Customer will be liable for all the relevant legal costs and/ or expenses incurred on an attorney and own client scale.
12. NOTICES
The parties choose their physical addresses as reflected on the Application forms as their respective domicilium citandi et executandi (physical address) for service upon it of all notices and process. The parties undertake to notify the company within 7 days of any change to its address, failing which the Company will be entitled to serve all court documents on the address in its possession which service shall constitute sufficient service to obtain default judgment.
13. APPLICABLE LAW
The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.
14. AMENDMENTS
The Company is entitled on written notice to the Customer, to amend and/or vary the terms and conditions of this Agreement as a result of any new and/or amended law(s), tax (es) and regulation(s) or at its discretion. If the Company amends and/or varies the terms and conditions, the Company will notify the Customer at its chosen email address of such amended terms and conditions.
15. AUTHORITY AND INDEMNITY
The person signing this Agreement warrants that he or she has the necessary authority to enter into this Agreement and hereby indemnifies the Company against any liability, claim, damage or loss that a third party might have arising out of this Agreement.
16. BUSINESS RECUE
The Customer warrants that, as at the signature date of this application, it is not in business rescue in terms of Chapter 6 of the Companies Act 2008 (“business rescue”) and has not made any application to be placed under business rescue. Furthermore, the Customer warrants that it does not have any intention of making application for business rescue and is not aware of any current or pending circumstances relating to the business that could give rise to an application for business rescue. The Customer agrees that in the event that the Customer is placed under business rescue the conclusion of any compromise of the debt under such approved business rescue plan will not reduce the liability of any person or entity that has signed surety for the debts due by the Customer to LPR and such surety shall remain liable for the full amount of the debt that was due before such compromise, notwithstanding that it is acknowledged, agreed and understood by the Customer that the surety may be entitled to have recourse against the Customer for amounts paid by the surety to LPR pursuant to such suretyship.