NOVAMODA (PTY) LTD.

TERMS AND CONDITIONS OF CONTRACT



1. APPLICATION

  1. These terms and conditions override and supersede all other conditions and are without prejudice to any securities and/or guarantees which the Seller holds.
  2. This contract constitutes the entire contract between parties and no representation by any person, or variations or consensual cancellations of amendments to any of the terms and conditions hereof shall be valid or binding on the Supplier unless reduced to writing and signed by an autborised representative of the Supplier.
  3. To the extent that there is any conflict between these terms and conditions and a written agreement between the Supplier and the Purchaser in respect of a particular transaction, the terms of that Agreement will prevail.

2. PAYMENT

  1. The contract price shall be paid by the Purchaser without any deduction or set-off within the period stipulated on the face hereof following the date appearing on the statement.
  2. If more than one delivery is made, then each delivery will be invoiced and paid for separately but otherwise in accordance with (a).
  3. The Supplier shall be entitled to charge interest at the maximum rate permissible, from time to time on all overdue accounts, as set forth in "Limitation and Disclosure of Finance Charges Act No. 73 of 1968", as amended, or any other applicable legislation.
  4. Should the Purchaser default in paying his account, then the Supplier shall be entitled, but not compelled to forthwith demand that the whole amount outstanding by the Purchaser, from whatsoever cause arising, will immediately become due and payable, notwithstanding the fact that a portion of the amount would not be owing in accordance with agree terms of payment. The Purchaser agrees that, in the event of an account default and after having been informed of the fact, in writing, the Seller would be entitled to report such default to a credit bureau(s) and that the information would be available to other credit grantors where the Purchaser may apply for credit facilities.
  5. The Purchaser agrees that in the event of any portion of an invoiced indebtedness being disputed then, in that event, the Purchaser will nevertheless forthwith pay the undisputed amount of such indebtedness according to the agreed terms of credit allowed to the Purchaser, failing which any discount permitted in respect of the invoiced indebtedness will be forfeited.
  6. Where payment has been arranged on a promissory note/bills basis, the Purchaser undertakes to furnish the Supplier with such instrument/s by the I4th the month following upon that in which the goods are dispatched from the Supplier's premises. Should the Purchaser dispute any amount due for inclusion in a bill or promissory note the Purchaser shall nevertheless be obliged to furnish the bill or promissory note in respect of the undisputed sum. The term, bill or promissory note shall extend to any negotiable or non-negotiable instrument of debt or bill of exchange.
  7. If the purchase price is not paid on due date and remains unpaid for 12 (twelve) hours after the receipt of written notice demanding payment, or if the Purchaser ceases to carry on business, the Supplier without prejudice to any other rights may cancel the sale, retain all payments made and recover possession of the goods.
  8. Until the purchase price of any goods has been paid, the Purchaser shall ensure that the goods are adequately insured against the usual risks and produce conclusive proof of such insurance whenever called on so to do by the Supplier.

3. PRICE

Unless another price has been quoted by the Supplier, (which will then apply), the price of goods or services will be the supplier's current price ruling on the date they are delivered or rendered to the Purchaser. The Supplier may vary any quoted price by adding thereto the increased cost to it of any goods or components which are supplied to or form a part of goods supplied to the Purchaser resulting from any adverse fluctuation in the rate of exchange between the date of the quotation and the date of supply.

4. DISCOUNTS

  1. The contract price is strictly net and not subject to any discounts unless otherwise agreed to in writing.
  2. If any discount is agreed to in writing it shall only be allowed if payment is received by the Supplier by the due date and shall only apply to the actual price of the goods themselves.
  3. No discount can be given on the official rate of' VAT.


5. DELIVERY

  1. Delivery shall be completed when goods are off-loaded at their destination if the goods are to be transported by means of the Supplier's vehicle or where the goods are loaded if the goods are to be transported by the Purchaser or a carrier engaged, (whether by the Supplier or the Purchaser) to transport the goods for the Purchaser.
  2. Should the Supplier at the Purchaser's request agree to engage a carrier to transport the goods for the Purchaser then (i) the Supplier is authorised to engage a carrier on such terms and conditions as it deems fit, (ii) the Purchaser shall indemnify the Supplier against all demands and claims which may be made against it by the carrier so engaged and all liability which the Supplier may incur to the carrier arising out of the transportation of goods.
  3. The risk in the goods shall pass to the Purchaser on delivery of the goods to the Purchaser, its agent or carrier referred to in 5 (b) above.
  4. If the Purchaser fails to take delivery of the goods on due date then (i) the risk shall immediately pass from the Supplier to the Purchaser, (ii) the Purchaser shall refund to the Supplier on demand the reasonable costs (including storage and insurance) of keeping the goods during the period of the delay.
  5. The Supplier shall he exempted from and shall not be liable under any circumstance for any complaints or claim for any alleged shortage in delivery failure of the alleged goods to comply with the contract, unless written notice is received by the Supplier within 7 days after delivery of the goods to the Purchaser.
  6. The signature of any employee or agent of the Purchaser which appears on the Supplier's official delivery note or waybill, or the delivery note of a an authorised independent carrier, will constitute conclusive evidence of delivery of goods purchased.

6. If more than one delivery is to be made then the provisions of clause 5 apply to each delivery.

7. Notwithstanding any other provision in the contract to the contrary the Supplier's obligation to deliver the goods shall in all cases be subject to the following conditions precedent: (i) the availability to the Supplier of any materials and supplies required for the manufacturing of the goods; (ii) the timeous receipt by the Supplier of any instructions (including drawings and specifications) required by the Supplier from the Purchaser for the manufacture of the goods.

8. Time shall not be essence of the contract.

9. OWNERSHIP AND SET-OFF

Notwithstanding the delivery of any goods to the Purchaser, ownership shall not pass until the Supplier has received payment in full of all and any indebtedness of the Purchaser to the Supplier. In the event of the Supplier or any holding, or subsidiary, or fellow subsidiary company of the Supplier becoming indebted to the Purchaser, the Supplier may set-off such indebtedness against any monies which may be or become owing by the Purchaser to the Supplier.

10. EXCLUSION

  1. All specifications, illustrations, drawings, diagrams, price list, dimensions, performance figures, advertisements, brochures and other technical data furnished by the Supplier in respect of the goods, and whether in writing or not, are furnished only on the basis that they will not form part of the contract or be relied upon by the Purchaser for any purpose.
  2. If any goods or part of them are to be supplied in accordance with specifications, measurements or other instructions furnished by the Purchaser, the Purchaser shall not have any claim of any nature whatever against the Supplier (i) for any loss or damage sustained by the Purchaser as a result of any error, discrepancy or defect in those specifications, measurements or other instructions: (ii) if the goods in question are not suitable for the purpose for which they are required, whether those purposes are known to the Supplier or not.
  3. The Supplier's liability to the Purchaser for any damages sustained by the Purchaser from any cause whatsoever, including any damages arising out of the Supplier's negligence or that of its servants, agents or sub-contractors, shall in any event and under all circumstances be limited to the replacement of goods which, at the date of delivery thereof are subject to a patent defect arising from defective materials or workmanship at the Supplier's premises,
  4. Except as provided for in (c) the Supplier shall in no circumstances whatsoever be liable foe any loss of profit or any damage direct or indirect, consequential or otherwise, sustained by the Purchaser whether or not caused by the negligence of the Supplier, its agents or employees.
  5. Insofar as any of the Supplier's obligations under the contract are carried out by any of its servants, agents, sub-contractors, associates or subsidiaries the provisions of (c) and (d) are stipulated for their benefits as well as the Supplier's and each of them shall be exempted accordingly.
  6. The Purchaser shall not have any claim of any nature whatever against the Supplier for any failure by the Supplier to carry out any of its obligations under the contract as a result of causes beyond the Supplier's control, including but without being limited to, any strike, lock-out, shortage of labour or materials, delays in transport, accidents of any kind, any default or delay by any sub-contractor or supplier of the Supplier, riot, political or civil disturbances, the elements, any act of any State or Government, any delay in securing any permit, consent, or approval required by the Supplier for the supply of goods under the contract, or any other authority, or any other cause whatever beyond the Supplier's absolute and direct control.

11. WARRANTY

Save as provided for in clause 10(c) all goods are soId voetstoots and without any warranties whatsoever.

12. SUSPENSION OF SUPPLIER'S OBLIGATIONS

If any amount owed by the Purchaser is not paid on due date, then without prejudice to or any other right it may have, the Supplier may immediately suspend the carrying out of any of its then uncompleted obligations until the payment is made.

13. CANCELLATION

  1. The Supplier may cancel the contract or any uncompleted part of it if the Purchaser commits a breach of any of the terms or conditions of the contract
    or, being an individual dies or is provisionally or finally sequestrated or surrenders or makes application to surrender his estate;
    or, being a partnership, the partnership is terminated;
    or, being a company, is placed under provisional or final order of liquidation or judicial management; or, has a judgement recorded against it which remains unsatisfied for 7 (seven) days;
    or, compromises or attempts to compromise generally with any of the Purchaser's creditors.
  2. The Supplier's rights in terms of (a) shall not be exhaustive aid shall be in addition to its common law rights.
  3. No relaxation, which the Supplier may have permitted on any one occasion in regard to the carrying out of the Purchaser's obligations shall prejudice or be regarded as a waiver of the Supplier's rights to enforce those obligations on any subsequent occasion.
  4. Upon the cancellation of the contact for any reason whatever (i) all amounts when owed by the Purchaser to the Supplier in terms of the contract shall become due and payable forthwith, (ii) the Supplier may retake possession of goods in respect of which ownership has not passed.

14. JURISDICTION

  1. The Supplier shall be entitled but not obliged to institute any proceedings against the Purchaser, arising out of the contact, for the full balance outstanding, including current purchases, in any Magistrate's Court having jurisdiction over the Purchaser, notwithstanding that the claim or the value of the matter in dispute may exceed the jurisdiction of the Magistrate's Court. Further, the Purchaser agrees to be liable for all legal costs, including costs on the attorney-and-client scale and collection charges including tracing costs which may arise.
  2. A certificate signed by any Director of the Supplier showing the amount due and owing by the Purchaser to the Supplier at any given time shall be conclusive proof of the facts therein stated for the purpose of all legal proceedings against the Purchaser for recovery of the said amount

15. DOMICILIUM

The Purchaser nominates its business address as reflected on Page 1 as its domicilium citandi et executandi for service upon it of all notices and processes whether in connection with any claim for any sum due to the Supplier or otherwise.

16. NEGOTIABLE INSTRUMENTS

Any promissory note, bill of exchange or other negotiable instrument received by the Supplier from the Purchaser shall not be a novation of the debt for which it is given and the Purchaser waives presentment, notice of dishonour and protest where applicable.

17. RETURN OF GOODS

If in the exercise of its discretion, the Supplier shall agree, at the request of the Purchaser, to accept the return of any goods for credit, which goods were correctly supplied by the Supplier and are not faulty or subject to any claim, then the Supplier shall be entitled without the necessity of any further agreement to claim from the Purchaser a handling charge of 100/o of the invoice price of the goods so returned.

18. NO WAIVER

No extension of time or any other relaxation or indulgence granted by the Supplier to the Purchaser shall operate as or be deemed to be a waiver by the Supplier of any of its rights under this contact or a novation of any of the terms and conditions of this contact.

19. PURCHASER'S WARRANTY AND UNDERTAKING

The Purchaser hereby warrants that the details completed overleaf are true and correct in each and every respect and that save as disclosed to the Supplier in writing the directors/partners/proprietor have never been insolvent or associated with any business failure and that none of the Purchaser's assets are in any way encumbered, and specifically that debtors are neither ceded nor factored. The Purchaser undertakes to notify the Supplier in writing of any change of details shown overleaf including change of ownership, name and address.

20. INTERPRETATION

The headings in these Conditions are for convenience only and are not to be taken into account for the purpose of interpreting the Contract. Words importing any one gender include the other two genders and the singular include the plural.

21. LAW APPLICABLE

This Contract is governed by the laws of the Republic of South Africa.

22. CLOSE CORPORATIONS

Without detracting from the above, the following shall further be applicable to Close Corporations.

  1. The Close Corporation shall furnish the Supplier with a copy of its founding statement and where applicable of the association agreement within 14 (fourteen) days of signature hereof.
  2. The Close Corporation shall employ the services of a qualified Accountant and shall furnish the Supplier with a certificate from such Accountant confirming his appointment, within 14 (fourteen) days of signature hereof should the name of the said Accountant not appear on the founding statement.
  3. The Supplier shall be entitled but not obliged to institute any proceedings against the Close Corporation arising out of the Contract, for the full balance outstanding including current purchases in any Supreme Court having jurisdiction notwithstanding the provisions of Section 7 of the Close Corporation Act, 1982 as amended. Save as herein stated or as may be inconsistent with the provisions of paragraph 14 above the contents of the said paragraph shall apply as if inserted herein.

Copyright Novamoda (Pty) Ltd. 2004