Terms and Conditions of Trade, Consent and Cession Page 2

50. The Customer agrees that interest shall be payable to the Supplier at the maximum legal interest rate prescribed in terms of the National Credit Act on any amounts in arrears, and that interest shall be calculated daily and compounded monthly from the date of acceptance of the order.
51. The Customer shall be liable to the Supplier for all legal expenses incurred by the Supplier on the attorney-and-own client scale in the event of (a) any default by the Customer or (b) any litigation in regard to the breach, validity or enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs including stamp duties, for any form of security that the Supplier may demand.
52. The Customer shall pay five thousand Rand into court or furnish sufficient security in lieu of costs in any action instituted by or against the Customer.
53. The Customer agrees that the Supplier will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate’s Court or in terms of Rule 47 of the Supreme Court Act 59 of 1959 as amended.
54. The Customer expressly agrees that any debt owed to the Supplier by the Customer shall become prescribed only after the passing of a period of ten years from the date the debt falls due.
55. The Customer irrevocably authorizes the Supplier to enter its premises to repossess any products delivered, without court order, and indemnifies the Supplier completely against any damage whatsoever, relating to the removal of repossessed products.
56. The Customer is not entitled to sell or dispose of any products unpaid for without the prior written consent of the Supplier. The Customer shall not allow the products to become encumbered in any manner prior to the full payment thereof and shall advise third parties of the rights of the Supplier in the products.
57. Any item delivered to the Supplier shall serve as a pledge in favour of the Supplier for present and past debts and the Supplier shall be entitled to retain or realize such pledges as it deems expedient at the value as determined in Clause 67. The sworn or realized value of pledged products will be offset against the Customer’s debts and any excess balance will be paid to the Customer.
58. The supplier is entitled to exercise a lien over any of the Customer’s property in its possession until all outstanding debts have been paid.
59. The Customer hereby cedes and assigns unto and in favour of the Supplier all its rights, title, and interest in and to all debts which are now, or which may in the future, become owing to it by any third party or parties as security for the payment by it of all amounts which are now or may from time to time in the future, become owing by it to the Supplier from any cause of indebtedness however arising. The Customer agrees that on request by the Supplier, it shall be obliged to hand over to the Supplier all books of accounts, contracts, invoices and documents, and the like, which it may require for the purpose of ascertaining the amounts due to it and for the purposes of the recovery of payment.
60. If any products supplied to the Customer are of a generic nature and have become the property of the Customer by operation of law (confusion or commix Tio), the Customer shall be obliged on notice of cancellation of the Agreement to transfer the same quantity of products in ownership to the Supplier.
61. The Customer or any agent acting on its behalf, on whose behalf or at whose instance any services are rendered hereby indemnifies the Supplier and all of its employees against any liability which the Supplier may incur to any other person as a result of the production of any material produced.
62. The customer agrees to the Standard Rates of the Supplier for any products supplied or services rendered, which rates may be obtained on request.
63. Any document shall be deemed duly represented to and accepted by the Customer (i) within 3 days of prepaid registered mail to any of the Customer’s business or postal addresses or to the personal address of any director, member or owner of the Customer; or (ii) within 24 hours of being faxed to any of the Customer’s fax numbers, or any director, member’s or owner’s fax numbers; or (iii) within 24 hours of being e-mailed to any of the Customer’s e-mail addresses, or any director, member’s or owner’s e-mail addresses; or (iv) on being delivered by hand to the Customer or any director, member or owner of the Customer; or (v) within 48 hours if sent by overnight courier, and (vi) within 7 days of being sent by surface mail.
64. Any order is subject to cancellation by the Supplier if the Customer breaches any term of this Agreement or makes any attempt of compromise, liquidation, sequestration, termination or if judgement is recorded against the Customer or any of its principals.
65. The Customer agrees that the Supplier will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in Clause 21 or 64 occur.
66. In the event of the Customer being in arrears with any payment or in breach of any term of this Agreement, the Supplier is entitled to cancel all contracts with immediate effect.
67. In the event of cancellation, the Customer shall be liable to pay (a) the difference between the selling price and the value of the products at the time of repossession and (b) all other costs incurred in the repossession of the products. The value of repossessed or retained pledged products shall be deemed to be the value placed on them by any sworn valuator after such repossession, and such valuation shall be conclusive proof of the value. If the products are not recovered for any reason whatsoever, the value shall be deemed to be nil.
68. The Customer agrees that any indulgence whatsoever by the Supplier will not affect the terms of this Agreement or any of the rights of the Supplier and any such indulgence shall not constitute a waiver by the Supplier in respect of any of its rights herein. The Supplier will not be stopped from exercising its rights in terms of this Agreement under any circumstances whatsoever.
69. The Supplier shall not be liable for any consequential damages including loss of profit or for any delictual liability of any nature whatsoever.
70. The Customer chooses its address for legal execution as its physical or business address or the physical address of any Director (in the case of a company), Member (in the case of a close corporation) or of the Owner(s) or Partner(s).
71. The Customer undertakes to inform the Supplier in writing, within 7 days of any change of Director, Member, Shareholder, Owner or Partner or address, or 14 days prior to selling or alienating the Customer’s business. Failure to do so will constitute a material breach of this Agreement. Upon receipt of such written notification, the Supplier reserves the right, at its sole discretion, to withdraw any credit facility advanced to the Customer.
72. The invalidity of any part of this Agreement shall not affect the validity of any other part.
73. In the Agreement any reference to natural persons includes legal persons and vice versa and references to any gender includes references to the other gender and vice versa.
74. The Customer hereby consents that the Supplier shall have the right to institute any legal action in either the Magistrate’s Court or the High Court at its sole discretion.
75. This Agreement and its interpretation is subject to South African law and the Customer consents to the exclusive jurisdiction of the South African Courts referred to in Clause 74.
76. Our ability in respect of goods is limited to the repair, replacement and refunding of goods proved to have been defective and/or faulty and we shall not be liable for any loss or damage, nor shall we be liable for any consequential or indirect damage or loss due to circumstances beyond our reasonable control. The Company will not be liable in any way for any recovery charges, losses of revenue, down-time compensation, hire charges, hotel expenses or subsistence costs nor any cost arising from malfunction or non-availability of a vehicle during repairs nor for any cost arising from removal or fitment of engine, gearbox of engine, gearbox, axle and related parts or in respect of any other damages be it direct, indirect or consequential.
77. No indulgence or extension of time which we may grant to the customer shall constitute a waiver of any of our rights.
78. Payment terms will be as agreed from time to time and shall be confirmed in writing by us and shall be strictly adhered to.
79. Should any amount not be paid by the customer on the due date, then the whole amount owing by the Customer shall become due and payable.
80. The applicant undertakes to procure that the deeds of surety ship annexed hereto will be executed by the Directors/Shareholders as required by Harkers Automotive Engineering

Physical address: Units 5 – 13 Alto Industrial Park, Goud Crescent, Brackenfell 7560
Trading address: 20 and 22 Taurus Street Brackenfell 7560.
PO Box 1578 BRACKENFELL 7561
TEL: +27 (021) 982 6123
EMAIL: This email address is being protected from spambots. You need JavaScript enabled to view it.
Members: C.E. Harker & B.B. Harker