Terms and Conditions of Trade, Consent and Cession

HARKERS AUTOMOTIVE ENGINEERING CC
VAT: 4580230698
REG: 2006/037878/23

1. The Customer agrees (a) this agreement represents the entire Agreement between the Customer and The Supplier and that any alterations to this Agreement may not be effected unless agreed to by both parties, reduced to writing and signed by the Customer and a duly authorised representative of the Supplier (b) this Agreement will govern all future contractual relationships between the parties, notwithstanding receipt or acknowledgement of the Customer’s own order form conditions; (c) This agreement is applicable to all existing debt between the parties; (d) this Agreement is final and binding and is not subject to any suspensive or resolute conditions; (e) any conflicting terms, conditions or agreements without prejudice to any securities or guarantees held by the Supplier and (f) this Agreement applies to all employees and subcontractors of the Supplier.
2. This Agreement, and any offers, orders or contracts of sale pursuant thereto, become binding only when accepted by the Supplier at its business address.
3. SURETYSHIP. The Signatory hereby bonds himself in his personal capacity as Shareholder (In the case of the Company), Member (In the Case of a Close Corporation) or Owner, Partner or Proprietor as co-principal debtor in solidum for the full amount due to the Supplier and agree that this Agreement will apply in the same way to him.
4. The Customer Acknowledges that it does not rely on any representations made by the Supplier with regards to its products and services, or qualities thereof, leading up to this Agreement other than those contained in the Agreement. All specifications, price lists, performance figures, advertisements, brochures and other technical data furnished by the Supplier in respect of its products and services, whether orally or in writing will not form part of this Agreement any way unless agreed in writing by the Supplier.
5. The Customer agrees that neither the Supplier nor any of its employees will be liable for any negligent or innocent misrepresentations made to the Customer.
6. All quotations will remain valid for a period of 15 (fifteen) days from date of quotation, or until the day of issue of any new price list, whichever occurs first, or unless otherwise specified in writing by the Supplier.
7. Delivery and performances times quoted are estimates and are not binding on the Supplier.
8. All quotations are subject to the availability of input goods or services and subject to correction of good faith errors by the Supplier, and the prices are subject to any increase in the cost price, including currency fluctuations, to the Supplier before acceptance of the order.
9. In the Event of the Customer disputing the amount of the cost increase in Clause 8 above, the said amount may be certified by an independent auditor and such certificate shall be final and binding on the Customer.
10. Notwithstanding the provisions of clause 1 above, all orders or contracts of sale, or agreed variations thereto, whether oral or in writing shall be binding and subject to this Agreement and may not be cancelled by the Customer.
11. It is the responsibility Of the Customer to determine that the products or services ordered by it are suitable for the purposes of intended use. The Supplier gives no warranty, express or implied, concerning the suitability of the products supplied for any purpose whatsoever.
12. The Supplier Reserves the right, at its sole discretion, to provide alternative products at the prevailing prices to those ordered by the Customer, should those products have been superseded, replaced or otherwise become unavailable.
13. Products are sold voetstoets with no warranty against latent defects. All other guarantees, including common law guarantees, are hereby specifically excluded.
14. Liability under Clause 23 is restricted to the repair or replacement of faulty products or services, or granting of a discount, at the sole discretion of the Supplier.
15. The Supplier shall not be required to work to tolerances closer than those applicable to the materials obtained by it in the ordinary course of trade, or supplied to it by the Customer. The supplier shall not be held liable for any variations in the standard, quality and performance of such materials.
16. The Supplier shall not be liable for any defects resulting from it being required to expedite delivery ahead of the time needed for the proper production of the order.
17. The Supplier shall not be held responsible for imperfections in the work due to defects in or the unsuitability of material or equipment not supplied by the Supplier. Extra costs incurred through the use of defective materials or equipment supplied shall be for the Customer’s account.
18. The customer agrees to pay all costs resulting from any acts, omissions or requests of the Customer including disbursements, suspension of work, modifications of requirements, failure or delay in giving particular requisite to enable work to proceed on schedule, or requirements that work be completed earlier than previously agreed.
19. Customer’s property and property supplied to the Supplier will be retained at the Customers risk.
20. The Supplier shall not be liable for any damage arising from any misuse, abuse or neglect of products or services under any circumstances whatsoever.
21. Any order is subject to cancellation by the Supplier due to Force Majeure, or from any cause beyond the control of the Supplier, including (without restricting this Clause to these instances): inability to secure labour, power, materials or supplies, or by reason of a Force Majeure, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
22. The completed product will be dispatched or must be collected by the Customer when ready and the Customer shall not refuse or delay to take delivery.
23. The Supplier shall be entitled to invoice each delivery or performance separately when executed.
24. The Customer agrees to establish, immediately upon delivery, that the products and services appearing on the Supplier’s delivery note, Tax Invoice or other documentation, correctly represents the products, or services, and prices agreed to and are free of defects.
25. Where products or services are delivered prior to the issue of a Tax Invoice, the Customer agrees to immediately upon receipt of the Tax Invoice, establish that it correctly represents the delivered products or services and prices agreed to.
26. The Customer hereby confirms that the goods or services detailed on the Tax Invoice issued duly represents the goods or services ordered by the Customer at the prices agreed to by the Customer and, where delivery / performance has already taken place that the goods or services were inspected and that the Customer is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects.
27. Any delivery note, invoice or waybill (copy or original) signed by the Customer or a third party engaged to transport the products, and held by the Supplier shall be conclusive proof that delivery was made to the Customer.
28. The Customer shall return any defective moveable products to the premises of the Supplier at the Customers cost and packed in the original or suitable packaging.
29. Claims under this Agreement shall only be valid if the Customer has, within 3 days of the alleged breach or defect occurring, given the Supplier 30 days written notice by prepaid registered post to rectify any defect or breach of Agreement.
30. To be valid, claims must be supported by the original Tax Invoice.
31. If the Supplier agrees to engage a third party to transport products on the Customer’s behalf, it does so on terms deemed fit by the Supplier. The Customer indemnifies the Supplier against any claims arising from such agreement.
32. The risk of damage to, or destruction or theft of its products shall pass to the Customer on delivery of any order placed in terms of this Agreement and the Customer undertakes to comprehensively insure the products until paid for in full. The Supplier may recover insurance premiums from the Customer for products insured on the Customer’s behalf.
33. All products supplied by the Supplier remain the property of the Supplier until such products have been fully paid for whether such products are attached to other property or not.
34. The Customer agrees that the amount contained in a Tax Invoice issued by the Supplier shall be due unconditionally (a) cash on order, or (b) if the Customer is an Account Approved Customer, then within the granted credit period as specified on the Account Application, or not later than the end of the month in which a Tax Invoice has been issued by the Supplier.
35. The Customer agrees to pay the full amount on the Tax Invoice at the Business Address of the Supplier or at such other place that the Supplier may designate in writing.
36. The risk of payment by electronic funds transfer rests with the Customer.
37. The Customer has no right to withhold payment for any reason whatsoever and agrees that any extension of time given for payment shall be valid only if reduced to writing and signed by the Customer and a duly authorized representative of the Supplier.
38. The Customer is not entitled to set off any amounts due to the Customer by the Supplier against its indebtedness to the Supplier.
39. All discounts shall be forfeited if payment in full is not made on the due date.
40. The Customer agrees that the amount due and payable to the Supplier may be determined and proven by a certificate issued and signed by an independent auditor. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer.
41. Any printout of computer evidence tendered by any party shall be admissible evidence and the parties shall not object to the admissibility of such evidence purely on grounds that such evidence is computer evidence or that the requirements of the Electronic Communications and Transactions Act 2002 have not been met.
42. The Customer agrees that if an account is not settled in full (a) against order; or (b) within the period agreed in Clause 34 above in the case of a Credit Approved Customer, the Supplier is entitled to (i) forward a letter of demand using a third party demanding full and final payment.
43. The Customer hereby gives his / her consent for a credit check.
44. Outstanding accounts are subject to default listing on a national Credit Bureau database.
45. On payment of the outstanding debt the default listing will be adjusted in accordance with the provisions of Section 71A of the National Credit Act, No 34 of 2005.
46. The Supplier reserves the right to provide a national Credit Bureau with updated personal information.
47. The Customer also consents that the Supplier may use a national Credit Bureau database for tracing, should the Customer abscond.
48. The Supplier hereby agrees that should they default on payment, the Supplier can make this information available to the industry and affiliated businesses.
49. A Credit approved Customer will forthwith lose this approval when payment is not made in accordance with the conditions of Clause 34 and all amounts then outstanding shall immediately become due and payable.