Nortech Trading Terms and Conditions
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STANDARD TERMS AND CONDITIONS
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GENERAL
These facilities are granted on the
basis of the conditions contained in this application.
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These conditions shall
be read with and shall supplement any specific conditions of sale contained in
any subsequent agreement. If any of the conditions of sale conflict with the
terms of this contract, the terms of this contract shall prevail.
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A
certificate signed by any director of NORTECH (the creditor) showing the amount
owing by the applicant to the creditor in respect of the credit facilities
granted to the applicant and of the fact that the amount is due and unpaid shall
be sufficient and satisfactory proof of the effects therein stated for the
purpose of any action (whether by way of provisional sentence or otherwise),
proof of debt or insolvency or for any purpose whatsoever where the amount of
such claim is required to be established and it shall rest with the applicant to
prove that such amount is not owing (and/or due and unpaid).
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All overdue sums
shall bear interest monthly per the settlement policy in place, reckoned monthly
in advance from due date to date of payment.
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Notwithstanding the amount which
may at any time be owing by the applicant to Nortech, the applicant hereby
specifically consents in terms of section 45 of the Magistrates' Court Act (No.
32 of 1944 as amended) to the jurisdiction of the Magistrates' Court having
jurisdiction over the applicant for the determination of the said court which
may be brought by Nortech against the applicant arising out of any transaction
between us, it being understood that Nortech shall be entitled but not obliged
to bring any action or proceeding in the said court and that all cost including
those on an attorney/client scale and attorney's collection commissions will be
paid by the applicant.
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This contract shall be enforced and interpreted in
accordance with the laws of the Republic of South Africa. The parties hereto
submit themselves to the jurisdiction of the High Court of South Africa, Natal
Provincial Division and the Magistrate's Court for the district of
Pietermaritzburg.
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By his/her signature hereto the signatory binds
himself/herself in his/her private and individual capacity as surety and
co-principal debtor with the applicant for the payment to Nortech of any amounts
which may at any time become owing to Nortech by the applicant from whatever
cause arising. This guarantee shall be a continuing guarantee to Nortech and
then only provided that all sums then owing by the applicant (whether due or
not) to Nortech have been paid in full. He/she renounces the benefit of the
legal exceptions "non-clause debiti", "ordinis seu exeussionis et divisionis"
and "cession of action" with the force meaning and effect of which he/she
declares himself/herself to be fully acquainted. He/she binds themselves to the
conditions contained in these conditions.
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In the event of the applicant
defaulting in making payment of any amount that has become due and owing then
the full balance outstanding will become due and payable without notice to the
above applicant. Any certificate issued in terms of (3) above shall be binding
in any action brought against the surety and co-principal debtor.
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The
granting, refusal or withdrawal of credit facilities, including the nature and
extent of such facilities and the payment in terms thereof shall at all times be
at the sole discretion of Nortech who may withdraw same at any time without any
prior notice to the Applicant.
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PRICE
The purchase price of the goods as
detailed in any invoice is strictly net and shall not be subject to any discount
whatsoever, unless otherwise stated in writing. Unless the contract specifies
fixed prices:- a) All Nortech's quotations and prices are subject to alteration
without notice; b) the prices applicable to the contract shall be the ruling
prices per item on the date that Nortech accepts the order subject to the
customer having the right to resile from the contract within 7 days of the
acceptance by Nortech of the order if the price applicable is higher than the
price at the date on which the order was placed; c) Nortech prices are prices
ex-factory at Pietermaritzburg and are exclusive of Value Added Tax (VAT); d)
All prices are based on circumstances prevailing at the date on which the
contract is concluded and any price changes occurring between the date of the
contract and the date of delivery brought about by legislation, the imposition
of taxes, levies or other charges shall be for the account of the customer.
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PAYMENT
a) Payment shall not be set off against or withheld on account of any
counterclaims of the Applicant unless same is acknowledged by Nortech in
writing. b) In the event of the Applicant tendering a cheque or any other
negotiable instrument, then payment will only be deemed to have been made once
the said cheque or negotiable instrument has been met by the relevant bank or
paying authority. c) All bank charges shall be for the Applicant's account and
shall be accepted by the Applicant as such. d) All payments made to Nortech
shall be made at the address of Nortech set out on the face hereof or at such
address as Nortech may from time to time designate in writing. e) Nortech shall
accept electronic payments in South Africa only and only if Nortech advises the
Applicant in writing that it is prepared to do so. f) Payment may only be made
by the Applicant to Nortech in the currency in which the Applicant is invoiced
by Nortech.
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RESERVATION OF OWNERSHIP
Notwithstanding delivery, all goods
sold by Nortech shall remain the sole property of Nortech until full payment has
been received therefore by Nortech to all amounts due by the Applicant to
Nortech.
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EXCLUSIONS
a) Nortech's liability to the APPLICANT for any damages
sustained by the APPLICANT from any cause whatsoever, including any damages
arising out of Nortech's negligence or that of it's servants and employees,
agents or subcontractors, shall in any event and under all circumstance be
limited to the terms of Nortech's standard warranty procedures, which, at the
date of delivery thereof were defective as a result of materials and/or
workmanship on the part of Nortech. b) Except as provided for in 13(a) above,
Nortech shall in no circumstances whatsoever be liable for any loss of profit or
any damage whether direct or indirect, consequential or otherwise, sustained by
the Applicant, whether or not caused by the negligence of Nortech, its agent or
employees. c) Insofar as Nortech's obligations under the contract are carried
out by any of its servants, employees, agents or subcontractors, associates or
subsidiaries, the provisions of 13(a) and (b) above are stipulated for their
benefits as well as Nortech and each of them shall be exempted accordingly.
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RISK
(a) Notwithstanding any retention of ownership by Nortech, all risk in and
to the products shall pass to the APPLICANT on delivery in accordance with these
conditions. (b) In the event of the goods being delivered by Nortech to any
third party on the instructions of the APPLICANT, the APPLICANT shall be deemed
to have agreed that a signature on behalf of the third party on Nortech's
delivery note shall constitute a valid receipt by the APPLICANT for the goods.
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DELIVERY
a) Save where the contrary has been agreed in writing (i) time for
delivery shall not be the essence of any agreement between the Applicant and
Nortech; (ii) any date for delivery furnished by Nortech is estimated and
Nortech shall not be liable for any delay in delivery (whatever the cause of
such delay) nor for any loss or damage caused thereby or for any consequential
loss or damage arising therefrom. b) Delivery of goods shall be deemed to be
effected under cover of a Proof of Delivery note (POD) as made out by the
Freight Company delivering the goods to the Applicant. c) Unless Nortech
receives notice within three (3) working days of receipt by the Applicant of a
consignment of goods that there was a shortfall or error in the consigned goods
it shall then be deemed that the goods delivered were correct in all respects
and that the delivery note/invoice correctly reflects the delivery and receipt
thereof.
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SALE OF BUSINESS
If the business is an unincorporated business or
partnership then notwithstanding the sale of the business by the sole proprietor
or partners, the sole proprietor or partners (jointly and severally) at the date
of delivery of the goods to the Applicant shall be liable for payment to Nortech
of all amounts owing to Nortech in respect of the goods delivered.
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ESTOPPEL
In the event of any order being given to the Nortech on the Applicant's official
order form, the Applicant shall be stopped from denying the validity of such
order, notwithstanding the fact that such order may have been given or signed by
a person not authorised to do so.
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COSTS
Should Nortech institute any
application or action against the Applicant in respect of any monies owing by
the Applicant to Nortech, then the Applicant shall pay to Nortech all costs
incurred thereby including attorneys fees on the basis of "Attorney and own
Client" and furthermore all collection commission.
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CESSION
Nortech shall be
entitled to cede to any holding, subsidiary affiliated company or business any
of its rights to any agreement existing between the Applicant and Nortech or to
any right arising out of sale of any goods by Nortech to the Applicant or
arising in any way whatsoever.
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DOMICILIA
Nortech and the Applicant choose as
the respective domicilia citandi et Executandi for all purposes in terms of this
agreement the premises of the Applicant and the address of Nortech, both as
printed or written in the body hereof.
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DISCLOSURE OF FINANCIAL STATEMENTS
The Applicant will make available to the Credit Manager/s of Nortech the
financial statements and balance sheets for any periods which may be requested
by the Credit Manager/s.
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ENTIRE AGREEMENT
a) These conditions constitute the
whole and entire agreement between the parties. Any previous conditions or
agreements in conflict with the provision herein contained are hereby cancelled
and there are no agreements, representations or warranties between them other
than those specifically set forth herein. b) No indulgences on the part of any
party in exercising any rights conferred upon such party in terms of these
conditions shall constitute a waiver of such right, nor shall any single or
partial exercise of any right preclude any other or future exercise thereof or
the exercise of any other rights under these conditions. d) No variation or
modification of these conditions shall be of any force or effect unless the same
shall be confirmed, in writing, and signed by both parties, and then such
variation or modification shall be effective only in the specific instance, and
for the purpose and to the extent for which it was made or given.
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PAYMENT
TERMS & CONDITIONS
Payment terms are Telegraphic Transfer in advance of shipment
unless otherwise agreed to in writing by Nortech. Any variation in terms which
could include incentive rebates will be in force only for the duration of the
Financial year to which it will apply. It is nevertheless agreed that such terms
and conditions will only remain in force as indicated and only whilst the
Applicant's account is conducted in a sound manner and whilst the Applicant is
not at any time liquidated or sequestrated either voluntary or otherwise.
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DRAWINGS AND COPYRIGHT
Drawings, descriptive matter, weights and dimensions
submitted by Nortech are given only for the purpose of representing a general
description of the product and are not necessarily correct in detail unless we
have specifically warranted their accuracy in writing. The copyright in all
drawings, descriptive matter and other documents submitted by Nortech remain
Nortech property and must be returned upon demand.
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INSTALLATION
a) The
Applicant agrees that where Nortech attend to any installation, they are to give
Nortech sufficient access to the site, sufficient room for assembly and storage,
water, electricity and toilet facilities as may be required. b) Unless otherwise
stated in writing, the price does not include any alterations to the Applicant's
premises, all of which shall be undertaken at the expense of the Applicant. 26
EXPORT If the goods are exported to or on behalf of the customer the customer
shall:- a) unless the contract otherwise expressly provides ensure that the
goods comply with any applicable regulations relating to the description,
specification, use, packaging and importation of the goods to the country to
which they are to be exported; b) supply Nortech with all necessary information
to enable it to comply with the import regulations current in that country and
keep Nortech advised of any modifications thereto affecting any order in
process; c) compensate Nortech for any costs incurred in the execution or
cancellation of any order if varied or stopped because of any regulation
referred to above.