TERMS AND CONDITIONS OF SALE – Associated Automotive Distributors (Pty) Ltd (“the company”) – Including all AAD associated and subsidiary companies.
THE APPLICANT or its duly authorised agent does hereby apply for credit facilities with AAD and in consideration thereof THE APPLICANT does hereby accept the following terms and conditions:
1. Credit terms
1.1 THE APPLICANT agrees that any amount reflected in a Tax Invoice shall be due and payable unconditionally (a) Cash on Delivery; or (b) if THE APPLICANT is a Credit Approved Customer, within 30 days from the end of the month in which a Tax Invoice has been issued by AAD. Settlement is affected only on receipt of cash or by way of Electronic Funds Transfer (EFT) or any other payment instrument acceptable to AAD and shall be made to AAD free of exchange and without deductions of any nature. Any credit facilities granted to THE APPLICANT by AAD is entirely at the discretion of AAD and may be withdrawn at any time.
1.2 THE APPLICANT agrees to accept the receipt of electronic format statements, tax invoices, shipment documents (proof of delivery), credit and debit notes from AAD, which will be transmitted via email, and the following conditions thereto as required by South African Revenue Services and in terms of the provisions of the Value-Added Tax Act for the issuing of tax invoices, credit and debit notes:
1.2.1 Electronic documents (tax invoices, credit, and debit notes) will be transmitted and issued to THE APPLICANT in 128bit encrypted PDF file format.
1.2.2 Both THE APPLICANT and AAD shall retain the electronic documents in its original encrypted format for a period of five years from the date of the delivery to which it relates.
1.2.3 The transmitted electronic document will constitute the original statement, tax invoice, credit, or debit note. No other tax invoice, credit or debit note will be issued in respect of any specific delivery, unless as a copy of the original document.
1.3 Should THE APPLICANT have a valid reason to dispute an entry raised on the tax invoice, it shall do so within 14 (fourteen) days of the date of AAD’s invoice to THE APPLICANT, failing which such entry shall be deemed to be correct and payable.
2. Change of address
THE APPLICANT undertakes to notify AAD, in writing, within 7 (seven) days of any change of address.
3. Change of ownership
THE APPLICANT undertakes to notify AAD, in writing, within twenty days of any change in ownership of THE APPLICANT’S business, or should THE APPLICANT be a company, of its share transactions whereby the majority shareholding is affected. THE APPLICANT acknowledges that immediately upon any change of Ownership in THE APPLICANT any outstanding amount whether due or not shall be deemed to be forthwith payable by THE APPLICANT to AAD.
THE APPLICANT and the signatory hereto chooses Domicilium Citandi et Executandi (in other words, the address at which the Applicant and the signatory will accept all notices, legal documents and the like, whether or not the Applicant and/or the signatory is still at the address chosen) for all purposes arising out of this application at the physical address stipulated in Section A, clause 3.2 of this application.
5. Consent to sharing information and retention periods
5.1 For the purposes of making credit risk management decisions and preventing fraud, THE APPLICANT hereby warrants that AAD has consent to:-
5.1.1 Carry out a credit enquiry on THE APPLICANT and the Directors/Members/Partners/Trustees/Principals of THE APPLICANT from time to time with one or more credit bureaus, credit information agents, credit insurance companies or other creditors (trade references) of THE APPLICANT’S in terms of this agreement.
5.1.2 AAD may transmit details to credit bureaus, credit information agents, credit insurance companies or other creditors of THE APPLICANT’S of how THE APPLICANT has performed in meeting his/her/its obligations in terms of this agreement.
5.1.3 If THE APPLICANT fails to meet his/her/its commitments to AAD, AAD may record THE APPLICANT’S non-performance with credit bureaus, credit information agents, credit insurance companies or other creditors of THE APPLICANT.
5.2 Such information shall be retained for periods as stipulated in any applicable law, but no longer than the duration of the validity of this agreement. Where THE APPLICANT has not used a facility under this agreement for 12 months, THE APPLICANT will be required to reapply for such a facility.
5.3 AAD is required to collect, process, and share THE APPLICANT’S personal information. THE APPLICANT’S personal information is collected and processed by AAD’S staff, representatives, and sub-contractors and AAD makes every effort to protect and secure THE APPLICANT’S personal information. THE APPLICANT is entitled at any time to request access to the information AAD has collected, processed, and shared.
6. Pricing increments
Prices quoted by AAD are determined from time to time and are subject to increases, at the discretion of AAD. AAD shall be entitled to increase the cost of goods delivered or services rendered to THE APPLICANT with prior written notice.
7. Valid orders
In the event of any order being given to AAD on an order form reflecting THE APPLICANT’S name as the entity from which the order emanates, such order shall be deemed to have emanated from THE APPLICANT, notwithstanding the fact that such order may have been given or signed by a person not authorised by THE APPLICANT, and such order will be deemed to constitute valid delivery. It is further the sole responsibility of THE APPLICANT to determine that goods ordered are suitable for the purposes of the intended use.
8.1 THE APPLICANT agrees that the signature of any agent, contractor, sub-contractor or employee of THE APPLICANT on AAD’S official delivery note/invoice/waybill, or the delivery note of any authorised independent carrier will constitute valid delivery of the goods purchased.
8.2 Any delivery date stated on any order confirmation is approximate only. AAD shall not be bound by that date but will make all reasonable efforts to deliver by that date.
8.3 Each delivery is considered as a separate contract and the price thereof is payable accordingly.
8.4 Whilst AAD will endeavour to ensure that goods are delivered timeously, it shall not be responsible for any delays in the delivery of such goods, and THE APPLICANT shall not be entitled to refuse acceptance of such late deliveries.
8.5 The risk in and to the goods shall pass from AAD to THE APPLICANT at the time of delivery notwithstanding that ownership will not pass to THE APPLICANT until full payment of the purchase price. Delivery shall be deemed to have taken place against signature of AAD’S delivery note, proof of posting if the goods are posted to THE APPLICANT or delivery to the South African Transport Services or Road Carrier if the goods are railed or transported by AAD. The Post Office/South African Transport Services or Road Carrier shall act as the agent of THE APPLICANT.
9.1 Goods are guaranteed according to either AAD’S specific warranties, or the original Manufacturer’s warranties. Where indicated certain goods may be sold to THE APPLICANT on the basis of AAD not accepting any responsibility for latent defects in which case any product warranties are specifically excluded.
9.2 Should a product supplied to THE APPLICANT by AAD be faulty or require return for credit and where a warranty is applicable, THE APPLICANT shall contact AAD within fourteen (14) days from the goods becoming defective and arrange for the goods to be returned to AAD, where applicable.
9.3 Liability under clause 9.2 is restricted to the cost of replacement of faulty goods or granting of a credit to the value of such goods. Any goods returned must be accompanied by the original tax invoice as issued by AAD.
9.4 All warranties and guarantees shall become immediately null and void should any equipment be tampered with; seals be broken; or should the goods be operated outside of specifications. Damage caused by lightning strikes, power surges, power spikes, or other incidents beyond the control of AAD are not covered in any warranties.
9.5 Should AAD find no fault with the returned goods, this will be returned to THE APPLICANT, and a 15% handling fee will be charged.
9.6 Where goods are returned for repair THE APPLICANT shall be required to accept a cost estimate prior to any repair work being carried out. Any item returned for repair to AAD may be sold to defray costs if such repair items are not collected within 90 days of such repair being carried out.
THE APPLICANT acknowledges AAD’S intellectual property rights in the goods and shall not infringe such intellectual property rights.
11. Payment to AAD
All payments shall be made to AAD‘S place of business from where the goods were ordered. In the event of any payments transferred to the incorrect banking account THE APPLICANT shall still be liable to AAD for payment. Should AAD at any time advise THE APPLICANT of any change to AAD’S banking account details THE APPLICANT shall confirm such change with a Manager of AAD before effecting any further payments, provided however that nothing contained herein shall be interpreted as obliging AAD to afford THE APPLICANT any such indulgence to effect payment after due date.
12. Reservation of ownership
Until such time as THE APPLICANT has paid the purchase price in full in respect of any purchase of goods, the ownership in and to all such goods shall remain vested in AAD. AAD shall, in its sole discretion, without notice to THE APPLICANT, be entitled to take possession of any such goods which have not been paid for and in respect of which payment is overdue, in which event THE APPLICANT shall be entitled to a credit in respect of the goods so returned being the price at which the goods are sold or the value thereof as determined by AAD. THE APPLICANT hereby waives any right it may have for a spoliation order against AAD in the event that AAD takes possession of any goods.
13. Responsibility for losses, damages, or delays
13.1 AAD will not be in any way responsible for losses; consequential losses; damages or delays sustained by THE APPLICANT, irrespective of whether this is caused by or arising from any error; discrepancy; defect on specifications; measurements or other instructions; natural disasters, unavoidable accidents of any kind, acts of the State’s enemies, riots, lockouts, cessation of labour, transport delays, shortened hours of labour, insurrection, infectious diseases, war, the imposition of any trade boycotts or sanctions of trade restrictions by any government, authority, company or organisation or person or persons, whether within the Republic of South Africa or anywhere else, or any other cause or contingency whatsoever beyond the control of AAD.
13.2 AAD provides no guarantees or warranties (whether express or implied) as to the suitability of any goods for any purpose for which they are required.
14. Defaulting in payment
In the event of THE APPLICANT defaulting in making payment of any amount that has become due and owing, then the full balance outstanding (whether due or not) will immediately become due and payable without notice to THE APPLICANT.
15. Interest on overdue accounts
AAD shall be entitled to charge THE APPLICANT interest at the rate of 2% (two percent) per month from the moment any debt becomes overdue, provided however that nothing contained herein shall be interpreted as AAD affording THE APPLICANT any indulgence to make payment after due date.
16. Proof of Claims
A certificate signed by a manager or any director of AAD – whose position and signature shall not be necessary to prove – reflecting the amount owing by THE APPLICANT to AAD, in respect of any credit facilities granted to THE APPLICANT relating to THE APPLICANT’S dealings with AAD, and of the fact that such amount is due, owing and unpaid shall be considered as adequate proof – on its mere production – of the outstanding amount for the purpose of any action (whether by way of provisional sentence or otherwise), proof of debt on insolvency or for any purpose whatsoever where the amount of such claims 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.
17. Consent to jurisdiction
Notwithstanding the amount which may at any time be owing by THE APPLICANT to AAD, the parties do hereby consent, in terms of Section 45 of the Magistrates Court Act (No 32 of 1944 as amended), to the Jurisdiction of the Magistrate’s Court for the determination of any action or proceeding which may be brought by AAD against THE APPLICANT arising out of any transaction between the parties, it being recorded that AAD shall be entitled, but not obliged, to bring any action or proceeding in the said court.
18.1 Save as otherwise expressly provided in these terms and conditions, should any dispute arise between any of the parties in regard to these terms or any transaction concluded between the parties, AAD shall be entitled, but not obliged, to insist that such dispute shall be decided by arbitration in the manner set out herein.
18.2 The arbitrator shall be appointed by the parties, and failing an agreement reached by the parties, shall be nominated by the Arbitration Foundation of Southern Africa (“AFSA”).
18.3 The arbitration shall be held at Johannesburg, South Africa.
18.4 The arbitration shall be held in accordance with the Rules of AFSA, or if AFSA shall not be in existence, in accordance with the formalities and procedures settled by the arbitrator, which shall be in an informal and summary manner, that is, it shall not be necessary to observe or carry out either the usual formalities or procedure or the strict rules of evidence, and otherwise subject as aforesaid of the Arbitration Act 42 of 1965 of the Republic of South Africa and any statutory modification or re-enactment thereof.
18.5 The arbitrator shall be entitled to:
18.5.1 Investigate or cause to be investigated any matter, fact, or thing which he considers necessary or desirable in connection with any matter referred to him for decision.
18.5.2 Decide the matters submitted to him according to what he considers just and equitable in all the circumstances, having regard to the purpose of these terms and conditions; and
18.5.3 Make such award, including an award for specific performance, an interdict, damages or a penalty or the costs of arbitration or otherwise as he in his discretion may deem fit and appropriate.
18.6 The arbitration shall be held as quickly as possible after it is demanded, with a view to it being completed within thirty days after it has been so demanded and the decision of the arbitrator shall be final and binding on the Parties.
18.7 Notwithstanding anything to the contrary contained herein, AAD shall, in its sole discretion, not be precluded from obtaining relief from a court of competent jurisdiction.
19. Recovery of legal/collection costs
Should AAD instruct its attorneys or collection agent to collect any overdue amounts, or to take any action against THE APPLICANT in the implementation or protection of AAD’S rights, AAD shall be entitled to the recovery of all legal or collection costs arising there from, on the scale as between attorney, agent or collection agency and own client.
20. Non-waiver of rights
Any condonation of any breach of any of the provisions hereof or other act or relaxation, indulgence or grace on the part of AAD shall not in any way operate as or be deemed to be a waiver by AAD of any rights under this contract or be construed as a novation thereof.
21. Severability of clauses
Each clause of these conditions of sale is severable, the one from the other and if any one or more clauses are found to be invalid or unenforceable, that clause/clauses shall not affect the balance of these conditions of sale, which shall remain of full force and effect.
22. Entire agreement
This contract contains the entire agreement between the parties and any other terms thereof whether express or implied or excluded here from and any variations, cancellations or additions to this contract shall not be of any force or effect unless reduced to writing and signed by the parties or their duly authorised signatories. The agreement shall be governed by the laws of the Republic of South Africa. THE APPLICANT and THE SURETY / SURETIES, by their signatures hereunder, confirm that the information submitted in this application is true and correct in all respects and that they are entirely familiar with the terms and conditions contained herein.