Any order resulting here from shall be subject to the conditions stated herein unless specifically varied by the Seller (the Creditor) in writing and these conditions shall at all times take precedence over any terms, conditions, stipulations contained in any of the Purchaser's (the Customer's) documentation as may be in conflict herewith. Should the Customer in any way purport to attach any conditions which vary, amend or are in conflict with the conditions set forth herein, then, notwithstanding anything to the contrary stipulated by the Customer, the conditions set forth herein shall prevail and be of full force and effect unless specifically varied by the Creditor in writing with specific reference to the Customer's contrary documentation

Orders

    1. No order addressed by the Customer to the Creditor shall result in a contract between the Creditor and the Customer until accepted by the Creditor subject to the terms and conditions herein. Acceptance by the Customer of goods supplied by the Creditor shall constitute acceptance of these standard terms and conditions of sale to the exclusion of all others.
    2. Once accepted by the Creditor, the Customer shall not be entitled for any reason whatsoever to cancel or vary any order without the Creditor's prior written consent.
    3. The terms and conditions herein contained shall bind the Creditor and the Customer in all future, agreements, tenders and quotations unless varied by both parties in writing.
Prices
    1. Prices and discounts are those ruling at the date of dispatch of the goods and the Creditor reserves the right to adjust or change any prices and/or discounts at any time and without notice.
    2. Prices quoted, are for export only and not valid for the common customs areas of Botswana, Swaziland, Namibia and Lesotho.
    3. Prices are quoted, based on the exchange rate of the day and may be subject to change due to exchange rate fluctuations at the time of dispatch.
    4. All prices exclude VAT and all final in and out of country clearances, duties, taxes, demurrage and other costs which are for the customers' account.
    5. Quotations are valid for 30 days, subject to re-quote at time of order confirmation.
    6. Urgent orders (with immediate delivery request) are subject to local pricing and availability of stock.
    7. Where insufficient information is given or specification is not to detail, we will only offer pricing according to descriptions provided with the enquiry, we shall not be responsible/accountable for incorrect supply. Clients must make sure that the specifications are correct (as per our suppliers/manufacturers catalogues) at the time of ordering.
Delivery
    1.  Delivery lead time is subject to stock levels at time of quotation subject to prior sale and may vary at time of order.  Stock availability must be confirmed at date of order.
    2. Weights/volume can only be estimated at time of quotation - accurate weights and dimensions can only be determined at the time of packing.
    3. Buyouts (non-standard stock items) are not returnable.
    4. Standard delivery lead time for export priced items is 4-6 weeks.
    5. A signed Delivery Note shall constitute prima facie proof that the goods have been delivered to and received by the Customer in good condition, whether signed by the Customer, an employee, an agent or representative of the Customer.
    6. Should the Creditor agree to accept the return of any goods for credit, the Customer shall be liable to pay the Creditor a handling charge of not less than 10% on the invoiced price of the goods so returned.
    7. Notwithstanding any other provision to the contrary, the obligation to deliver goods shall in all cases be subject to the following conditions precedent:
      1. Time shall not be of the essence of the contract and delivery dates shall be treated as approximate only based on the latest information available to the Creditor. Under no circumstances shall the Customer be entitled to withdraw from or terminate the contract on account of any delay in delivery or have any claim of any nature whatsoever against the Creditor arising from late delivery.
      2. The Creditor shall be exempted from and shall not be liable under any circumstances whatsoever for any indirect or consequential damages of any nature whatsoever or any loss or profit or special damages of any nature whatsoever and whether in the contemplation of the parties or not which the Customer may suffer as a result of any delay in delivery of the goods ordered.
    8. Where the goods have not been exported by the Creditor, the Customer must provide the Creditor with proof of export of such goods within 30 days from date of dispatch.
Payment
    1. Unless specifically agreed to the contrary, the Customer acknowledges that credit facilities granted are payable within thirty (30) days from date of statement, which date shall be deemed to be the last banking day of every month.
    2. Should any due amount not be paid upon due date, the Customer shall be liable for interest at the maximum interest rate permitted in terms of the Usury Act No. 73 of 1968 (as amended) and gazetted from time to time, from due date to date of payment. Interest shall be calculated and paid monthly in advance provided that if interest is not paid as aforesaid, the interest shall be added to the principal sum and the whole amount shall form the principal debt which shall bear interest as aforesaid.
    3. The Customer agrees that the Creditor shall be entitled but no obliged to setoff, from any amounts owed by the Creditor to it, any amount which is due and payable by the Customer to the Creditor at any time.
    4. No relaxation or indulgence which the Creditor may grant to the Customer, shall constitute a waiver of the rights of the Creditor and shall not preclude the Creditor from exercising any rights which may have arisen in the past or which may arise in the future.
    5. In the event of the Creditor instituting legal action against the Customer for any purpose arising out of this agreement, the Customer shall be liable for legal costs on the scale as between attorney and own client Including any tracing fees and collection commission.
    6. A certificate under the hand of any manager of the Creditor as to the existence and the amount of the Customer's indebtedness to the Creditor at any time as to the fact that such amount is due and payable, the amount of interest accrued thereon and as to any other act, matter or thing relating to the Customer's indebtedness to the Creditor, shall be prima facie evidence of the contents and correctness thereof and of the amount of the Purchaser's indebtedness for the purpose of provisional sentence or summary judgement or any other proceedings against The Customer in any competent court, and shall be valid as a liquid document for such purposes. It shall not be necessary to prove the appointment of the person signing such certificate and such certificate shall be binding on the Customer and shall be deemed to be sufficient particularly for the purpose of any action or other proceeding Instituted by the Creditor against the Customer.
Ownership
    1. Notwithstanding delivery of any goods sold by the Creditor to the Customer, ownership in those goods sold and delivered shall only pass to the Customer when the purchase price in respect of those goods, inclusive of any interest, which may have accrued thereon, has been paid in full. Risk in and to the goods shall, however, pass to the Customer upon delivery of the goods or receipt of the goods by a transport contractor who shall be deemed to be the agent of the Customer for the purpose of acceptance of delivery.
Credit Facility
    1. The Creditor may carry out a credit check with one or more licensed credit agencies which will retain a record of that search.
    2. In the event of this account going into default, relevant details will be recorded with a Credit Agency. Such recorded information may be used by other lenders in assessing any applications for credit by the Customer and members of the Customers household, and for occasional debt tracing and fraud prevention purposes.
    3. The existence of this account may be recorded with a Credit Agency.
    4. Details of how the account is conducted by the Customer will be recorded with a Credit Agency and may be shared with other lenders for the purposes of assessing further applications for credit by the Customer and members of the Customer's household, and for occasional debt tracing and fraud prevention purposes.
    5. The Creditor may search the files of a Credit Agency, which will keep a record of the search.
    6. Where this account is in arrears, or any outstanding sum is not liquidated in full on due date, the Creditor is hereby irrevocably authorized, without further reference or notice to the Customer to disclose such arrears or failure to a Credit Bureau.
    7. Credit facilities may be withdrawn by the creditor at any time without prior notice, and the Creditor reserves the right to review the extent, nature and duration of such facilities at all times.
    8. Credit facilities may be withdrawn by the creditor at any time without prior notice, and the Creditor reserves the right to review the extent, nature and duration of such facilities at all times.
    9. Should the Customer have previously made application to the Creditor for credit facilities, which said application would have embodied terms and conditions and should the Customer have furnished any security to the Creditor for the due obligations of the Customer to the Creditor on any previous occasion, the Customer records and acknowledges that the signature by it on this document shall not be regarded as a novation of any such previous agreement or any prior security given by it to the Creditor. The Customer furthermore records and acknowledges that, in so far as any provision contained herein may be inconsistent with any provisions contained in any document previously executed by it, the provisions of this document shall prevail.
The Customer
    1. The Customer agrees and acknowledges that in the event of
      1. the Customer breaching any condition contained in these conditions
      2. the Customer falling to pay any amount due and payable on due date;
      3. the Customer suffering any civil judgment to be taken or entered against it
      4. the Customer causing a notice of surrender of its estate to be published in terms of the Insolvency Act No.24 of1936, as amended
      5. the Customer dying
      6. the Customers estate being placed under any order of provisional or final sequestration, provisional or final winding up or provisional or final judicial management, as the case may be;

then and in the event the Creditor shall ,without detracting from any other remedies which may be available to it, be entitled to summarily cancel the sale of any goods to the Customer without notice to the Customer, and to rely on the provisions of Clause 5.1, and to re-possess those goods sold and delivered by the Creditor to the Customer, or to claim specific performance of all the Customers obligations whether or not such obligations would otherwise then have fallen due for performance, in either event without prejudice to the Creditor's right to claim damages.

    1. Should the Customer have any complaint of whatsoever nature concerning any of the goods which are not manufactured by the Creditor, it shall be entitled to require the Creditor to cede to it any rights, which the Creditor may have against the supplier of those goods but shall have no other claim against the Creditor in respect of the matter complained of. The Customer shall not be entitled to withhold payment from the Creditor in respect of such goods for any reason whatsoever.
Creditors Liability
    1. Save as otherwise specifically provided for herein, the Creditor shall not be liable to the Customer or to any other person for any indirect or consequential damages of any nature whatsoever or any loss or profit or special damages of any nature whatsoever and whether in the contemplation of the parties or not which the Customer may suffer as a result of any breach by the Creditor of any of its obligations under these conditions or out of any other cause whatsoever. The Customer hereby indemnifies the Creditor against any claim, which may be made against the Creditor by the Customer or any other person in respect of any matter for which the liability of the Creditor is excluded in terms of the a-foregoing.
    2. It is a condition of each sale that goods are sold voetstoots and without any warranties whatsoever. In addition the Customer shall be precluded from raising any complaints or disputing liability to the Creditor in anyway unless it shall have notified the Creditor of its complaints or grounds of dispute in writing within72 hours of receipt of the goods in question. Notwithstanding the timeouts raising of a complaint or dispute of liability by the Customer, the Customer shall, under no circumstances, be entitled to withhold payment in respect of the goods from the Creditor pending the resolution of such dispute or complaint. Subject to the aforegoing, the Creditor shall, in it's discretion, be entitled to either remedy any failure by adjusting, repairing, replacing the goods in question or refunding the whole or part (as the case may be) of the contract price paid to it by the Customer in respect of such goods, subject to the terms of the manufacturer's warranty and that the goods have been correctly installed and maintained.
Jurisdiction
    1. The parties hereby agree and consent, in terms of Section 25 and Section 28 (as amended) of the Magistrate's Court Act of South Africa, to the jurisdiction of the Magistrate's Court, notwithstanding the fact that the amount in dispute may exceed the normal jurisdiction of the Magistrate's Court. The Creditor shall in its discretion be entitled to proceed against the Customer in any other court of competent jurisdiction notwithstanding the aforegoing.
    2. Any disputes are to be settled in South Africa, under South African law.
Domicilium
    1. The Customer nominates as its address for services of all notices or processes arising here from as the address reflected on the face of this credit application form under the heading "Registered Office/Business" and the Surety nominates as his address for service the address reflected on the face hereof alongside his name, for service upon the Customer and the Surely respectively of all notices and processes in connection with any claim for any sum due to the Creditor arising out of credit granted by the Creditor to the Customer or any ceded claim.
General
    1. This agreement constitutes the sole record of the agreement between the parties. No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
    2. No addition to or variation of these terms shall be of any force or effect unless in writing and signed by or on behalf of the Creditor.
    3. The invalidity of any part of this Agreement shall not affect the validity of any other part.
CESSION OF CLAIMS
    1. The Customer and Surety hereby jointly and severally, irrevocably and in rem suam cede and assign as a pledge unto and in favour of the Creditor, all the right, title and interest in and to all claims of whatsoever nature and description and howsoever arising which the Customer and/or Surety may now or at any time hereafter have against all and any persons, companies, corporations, firms, partnerships, associations, syndicates and other legal personae whomsoever without exception as continuing covering security for the due payment of every sum of money which may now or at any time hereafter be or become owing by the Customer and/or Surety to the Creditor from whatsoever cause or causes arising, it being acknowledged that this cession is a cession in securitatium debiti and is not an out-and-out cession.
    2. Should it transpire that the Customer and/or Surety entered into prior deeds of cession or otherwise disposed of any of the right, title and interest in and to any of the claims which will from time to time be subject to this cession, then this cession shall operate as a cession of all the Customer and/or Surety's reversionary rights.
    3. This Cession shall be and remain in full force and effect as a continuing security, notwithstanding any fluctuation, or temporary extinction of the Customer and/or Surety's indebtedness to the Creditor.
    4. For the purpose of giving effect to the a-foregoing Cession, both the Customer and Surety hereby nominate, constitute and appoint the Creditor to be its Attorney and Agent, in rem saum, with full authority for the Customers and/or Surety and in the Customer and/or Surety's name to demand, sue for, recover and receive all sums of money hereby ceded and assigned and with the authority to sign all documents on the Customer and/or Surety's behalf and in the Customer and/or Surety's name in connection with the recovery of the said sums and to give acquittances and receipts for the Customer and/or Surety.
    5. The Customer and Surety agree that, on the request by the Creditor, they shall be obliged to hand over to the Creditor, all books of account, contracts, invoices, documents and the like, which it may require for the purpose of ascertaining the amounts due to the Customer and/or Surety for the purpose of recovery of payment.
    6. The Customer and Surety shall be obliged to furnish the Creditor with a schedule of all debts due to the Customer and/or Surety by its debtor's monthly and upon demand. Notwithstanding the aforegoing, the Creditor or its nominee shall at all times be entitled to inspect all or any of the Customer and Surety's records as the Creditor deems fit. Failure by either party to give effect to the aforegoing shall not in anyway prejudice the rights of the Creditor hereunder, and the Creditor shall at all times be deemed to have perfected its security in terms hereof.
Deed Of SuretyShip
    1. The signatory to this application binds himself as Surety and co-principal debtor in solidum with the Customer in favour of the Creditor for due payment of all amounts which may at any time be payable by the Customer to the Creditor from any cause whatsoever and whether acquired by the Creditor by way of Cession or otherwise. The terms and conditions of this Application shall apply, mutates mutandis, to the suretyship.
    2. Any admission made by the Customer as to the fact that it is indebted to the Creditor or as to the amount of any such indebtedness to the Creditor shall be binding upon the Surety.
    3. The Surety/ies hereby expressly renounce the defense of prescription and the benefits of the legal exceptions of order", "excussion", "cession of action ,"no value received","non causa debiti" and all or any exceptions which could or might be pleaded to any claim by the Creditor against me/us or any one of us, with the meaning, force and effect of all which exception I/we declare ourselves to be fully acquainted.
    4. This Suretyship is a continuing suretyship and shall remain of full force and effect notwithstanding any fluctuation in or temporary extinction of the Customers indebtedness to the Creditor. It may not be withdrawn, revoked or cancelled. by me/us without the Creditor's prior written consent. Any consensual cancellation or withdrawal of this suretyship by me/us and the Creditor shall only be valid and effective if reduced to writing and signed by both parties  thereto.
    5. A certificate under the hand of any director or manager of the Creditor (whose appointment need not be proved) as to the existence and the amount of the Customer's indebtedness and/or the Surety's indebtedness to the Creditor at any time, as to the fact that such amount is due and payable, the amount of interest accrued thereon and as to any other fact, matter or thing relating to the Customer's indebtedness to the Creditor or the Surety's indebtedness to the Creditor, shall be prima facie proof of the contents and the correctness thereof for the purpose of provisional sentence, summary judgement or any other proceedings of whatsoever nature against the Customer and/or the Surety in any competent court and shall be valid as a liquid document for such purpose.

Dawn Customer Care

Tel: 0860 329 622 | E-mail: customerservice@dawnltd.co.za

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