TERMS AND CONDITIONS
THE APPLICANT or its duly authorised agent does hereby apply for credit facilities with Digipop and in consideration thereof THE APPLICANT does hereby accept the following terms and conditions:
1.Credit terms
1.1THE 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 DIGI POP. Settlement is effected only on receipt of cash or due honour of cheque or similar payment instrument and shall be made to Digipop free of exchange and without deductions of any nature. Any credit facilities granted to THE APPLICANT by Digipop is entirely at the discretion of Digipop, and may be withdrawn at any time.
1.2THE APPLICANT agrees to accept the receipt of electronic format statements, tax invoices, shipment documents (proof of delivery), credit and debit notes from Digipop, 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:
1.2.1Electronic documents (tax invoices, credit and debit notes) will be transmitted and issued to THE APPLICANT in 128bit encrypted PDF file format.
1.2.2Both THE APPLICANT and Digipop 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.
1.2.3The 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.
2.Change of address
THE APPLICANT undertakes to notify Digipop in writing within 7 (seven) days of any change of address.
3.Change of ownership
THE APPLICANT undertakes to notify DIGI POP, 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 Digipop.
4.Domicilium
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 stipu¬lated in Section A, clause 3.2 of this application.
5.Consent to sharing information and retention periods
5.1For the purposes of making credit risk management decisions and preventing fraud, THE APPLICANT hereby warrants that Digipop has consent to:-
5.1.1Carry 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.
5.1.2Digipop 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.
5.1.3If THE APPLICANT fails to meet his/her/its commitments to Digipop, Digipop may record THE APPLICANT 'S non-performance with credit bureaus, credit information agents, credit insurance companies or other creditors of THE APPLICANT.
5.2Such 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 re-apply for such a facility.
6.Pricing increments
Prices quoted by Digipop are determined from time to time and are subject to increases, at the discretion of Digipop. Digipop 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 Digipop 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.Delivery
8.1THE APPLICANT agrees that the signature of any agent, contractor, sub-contractor or employee of THE APPLICANT on Digipop's official delivery note/invoice/waybill, or the delivery note of any authorised independent carrier will constitute valid delivery of the goods purchased.
8.2Any delivery date stated on any order confirmation is approximate only. Digipop shall not be bound by that date, but will make all reasonable efforts to deliver by that date.
8.3Whilst Digipop 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.
8.4The risk in and to the goods shall pass from Digipop 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 Digipop'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 Digipop. The Post Office/South African Transport Services or Road Carrier shall act as the agent of THE APPLICANT.
9.Repairs and Warranties
9.1New goods are guaranteed according to either Digipop's specific warranties, or the original Manufacturer’s warranties. Where indicated certain goods may be sold to THE APPLICANT on the basis of Digipop 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 Digipop be faulty or require return for credit and where a warranty is applicable, THE APPLICANT shall contact DIGI POP within fourteen (14) days from the goods becoming defective and arrange for the goods to be returned to Digipop, where applicable.
9.3Liability under clause 9.2 is restricted to the cost of repair or 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 Digipop.
9.4All 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 Digipop are not covered in any warranties.
9.5Should Digipop find no fault with the returned goods, this will be returned to THE APPLICANT, and a 10% handling fee will be charged.
9.6Where 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 Digipop may be sold to defray costs if such repair items are not collected within 90 days of such repair being carried out.
10.Copyright
THE APPLICANT acknowledges Digipop's intellectual property rights in the goods and shall not infringe such intellectual property rights.
11.Payment to Digipop
Digipop does not appoint the Post Office as its agents for payments by post. All payments shall be made to Digipop's place of business from where the goods were ordered. In the event of any payments being mislaid; lost in the post; or transferred to the incorrect banking account THE APPLICANT shall still be liable to Digipop for payment. Should Digipop at any time advise THE APPLICANT of any change to Digipop's banking account details THE APPLICANT shall confirm such change with a Manager of Digipop before effecting any further payments, provided however that nothing contained herein shall be interpreted as obliging Digipop 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 Digipop. Digipop 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 Digipop. THE APPLICANT hereby waives any right it may have for a spoliation order against Digipop in the event that Digipop takes possession of any goods.
13.Responsibility for losses, damages or delays
13.1Digipop 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, war, the imposition of any trade boycotts or sanctions of trade restrictions by any government, authority, company or organization 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 Digipop.
13.2Digipop 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
Digipop 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 DIGI POP 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 Digipop - whose position and signature shall not be necessary to prove - reflecting the amount owing by THE APPLICANT to Digipop, in respect of any credit facilities granted to THE APPLICANT relating to THE APPLICANT’S dealings with Digipop, 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 DIGI POP, 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 Digipop against THE APPLICANT arising out of any transaction between the parties, it being recorded that DIGI POP shall be entitled, but not obliged, to bring any action or proceeding in the said court.
18. Recovery of legal /collection costs
Should Digipop 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 Digipop's rights, Digipop 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.
19.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 Digipop shall not in any way operate as or be deemed to be a waiver by Digipop of any rights under this contract, or be construed as a novation thereof.
20.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.
21.Entire agreement
This contract contains the entire agreement between the parties and any other terms thereof whether express or implied or excluded herefrom 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.
DEBIT ORDER AUTHORITY AND MANDATE:
22.THE APPLICANT hereby authorises Digipop to issue and deliver payment instructions to THE APPLICANT’S bank for collection against THE APPLICANT’S account as per the banking details provided in this application, or as per any other account which THE APPLICANT may advise Digipop from time to time.
22.1THE APPLICANT provides this authorisation on condition that the sum of such payment instructions will never exceed THE APPLICANT’S obligations, and commencing on the commencement date and continuing until this Authority and Mandate is terminated by THE APPLICANT by giving Digipop notice in writing of no less than 20 working days, and sent by prepaid registered post or delivered to Digipop's address as indicated above.
22.2The individual payment instructions so authorised to be issued must be issued and delivered monthly; on or after the dates when the obligation in terms of the Agreement is due and the amount of each individual payment instruction may not be more or less than the obligation due.
22.3THE APPLICANT understands that the withdrawals hereby authorised will be processed through a computerized system provided by the South African Banks and also understands that details of each withdrawal will be printed on THE APPLICANT’S bank statement. Each transaction will contain THE APPLICANT’S account number, which will be included in the said payment instruction to identify the payment.
22.4THE APPLICANT shall not be entitled to any refund of amounts which Digipop has withdrawn while this authority was in force, if such amounts were legally owing to Digipop.
22.5THE APPLICANT acknowledges that all payment instructions issued shall be treated by THE APPLICANT’S bank as if the instructions had been issued by THE APPLICANT personally.
22.6THE APPLICANT agrees that although this Authority and Mandate may be cancelled by THE APPLICANT, such cancellation will not cancel any agreement that exists between THE APPLICANT and Digipop, and shall in no way be construed as a novation of any of the obligations of THE APPLICANT.
