Credit Application

Credit limit requested (for information purposes only – shall not be capable, on any basis whatsoever, of restricting the total liability from time-to-time of the applicant or any surety for the applicant)         

Note: terms are strictly 30 days from statement date unless otherwise agreed 1n writing. The applicant may not hold or defer payment for any reason.

The applicant (or its duly authorised agent / representative) does hereby apply for credit facilities with the creditor and, in consideration thereof, the applicant (as well as any surety for the applicant-whose signatore/s appears below) does hereby irrevocably accept and consent to the following terms and conditions:

1. A certificate signed, inter alia, by the secretary / manager or any director / member of the creditor reflecting the amount owing by the applicant to the creditor in respect of the credit facilities granted to the applicant in terms hereof relating to the applicants dealings with the creditor and of the fact that such amount is due, owing and unpaid shall be prima facie proof of the effects therein stated 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 claim is required to be established and it shall rest, entirely, with the applicant to prove that such amount is not owing, due and/or unpaid.
2. Notwithstanding the amount which may at any time be owing by the applicant (or any surety for the applicant) to the creditor, 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 having jurisdiction for the determination of any action or proceeding otherwise beyond the jurisdiction of the said court which may be brought by the creditor against the applicant arising out of any transaction between the parties, it being recorded that the creditor shall be entitled, but not obliged, to bring any action or proceeding in the said court and that all costs incurred in any action against the applicant in any competent court, including costs on an attorney and client scale and attorneys collection commissions, will be paid by the applicant. The applicant will reimburse the creditor for all of its legal costs incurred in proceeding against it, howsoever those costs are incurred and whether they are incurred prior to the institution of action, after the entry of judgment or at any other time.
3. In the event of the applicant defaulting, for any reason whatsoever, in making payment of any amount that has become due, owing and payable, then the full balance outstanding (whether due or not) will immediately be deemed to have become due and payable to the creditor without notice to the applicant by the creditor.

Deed of suretyship

4.1  i, by my signature hereto (which appears below) do, in addition to all of the above, hereby bind myself in my private and individual capacity as surety for and co-principal debtor in solidium with the applicant in favour of the creditor for the due performance of any obligation, of whatsoever nature, of the applicant to the creditor and for the payment to the creditor by the applicant of any amounts which may now be owing (ie. At date hereof) or at any time in the future be or become owing to the creditor by the applicant from whatsoever cause arising and including, but without limiting the generality of the aforegoing, any claims for damages and actions against the applicant acquired by way of cession. This suretyship shall be a continuing covering guarantee / surety which may only be cancelled, in writing, by the creditor and then only, provided that all sums then owing by the applicant (whether due or not) to the creditor have been paid in full. I hereby renounce the benefits of the legal exceptions “non causa debiti”, “ordinis seu excussionis et division’s”, and “cession of action”, with the force. Meaning and effect of which i declare myself to be fully acquainted. I furthermore bind myself irrevocably to all of the terms and conditions of clauses 1., 2., 3., 4. And 5. Hereof as well as all of the terms and conditions which are contained on pages 1, 2, 3 & 4 hereof.

4.2 i furthermore record that if all or more than one person has appended his signature hereto, there shall come into existence a separate distinct and independent contract of suretyship i guarantee which is brought into existence by each separate signatory hereto. If for any reason this suretyship / guarantee is not binding (for whatsoever reason) on any one signatory, then the obligations of the remaining signatories shall nevertheless be and remain of full force and effect.

5. The applicant and i (including any surety for the applicant) warrant that the information submitted above is true and correct in all respects and that the further terms and conditions of sale with the creditor are those reflected at pages 1, 2, 3 & 4 hereof, which further terms and conditions the applicant and i are entirely familiar with and which terms and conditions are deemed to be incorporated herein and form part hereof. The applicant and i (including all sureties) warrant that there are no restrictions or impediments in executing the provisions contained in this application for credit incorporating deed/s of suretyship and deed of cession.

Further terms and conditions of sale

1.the applicant and i/us (as surety/ies) (the signatory/ies at page 2 hereof) hereby choose domicilium citandi et executandi for all purposes arising out of this application for credit facilities and deed of suretyship at the address stipulated at paragraph a of page 2 hereof.

2. The applicant and i undertake to notify the creditor forthwith in writing of any change of address.
3. If the applicant should fail to object to any item appearing on the creditor’s statement of account within fourteen days of date of the dispatch of the statements, the account shall be deemed to be in order and correct in all respects.
4. Unless the context otherwise requires, the words importing the singular shall include the plural and vice versa, a natural person shall include an artificial person and vice versa and the one gender shall include the other gender and vice versa.
5. The applicant undertakes to notify the creditor, in writing, within seven days of any change in ownership of the applicant’s business, or should the applicant be a company, any share transaction where the majority shareholding is affected, failing which notice the entire balance owing, whether due or not, will immediately be deemed to be due and payable by the applicant. In addition to the aforegoing, 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 the creditor.
6. Until such time as the applicant has paid the purchase price in full in respect of any purchase of goods from the creditor, the ownership in and to all such goods shall irrevocably remain vested in the creditor. The creditor shall, in its sole and absolute discretion, without notice to the applicant, be entitled to take possession of any such goods (wheresoever they may be found) which have not been paid for, 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 the creditor . The applicant and i indemnify the creditor in respect of any claim against the creditor arising out of this clause. In the event that the creditor exercises its rights in terms hereof, the applicant authorises the creditor to seize and remove any such goods which have not been payed for from any location. Whatsoever.

7.a) the applicant does hereby irrevocably and in rem suam cede, pledge, assign, transfer and make over unto and in favour of the creditor, all of its right, title, interest, claim and demand in and to all claims/debts/book debts of whatsoever nature and description and howsoever arising which the applicant may now or at any time hereafter have against all and any persons, companies, corporations, firms, partnerships, associations, syndicates and other legal personae whomsoever (“the applicant’s debtors”) without exception as a 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 applicant to the creditor from whatsoever cause or obligation howsoever arising which the applicant may be or become bound to perform in favour of the creditor.

7.b) should it transpire that the applicant at any time entered into prior deeds of cession or otherwise disposed of any of the right, title and interest in and to any of the applicant’s debtors which will from time to time be subject to this cession, then this cession shall operate as a cession of all the applicant’s reversionary rights. Notwithstanding the terms of the aforegoing cession the applicant shall be entitled to institute action against any of the applicant’s debtors provided that all sums of money which the applicant collects from its debtors shalt be collected on the creditor’s behalf and provided further that the creditor shall at any time be entitled to terminate the applicant’s right to collect such monies/debts.

7.c) the applicant agrees that the creditor shall be entitled, in its discretion, at any time or times hereafter to give notice of this cession to all or any of the applicant’s debtors.

7.d) the applicant further agrees that the creditor shall, at any time, be entitled to inspect any of the applicant’s books or records and in addition shall be entitled to take possession of such books and records (of whatsoever nature) to give effect to the terms of this cession.

8.1 any goods sold to the applicant shall be regarded as having been sold “voetstoets” without warranty against latent defects therein. No liability whatsoever shall arise furthermore on the part of the creditor for any representation or warranty made or alleged to have been made at any time in respect of the goods sold by the creditor to the applicant.

8.2 the applicant acknowledges that the creditor is not the manufacturer of the goods. The applicant accordingly indemnifies and holds the creditor harmless against any claim that may be brought against the creditor in consequence of such goods being defective and causing any damage whatsoever, whether through accident or negligence, gross negligence or any other cause.

9. In the event of any order being given to the creditor 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 o,rder may have been given or signed by a person not authorised by the applicant and such order will be deemed to constitute valid delivery to the applicant.
10. It is agreed that set-off shall operate automatically as a matter of law at the moment reciprocal debts between the creditor and the applicant come into existence and independently of the will of the parties and it shall not be necessary for either the creditor or the applicant to specifically raise set-off. Upon the operation of an automatic set-off aforementioned, the debts shall be mutually extinguished to the extent of the lesser debt.
11. Signature by the applicant or by any representative of the applicant of the creditor’s delivery note, shall be regarded as acceptance by the applicant that the goods reflected in such delivery note have been properly and completely delivered.
12. The risk in and to the goods shall pass from the creditor to the applicant on the date of delivery to the applicant (or its nominee), notwithstanding that ownership will not pass to the applicant until full payment of the purchase price to the creditor.
13. The creditor shall, at any time, in its sole discretion, be entitled to cede all or any of its rights in terms of this application for credit facilities and deed of suretyship to any third party, without prior notice to the applicant.
14. Any condonation of any breach of any of the provisions hereof or other act or relaxation, indulgence or grace on the part of the creditor shall not in any way operate as or be deemed to be a waiver by the creditor of any rights under this contract, or be construed as a novation thereof.

15. Each clause of these conditions of sale (at pages 1, 2, 3 and 4) 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. The applicant shall, in its sole discretion, without notice to the applicant, be entitled to withhold any credit facilities at any time and, without notice, cancel this agreement.
16. This contract contains the entire agreement between the parties and any other terms thereof whether express or implied are 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. Accordingly, the terms of this application for credit facilities, in its entirety, shall not be capable of being altered, amended or modified in any respect whatsoever unless signed by the creditor and by the applicant (as well as any surety/ies). The terms of this application for credit facilities are in addition to and not in substitution for any other application for credit facilities or other security that may have been signed at any time by the applicant (and any surety for the applicant).
17. Should the applicant at any time be wound up, whether provisionally or finally, (which liquidation or sequestration, wether provisional or not, shall be deemed to be a material breach by the applicant of this contract) or in the event of the applicant being an individual or partnership and having his/its estate sequestrated, whether provisionally or finally, any goods delivered by the creditor to the applicant and in respect of which payment has not been made at the date of the winding up or sequestration (whether payment in respect thereof be due or not) shall immediately be returned to and recoverable by the creditor, wheresoever such goods may be found.
18. The applicant and i acknowledge that in the event of the applicant being a proprietorship, partnership, a company or a close corporation and converting from a proprietorship, partnership, or company to a close corporation or from a proprietorship, partnership or a close corporation to a company at any time hereafter, as the case may be, any surety/signatory in terms of this application for credit shall nevertheless still remain bound as a surety.
19. The applicant acknowledges that no terms at variance with the terms and conditions of this application for credit and which have been sought to be introduced by the applicant at any time shall be of any force or effect unless the creditor has, in writing, expressly and unambiguously agreed that the terms so sought to be introduced by the applicant shall apply. Without derogating from the generality of the aforegoing, the creditor shall not be regarded as having so expressly agreed by virtue merely of the creditor having agreed to execute an order in which inconsistent terms have been introduced by the applicant and notwithstanding that ti-ie creditor nos ngt rejsctsci such incormiffatent terms.
20. The applicant and i will hold the creditor harmless against any actual or purported liability, but not limited to the occupational health and safety act no. 85 of 1993 and the mine health and safety act no. 29 of 1996 (as amended from time-to-time). Specific reference to sections 10 and 21 of the respective legislation as it applies to product liability, is disclaimed by the creditor.
21. Applicable law

Regardless of the place of execution, performance or domicile of the parties, this agreement and all modifications and amendments hereof shall be governed by and construed under and in accordance with the laws of the republic of south africa.

22. Jurisdiction

The parties consent to submit to the jurisdiction of any court of competent jurisdiction located in the republic of south africa, in any action preceding arising out of or relating in any manner to this agreement. In particular the applicant and any surety for the applicant consent, notwithstanding delivery by the creditor to a place outside the republic of south africa, to the jurisdication of the high court of the republic of south africa having jurisdiction for the creditor’s trading branch from which the goods were delivered to the applicant (or any surety for the applicant). The provisions of this 22 are inserted solely for the benefit of the creditor who may exercise the provisions hereof in its sole and absolute discretion.

23. Force majeure

No failure by either party to perform in accordance with any provision of this agreement shall constitute a breach of this agreement if the failure arose as a result of force majeure, including acts of g-d, war, strike, sanctions or changes in laws, regulations, ordinances or the like made by any competent authority or other circumstances wholly outside the control of the parties. “force majeure” means any event due to any cause beyond the reasonable control of the relevant party, such as restrictions and convertibility or transferability, requisitions, involuntary transfers, unavailability of any system, sabotage, fire, flood, explosion, acts of g-d, civil commotion, strikes or industrial action of any kind, riots, insurrection, war or acts of government.

24. The creditor does not, in any manner whatsoever, appoint the post office, or any other body, as its agents for payments by post or otherwise. All payments shall either be made to the creditor’s physical place of business from where the goods were ordered or transfer directly to the creditor’s nominated and designated bank account. In the event of any payments being mislaid or lost in the post or elsewhere the applicant shall still be and remain liable to the creditor for payment.
25. Sensitive materials

Neither party shall be required to supply any material or information in violation of any law, regulation, ordinance or other official decree, if such supply or distribution can only be made with the approval of a governmental authority, without approval of that authority.

26. Consent clause

26.1 The applicant (and any surety for the applicant) understands that the personal information given herein is to be used by the creditor forthe purposes of assessing the applicant’s credit worthiness. The applicant confirms that the information given by the applicant is accurate and complete. The applicant further agrees to update the information supplied, as and when necessary, in order to ensure the accuracy of the above information, failing which the creditor will not be liable for any inaccuracies.

26.2 The creditor has the applicant’s consent and authority at all times to contact and request information from any persons, credit bureaus or businesses, including those mentioned in this credit application form and to obtain any information relevant to the applicant’s credit assessment including, but not limited to, information regarding the amounts purchased from supplier’s per month, length of time applicant has dealt with such supplier, type of goods or services purchased and manner and time of payment.

26.3 The applicant agrees that information given in confidence to the creditor by a third party concerning the applicant will not be disclosed to the applicant.

26.4 The applicant hereby consents to and authorises the creditor at all times to furnish personal and credit information concerning the applicant’s dealings with the creditor to a credit bureau and to any third party seeking a trade reference regarding the applicant in its dealings with the creditor.

27. In the event that the applicant is a validly constituted trust, the applicant warrants, irrevocably, that it is entitled to enter into the terms of this application for credit and that such undertakings contained herein are to the benefit of the trust, its beneficiaries and the trustees. The applicant, as a trust,or otherwise, warrants that the terms hereof are to the applicant’s benefit and there are no encumbrances or hindrances to the conclusion of this application for credit facilities (incorporating deed of suretyship and deed of cession).
28. The applicant (and any surety for the applicant) hereby irrevocably indemnify the creditor for any claim whatsoever against the creditor arising out of the national credit act 34 of 2005 (or any amendment thereto).