Terms and Conditions

The Applicant agrees that;(a) this Agreement represents the entire Agreement between the Applicant and Askari Electric (Pty) Ltd (hereinafter referred to as “the Company”);(b) the terms and conditions contained herein represents and constitutes the entire terms and conditions to any Agreement between the Applicant and The Company;(c) no alterations or additions or variations to any term or condition of this Agreement may be effected unless agreed to by both parties, reduced to writing and signed by the Applicant and a duly written authorized representative of the Company except for where otherwise provided in this terms and conditions;(d) these terms and conditions will govern all future and existing contractual relationships between the parties, in any form, manner or place;(e)these terms and conditions are applicable to all existing debts and future debts between the parties;(f) this agreement consisting of the terms and conditions contained herein is final and binding and is not subject to any suspensive or dissolutive conditions;(g) any conflicting terms and/or conditions stipulated by the Customer are expressly excluded and the Applicant acknowledges that by entering into an agreement (of any kind whatsoever) with the Company shall be governed by these terms and conditions and the Customer consents to such terms and conditions freely without any inducement to enter into such agreement with such terms and conditions;(h) these terms and conditions supersedes all previous terms and conditions of any agreement/s without prejudice to any securities or guarantees held by the Company; and (i)these terms and conditions apply to all servants, subcontractors or agents of the Company.

  1. INTERPRETATION Unless the context otherwise requires, words importing the singular shall include the plural and vice versa (the other way around), a natural person shall include a juristic person and vice versa and the one gender shall include the other gender.
  2. APPLICABLE LAW Subject to clause 23 below, this agreement and all modifications and amendments to this agreement shall be governed by and construed under and in accordance with the laws of the Republic of South Africa.
  3. DOMICILIUM The Applicant and I (the guarantor(s) whose signatures appear as guarantors under the personal guarantee) choose our domicillium citandi et executandi (place of notice) for all purposes arising out of these terms and conditions of sale, application for trade facilities and personal guarantee at physical address given by the Applicant for the Application.
  4. CHANGE OF ADDRESS The Applicant and I undertake to notify the Company immediately in writing of any changes of address.
  5. CHANGE OF OWNERSHIIP IN THE APPLICANT The Applicant undertakes to notify the Company in writing within 7 (seven) days af any change of the ownership of the Applicant. The Applicant acknowledges that upon any change of ownership in the Applicant any outstanding amount whether due

    or not shall be deemed to be immediately payable by the Applicant to the Company.

  6. OWNERSHIP OF GOODS Until such time as the Applicant has paid the purchase price in full in respect of goods from the Company, the ownership of

    all such goods shall irrevocably remain with the Company. Subject to any applicable law, the Company shall in its sole discretion without notice to the Applicant be entitled to take possession of any such goods (wherever they may be found) which have not been paid for, in which event the Applicant shall be entitled toto a credit in respect of the goods so returned at the price at which the goods are sold or the value of the goods as determined by the Company. The Applicant and the guarantors indemnify the Company in respect of any claim against the company arising from this clause. In the event that the Company exercises its rights in terms of this clause, the Applicant authorises the company to seize and remove any such goods which have not been paid for from the location.

  7. ORDERS Subject to any applicable law, in the event of any order being given to the Company on an order form reflecting the Applicant’s name as the entity from which order arises, such order shall be deemed to have emanated from the Applicant, despite 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 a valid order.
  8. DELIVERY OF GOODS
    8.1: The Company will make every reasonable endeavour to ensure timeous delivery of the goods on the terms and conditions agreed between the Applicant and the Company. The Company shall not be liable for late deliveries due to circumstances which are beyond the Company’s control such as, but not limited to the events set out in clause 26.
    8.2: Signature by the Applicant or by any representative of the Applicant of the Company’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.
  9. RISK IN AND TO THE GOODS. The risk in and to the goods shall pass from the Company to the Applicant on the date of delivery to the Applicant (or its nominee) despite the fact that ownership will not pass to the Applicant until full payment of the purchase price has been made to the Company.
  10. PRODUCT WARRANTY.
    10.1: Subject to any applicable law, any goods sold to the Applicant will carry a twelve-month manufacturer’s warranty from the date of sale, against latent manufacturing defects only and no other liability shall arise on the part of the Company for any representation or warranty made or alleged to have been made at any time in respect of the goods sold by the Company to the Applicant. 10.2 The lifespan of the goods sold by the Company, is an approximate estimate only and the warranty period relating to such goods shall be the applicable period for the purposes of any claim by the Applicant.10.3 Subject to applicable law, the Company’s liability in respect of any valid warranty claim based on defective goods shall be limited to repairing or replacing such defective goods at the discretion of the Company during any warranty period, provided that such defective goods are returned to the Company in their original state and at the Applicant’s cost, within the applicable warranty period. In circumstances where the goods are not manufactured by the Company, the Company’s liability shall in no circumstances be extended beyond any corresponding liability of the manufacturer or supplier of such goods to the Company.
  11. FAILURE TO OBJECT TO ANY ITEM APPEARING ON THE COMPANY’S STATEMENT. If the Applicant should fail to object to any item appearing on the company’s statement of account 24 (twenty-four) hours of the dispatch of the statements, the account shall be deemed to be in order and correct in all respects.
  12. PAYMENTS.
    12.1: The purchase price of the goods sold shall be as agreed in writing and failing such agreement the purchase price shall be the Company’s usual price in respect of such transactions.
    12.2: Unless otherwise agreed in writing, payment terms are strictly 30 (thirty) days from statement date. The Applicant may not withhold or defer payment to the Company for any reason whatsoever.
    12.3: If the Applicant defaults in making payment of any account that has become due, owing, and payable to the Company, then the full balance outstanding (whether due or not) will immediately become due and payable to the Company without notice to the Applicant.
    12.4: The Company does not 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 Company’s physical business address and place of business where the goods were ordered or transferred directly to the Company’s nominated 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 company for payment
  13. PROOF OF AMOUNT DUE, OWING AND PAYABLE TO THE COMPANY. A certificate signed by the company secretary, any manager or any director of the Company reflecting the amount owing by the Applicant to the Company in relation to the Applicant’s dealings with the Company and the fact and the fact that such amount is due, owing and unpaid shall be prima facie (on the face of it) proof of such facts for the purpose of any action (whether by way of provisional sentence or otherwise), proof of debt on insolvency or for any purpose where the amount of such claim is required to be established and it shall rest entirely on the Applicant to prove that such amount is not owing, due or unpaid.
  14. PROPSAL TO RETURN NON-DEFECTIVE GOODS TO THE COMPANY.
    14.1: In circumstances where the Applicant wishes to return non-defective goods to the Company for credit, the Company may, in its sole and absolute discretion (subject to applicable law), agree to the return of such goods subject to the goods being new, unused, in their original packaging and in saleable condition. The Applicant shall be obliged to provide written proof of having purchased the goods from the Company.
    14.2: Subject to applicable law, the Company shall be entitled to a minimum of 20% handling fee for goods which are returned for credit.
    14.3: Notwithstanding the prevailing price of the goods at the time that they are returned to the Company, the price reflected on the Applicant’s proof of purchase shall be the price credited by the Company to the Applicant for the return of the goods, less the handling fee.
  1. SET-OFF. It is agreed that set-off shall operate automatically as a matter of law at the moment reciprocal debts between the Company and the Applicant come into existence and independently of the will of the parties and it shall not be necessary for either the Company or the Applicant to raise set-off. Upon the operation of an automatic set-off, the debts of the parties shall be mutually extinguished to the extent of the lesser debt.
  2. CESSION OF THE COMPANY’S RIGHTS AND DELEGATION OF COMPANY’S OBLIGATIONS. The Company shall be entitled to cede all or any of its obligations to any third party without prior notice to the Applicant at any time.
  3. NON-WAIVER/NOVATION OF COMPANY’S RIGHTS. Any condonation of any breach of any of the provisions of these terms and conditions of sale or other act of relaxation, indulgence or grace on the part of the Company shall not in any way operate as or be deemed to be a waiver by the Company of any rights or be construed as a novation of rights.
  4. WITHOLDING OF TRADE FACILATIES & CANCELATION OF AGREEMENT. Without notice to the Applicant, the Company shall be entitled to withhold any trade facilities at any time and cancel this agreement.
  5. ENTIRE AGREEMENT.
    19.1: These terms of trade facilities, personal guarantees, cession and terms and conditions of sale contain the entire agreement between the parties and any other terms whether express or implies are excluded from these terms and conditions of sale and any variations, cancelations or additions shall not be of any force or effect unless reduced to writing and signed by the parties or their duly authorised signatories. Accordingly, these terms and conditions of sale shall not be capable of being altered, amended, or modified in any respect unless signed by the Company and the by Applicant (as well as any guarantor(s)).
    19.2: The Applicant acknowledges that no terms at variance with the terms and conditions of sale and which have been sought to be introduced by the Applicant at any time shall be of any force or effect unless the Company has, in writing, expressed and unambiguously agreed that the terms so sought to be introduced by the Applicant shall apply. Without limiting the above, the Company shall not be regarded as having so expressly agreed by virtue merely of the Company having agreed to execute an order in which inconsistent terms have been introduced by the Applicant and despite the fact that the Company has not rejected such inconsistent terms.
    19.3: Where any form of security has been furnished, at any time, to the Company on behalf of the Applicant (including but not limited to a Deed of Suretyship and/or Deed of Cession), the provision of these terms and conditions of sale shall in no way whatsoever affect or diminish the Company’s rights in and to such security.
  6. WINDING UP OF THE APPLICANT. Should the Applicant at any time be wound up, whether provisionally or finally, (which liquidation of sequestration, whether provisional or not, shall be deemed to be material breach by the Applicant of its contract) or commence steps to enter into business rescue proceedings, 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 Company to the Applicant and in respect of which payments have 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 Company, wherever such goods may be found.
  7. CONVERSION OF APPLICANT. The Applicant and any guarantor acknowledge that in the event of the Applicant being a sole proprietorship, partnership, a company or a close corporation and converting from a sole partnership, partnership or company to a close corporation or from a sole proprietorship, partnership or a close corporation to a company at any time, any guarantor or signatory of these terms and conditions of sale shall remain bound as guarantor.
  8. INDEMNITIES.
    22.1: Subject to any applicable law, the Applicant and the guarantor(s) acknowledge that they will indemnify and hold the Company harmless against any liability in respect of the goods, including under Occupational Health and Safety Act 85 of 1993 and the Mine Health and Safety Act 29 of 1996. Subject to any applicable law, specific reference to sections 10 and 21 of the legislation as it applies to product liability, is discharged by the Company.
    22.2: The Applicant shall be obliged to and warrants that it will enquire that a qualified technician and or electrician installs all goods purchased from the Company which require installation by such qualified persons. Should the Applicant fail to comply with such obligation, the Applicant indemnifies the Company from any liability whatsoever nature arising from the purchase of the goods. 22.3: The Applicant acknowledges that it does not rely, in any manner, on any representations and/or advice of the Company in its decision to purchase particular goods from the Company.
    22.4: The Applicant and the guarantor(s) acknowledge and agree that the Company shall not be liable for damage caused by any goods sold, whether such damage is direct or consequential or whether is arises out of the negligence of any employee of the Company or out of any other cause.
  9. JURISDICTION. The Applicant (and any guarantor of the Applicant) consent to submit to the jurisdiction of any court of competent jurisdiction located in the Republic of South Africa, in any action or proceeding arising out of relating in any manner to this agreement. Despite any clause in these Terms and conditions of sale to the contrary, despite any delivery to a place outside the Republic of South Africa, the Applicant, and any guarantor of the Applicant consent to the jurisdiction of the applicable Court of South Africa having jurisdiction over the Company’s branch from which the goods were delivered to the Applicant. The provisions of this clause are inserted solely for the benefit of the Company who may exercise the provisions in its sole and absolute discretion. Should the Company elect, in its sole and absolute discretion, not to exercise the provisions of this clause, the Company shall, at its option, be entitled to institute any action or proceeding arising out of or relating in any manner to this agreement in any court of competent jurisdiction outside the Republic of South Africa and in such instance, this agreement and all modifications and amendments to this agreement shall be governed by and construed under and in accordance with the laws of the country in which such action or proceedings is instituted and the Applicant and the guarantor(s) irrevocably consent to and shall remain bound by all the provisions of this agreement.
    23. 2: Whatever the amount owing by the Applicant (or any guarantor of the Applicant) to the Company, the parties consent in terms of 45 of the Magistrates Court Act 32 of 1944, to the jurisdiction of the magistrate’s court having jurisdiction for the determination of any action or proceedings otherwise beyond the jurisdiction of the court which may be brought by the Company against the Applicant arising out of any transaction between the parties, it being recorded that the Company shall be entitled, but not obliged, to bring any action or proceeding in the said court.
  10. ARBITRATION. The Applicant (and any guarantor of the Applicant) agrees that the Company may, in its sole and absolute discretion, notwithstanding any of the other provisions contained in these terms and conditions of sale. Refer any dispute arising out of or relating in any manner to this agreement, including non-payment of any indebtedness by the Applicant (or any guarantor), to arbitration in accordance with the Rules of the Arbitration Foundation of Southern Africa. The provisions of this clause are inserted solely for the benefit of the Company who may exercise the provisions in its sole and absolute discretion.
  11. COSTS. All costs incurred in any action against the Applicant, including costs on an attorney and own client scale and attorney’s collection commissions will be paid by the Applicant should the company be successful in such action or proceeding. The Applicant will reimburse the Company for all costs incurred in recovering any amount owing by the Applicant to the Company, including but not limited to its legal costs incurred in proceeding against the Applicant, however those costs are incurred prior to the institution of action, after the entry of judgement or at any other time.
  12. 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 God, war, strike, sanctions o0r changes in laws, regulations, ordinances or the like made by any competent authority or other circumstances outside the control of the parties.
  13. SENSITIVE MATERIAL. Neither party shall be required to supply any material of 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 .
  14. TRUSTS. In the event that the Applicant is a validly constituted trust, the person acting on behalf of the Applicant warrants irrevocably that it is entitled to enter into these terms and conditions of sale and that such undertakings contained in these terms and conditions of sale are to the benefit of the trust, its beneficiaries and trustees. The person acting on behalf of the Applicant warrants that these terms and conditions of sale are to the to the Applicant’s benefit and there are no encumbrances of hindrances to the conclusion of these terms and conditions of sale (incorporating the persona guarantee and trade facilities).
  1. CONSENT CLAUSE.
    29.1: The Applicant (and any guarantor for the Applicant) understands that the personal information given under these terms and conditions of sale is to be used by the Company for the purposes of assessing the Applicant’s credit worthiness. The Applicant confirms that the information given by the Applicant is accurate and complete and further agrees to update the information supplied as and when necessary, to ensure the accuracy of the information, failing which the Company will not be liable for any inaccuracies.
    29.1: The Company has the Applicant’s consent and authority at all times to contact and request information from any persons. Credit bureaux or businesses to obtain any information relevant to the Applicant’s credit assessment including, but not limited to, information regarding the amounts purchased from suppliers per month, length of time Applicant has dealt with supplier, type of goods or services purchased and manner and time of payment. 29.3: The Applicant agrees that information given in confidence to the Company by third parties concerning the Applicant will not be disclosed to the Applicant.
    29.4: The Applicant consents to and authorises the Company at all times to furnish personal and credit information concerning the Applicant’s dealings with the Company to any credit bureaux and to any third party seeking a trade reference regarding the Applicant.
  2. CESSION.
    30.1: The Applicant irrevocably and in rem suam (in his own interest) cedes, pledges, assigns, transfers and makes over to and in favour of the Company, all of its rights, title, interest, claims and demand in and to all claims, debt and book debts of any nature and description that the Applicant may now or at any time in the future have against all and any persons, companies, corporations, firms, partnerships, associations, syndicates and other legal persons)”the Applicants 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 Company from any cause or obligation which the Applicant may be or become bound to perform in favour of the Company.
    30.2: Should it transpire that the Applicant at any time entered into prior deeds of cession or otherwise disposed of any rights, title and interests in and to any of the Applicant’s debtors which will from time to time be subject to cession, then this cession shall operate as a cession of all the Applicant’s reversionary rights. Despite the terms of this 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 the Applicant’s debtors shall be collected on the Company’s behalf and provided that tye Company may terminate the Applicant’s rights to collect such monies/debts at any time.
    30.3: The Applicant agrees that the Company may give notice of this cession to all and any of the Applicant’s debtors at any time. 30.4: The Applicant agrees that the Company is entitled to inspect any of the Applicant’s books or records at any time and in addition shall be entitled to take possession of such books and records (of any nature) to give effect to the terms of this cession.
  3. SEVERABILITY. Each clause of these terms and conditions of sale is severable, the one from the other and if any one or more clauses are found to be invalid or unenforceable, the clause(s) shall not affect the balance of these terms and conditions of sale, which shall remain of full force and effect.
  4. PERSONAL GUARANTEE/SURETYSHIP.
    32.1: By my signature, I bind myself in my private and individual capacity as surety and co-principal debtor in solidum (jointly and severably) with the Applicant in favour of the Company for the due performance of any obligation of the Applicant to the Company and for the payment to the Company by the Applicant of any amounts which may be owing or which may in future become owing to the Company by the Applicant from any cause and including, not limited to, any claims for damages and actions against the Applicant acquired by way of cession. Furthermore, I undertake to pay, in addition to the obligations of the Applicant, any contribution levied in insolvency proceedings and any costs incurred by the Company if business rescue proceedings are instituted.
    32.2: This personal guarantee shall be a continuing guarantee of surety which may only be cancelled by the Company in writing. 32.3: Subject to any applicable law, I renounce the benefits of the legal exceptions non numeratae pecuniae (no value received), non-cause debiti (no just cause exists for the debt), errore calculi (wrong calculation of the debt), ordinus seu excussions et divisionis (benefit of execution or division) and cession of action with the force, meaning and effect of which I declare myself to be fully acquainted. I bind myself irrevocably to all the terms and conditions of the Terms of Trade Facilities as well as all of the other terms and conditions which are contained on in the terms and conditions of sale.
    32.4: I record that if more than one person has signed this personal guarantee, there shall come into existence a separate distinct and independent personal guarantee which is brought into existence by each separate signatory to this persona guarantee. If for any reason this personal guarantee is not binding an any signatory, then the obligations of the remaining signatories shall nevertheless be and remain in full force and effect.
    32.5: I irrevocably agree that my obligation as guarantor shall remain of full force and effect, notwithstanding any business rescue proceeding instituted in respect of the Applicant in terms of the Companies Act, Act 71 of 2008 (the Act) and in particular, but without derogating from the generality of the a foregoing, any moratoriums in terms of Section 133 of the Act and any suspension or cancelation of any of the obligations of the Applicant in terms of Section 136(2) of the Act.
    32.6: In addition to (and not in substitution of) all of the other provisions of these terms and conditions of sale, in the event that the Applicant is placed in liquidation, sequestration, business rescue or submits on offer of compromises or composition or scheme of arrangement in terms of company or insolvency law or in terms of the common law, the Company shall be entitled to: 32.6.1 accept any dividend in such event on account and in reduction of the Applicant’s indebtedness; 32.6.2 accept any other securities, guarantees or suretyships arising out of any such event. No provision of this clause 32.6 nor any action taken by the Company, shall affect or diminish my/our liability in terms hereof, save to the extent of actual payment to the Company applied in reduction of the Applicant’s indebtedness.
  5. The Applicant and I (including other guarantor for the Applicant) warrant that the information submitted by the Applicant and its representatives which may include myself is true and correct in all respects and that the terms and conditions of the sale with the Company are those reflected in this document, which the Applicant and I are entirely familiar with and which are deemed to be incorporated in and from part or the personal guarantee. The Applicant and I (including all guarantors) warrant that there are no restrictions or impediments in executing the provisions contained in the terms of the trade facilities, terms and conditions of sale, personal guarantees, and cession.