Standard Terms and Conditions of Sale

 
The applicant hereby applies to Qual-E-Quip Manufacturing CC (“Creditor”) for credit facilities on the basis of the following information supplied by the Applicant and to be granted on the terms and conditions set out here-under.

Prior to the signing of this application the Credit Grantor drew the Applicant’s attention to the provisions of Section 13(1) of the Credit Agreements Act 75 of 1980, which reads:

13(1) WHEN ANY CREDIT AGREEMENT IN RESPECT OF WHICH THE INITIATIVE EMENATED FROM ANY CREDIT GRANTOR OR HIS MANAGER, AGENT OF EMPLOYEE, IS SIGNED BY ANY CREDIT RECEIVER AT A PLACE OTHER THAN THE BUSINESS PREMISES WHERE THE CREDIT GRANTOR OR HIS MANGER, AGENT OF EMPLOYEE ORDINARILY CARRIES ON BUSINESS, THE CREDIT RECEIVER MAY WITHIN FIVE DAYS AFTER THE DATE OF THE CREDIT AGREEMENT TERMINATE IT BY NOTICE IN WRITING DELIVERED OR SENT BY PREPAID REGISTERED MAIL TO THE
CREDIT GRANTOR AND BY TENDERING THE RETURN OF ANY GOODS DELIVERED TO HIM IN TERMS OF THE CREDIT AGREEMENT.

1. The applicant hereby warrants that all information is true and correct and hereby accepts and agrees to the conditions as set out in this application.

2. The following words have the meaning assigned to:
a) Applicant:  a customer who’s a signatory on the credit application and/or the proprietors/director/members/partners of the applicant who binds himself/herself in his/her personal capacity as co-debtor and/or the entity who seeks the credit
b) Goods:  means the “machines and equipment” as described by schedule
c) Qual-E-Quip Manufacturing:  Qual-E-Quip Manufacturing CC     97/19182/07

3. The Applicant acknowledges that this contract becomes final and binding on receipt of the acceptance by Qual-E-Quip Manufacturing at any of its business addresses.

4. DEFINITION AND NATURE OF THE CONTRACT:
The Applicant and Qual-E-Quip Manufacturing agree that:
a) The nature of Qual-E-Quip Manufacturing’s business is the leasing, reparation, instalment or sale transactions of construction and industrial equipment.
b) The nature of the contract between the Applicant and Qual-E-Quip Manufacturing can be described as a leasing transaction and /or an instalment sale transaction as described in the Credit Agreement Act No. 75 of 1980 as amended;
c) Ownership in the goods remains vested in Qual-E-Quip Manufacturing at all times, until the full purchase price has been, if applicable.
d) The Applicant is not entitled to sell or dispose of any unpaid goods without prior written consent of Qual-E-Quip Manufacturing.  The Applicant shall not allow the goods to become encumbered in any manner prior to the full payment thereof and shall advice third parties of   the rights of Qual-E-Quip Manufacturing in the goods.
e) This contract represents the entire agreement between the Applicant and Qual-E-Quip Manufacturing and that no alterations or additions to this contract may be effected unless agreed to by both parties, writing and signed by the applicant and a duly authorised representative of Qual-E-Quip Manufacturing;
f) That this agreement will govern all future contractual relationships between the Applicant and Qual-E-Quip Manufacturing
g) Is applicable to all existing debts between the parties;
h) This contract is final and binding and is not subject to any suspensive of dissolutive conditions;

5. VICARIOUS LAIBILITY:
a) The Applicant warrants that the signatory on the Credit Application has been duly authorised to contract on the Applicant’s behalf.
b) The signatory hereby binds himself/herself in his/her personal capacity as co-debtors jointly and severally for the full amount due to Qual-E-Quip Manufacturing and agrees that these Standard Conditions will apply mutatis mutandis to him/her.

6. QUOTES
a) All quotes will remain valid for a period of 30 days from the date of the quote or until the date of issue of a new Price List, whichever occurs first.
b) The validity of any price quoted is subject to availability and to any increased in the cost price, including currency fluctuations, of Qual-E-Quip Manufacturing before dispatch of plant and commencement of services.
c) The amount of the increase shall be certified by a duly authorised representative of Qual-E-Quip Manufacturing and such a certificate shall be final and binding on the customer.

7. PAYMENT:
a) The Applicant agrees to pay the amount of the Tax Invoice at the offices of Qual-E-Quip Manufacturing in cash on order for all charges; or (b) if the Applicant is a Credit Approved Customer, within 30 days from the end of the month in which a tax Invoice is issued by Qual-E-Quip Manufacturing.
b) Applicant has no right to withhold payment for any reason whatsoever.
c) No further demand from Qual-E-Quip Manufacturing is necessary after the expiry of 30 days.
d) Payment by cheque: the Applicant hereby declares that no cheque will be issued in payment unless there are sufficient funds available and that such funds will remain available in order that all cheque payment will be honoured and that under no circumstances will any cheque be stopped.
e) The Applicant shall be liable to pay interest at the rate of 2,5% per month on amounts unpaid as at the due date until date of payment.  These amounts shall be calculated and payable monthly in advance.
f) Should any amount not be paid by the Applicant on due date, then the whole amount in respect of all hires, purchases etc. by the Applicant shall become due, owing and payable irrespective of the date(s) when these transactions took place.
g) The Applicant is not entitled to set off any amount due to the Applicant by Qual-E-Quip Manufacturing against this debt.

8. PERIOD:
a) The hire period shall commence when the Applicant takes delivery of equipment and shall end when the owner accepts return of the equipment.
b) The Applicant is entitled to terminate this agreement at any time after the date on which the agreement was signed by written notification of 7 days
c) No penalties will be payable by the Applicant in respect of the early termination of this agreement.
d) The hire charges in respect of this agreement will cease from the date of the return of the machine.
e) In the event that the applicant fails to return the machine on date of termination the owner shall be entitled to agreed pre-estimated damages in an amount equal to the hire charges as set out in this agreement until the machine is returned, replaced or paid for in full.
f) All plant taken on hire by the applicant is deemed sold at the replacement value of the plant if not returned within 6 months after the expiry of the contract period in a perfect condition with all accessories and manuals intact.  The Applicant will remain liable for full hire charges during this period.

9. RISK:
a) The risk of damage or destruction or theft of plant passes to the Applicant on moment of dispatch and the Applicant undertakes to insure the plant fully until returned.
b) The Applicant shall at all times be fully responsible for the equipment prior to the return thereof, and shall return it to Qual-E-Quip Manufacturing at the expiry of the hire period or on cancellation of this agreement.
c) Qual-E-Quip Manufacturing shall at all reasonable times be entitled access to any premises of the applicant for the purposes of inspection or repairing equipment.
d) Under no circumstances will Qual-E-Quip Manufacturing be liable for any damage arising from any misuse or abuse of the plant.
e) Under no circumstances will Qual-E-Quip Manufacturing be liable for any consequential damages or any dialectal liability of any nature whatsoever.

10. DOMICILLUM CINTANDI ET EXECUTANDI:
a) The Applicant chooses domicillium citandi et executndi at the registered or the business or the physical addresses of the Applicant or any director (in the case of a company), member (in the case of a closed corporation) or of the owner(s) or partner(s).
b) The Applicant undertakes to inform Qual-E-Quip Manufacturing in writing within 7 days of any change of address of Director, member, shareholder or owner or 14 days prior to selling or alienating the Applicant business and failure to do so will constitute a material breach of this agreement.
c) Any document will be deemed duly presented to the Applicant within:
i) 3 days of prepaid registered mail to any of the Applicant’s business or postal addresses or to the personal address of any director, member or owner of the Applicant; or
ii) within 24 hours of being faxed to any of the Applicant’s fax numbers or any director, member’s or owners fax number.
iii) on being delivered by hand to the applicant or any director, member or owner of the Applicant; or
iv) within 48 hours if sent by overnight courier; or
v) within 24 hours of being telexed to the applicant telex number.  

11. JURISDICTION:
Qual-E-Quip Manufacturing shall have the right to institute any action in either the magistrate’s Court or Supreme Court at its sole discretion.
The applicant shall be liable to Qual-E-Quip Manufacturing for all legal expenses on the attorney and client scale of an attorney and counsel incurred by Qual-E-Quip Manufacturing in the event of any default by the Applicant or any litigation in regard to the validity and enforceability of this agreement.
The Applicant will also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties for any form of security that Qual-E-Quip Manufacturing may demand.
The applicant shall pay R3 000.00 (Three Thousand Rand) in at Qual-E-Quip Manufacturing’s attorney or furnish sufficient security in lieu of costs if any action is defended by the Applicant.
The Applicant agrees that Qual-E-Quip Manufacturing will not be required to furnish security in terms of Rule 62 of the Rules of the Court of the Magistrate’s Court, or in terms of Rule 47 of the Law of the High Court 59 of 1959.

12. TERMINATION OR AGREEMENT:
a) The period of hire for unreturned plant extends automatically matatis mutandis at the end of the contract period for a period of 24 hours until terminated by either party.
b) Either party may terminate the extended contract period by giving 24 hours notice.  The Applicant must obtain an off-hire delivery note in order for the termination to be valid.

13. WARRANTIES:
a) Qual-E-Quip Manufacturing does not furnish any warranties nor make any representations other than those contained herein and no warranties or representations shall be binding on Qual-E-Quip Manufacturing unless such warranties or representations are in writing and signed by a duly authorised representative of Qual-E-Quip Manufacturing.  Qual-E-Quip Manufacturing does not undertake to furnish the Applicant with any technical advice but should it do so it does not warrant the correctness thereof.
b) The Applicant agrees that neither Qual-E-Quip Manufacturing nor any of its employees will be liable for any innocent misrepresentation made to the Applicant.
c) It is the sole responsibility of the Applicant to determine that the goods or services ordered are suitable for the purposes of intended use.

14. EQUIPMENT IN GOOD ORDER AND REPAIR:
a) The equipment shall be deemed to be in good order and repair and fit for the purpose for which it is intended when delivered to the Applicant unless the Applicant notifies the owner of any defects immediately on taking delivery.
b) Qual-E-Quip Manufacturing shall in its sole discretion decide whether the equipment is defective or unfit for the purpose for which it is intended and shall be entitled to either terminate this agreement or refund the deposit and any hire charges paid, or shall replace the defective equipment.

15. BREAKDOWN & REPAIRS:
a) The Applicant shall, at his own cost service and maintain the equipment in good running order and repair to the standard required by the owner until the equipment is returned to Qual-E-Quip Manufacturing.
b) The Applicant shall immediately notify Qual-E-Quip Manufacturing of any breakdown. Qual-E-Quip Manufacturing shall be entitled to repair or replace the equipment at its cost at the owners principal place of business unless Qual-E-Quip Manufacturing in its sole discretion determines that the breakdown is due to improper use of or failure to service and maintain in which event the Applicant shall on demand reimburse Qual-E-Quip Manufacturing with all costs incurred as a result of the breakdown.
c) The Applicant shall return the equipment in a clean state and in good order and repair, fair wear and tear expected.  In the event that the equipment is lost, destroyed or damaged as a result of any cause prior to the return thereof, the Applicant shall be liable to make good the replacement cost thereof and hire charges shall continue until the Applicant has paid for or replaced the lost equipment.

16. DELIVERY:
Where goods are delivered to the Applicant the Applicant shall upon signing the consignment delivery note on an unqualified basis, be deemed to confirm the proper delivery of all the goods charged.

17. GENERAL:
The Applicant hereby authorizes Qual-E-Quip Manufacturing to furnish information concerning the Applicant’s dealings with Qual-E-Quip Manufacturing to any third party seeking a trade reference regarding the Applicant.

18. USE OF EQUIPMENT:
The Applicant acknowledges that it is aware of the purpose for which the equipment was designed as well as all safety and maintenance procedures, which are required in respect of the equipment by any lawful authority and safety, and maintenance procedures.  The Applicant shall be liable to and hereby indemnifies Qual-E-Quip Manufacturing for all damage of loss suffered by Qual-E-Quip Manufacturing should the equipment is used for any other purpose.
b) The Applicant shall use the equipment at its own risk and indemnifies Qual-E-Quip Manufacturing against any claims of any nature brought against it by the Applicant employees, agents or representatives or third parties arising out of the use of the equipment while under the control of the Applicant in terms hereof and all costs and expenses or representations shall be binding on the Applicant
Qual-E-Quip Manufacturing does not undertake to furnish the Applicant with any technical advice but should it do so it does not warrant the correctness thereof.
c) It is the sole responsibility of the Applicant to determine that the plant and services ordered are suitable for the purpose of intended use.
d) The Applicant may in no way cede nor assign this agreement, nor sublet the plant.
e) Failure by the applicant without the prior written consent of  
Qual-E-Quip Manufacturing to either retain possession or removal from the intended hire site of use of the plant for any purpose other than indicated at the time of order or use outside the
time provisions or use of the plant by unauthorised, inexperienced, unqualified or unlicensed persons will incur penalties of the times the agreed daily rate from the moment of occurrence until issue of an off – hire delivery note by Qual-E-Quip Manufacturing.

19. BREACH OF CONTRACT:
a) Should the Applicant:
i) Fail to comply with any obligation on the Applicant in terms hereof all of which are deemed to be material on due date and persist in such failure for three days after having given written notice to remedy such default; or
ii) Commit an act of insolvency or be placed in liquidation or sequestration whether provisional or final or be placed under judicial management. Qual-E-Quip Manufacturing shall be entitled to terminate this agreement forthwith and enter any premises of the Applicant and retake possession of the equipment. The specific remedies which Qual-E-Quip Manufacturing has against the Applicant in terms of these general conditions are without prejudice to any other remedies, which Qual-E-Quip Manufacturing may have against the Applicant including the right to claim all such consequential and other damages from the applicant
b) The specific remedies, which Qual-E-Quip Manufacturing may have against the Applicant, including the right to claim all such consequential and other damages from the Applicant any of its obligations.
c) Qual-E-Quip Manufacturing may claim immediate payment of all amounts due under this agreement plus interest thereof together with the rentals for the un-expired periods of this lease agreement.  Should the Applicant have made payment of the aforesaid amounts, he will be entitled to the use of the goods for the un-expired period of this agreement; or d) Cancellation of this agreement and repossession of the goods and claim will take effect if:
i) all arrears rental plus interest thereof; or ii) damages, which are equivalent to the total of all rentals in respect of the un-expired period of this lease, reckoned form date of cancellation.

Signed at ___________________________ on this day of ________________20____ .

_______________________                   ___________________________

Name in Print (Signatory 1)                       Signatory 1

_______________________                   ___________________________

Name in Print (Signatory 2)                       Signatory 2

_______________________                   ___________________________

Name in Print (Signatory 3)                       Signatory 3

_______________________                   ___________________________

Name in Print (Signatory 4)                       Signatory4

As Witnesses

1. _____________________                   2. _________________________