Terms & Conditions of Sale and Credit Agreement
The Company is a provider of commercial kitchen/restaurant and QSR chain foodservice equipment. We specialise in supplying and servicing state-of-the-art kitchen equipment tailored to meet the demands of the hospitality sector. Our commitment to excellence ensures that your business operates smoothly, efficiently, and with the highest standards of quality. The Customer has engaged the Company for credit facilities, which, if approved, will be granted in terms of and subject to the Terms and Conditions of this Credit Agreement.
1. Interpretation
Unless the context otherwise clearly indicates, all references to the singular shall include the plural and vice versa, the one gender shall include a reference to the other genders, natural persons shall include legal persons and vice versa, and the following terms shall have the meanings assigned to them below:
1.1. “the Agreement” means this Customer Application Form, Terms of Trade and Credit Agreement, together with the Sales Terms and any Quotation, Order, Invoice or Delivery Note issued under it;
1.2. “the Company” means Proserve Systems (Pty) Ltd, a Private Company with Registration Number 2021/316482/07, trading as ProServe;
1.3. “the Contract” incorporates these Terms and Conditions, the Customer’s Order and the Company’s Quotation, Invoice or Delivery Note;
1.4. “Contract Price” means the total amount set out on any Quotation, Invoice or Delivery Note from time to time, payable by the Customer to the Company for the Goods;
1.5. “the Customer” means the person, firm, company or close corporation whose signature appears on the face hereof;
1.6. “Day” means any workday in South Africa, excluding recognised public holidays and weekends;
1.7. “Effective Date” means the date on which the Company communicates its written acceptance of this application to the Customer or, where the sale proceeds on a Quotation, the date of acceptance of the Quotation, as the context requires;
1.8. “the Goods” means the materials, equipment and/or merchandise described on the face of any Quotation, invoice or delivery note, including any services associated with the design, engineering, installation and/or commissioning thereof;
1.9. “Invoice or Delivery Note” means the Company’s standard invoices or delivery notes accompanying the Goods when delivered, or forwarded to the Customer from time to time, as the case may be;
1.10. “the Order” means the written and/or oral order(s) for Goods placed by the Customer with the Company from time to time, which order(s) is/are subject to these Terms and Conditions;
1.11. “Parties” means the Company and the Customer, and “Party” means either of them;
1.12. “Quotation” means any quotation and/or estimate provided by the Company to the Customer, whether in person, by written offer or via online channels such as websites, catalogues or promotional emails; and
1.13. “Sales Terms” or “the Terms and Conditions” means these standard terms and conditions of the Agreement, as incorporated in the Contract and as amended from time to time.
2. Applicability
2.1. Unless otherwise agreed in writing by the Company, these Terms and Conditions shall override any representations made by the Company or any conditions, express or implied, stipulated, incorporated or referred to by the Customer in its Order or any negotiations with the Company;
2.2. The placing of an Order by the Customer with the Company constitutes full and unconditional acceptance by the Customer of the Terms and Conditions contained herein;
2.3. This Customer Application, together with the Sales Terms, applies to each transaction entered into between the Customer and the Company;
2.4. The Company may amend the Sales Terms and its Privacy Policy from time to time at its discretion, and the amended Sales Terms will apply to all transactions entered into between the Parties from the date on which they are published on the Company’s website at www.ProServe.co.za; and
2.5. The Customer warrants that it is a juristic person whose annual turnover and/or asset value exceeds R2,000,000 (two million Rand), being the threshold determined in terms of the Consumer Protection Act 68 of 2008, such that that Act does not apply to this Agreement, and that it does not qualify for the protection of the National Credit Act 34 of 2005.
3. Credit Facilities
3.1. This clause 3 and the other credit-related provisions of this Agreement apply only where the Customer has applied for a credit facility. Where the Customer has not applied for, or is not granted, a credit facility, the supply of Goods will be strictly on a cash-on-delivery or advance-payment basis and the credit-specific provisions of this Agreement will not apply;
3.2. An application for a credit facility will be processed by the Accounts Department of the Company based on the information available, including information obtained from one or more credit bureaus, as agreed to by the Customer below;
3.3. The Customer hereby grants permission to the Company to access the Customer’s credit report(s), from either TransUnion ITC, Experian or any other credit bureau as the Company may select, and to access credit performance information relating to both the Customer and its principals, directors and officers, if incorporated, acknowledging that such reports will include judgement, notice and default information about the principals, directors and officers in their personal capacity;
3.4. The information obtained from the credit bureau will be used for the purpose of setting a limit for the supply of goods, services and/or utilities;
3.5. Credit limits granted by the Company may not be exceeded without the prior written consent of the Company. The Company reserves the right to change the credit limit at any time without notice to the Customer, and any amount in excess of the credit limit will be payable on demand;
3.6. The Customer acknowledges that, should credit facilities be granted, they may be withdrawn or amended by the Company at any time without prior notification, and the decision whether or not to grant credit facilities to the Customer is at the sole discretion of the Company;
3.7. The Company shall be entitled at any time to require the Customer to furnish guarantees or suretyships acceptable to the Company in respect of the Customer’s current or future obligations to the Company; and
3.8. Should any amount owing by the Customer become overdue, the Company shall be entitled to place the Customer’s account on credit hold and to decline to process any further transactions against the account until the overdue amount has been settled in full.
4. Conclusion of the Agreement
4.1. This Customer Application constitutes an offer by the Customer to do business with the Company and does not, of itself, create a binding agreement. A Contract between the Company and the Customer comes into existence only when the Company has accepted this application in writing, or has issued an invoice confirming the Customer’s Order (in whole or in part), or has commenced to execute the Order, whichever event occurs first; and
4.2. If there is any inconsistency between these Terms and Conditions and any special terms of the Order as accepted by the Company in accordance with clause 4.1, such special terms shall override these Terms and Conditions to the extent of the inconsistency.
5. Quotation and Prices
5.1. A Quotation does not constitute an offer capable of acceptance so as to bind the Company, and is merely an invitation to the Customer to do business; no Contract arises until the Company accepts the Customer’s Order as set out in clause 4;
5.2. Quotations are valid for thirty (30) days after the date of quotation, unless otherwise stated in writing, and are valid only if issued or signed by an authorised employee of the Company;
5.3. The Company does not accept liability for any price quotation made over the telephone;
5.4. Quoted prices exclude VAT and any other levy imposed by the Government or other state authority, which will be itemised separately and payable by the Customer;
5.5. Unless otherwise specifically stated in writing, the quoted price of the Goods does not include the cost of delivery of the Goods to the Customer, which cost of delivery shall be for the account of the Customer;
5.6. Prices are subject to variation due to exchange rate fluctuations as well as increases in the prices of raw materials on the world market, which fluctuations and/or increases the Company need not prove, and the Company reserves the right to revise prices if the quantities ordered are reduced or increased;
5.7. Prices indicated in any non-current online listing, such as a website or catalogue, may be subject to change at any time without prior notice. It is the Customer’s duty to satisfy itself of current pricing when using online channels, and the Company will not be bound by outdated or incorrect listing prices on online channels; and
5.8. Over and above the quoted costs, all additional expenses incurred by the Company for additional disbursements, such as non standard additions, nonstandard packaging and associated labour, will be additional costs for the account of the Customer.
6. Payment and Reservation of Ownership
6.1. The Company shall invoice the Customer on or about delivery of the Goods, or at such other time as the Company deems fit, and payment of the Contract Price shall be made to the Company free of the cost of transfer of monies and without deduction or set-off within thirty (30) days of the date of statement or, where a credit facility has been granted, in accordance with the approved credit terms;
6.2. Cash sales: the payment terms applicable to cash sales will be in accordance with the terms of the Quotation, and if no terms are stipulated, the standard payment terms for cash sales will apply, namely that 50% (fifty per cent) of the purchase price is payable on the Effective Date and the balance of 50% (fifty per cent) is payable on delivery of the Goods, against VAT invoices payable on presentation;
6.3. In respect of cash sales, cash and electronic funds transfer (EFT) payments are acceptable; in respect of account sales, only EFT payments are acceptable. All payments must be accompanied by a remittance advice giving sufficient information to enable the Company to correctly allocate the monies received. In the absence of proper allocation information, or where only part payment is received, such amounts will be allocated to the oldest amount(s) due;
6.4. The Customer acknowledges that, should any amount payable to the Company become overdue in whole or in part, or any payment be dishonoured, the entire balance outstanding shall immediately become due and payable without any notice;
6.5. Notwithstanding the passing of risk in the Goods to the Customer in terms of clause 7.4, ownership in any particular consignment of Goods shall remain vested in the Company until the Company has received payment in full for such consignment of Goods;
6.6. The Customer shall not be entitled to withhold payment of any amount due in terms hereof by virtue of any claim the Customer may have for compensation for loss of or damage to Goods or other property, or for any reason whatsoever;
6.7. The Company shall be entitled to inform the owner or landlord of any premises in or at which the Goods are, or at any time may be, of the Company’s reservation of ownership in the Goods in terms of clause 6.5, and the Customer must advise the Company of the name and address of any such owner or landlord and promptly advise the Company of any change in such name or address; and
6.8. The Customer must take all steps necessary to notify interested third parties that ownership of the Goods has not passed to the Customer, and must produce written proof of such notices to the Company on demand.
7. Delivery and Risk
7.1. Orders will be delivered locally to the Customer by the Company. Unless otherwise stipulated, prices of Goods quoted are ex the Company’s premises, and the responsibility and cost of collecting or arranging delivery of the Goods lies with the Customer;
7.2. Orders out of the area will be delivered by carrier at the Customer’s risk, and the carrier shall be deemed to be the agent of the Customer. Where delivery is by carrier, the Customer accepts liability based on the carrier’s signature. All carriage arranged on behalf of the Customer, and insurance cover with the carrier, will be at the expense and responsibility of the Customer at all times;
7.3. The Customer shall accept delivery immediately when tendered to it by the Company, and if the Customer fails to take delivery, the risk therein shall immediately pass from the Company to the Customer, and the Company shall be entitled to charge the Customer storage or to have the Goods stored elsewhere at the cost of the Customer;
7.4. All risk in and benefit to the Goods shall pass to the Customer immediately on delivery thereof to the Customer;
7.5. Where the Quotation specifies delivery dates, such dates are estimates only and are not guaranteed, and are subject entirely to the timely receipt of payments due. While the Company will use its best efforts to meet such dates, a reasonable delay in delivery will neither entitle the Customer to terminate this Agreement nor render the Company liable to the Customer for any damages whatsoever, including any loss sustained due to damage to the Goods caused during delivery or courier;
7.6. The Company shall be entitled, at its sole discretion, to deliver the Goods in more than one consignment and to invoice each consignment separately; and
7.7. Unless the Customer advises the Company in writing within seven (7) days of delivery of the Goods of any defects in the Goods, the Goods shall be deemed to have been delivered to the Customer in perfect condition and in good and proper working order, and the Customer shall not be entitled to return the Goods or claim a reduction of the purchase price on the grounds that the Goods were defective.
8. Inspection, Warranties, Defects and Liability
8.1. The Customer will be deemed to have inspected the Goods on signing the delivery note;
8.2. No representations and/or warranties, other than those recorded herein, have been made by or on behalf of the Company, and the Company shall not be liable for any defects in any of the Goods so purchased, whether latent or patent;
8.3. Claims in connection with defects in Goods supplied by the Company will only be recognised if written notice has been given to the Company within ten (10) days of the defect becoming apparent, but in any event only within six (6) months after delivery of the Goods forming the subject matter of the complaint has taken place;
8.4. The Company’s liability for any loss sustained by the Customer due to faulty or incorrect Goods is limited to the repair or replacement of the Goods, at the Company’s discretion, and specifically excludes any liability for injury or consequential damage to premises or other equipment, production losses or penalty claims, however caused. This indemnity is absolute where the Company did not manufacture the Goods, and where the Company did manufacture the Goods it extends to protect all actions not constituting wilful or intentional conduct causing damage;
8.5. The suitability of the Goods for the application and output targets contemplated by the Customer is the sole responsibility of the Customer, and the Company’s responsibility is limited to the proper performance of the Goods as per specification. It is the Customer’s sole responsibility to familiarise itself with the regulations which concern the use of the Goods ordered, and the Company will not be responsible for any penalties or restrictions resulting from contravention of any Government or other regulation; and
8.6. The Company shall not be responsible for any loss or damage of whatsoever nature caused to the property or person of the Customer or any third party as a result of any defect in the Goods, whether patent or latent, and the Customer indemnifies the Company, its directors, members, employees, agents and representatives against any claims made against them by any third party arising out of any such defects.
9. Return of Goods
9.1. The Customer shall not be entitled to return any Goods to the Company without the Company’s prior written consent thereto;
9.2. No claim in respect of shortages, damage and/or defects in and to the Goods shall be entertained unless made in writing by the Customer and received by the Company within seven (7) days from the date of delivery, together with the Company’s delivery note;
9.3. Goods incorrectly ordered by the Customer will only be accepted for return or replacement subject to the prior written consent of the Company; and
9.4. Authorisation to return Goods for credit requires an authorisation number to be issued by the Company to the Customer, which the Company will only consider granting if the Customer notifies it in writing within fourteen (14) days after invoicing. The Company will be entitled to levy a 20% (twenty per cent) handling charge on Goods returned for credit, and will not accept for credit any Goods that have been specifically designed or made to the Customer’s specifications.
10. Breach and Terminiation
10.1. Termination by notice: either Party shall have the right to terminate this Agreement at its sole discretion by giving one (1) calendar month’s notice in writing to the other;
10.2. Summary termination by the Company: the Company shall have the right at any time, by giving notice in writing to the Customer, to terminate this Agreement after 20 (twenty) business days from delivery of the said notice, in any of the following events:
10.2.1. Breach by the Customer: in the event of any breach by the Customer of any obligation owed by it to the Company, whether under these Terms and Conditions or otherwise, and the Customer’s failure to rectify the breach within 20 (twenty) business days from the delivery of the notice, the Company shall be entitled, without prejudice to any other remedies at its disposal, to:
10.2.1.1. cancel this Agreement and obtain possession of the Goods;
10.2.1.2. recover any damages suffered from the Customer, including but not limited to liquidated damages representing the difference between the balance of the Contract Price then outstanding (whether any part thereof is due for payment or not) and the value of the Goods (as at the date on which the Company obtains possession of the Goods);
10.2.1.3. retain, and pending receipt of payment of such damages have no obligation to repay to the Customer, all or any allowances and credits granted to the Customer and all or any monies paid by the Customer to the Company in terms of this Agreement, which allowances, credits or monies will be retained as security for the due payment of any such damages or other compensation to which the Company may be or become entitled from the Customer; and
10.2.1.4. recover from the Customer all costs and expenses it may incur arising from the breach of the Contract, including all legal costs as between attorney and own client, collection charges, tracing fees and interest at the rate set out in clause 12;
10.2.2. Alternatively, in the event of the Company electing not to terminate the Agreement upon a breach, it may, at its sole discretion:
10.2.2.1. claim immediate payment of all amounts payable by the Customer to it, whether due under this or any other Contract and whether then due and payable or not;
10.2.2.2. suspend performance of any obligations owed by it to the Customer until such time as such payment is made;
10.2.2.3. claim such damages as it may have suffered; and
10.2.2.4. recover from the Customer all costs and expenses it incurs arising from the breach, including all legal costs as between attorney and own client, collection charges, tracing fees and interest at the rate set out in clause 12; and
10.2.3. Liquidation or judicial management: if the Customer enters into liquidation, whether compulsorily or voluntarily and otherwise than for the purposes of amalgamation or reconstruction, or if it is placed under judicial management or business rescue, or if it compounds with its creditors, or if it takes or suffers any similar action in consequence of debt, the Company is entitled to terminate this Agreement on notice to the liquidator or other appointed officer and to obtain possession of the Goods; and
10.3. By taking any of the aforesaid actions, the Company does not renounce its rights to any other legal remedies at its disposal for the recovery of any damages, expenses or losses caused by the termination of the Agreement.
11. Termination on the Company Ceasing to Trade
In the event of the Company ceasing to carry on business as a supplier of the Goods, it may at any time terminate this Agreement by giving 2 (two) months’ notice in writing to the Customer.
12. Interest on Overdue Amounts
Without prejudice to any of the Company’s rights, should the Customer fail to pay any amount which may become due by it on the due date in terms of this Agreement, such overdue amount shall bear interest at the rate of 12.5% (twelve and a half per cent) per annum, compounded monthly, from the due date of payment to the actual date of payment, both dates inclusive.
13. Costs
All costs, charges and expenses of whatsoever nature which may be incurred by the Company in enforcing its rights in terms of this Agreement, including without limitation legal costs on the scale as between attorney and own client, Sheriff’s fees and collection commission, and irrespective of whether any action has been instituted, shall be recoverable from the Customer.
14. Certificate of Indebtedness
A certificate signed by any manager or director of the Company (whose authority, appointment and qualification need not be proved) as to the existence and amount of the Customer’s indebtedness to the Company, the rate of interest applicable and the date from which interest is calculated, and as to any other fact relating to such indebtedness, shall constitute prima facie proof of the contents thereof and shall be sufficient proof for the purposes of obtaining provisional sentence, summary judgment or any other judgment against the Customer, and for any other purpose whatsoever.
15. Force Majeure
The Company shall not be liable to the Customer for any failure to perform its obligations in terms of this Agreement due to any circumstance beyond its control (including, without limitation, strikes, delays caused by any manufacturer of goods or shipping agent, riots, civil unrest, war activity, embargo, fire, explosion, flood or natural causes), and in such event the Company may elect, by written notice, to cancel any agreement with the Customer or that the time for performance shall be extended until such time as the Company can reasonably effect performance.
16. Jurisdiction
The Customer consents to the jurisdiction of the Magistrates’ Court in respect of all amounts or causes of action arising out of the sale and supply of Goods, even though the amount involved may exceed the jurisdiction of such court. It is expressly understood that the Company shall be entitled, but not obliged, to bring any action in any other court of competent jurisdiction.
17. Governing Law
This Agreement, and any dispute in connection with it, as well as any question regarding its existence, interpretation, application and/or termination, shall be governed by and determined in accordance with the law of the Republic of South Africa.
18. Domicilium
The address of the Customer’s principal place of business, stated on the face hereof, shall be the domicilium citandi et executandi of the Customer for all purposes, whether in respect of court process, notices or other documents or communications of whatever nature. The Customer undertakes to notify the Company in writing of any change of address of the Customer’s principal place of business and/or registered office, where applicable. A notice shall be deemed to have reached the Company if delivered to the address stated herein.
19. Cession and Delegation
The Customer shall not be entitled to cede any of its rights or delegate any of its obligations under this Agreement to any third party without the prior written consent of the Company, which consent shall not be unreasonably withheld. The Company shall be entitled to cede, assign or transfer all or any of its rights and obligations under this Agreement to any third party without the consent of the Customer, and the Customer hereby consents to any such cession, assignment or transfer.
20. Protection of Personal Information
The Customer acknowledges that, in order to give effect to this Agreement, the Company will process personal information relating to the Customer and its principals, directors, members and officers in accordance with the Protection of Personal Information Act 4 of 2013 and the Company’s Privacy Policy. The Customer warrants that it is authorised to provide such personal information and consents to its processing for the purposes of assessing this application, providing and administering any credit facility, recovering amounts due, and complying with the Company’s legal obligations.
21. Whole Agreement
This Agreement shall constitute the whole of the agreement between the Company and the Customer and shall supersede all prior quotations, whether oral or in writing. Furthermore, no representation, express or implied term, warranty or promise shall bind any of the Parties if not recorded herein or reduced to writing and signed by the Parties or their representatives.
22. Non-Variation
No addition to, variation of, or agreed cancellation of this Agreement shall be of any force or effect unless reduced to writing and signed by or on behalf of the Parties. No indulgence which either Party may grant to the other shall constitute a waiver of any of the rights of the grantor.
23. Authority of Representative
In the event that the Customer is a juristic entity (meaning a company or any entity other than a private individual), or in the event that the Customer is a private individual represented by a third party, the person accepting this Agreement on behalf of the Customer warrants that he or she is duly authorised to do so.