A member of the Hudaco group, Pentagon is a leading value-added distributor of IP CCTV, High Density Storage Solutions, Access Control, Fire Detection, Public Address and networking products in Africa.
In this document The Company refers to Elvey Group, a division of Hudaco Trading (Pty) Ltd and includes those trading entities of Elvey Security Technologies, Elvey Exports, Pentagon, Elvey Projects, Commercial ICT and Global Communications. Undersigned accepts the Standard Conditions of Agreement on the reverse side1. The Customer agrees that (a) this Agreement represents the entire Agreement between the Customer and The Company and that no alterations or additions to this Agreement may be effected unless agreed to by both parties, reduced to writing and signed by the Customer and a duly authorised representative of The Company; (b) this Agreement will govern all future contractual relationships between the parties; (c) this Agreement is applicable to all existing debts and future debts between the parties; (d) this Agreement is final and binding and is not subject to any suspensive or resolutive terms or conditions; (e) any conflicting conditions stipulated by the Customer are expressly excluded; (f) these terms supersede all previous conditions of Agreement without prejudice to any securities or guarantees held by The Company.
2.1 This Agreement only becomes final and binding on receipt and acceptance of this offer by The Company at its business address in Edenvale.
2.2 Any order only becomes final and binding on receipt and acceptance of such order by The Company at its business address per clause 2.1.
3.1 The signatory hereby binds himself / herself in his / her personal capacity as Shareholder (in the case of a company), Member (in the case of a close corporation) or Owner or Partner as surety and co-principal debtor jointly and severally for the full amount due to The Company and agrees that these Standard Conditions will apply in the exact same way to him / her.
3.2 The signatories guarantee payment to The Company for any debts incurred by the Customer and agree that the liability of the signatories will be for the full amount of the debts incurred by the Customer and that such amounts will become due and payable immediately upon any application for business rescue by the Customer or the liquidation of the Customer. The signatories agree that the extent of the liability of the signatories will not be affected by any compromise or settlement reached with the Customer pursuant to any business rescue plan as provided for in the Companies Act 71 of 2008.
4. The Customer acknowledges that it does not rely on any representations made by The Company in regard to the goods and services or any of its qualities leading up to this Agreement other than those contained in this Agreement. All specifications, price lists, performance figures, advertisements, brochures and other technical data furnished by The Company in respect of the goods or services orally or in writing will not form part of the Agreement in any way unless agreed to in writing by The Company.
5.1 The Customer agrees that neither The Company nor any of its employees will be liable for any negligent or innocent misrepresentations made to the Customer.
5.2 It is the sole responsibility of the Customer to determine that the goods or services ordered are suitable for the purposes of intended use.
5.3 The Customer agrees to pay all additional costs resulting from any acts or omissions by the Customer including suspension of work, modification of requirements, failure or delay in giving particulars required to enable work to proceed on schedule or requirements that work be completed earlier than agreed.
5.4 The Company reserves the right at its sole discretion to provide alternative goods of the same quality and quantity at the prevailing prices to those ordered by the Customer should such goods be superseded, replaced or their manufacture terminated.
6.1 All quotations will remain valid for a period of 7 days from date of the quotation or until the date of issue of a new Price List, whichever occurs first.
6.2 All quotations are subject to the availability of the goods or services and subject to correction of good faith errors by The Company and any price quoted shall be subject to variation up to the time of delivery in relation to any fluctuations of the cost price of the goods or forex fluctuations.
6.3 All prices quoted by The Company are subject to increases caused by increases from the suppliers, currency fluctuations or inflationary effects of the local economy. If the Customer disputes the amount of increase, the amount of the increase may be certified by any independent auditor and such certificate shall be final and binding on the Customer.
6.4 The Customer herby confirms that the goods or services on any Tax Invoice issued duly represent the goods or services ordered by The Customer at the prices agreed to by The Customer and, where delivery / performance has already taken place, that the goods or services were inspected and that The Customer is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects.
6.5 The Customer agrees that goods will only be accepted for credit, at the sole discretion of The Company, if the goods are returned to the premises of The Company within 7 days from the date of delivery in an unused condition, complete in the original packaging and with the original tax invoice. If the goods are accepted by The Company, a handling fee as per the Standard Rates of The Company (available on request) will be charged to the Customer.
6.6 The Customer agrees that if the Customer specifically requires The Company to manufacture and/or supply goods to the Customer’s specification, The Company accepts no responsibility for the efficiency or workability of such goods so specifically manufactured and/or supplied for the Customer. Specially manufactured or supplied goods will not be accepted for credit.
6.7 Notwithstanding the provisions of clause 1 above, all orders or agreed variations to orders, whether orally or in writing, shall be binding and subject to these Standard Conditions of Agreement and may not be revoked by the Customer.
6.8 The Company shall be entitled in its sole discretion to split the delivery / performance of the goods or services ordered in the quantities and on the dates it decides.
6.9 The Company shall be entitled to invoice each delivery / performance made separately.
6.10 Unless otherwise agreed in writing, in the case of export of goods to The Customer outside the Republic of South Africa, delivery and risk shall be governed by the Incoterms specified in the Commercial invoice. In all other instances delivery to the Customers takes place at the place of business of The Company and prima facie proof of delivery to The Customer shall be by means of the delivery note (copy or original) signed The Customer or proof of delivery to the nominated address of The Customer.
6.11 The risk of damage to, destruction or theft of goods shall pass to the Customer on acceptance of any order placed in terms of this Agreement and the Customer undertakes to comprehensively insure the goods until paid for in full. The Company may recover insurance premiums from the Customer for such ordered and uninsured goods.
6.12 Delivery and performance times quoted are merely estimates and are not binding on The Company.
6.13 If The Company agrees to engage a third party to transport the goods, The Company is hereby authorised to engage a third party on the Customer's behalf and on the terms deemed fit by The Company, unless specified to the contrary by the Customer.
6.14 The Customer indemnifies The Company against any claims against The Company that may arise from such agreement in clause 6.13.
6.15 Repair times and repair costs given are merely estimates and are not binding on The Company.
6.16 Any item handed in for repair may be sold by The Company to defray the cost of such repairs if the item remains uncollected within 30 days of the repairs being completed.
6.17.1 All goods taken on demonstration by the Customer are deemed sold if not returned within 60 days of issue in the original condition, in the original packaging and with all accessories and manuals intact.
6.17.2 All goods taken on a consignment basis by the Customer are deemed sold if not returned, on demand of The Company, to the premises of The Company, in the original condition, in the original packaging and with all accessories and manuals intact.
6.18 The Customer acknowledges that it is aware of fraudulent activities which are perpetrated whereby a change of banking details is advised on The Company letterhead or by other means. The Customer agrees that any payment made to any other bank account shall not constitute a valid discharge of the Customer’s obligation to make such payment. The Customer shall be obliged to notify The Company of any receipt by it of a notification of change of banking details and shall only give effect thereto if same is confirmed telephonically and in writing by the Financial Director of The Company. All loss suffered as a result of any amounts being paid by the Customer into any bank account other than the account of The Company due to any error on the part of the Customer or any of its employees or as a result of the Customer or its employees not complying with the a foregoing provisions of this clause or otherwise shall be borne solely by the Customer.
7.1 New goods are guaranteed according to the Manufacturer's product specific warranties only and all other guarantees including common law guarantees are hereby specifically excluded. The parts that are used in goods being repaired are guaranteed according to the Manufacturer's product specific warranties.
7.2 Liability under clause 7.1 is restricted to the cost of repair or replacement of faulty goods or services or granting of a credit at the sole discretion of The Company.
7.3 No claim under this Agreement shall arise unless the Customer has, within 14 days of an alleged breach of contract and/or defect occurring, given The Company written notice by prepaid registered post of such breach or defect, and has afforded The Company at least 30 days to rectify such defect or breach.
7.4 To be valid, claims must be supported by the original Tax Invoice.
7.5 The Customer shall return any defective moveable goods to the premises of The Company at the Customer's own cost and packed in the original or suitable packaging and all risks for the duration of repair remain with the Customer.
7.6 All guarantees are immediately null and void should any goods be tampered with or should the Customer try to fix the goods or should the seals on goods be broken by anyone other than The Company or should the goods be used or stored outside the Manufacturer's specifications.
7.7 Any item delivered to The Company shall serve as pledge in favour of The Company for present and past debts and The Company shall be entitled to retain or realise such pledges as it deems expedient at the value as determined in clause 15.1. The sworn or realised value of pledged goods will be offset against the Customer’s debts any excess balance will be paid to the Customer.
8.1 Under no circumstances shall The Company be liable for any consequential damages including loss of profits or for any delictual liability of any nature whatsoever whether caused negligently or innocently.
8.2 Under no circumstances shall The Company be liable for any damage arising from any misuse, abuse or neglect of the goods or services.
9. Delivery of the goods or services to the Customer shall take place at the place of business of The Company.
10.1 The Customer agrees that the amount contained in a Tax Invoice issued by The Company shall be due and payable unconditionally (a) cash on order; or (b) if the Customer is a Credit Approved Customer, within 30 days from the end of the month in which a Tax Invoice has been issued by The Company. Payments must be received on or before the last trading day of the calendar month in which payment is due.
10.2 The Customer agrees to pay the amount on the Tax Invoice at the offices of The Company.
11.1 The Customer has no right to withhold payment for any reason whatsoever and agrees that no extension of payment of any nature shall be extended to the Customer and any such extension will not be applicable or enforceable unless agreed to by The Company, reduced to writing and signed by the Customer and a duly authorised representative of The Company.
11.2 The Customer is not entitled to set off any amount due to the Customer by The Company against this debt.
11.3 All discounts shall be forfeited if payment in full is not made on the due date.
12.1 The Customer agrees that the amount due and payable to The Company may be determined and proven by a certificate issued and signed by any director or manager of The Company, whose authority need not be proven or by any independent auditor. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer.
12.2 Any printout of computer evidence tendered by any party shall be admissible evidence and no party shall object to the admissibility of such evidence purely on grounds that such evidence is computer evidence or that the requirements of the Electronic Communications and Transactions Act 25 of 2002 have not been met.
13.1 The Customer agrees that interest shall be payable at the maximum legal interest rate prescribed by the National Credit Act 34 of 2005 if that Act is applicable, or at double the repo-rate as declared by the Reserve Bank from time to time if that Act is not applicable, on any moneys past due date to The Company and that interest shall be calculated daily and compounded monthly from the date of acceptance of the order.
14.1 The Customer agrees that if an account is not settled in full (a) against order; or (b) within the period agreed in clause 10.1 above in the case of a Credit Approved Customer; The Company is: (i) entitled to immediately institute action against the Customer at the sole expense of the Customer; or (ii) to cancel the Agreement and take possession of any goods delivered to the Customer and claim damages. These remedies are without prejudice to any other right The Company may be entitled to in terms of this Agreement or in law. The Company reserves its right to stop supply immediately on cancellation or on non-payment.
14.2 A Credit Approved Customer will forthwith lose this approval when payment is not made according to the conditions of clause 10.1(b) and all amounts then outstanding shall immediately become due and payable.
14.3 The Company shall be entitled to withdraw credit facilities at any time within its sole discretion.
15.1 In the event of cancellation, the Customer shall be liable to pay (a) the difference between the selling price and the value of the goods at the time of repossession and (b) all other costs incurred in the repossession of the goods. The value of repossessed or retained pledged goods shall be deemed to be the value placed on them by any sworn valuator after such repossession, and such valuation shall be conclusive proof of the value. If the goods are not recovered for any reason whatsoever, the value shall be deemed to be nil.
15.2 In the event of cancellation of the Agreement by The Company, it shall be entitled to repossess any goods that have been delivered to the Customer and remains unpaid by the due date.
15.3 In the event of cancellation of the Agreement by The Company, it is entitled not to produce any unmade balance of a contract and to recover any loss sustained thereby from the Customer.
16.1 All goods supplied by The Company remain the property of The Company until such goods have been fully paid for whether such goods are attached to other property or not.
16.2 The Customer is not entitled to sell or dispose of any goods unpaid for without prior written consent of The Company. The Customer shall not allow the goods to become encumbered in any manner prior to full payment thereof and shall advise third parties of the rights of The Company in the goods
16.3 If any goods supplied to the Customer are of a generic nature and have become the property of the Customer by operation of law (confusio or commixtio) the Customer shall be obliged on notice of cancellation of the Agreement to retransfer same quantity of goods in ownership to The Company.
17.1 The Customer shall be liable to The Company for all legal expenses on the attorney-and-own-client scale incurred by The Company in the event of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall 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 The Company may demand.
17.2 The Customer agrees that The Company will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate's Courts or in terms of Rule 47 of the Uniform Rules of Court.
18. The Customer agrees that no indulgence whatsoever by The Company will affect the terms of this Agreement or any of the rights of The Company and such indulgence shall not constitute a waiver by The Company in respect of any of its rights herein. Under no circumstances will The Company be estopped from exercising any of its rights in terms of this Agreement.
19. The Customer hereby consents that The Company shall have the right to institute any legal action in either the Magistrate's Court or the South Gauteng High Court at its sole discretion. These South African courts shall have exclusive jurisdiction in any litigation between the parties arising from whatsoever source.
20.1 Any document shall be deemed duly presented to and accepted by the Customer (i) within 3 days of registered delivery by courier to any of the Customer's business addresses or to the personal address of any director, member or owner of the Customer; or (ii) on being delivered by hand to the Customer or any director, member or owner of the Customer; or (iii) within 24 hours of being e-mailed to any e-mail address provided by the Customer.
20.2 The Customer chooses its address for any notification or service of legal documents or processes as the business address or the physical addresses (domicilium citandi et executandi) of any Director (in the case of a company), Member (in the case of a close corporation) or of the Owner(s) or Partner(s).
20.3 The Customer undertakes to inform The Company in writing within 7 days of any change of Director, Member, Shareholder, Owner or Partner or address or 14 days prior to selling or alienating the Customer’s business and failure to do so will constitute a material breach of this Agreement. Upon receipt of such written notification, The Company reserves the right, at its sole discretion, to withdraw any credit facility advanced to the Customer.
20.4 The Customer hereby consents to the storage and use by The Company of the personal information that it has provided to The Company for establishing its credit rating and to The Company disclosing such information to credit control companies, banks and other institutions involved in rating credit. The Customer agrees that The Company will not be held liable for the good faith disclosure of any of this information to such third parties and that no further specific consent needs to be obtained for the transfer of such information to a specific third party.
20.5 The Customer hereby consents that The Company can provide personal information of the Customer to third parties, if the Customer has indicated The Company as a trade reference to third parties and the Customer agrees that The Company will not be liable for the good faith disclosure of any of this information to such third parties.
21. The Customer agrees to the Standard Rates of The Company for any goods or services rendered, which rates may be obtained on request.
22. Each provision of this Agreement is severable from the other provisions. Should any provision be found to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall nevertheless remain binding and continue with full force and effect.
23. Any order is subject to cancellation by The Company due to acts of God or any circumstance beyond the control of The Company, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
24. Any order is subject to cancellation by The Company if the Customer breaches any term of this Agreement or makes any attempt of compromise, liquidation, sequestration, termination or judgement is recorded against the Customer or any of its principals.
25. The Customer agrees that The Company will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in clause 23 or 24 occur.
26. The Customer consents to The Company providing personal details to its cessionary/ies, subsidiaries and associated entities and other departments for purposes of marketing and referring potential business opportunities from and by its cessionary/ies, subsidiaries and associated entities as well as for credit assessment purposes.
27. All accountable institutions are required to identify their clients as required by the Financial Intelligence Centre Act No 38 of 2001. The Customer therefore consent to The Company carrying out identity and fraud prevention checks and sharing information relating to this application through the South African Fraud Prevention Service.
28. The Customer certifies that to the best of his/her knowledge and belief the information given to the Company is correct and he/she is not aware of any matters of circumstances which have not been disclosed in writing which might influence The Company’s decision. The Customer further certifies that there are not writs, summonses, judgements, petitions, winding up order or pending applications for liquidation or threatened against the Applicant or its directors/shareholders.
29. The Customer warrants that the Annual Turnover and/or Net Asset Value is true and correct and acknowledge that The Company has relied on such warranty in determining the legal framework of the credit facility.
30. If the National Credit Act 34 of 2005 is applicable the following clauses shall not be applicable to this Agreement: clauses 5.1, 19 and 20.6.
31. . If the Consumer Protection Act 68 of 2009 is applicable the following clauses shall not be applicable to this Agreement: clauses 5.1, 6.2, 6.4, 6.11, 7.1, 7.2, 7.3, 7.4, 7.5, 8.1, 11.2, 13.2, 17.1,19, 20.1, 20.2, 20.6.
32. This Agreement and its interpretation is subject to South African law.
33. PROTECTION OF PERSONAL INFORMATION ACT NO. 4 OF 2013: The parties record and agree that The Company shall be entitled to process, store and utilise any and all personal information I have disclosed in this Credit Application. The Company shall process, store and utilise such information in order to perform its obligations underpinning this application for credit, to make an assessment whether to grant credit or not and to market services and goods which relate to the object of this Credit Application. The Customer and Guarantor each have the right to update their information and to withdraw any consent provided herein although that may lead to a reassessment of The Company's decision to grant or extend any financial facilities.