TERMS & CONDITIONS

 

DEFINITIONS

The following expressions shall bear the meaning assigned to them below and cognate expressions bear corresponding meanings

1.1  “client” – refers to any legal person, entity or company who utilises the services of Everlast Aluminium for the purposes of sale of goods or supplying of services.

1.2  “agreement”: Any agreement, which is binding in law, between Everlast Aluminium and the Client for the sale and purchase of Goods, and suppling of services, incorporating these conditions.

1.3  “signatory” – shall mean the authorised individual who signs this agreement and the annexed application on behalf of the Client.

1.4  “Everlast Aluminium” shall mean Everlast Aluminium (Proprietary) Limited, duly registered and incorporated in terms of the laws of the Republic of South Africa, including inter alia its representatives, assigns, agents and employees.

1.5  “goods” shall mean any goods of whatsoever nature sold by Everlast Aluminium to the Client in terms of this Agreement.

1.6  “services” shall mean any services of whatsoever nature provided by Everlast Aluminium to the Client in terms of this agreement.

1.7  A reference to specific legislation is a reference to it as it is in force for the time being taking account any amendment, extension, application, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.8  Words in the singular include words in the plural and words in the plural include words in the singular.

1.9  A reference to one gender includes a reference to the other gender.

1.10  Clause headings do not affect the interpretation of those clauses.

 

THESE TERMS AND CONDITIONS TO PREVIAL

2.1  Goods sold by Everlast Aluminium to the Client are and be subject to the conditions hereinafter set out, and each condition shall be deemed to be incorporated in and to be a condition of the agreement between Everlast Aluminium and the Client.

2.2  Services provided by Everlast Aluminium to the Client are and be subject to the conditions hereinafter set out, and each condition shall be deemed to be incorporated in and to be a condition of the agreement between Everlast Aluminium and the Client.

2.3  No agent or employee shall have the authority to alter or to vary these conditions either by an oral or a written undertaking or representation given before or after receipt of these conditions, nor shall any act or omission of Everlast Aluminium be construed as a variation or waiver of any of these conditions.

2.4  Notwithstanding the fact that an employee of the Client may have incurred charges ostensibly on behalf of the Client, whether in the course and scope of his employment or service with the Client or not, the Client shall be liable for such charges.

2.5  Represent the entire agreement between the parties and no alterations or additions may be affected unless agreed to by both parties, reduced to writing and signed by the Client and a duly authorized representative of Everlast Aluminium.

2.6  Are final and binding and are not subject to any suspensive or dissolutive condition.

2.7  Expressly exclude any conflicting conditions stipulated by the Client.

2.8  Acceptance of delivery of the goods and/or aacceptance of providing services shall be deemed conclusive evidence of the Client’s acceptance of these Terms and Conditions.

2.9  The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Everlast Aluminium which is not set out in the Agreement or is not signed by an authorised representative of Everlast Aluminium.

 

PRICE AND PAYMENT

3.1  Unless otherwise specifically agreed by Everlast Aluminium, all sums shall be paid to Everlast Aluminiumin terms of clause 3.3 below, and the full amount must be paid without any deduction and payments shall not be withheld or deferred on account of any claim, counterclaim or set off.

3.2  Unless otherwise expressly stated, prices are exclusive of value added tax which shall be for the account of the Client unless the Client has given acceptable proof to Everlast Aluminium that the goods are zero rated or exempt. The Client shall pay or reimburse to Everlast Aluminium the amount of any value added tax simultaneously with the purchase price.

3.3  The purchase price and all sums payable in respect of any good sold by Everlast Aluminium to the Client in terms of agreement shall be payable by the Client to Everlast Aluminium, at Everlast Aluminium’ head office –

3.3.1  By electronic fund transfer;

3.3.2  in South African currency without deductions or set-off and fee of any exchange; and

3.3.3  upon issuing of an invoice by Everlast Aluminium, shall be payable upon receipt thereof

3.4  Until a determination is made by Everlast Aluminium any goods sold or services provided by Everlast Aluminium to the Client shall be supplied on a “pay-on-order “basis only.

3.5  The Client has no right to withhold payment for any reason whatsoever. The Client is not entitled to set off any amount due to the Client by Everlast Aluminium against any debt owed by the Client to Everlast Aluminium nor shall any payment be withheld by virtue of any alleged counterclaim against Everlast Aluminium by the Client.

3.6  Interest on any overdue amount will be payable on the maximum interest rate allowed by law.

 

OWNERSHIP

4.1  Notwithstanding delivery of the goods to the Client, ownership thereof shall not pass to the Client until Everlast Aluminium has received full payment of the purchase price and all incidental costs related thereto.

 

INDEMNITY

5.1  Everlast Aluminium shall by no means be liable on grounds of breach for negligence in respect of any type of loss or damage, howsoever arising, whether in respect of or in connection with any instructions, business, advise, information or service or otherwise, unless it is provided that the loss or damage was caused by the gross negligence of Everlast Aluminium.

5.2  The client hereby undertakes to indemnify Everlast Aluminium against any claims for harm /damage (including any loss or damage that may be incurred / sustained due to circumstances such as theft) that may result due to reasons beyond the reasonable control or unintentional act of any person, whether in the employ or in his/her representative capacity of the Supplier. This will include any economic loss pertaining to such harm/damage caused due to circumstances beyond
the reasonable control of the Supplier.

5.3  Everlast Aluminium shall not in any circumstances be liable for any consequential or indirect loss howsoever causes, to the extent allowed by law.

 

NO VARIATION OR AMENDMENTS

6.1  This agreement constitutes the whole agreement between the Client and Everlast Aluminium relating to subject matter hereof.

6.2  No amendments or consensual cancellation of this agreement or any provisions or terms thereof or of any agreement bill of exchange or other document issued or executed pursuant to or in terms if this agreement and no settlement if any dispute arising under this agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this agreement or of any agreement, bill of exchange or other document issued pursuant to or in terms of this agreement shall be binding unless recorded in a written document signed by a duly authorised representative of Everlast Aluminium. Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.

6.3  No extension of time or waiver or relaxation of any of the provisions or terms of this agreement or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this agreement, shall operate as an estoppel against Everlast Aluminium in respect of its rights under this agreement, nor shall it operate to preclude Everlast Aluminium thereafter from exercising its rights strictly in accordance with this agreement.

6.4  Everlast Aluminium shall not be bound by any express or implied terms, representation, warranty, promise or the like not recorded herein, whether it induced the agreement between EVERLAST Aluminium and the Client or not.

 

WARRANTIES AND GUARANTEES

7.1  Save for the guarantees or warranties furnished in writing by Everlast Aluminium which have been signed by a duly authorised representative of Everlast Aluminium, no warranties guarantee or representations, express or implied or tacit whether by law, agreement or otherwise and whether they induce the agreement or not, which are not set forth in this agreement shall be binding on Everlast Aluminium, the Client irrevocably waiving any right (common law or otherwise) it may have to rely on.

 

GENERAL

8.1  Save with the written consent of Everlast Aluminium, the Client shall not cede, assign, transfer, alienate or dispose if their rights in respect of the goods sold or services provided to the Client by Everlast Aluminium until such time as the Client has paid the full purchase price plus any incidental costs, including interest, relating to the goods and services to Everlast Aluminium.

8.2  All specifications, descriptive matter, drawings, instruction manuals and other documents furnished to or by Everlast Aluminium do not form part if this agreement and may not be relied upon, unless they are agreed in writing by Everlast Aluminium to form part of this agreement. All descriptive matter, specifications, drawings, instructions manuals and particulars given by Everlast Aluminium which form part of the agreement are approximately only and Everlast Aluminium cannot be held responsible for loss due to discrepancies therein, unless such loss or was due to our negligence.

8.3  Everlast Aluminium shall have the right to institute any action for monies owing by the Client in either the relevant Magistrates Court or the High Court in the Republic of South Africa notwithstanding that the quantum claim may exceed the jurisdiction of the Magistrate’s Court.

8.4  The Parties choose the domicilium citandi et executandi address on the service level agreement of legal service for the purposes of the giving if any notices, the payment of any sum, the serving if any process and for any other purpose arising from this agreement at their addresses.

8.5  The Client shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this agreement to any third party.

8.6  Each paragraph or clause in this agreement is severable the one from the other and if any paragraph or clause is found by any competent court to be defective or unenforceable for any reason whatever, the reaming paragraphs or clauses shall be of full force and effect and continue to be of full force and effect.

8.7  Each right or remedy of Everlast Aluminium under the Agreement is without prejudice to any other right or remedy of the Everlast Aluminium whether under the Agreement or not.

8.8  Failure or delay by Everlast Aluminium in enforcing or partially enforcing any provision of the Agreement shall not be construed as a waiver of any of its rights under the Agreement.

8.9  Any waiver by Everlast Aluminium of any breach of, or any default under, any provision of the Agreement by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Agreement.

8.10  Acceptance by the Client of these terms and conditions shall be deemed to have taken place if the Client places an order for the goods with Everlast Aluminium or supplying of services.

8.11  Everlast Aluminium reserves the right in its sole discretion to vary these terms and conditions.

8.12  Any transaction is subject to cancellation by Everlast Aluminium due to force majeure from any cause beyond the control of Everlast Aluminium, including, without restriction the generality of the aforesaid, inability to secure labour, power, materials, or supplies, or by reason of an act of God, war, civil disturbances, riot, state emergency, strike, lockout, or other labour disputes, fire, flood, draught, or legislation.

8.13  The Client shall forthwith after the conclusion of the agreement, furnish Everlast Aluminium with all information reasonably required by Everlast Aluminium to enable it to comply with its obligations.

8.14  No notices, cheques, cash, or other documents sent to Everlast Aluminium though the post shall be deemed to have been received unless and until received by Everlast Aluminium.

8.15  This agreement shall be interpreted and implemented in accordance with the law of the Republic of South Africa.

 

BREACH

9.1  If the Client breaches any of the Terms and Conditions hereof or any other agreement with EVERLAST Aluminium or fails to pay any amount payable by due date or commits any act of insolvency or endeavours to compromise generally with its creditors or does or causes to be done anything which may prejudice Everlast Aluminium’ rights hereunder or at all, or allows any judgement against it to remain unsatisfied for 7(Seven) days or is placed into provisional or final liquidation or judicial management or under provisional or final sequestration or if its estate is voluntarily surrender or if more than 25% of the issued share capital or members interest of the Client is transferred, pledged, encumbered or ceded to third parties or party, Everlast Aluminium shall have the right, without prejudice to any other right which it may have against the Client, to effect to;

9.1.1  treat as immediately due and payable all outstanding amounts in respect of the goods sold to the Client, to claim such amounts as well as any other amounts in arrear including interest, to immediately enter the premises of the Client or wherever the goods are being stored and retake possession thereof until such time as the Client has paid all outstanding amounts in respect of the goods to Everlast Aluminium and to cease performance of its obligations hereunder as well as under any other Agreement with the Client until the Client remedy the breach;

9.1.2  Cancel this agreement and retake possession of any of the goods sold to the Client.

9.2  Everlast Aluminium shall not be obliged to comply with its obligations hereunder in any respect whatsoever for so long as the Client is indebted to Everlast Aluminium in any amount whatsoever in respect of any cause whatsoever or fails to comply with any other obligations to Everlast Aluminium, whether arising out of this agreement or otherwise. Without limiting the generality of the foregoing, if delivery of any particular order is to take place in stages, Everlast Aluminium shall not be obliged to deliver any part of the order until the purchase price which is due in respect of the part of the order which has already been delivered, has been paid.

9.3  No claim under this Agreement will arise against Everlast Aluminium unless the Client has given EVERLAST Aluminium 30 (Thirty) day’s written notice sent by prepaid registered post to rectify any defect or breach of this Agreement.

9.4  The Client agrees that the amount due and payable to Everlast Aluminium shall be determined and proven by a certificate issued by Everlast Aluminium and signed on its behalf by any person duly authorised by Everlast Aluminium which authority need not be proven. Such certificate shall be binding and shall be prima facia proof of the indebtedness of the Client.

9.5  The Client hereby indemnifies Everlast Aluminium against all damage of whatsoever nature, however and by whosoever caused in relation of the removal of goods, and without derogating from the generality of the foregoing. The removal of such goods pending receipt of payment from the Client of all outstanding amounts.

 

COSTS

10.1  The Client shall be liable for all costs incurred by Everlast Aluminium in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own Client scale and cost of counsel as on brief whether incurred prior to or during the institution of legal proceedings or if judgement has been granted, in connection with satisfaction or enforcement of such judgment.

10.2  The Client undertakes to pay the costs of suretyship and cession contained herein, including any stamp duty payable thereon and agrees that such costs can be debited to the Clients account upon acceptance.

 

CESSION

11.1  The Client hereby irrevocably cedes, assigns, and transfers, make over unto and in favour of EVERLAST Aluminium, all the Client’s right, title and interest in and to its claim against its debtors, both present and future and from whatsoever cause arising, as security for all or any of the amounts which the Client may now or at any time in the future owe to Everlast Aluminium.

11.2  The Client irrevocably and in rem suam authorises Everlast Aluminium in its absolute discretion to claim wholly all or any of the Client’s debtors in whole or any portion of the indebtedness of anyone or more of them, to give a valid receipt for discharge for such indebtedness, to take any action in its name in any court of competent jurisdiction and to proceed in execution thereunder against all or any of the said debtors, to cede, transfer, negotiate, pledge or otherwise deal with all or any of the said debtors, to exchange promissory notes, cheques, documents of title or any other security held by the Client.

11.3  The security created by the cession shall be continuing one, notwithstanding any fluctuation in the amount of indebtedness of the Client to Everlast Aluminium.

11.4  The Client hereby undertakes on demand, to furnish Everlast Aluminium with such information concerning its debtors as may be required, to enable Everlast Aluminium to give effect to the provisions of this clause.

 

INTEREST
12.1.  The client agrees that Everlast Aluminium may collect interest on the debt at a rate set out by SARB repo plus 3,5% p.a., whether agreement or mora interest, together with any other claim or expenses the client may have instituted against the debt. The interest shall be part of the payment of the fees of Everlast Aluminium but excludes and is not related to the entitlement to claim collection commission.

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