STANDARD CONDITIONS OF AGREEMENT
1. The Customer agrees that (a) this Agreement represents the entire Agreement between the Customer and Elso Holdings (Propriety) Limited (hereinafter called Elso) and that no alterations or additions to this Agreement may be effected unless agreed to by both parties, reduced to writing (b) this Agreement is final and binding and is not subject to any suspense or dissolutive conditions; (c) any conflicting conditions stipulated by the Customer are expressly excluded; (d) these terms supersede all previous conditions of agreement without prejudice to any securities or guarantees held by Elso and (d) these terms apply to all servants and subcontractors of Elso.
2. This Agreement only becomes final and binding on receipt of the acceptance of any order by Elso at its business address in Windhoek and subcontractors of Elso in Namibia.
3. The Customer hereby binds himself / herself in his / her personal capacity as Shareholder (in the case of a company), Member (in the case of close corporations) or Owner or Partner as co-debtor jointly and severally for the full amount due to Elso and agrees that these Standard Conditions will apply in the exact same way to him / her.
3.1 I/We, the Surety/ies, do hereby bind myself/ourselves jointly and severally as Surety/ies and co-principal debtor/s in solidum for all amounts which are now or might in the future become payable by the Customer to Elso or its cessionary in the event of a cession in terms of this agreement arising out of or incidental to this agreement and the schedule/s hereto both current and future. I/We renounce the benefits of excussion, division and cedendarum actionem, the nature and extent of which I/we acknowledge myself/ourselves to be aware. No extension time or indulgence that may be granted to the Customer at any time, or any release of any other security or surety ship shall in any way affect my/our liability hereunder. I/we consent to the jurisdiction of the Magistrate’s Court in respect of any action which Elso may institute against me/us, provided Elso shall be entitled to institute action in any competent court. I/We agree to make payment of any legal costs that may be awarded against me/us on an attorney client scale. I/We choose as my/our domicilium citandi et executandi for all purposes arising out of this surety ship, the address/es set out in the definition schedule. I/We indemnify and hold Elso and it’s cessionary in the event of a cession harmless against any claim arising out of or incidental to this agreement, to its breach or termination or any reason whatsoever. I/We warrant and represent that I/We received and will continue to receive adequate value for granting of this surety ship. I / We hereby agree that where it is contemplated that more than one person will agree as surety, I or any of us who may have agreed as surety/ies shall be bound in solidum, irrespective of whatever or not the other or others referred to will have executed this document or become bound in terms thereof. I/We agree that no termination, consensual cancellation, limitation or variation of my/our obligations in terms of this surety ship shall be of any force or effect unless it is agreed in writing and agreed by Elso or its cessionary, in the event of a cession in terms of this agreement.
4. The Customer acknowledges that it does not rely on any representations made by Elso 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 data furnished by Elso 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 Elso.
5.1 The Customer agrees that neither Elso 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 costs resulting from any acts or omissions of the Customer including suspension of work, modification of requirements, failure or delay in giving particular requisite to enable work to proceed on schedule or requirements that work be completed earlier than agreed.
5.4 Elso reserves the right at its sole discretion to provide alternative goods at the prevailing prices to those ordered by the Customer should such goods be superseded, replaced or its manufacture terminated.
6.1 All orders are subject to the availability of the goods or services and subject to correction of good faith errors by Elso and the prices are subject to any increases in the cost price, including currency fluctuations, of Elso before acceptance of the order.
6.2 The Customer hereby confirms that the goods or services issued duly represent the goods or services ordered by the Customer at the prices agreed to by the Customer and, 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.
6.3 Notwithstanding the provisions of section 1 above, all orders or agreed variations to orders, shall be binding and subject to these standard conditions of agreement and may not be cancelled.
6.4 Elso shall be entitled in its sole discretion to split the availability of the goods or services ordered in the quantities and on the dates it decides.
6.5 Elso shall be entitled to invoice each delivery actually made separately.
6.6 The Customer indemnifies Elso against any claims that may arise from such agreement in clause 6.2 against Elso.
6.7 All goods taken on an approval basis by the Customer are deemed sold if not returned within 7 days of issue in the original condition, in the original packaging and with all accessories and manuals intact.
6.8 The Customer acknowledges all copyrights and shall not duplicate copyrighted material and that each infringement attempt shall immediately render the full prevailing price payable to Elso.
6.9 The Customer shall indemnify Elso against any claims, costs and expenses arising out of the infringement of copyright, patent, trade mark or design supplied 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
7.2 No claim under this Agreement shall arise unless the Customer has, within 3 days of the alleged breach or defect occurring, given Elso 30 days written notice by prepaid registered post to rectify any defect or breach of Agreement.
7.3 To be valid, claims must be supported by the original Tax Invoice in copy.
7.4 The Customer shall return any defective goods to the premises of Elso 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.
8.1 Under no circumstances shall Elso be liable for any consequential damages or for any delictual liability of any nature whatsoever.
8.2 Under no circumstances shall Elso be liable for any damage arising from any misuse, abuse or neglect of the goods or services.
9. Availability of the goods to the Customer shall take place at the place of business of Elso and subcontractors in Namibia.
10.1 The Customer agrees that the amount contained in a Tax Invoice issued by Elso shall be due unconditionally (a) electronic fund transfer or PayToday; or (b) if the Customer is a Credit Approved Customer, immediately upon ordering of desired goods.
10.2 The risk of payment by cheque through the post rests with the Customer.
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 Elso, reduced to writing and signed by the Customer and a duly authorised representative of Elso.
11.2 The Customer is not entitled to set off any amount due to the Customer by Elso against this debt.
12.1 The Customer agrees that the amount due and payable to Elso may be determined and proven by a certificate issued and signed by any independent auditor. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer.
13. 1The Customer agrees that interest shall be payable at the maximum legal interest rate prescribed in terms of the Usury Act on any moneys past due date to Elso and that interest shall be calculated daily and compounded monthly from the date of acceptance of the order.
14.1 The Customer shall be liable to Elso for all legal expenses on the attorney-and-own client scale of an attorney and counsel incurred by Elso 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 Elso may demand.
14.2 Consent to the Jurisdiction of the Magistrate’s court in terms of section 45(1) of the magistrates court act, act 32 of 1944.
15. The Customer agrees that no indulgence whatsoever by Elso will affect the terms of this agreement or any of the rights of Elso and such indulgence shall not constitute a waiver by Elso in respect of any of its rights herein. Under no circumstances will Elso be stopped from exercising any of its rights in terms of this Agreement.
16. The Customer hereby consents to the storage and use by Elso of the personal information that it has provided to Elso for establishing its credit rating and to Elso disclosing such information to credit control companies, banks and other institutions involved in rating credit. The Customer agrees that Elso will not be held liable for the good faith disclosure of any of this information to such a third party and that no further specific consent need to be obtained for the transfer of such information to a specific third party.
17. The Customer agrees to the Standard Rates of Elso for any goods or services rendered, which rates may be obtained on request.
18. The invalidity of any part of this Agreement shall not affect the validity of any other part.
19. Any order is subject to cancellation by Elso due to Acts of God from any cause beyond the control of Elso, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, or by reason of an act of God, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
20. Any order is subject to cancellation by Elso 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.
21. The Customer agrees that Elso will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in clause 19 or 20 occur.
Upon accepting these terms and conditions, I have read and understand the contents of this document.