Terms and Conditions of Service and Sale Agreement and Deed of Suretyship relating thereto
entered into by and between IVODENT MEDICAL SUPPLIERS CC ("the Seller") and
____________________________________________________________________("the Purchaser") It is agreed that:
1. The invoice price reflected on the Seller's invoice shall be paid by the Purchaser without any deduction in accordance with the terms of payment which the parties hereto might agree from time to time.
2. The Seller shall be entitled but not obliged to charge interest on all overdue accounts calculated at the rate of 2.4% above the prime lending rate charged by banking institutions in Namibia (as recognised by the Bank of Namibia) for the period from the original date that payment was due to the date of actual payment, up to the maximum annual finance charge rate permitted under the Usury Act, 1968 (Act No. 73 of 1968).
3. The risk in and to the goods purchased shall pass to the Purchaser on delivery thereof. Notwithstanding delivery of the goods, ownership shall remain vested in the Seller and shall not pass to the Purchaser until payment of the purchase price has been made in full.
4. The Seller shall not, under any circumstances, be liable for any defects, shortages in delivery or failure of the goods or services complying with the Purchaser's specifications, unless written notice is received by the Seller in respect thereof within 7 (seven) days after delivery.
5. The Seller shall not be liable for any consequential loss suffered by the Purchaser in respect of delays in delivery, defective goods or services or from any cause howsoever arising.
6. In the event of the Purchaser committing any breach of the terms of this Agreement, all of which are deemed to be material, the Seller at its option and without prejudice to any of its rights in law, shall be entitled to:
1. retake possession of the goods sold and delivered to the Purchaser, in respect of which ownership has not passed; or
2. demand that the Purchaser immediately make payment to the Seller of all amounts in respect of all goods sold and delivered by the Seller to the Purchaser, notwithstanding that payment in respect of any such goods might not then be due and payable.
7. In the event of the Purchaser failing to make payment of any amount on due date, the full amount in respect of all goods sold and services rendered and delivered by the Seller to the Purchaser shall immediately become due, owing and payable.
8. In the event of the Purchaser failing to take delivery or to collect the goods ordered within five (5) calendar days of written notice by the Seller, the Seller at its option and without prejudice to any of its rights in law, shall be entitled to, but not obliged to sell the goods ordered by the Purchaser in its possession.
9. The Seller shall be entitled but not obliged to institute any proceedings against the Purchaser arising out of this agreement in any Magistrate's Court having territorial jurisdiction, and the Purchaser hereby consents to the jurisdiction of such court in terms of Section 45 of the Magistrates' Courts Act 32 of 1944, notwithstanding that the amount of the claim may otherwise exceed the ordinary monetary jurisdiction of that court. The Purchaser agrees to be liable to the Seller for all legal costs calculated on the attorney and own client scale including collection commission and tracing charges
10. The Purchaser and signatory/ies hereto nominate the Purchaser's business street address, as recorded on the first page hereof, as the domicilium et executandi of service upon the Purchaser of all notices and processes in connection with any claim due to the Seller.
11. In the event of an order/instruction being given to the Seller on the Purchaser's special order form/letterhead, the Purchaser shall be estopped from denying the validity or the authority of the order, notwithstanding the fact that such order/instruction may have been given or signed by a person not authorised by the Purchaser.
12. Set-off shall operate automatically as a matter of law at the moment reciprocal debts between the Seller and Purchaser come into effect independently of the will of the parties and it shall not be necessary for either the Seller or the Purchaser to specifically raise set-off. Upon the operation of an automatic set-off as above, the debts shall be mutually extinguished to the lesser debt with retrospective effect.
13. No extension of time or any other relaxation or indulgence granted by the Seller to the Purchaser shall operate as, or deem to be a waiver of any of the Seller's rights under this Agreement, or a novation of the terms and conditions of this Agreement.
14. The credit facilities may be altered or withdrawn by the Seller at any time, provided that prior written notice of any such change or withdrawal of the credit facilities is given to the Purchaser in writing.
15. The party/ies who have appended their signature/s hereto on behalf of the Purchaser hereby bind himself/themselves jointly and severally as surety/ies and co-principal debtor/s in solidum unto and in favour of the Seller in respect of all the obligations of the Purchaser in terms hereof and furthermore hereby agree to be bound by the terms and conditions of this agreement mutatis mutandis, under renunciation of the benefits of excursion and division.
16. A delivery note/invoice signed by the Purchaser, an employee, an agent or a representative of the Purchaser. shall constitute prima facieproof that the goods have been delivered to and received by the Purchaser in a good and proper condition.
17. A certificate sworn to before a Commissioner of Oaths by a Director or Manager of the Seller shall constitute prima facie proof of the invoice and the amount thereof owing by the Purchaser to the Seller at any time and shall for all purposes be binding on the Purchaser.
18. Should the Purchaser have previously made application to the Seller for credit facilities, which said application would have been embodied in this application then should the Purchaser have furnished any security to the Seller for the due obligations of the Purchaser to the Seller on any previous occasion, the Purchaser/surety hereby agree that the signature by it of these documents shall not be regarded as a novation of any such previous agreement or any prior security given by it to the Seller. The Purchaser hereby records and acknowledges that, insofar as any provision contained herein may be inconsistent with any provision contained in any document previously executed between the parties, that this document shall prevail.
19. The Purchaser warrants that the information on the first page hereof is true and correct and undertakes to notify the Seller in writing of any change of the above information particularly that of change of ownership, change of name or address. Such change shall in no way derogate from the Purchaser's liability to the Seller.
PRIVACY CONSENT
The Purchaser and the Surety hereby explicitly consent to the Seller collecting, processing, storing, and utilizing their personal and business information for the purposes of assessing this credit application, administering the account, and enforcing any rights or collecting any debts arising from this Agreement. The Seller warrants that it will process all such personal data securely, in the spirit of Article 13 of the Namibian Constitution (Right to Privacy) and in strict compliance with any applicable data protection laws enacted in the Republic of Namibia from time to time.