1.1 The Courier Freight Group trading as XPS, PX Containers and CFG Africa provides the service of delivering of goods
by means of Courier and Freight Services.
1.2 The Account Holder desires to make use of such service and has applied to XPS, PX Containers and CFG Africa for credit facilities.
1.3 Should a credit facility be granted by XPS, PX Containers and CFG Africa to the Account Holder, then the under- mentioned conditions of credit, which are accepted by the Account Holder, shall apply.
2.1 XPS, PX Containers and CFG Africa shall open a credit account in the name of the Account Holder.
2.2 The credit account shall be subject to a credit limit. XPS, PX Containers and CFG Africa shall be entitled, at any time, to review the extent of the facilities granted and shall in its sole discretion have the right to increase or decrease such limit. The Account Holder shall for the purpose of such review furnish XPS, PX Containers and CFG Africa with information and documentation required by XPS, PX Containers and CFG Africa to enable it to conduct such review.
2.3 The Account Holder shall be given 30 (thirty) days notice in writing by XPS, PX Containers and CFG Africa should such credit limit be increased or decreased.
2.4 The Account Holder shall be entitled to close the credit account:
2.4.1 by giving XPS, PX Containers and CFG Africa 30 (thirty) days notice in writing of such intended closure;
2.4.2 and provided that such account shall not be closed unless any outstanding amounts are settled within such notice period.
2.5 XPS, PX Containers and CFG Africa shall, notwithstanding the above, have the right and without furnishing any reasons, to summarily close the credit account at any time, in which event the full amount of the Account Holder's indebtedness to XPS, PX Containers and CFG Africa shall immediately become due and payable.
3.1 The Account Holder shall:
3.1.1 diligently observe and adhere to the credit limit applicable from time to time.
3.1.2 make payment to XPS, PX Containers and CFG Africa of all amounts debited to the credit account in the manner and within the time period specified by XPS, PX Containers and CFG Africa.
3.1.3 remain liable for all railage charges in respect of goods despatched by the Account Holder with instructions to recover charges from the consignee should the consignee refuse to pay such railage charges.
3.1.4 remain liable for charges in respect of goods despatched to and received by the Account Holder for the account of the Account Holder.
3.2 XPS, PX Containers and CFG Africa shall tender a monthly statement of account to the Account Holder, which account shall serve as:
3.2.1 an invoice for all transactions;
3.2.2 prime facie proof of the amount owing by the Account Holder.
3.3 Debits raised against the credit account during any particular month shall be paid by the Account holder:
3.3.1 on or before the 25th day of the month following that in which the debits were raised; and
3.3.2 to such address as the Account Holder may be instructed by XPS, PX Containers and CFG Africa in writing from time to time.
3.4 All amounts not paid by the due date, referred to in 3.3 above, shall bear interest;
3.4.1 at a rate of 3% (three percent) above the prime bank overdraft rate of the Standard Bank of South Africa Limited applicable from time to time; and
3.4.2 calculated and compounded monthly in arrear. In the event of such bank rate being changed, then the now interest rate shall become effective as from the 1st (first) day of the month following such change.
3.5 In the event of the Account Holder at any time: 3.5.1 exceeding the credit limit; or
3.5.2 any amount not being paid on due dale; then XPS, PX Containers and CFG Africa shall have the right to refuse to take delivery of any further goods from the Account Holder for despatch and without incurring any liability in respect of such refusal.
3.6 Should the Account Holder be of the opinion that incorrect debits were raised on a monthly statement of account, then the Account Holder shall:
3.6.1 query such debits by means of a reconciliation; and
3.6.2 make such query on or before the 25th day of the month following that month to which the debits relate; and failing which, all debits appearing on the statement of account shall be deemed to be correct and lawfully raised against the account. The Account Holder shall, despite any query, continue to make payment as per the monthly account until such time as the query has been attended to.
3.7 In the event of the Account Holder granting the right and authorizing any other person and/or undertaking to despatch and/or to receive goods on the Account Holder's credit account, then the Account Holder shall be liable for all debits raised against the credit account in respect thereof.
3.8 The Account Holder shall be entitled to terminate any authorization granted in terms of 3.7 above by giving to XPS, PX Containers and CFG Africa 30 (thirty) days notice in writing of its intention to terminate such authorization. The Account Holder shall remain liable, until expiry of the said notice period, for all debits raised against account in respect of goods despatched and/or received by the person and/or undertaking so authorized.
3.9 The Account Holder shall not be entitled to withhold payment of any amount due in terms hereof arising from any claim the Account Holder may have for compensation for loss of or damage to goods, animals or other property, or for any other reason whatsoever.
The Account Holder shall, if called upon to do so by XPS, PX Containers and CFG Africa, furnish XPS, PX Containers and CFG Africa with such form and amount of security which XPS, PX Containers and CFG Africa within its sole discretion considers to be adequate and the Account Holder shall complete and sign all such documentation as may be required in respect of such security.
5.1 The Account Holder consents to:
5.1.1 the jurisdiction of the Magistrate's Court in terms of Section 45 of the Magistrate's Court Act No. 32 of 1944 (as amended) having jurisdiction under section 28 of the said Act, notwithstanding that the claim by XPS, PX Containers and CFG Africa exceeds the normal jurisdiction of the Magistrate's Court as to the amount;
5.1.2 the jurisdiction of the Commercial Court.
5.2 XPS, PX Containers and CFG Africa shall in its discretion be entitled to proceed against the Purchaser in any other court of competent jurisdiction, notwithstanding the aforegoing.
5.3 The Account Holder agrees in the event of any dispute arising between the parties. XPS, PX Containers and CFG Africa shall be entitled to refer such dispute to mediation and/or arbitration of such dispute.
5.4 In the event of arbitration, the arbitration shall have the widest possible powers to arbitrate between the parties, to dispense with any or ail rules of Court for the purpose of such proceedings and to make such award against any or both parties as the arbitrator in his sale discretion may deem fit and the award and the award shall be final and binding on the parties and not be subject to repeal or review save in the event of dishonesty or gross negligence on the part of the arbitrator.
5.5 The mediation or arbitration procedure shall immediately suspend and replace any proceedings in Court Arising from essentially the same cause of action.
5.6 The mediator or arbitrator shall be appointed by the Chairman of the Association of Alternative Dispute Resolution of South Africa.
6.1 The Account Holder hereby chooses as its domicilium citandi et executandi for all purposes in connection with or arising out of the conditions of credit, at the address as stated on the attached "Credit Application Form'.
6.2 XPS, PX Containers and CFG Africa chooses its domicilium citandi et executandi for all purposes arising out of the conditions of credit at the following address: 21 Wrench Road, Isando .
6.3 A party may at any time change its domicilium but only by means of written notification and an condition that such now domicilium is within the Republic of South Africa and only if same is a physical address where documentation can be served.
6.4 Any notification in terms of this agreement may be hand delivered or may be forwarded by pre-paid mail or by pre-paid telegram to the domicilium choosen by the other party. Any notification whether documentation was handed over or served on the other party in respect of any issue arising out of this agreement, shall be considered to have been delivered it handed over to any responsible person present at the domicillum chosen by the relevant party.
6.5 Notifications, as set out above, shall be considered having been property delivered:
6.5.1 on the date of delivery if such delivery was effected by hand or on the date upon which the pre-paid mail or telegram has been sent;
6.5.2 on the 4th (fourth) day from the date of despatching and which includes the date of despatch should same have been effected by pre-paid mail or telegram within the Republic of South Africa;
6.5.3 on the 14th (fourteenth) day from the date of despatching including the day of despatching if same has been posted from outside the Republic of South Atka.
7.1 All documentation, including photostat copies thereof, which at face value appears to have been compiled by XPS, PX Containers and CFG Africa in the execution of any services in respect of which debits have been raised, shall be admissible in litigation between the parties and shall serve as prima facie proof of the contents thereof.
7.2 A certificate signed by a senior official of XPS, PX Containers and CFG Africa shall be prime facie proof of the amount owing and payable by the Account Holder to XPS, PX Containers and CFG Africa.
XPS, PX Containers and CFG Africa shall be absolved from its obligations in terms of the conditions of credit for as long as XPS, PX Containers and CFG Africa has been prevented from performing such obligations as a result of any cause beyond XPS, PX Containers and CFG Africa reasonable control and including but not limited to acts of Government or war (whether declared or not)), terrorism, sabotage, floods, fire, unrest, strikes, lock-outs, labour disputes, action by trade unions, changes to any Act and/or any statutory concessions which may affect the services rendered by XPS, PX Containers and CFG Africa.
9.1 The laws of the Republic of South Africa shall apply in respect of the conditions of credit contained herein.
9.2 No amendment or variation of, or addition to the conditions of credit shall be of any force of effort unless reduced to writing and signed by both parties hereto.
9.3 The Account Holder shall not be entitled to cede or assign any of its right title or interest in and to the credit account without the prior written consent of XPS, PX Containers and CFG Africa.
9.4 The parties agree that if any provision of the agreement is in conflict with any law such provision shall be regarded as pro non scipto and of no force of elect, and shall be deemed to be separate and severable from the agreement without in any way affecting the validity of the remaining provisions of the agreement.
9.5 Any reference in the agreement to the singular shall include the plural and vice versa. The masculine shall include the feminine and neuter and vice versa. Natural persons shall include a juristic person and vice versa.
9.6 Headings are for convenience only and shall not be taken into account for interpretation purposes.
The Account Holder shall be liable for all legal and other costs incurred in respect of the enforcement of its lights pursuant to the conditions of credd set out herein and such costs shall include but not be limited to:
10.1 attorneys fees calculated on the scale between attorney and client;
10.2 interest on capital outstanding;
10.3 debt collection fees including agency and tracing