Filmatic’s Terms and Conditions

1. “The Company” shall mean Filmatic Packaging Systems (Pty) Ltd. “The debtor” shall mean the applicant making the credit application and the party with whom any agreement of sale, service or otherwise is entered into by Filmatic.
2. These Terms and Conditions of Sale shall apply to every agreement between Filmatic and the debtor unless specifically varied by Filmatic in writing, and these Terms and Conditions of Sale shall at all times take precedence over any terms and conditions contained in any of the debtor’s documentation as may be in conflict herewith.
3. Where Filmatic or its agents make delivery of goods it shall be deemed to be made when the goods are handed over for railage to the cartage contractor. Where the debtor collects the goods at the premises of Filmatic, delivery shall be deemed to take place when the goods are handed over to the debtor, or when the debtor accepts the goods into its possession, or the debtor loads the goods onto a vehicle. The risk for loss or damages to the goods shall pass to the debtor on delivery.
4. The debtor acknowledges that all outstanding amounts are due and payable within thirty (30) days from date of statement, which date shall be deemed to be the last day of the month following on which the statement was dated by Filmatic. Filmatic shall provide the debtor with invoices for all goods sold to the debtor. Filmatic may require guarantees from the debtor for payment to be provided before delivery of the goods are made to the debtor and Filmatic may withhold delivery of goods against timeous receipt of the guarantees. Should any amount not be paid on due date then the whole amount shall become due, owing and payable irrespective of the date(s) on which goods were delivered or sold.
5. Credit facilities may be withdrawn by Filmatic at any time without prior notice, and Filmatic reserves the right to review the extent, nature and duration of such facilities at all times.
6. If any amount is not paid when due the debtor shall be liable for interest at 2% above the prime rate of interest for unsecured private sector overdrafts quoted publicly by Nedbank. Such interest shall be calculated and paid monthly in advance, provided that if the interest is not paid as aforesaid, the interest shall be added to the principal sum and the whole amount shall form the principal debt which shall bear interest as aforesaid. Filmatic will be entitled in its own discretion to appropriate any payment by the debtor to any part of the debtor’s account, which Filmatic may elect.
7. A certificate under the hand of any director or manager of Filmatic (whose appointment need not be proved) as to the existence and the amount of the debtor’s indebtedness to Filmatic at any time, as to the fact that such amount is due and payable, as to the amount of interest accrued thereon and as to any other fact, matter or thing relating to the debtor’s indebtedness to Filmatic, shall be sufficient and satisfactory proof of the contents and the correctness thereof for the purpose of provisional sentence, summary judgment or any other proceedings of whatsoever nature against the debtor in any competent court and shall be valid as a liquid document for such purposes.
8. Notwithstanding any other provision to the contrary, the obligation to deliver goods shall in all cases be subject to the following conditions precedent:
   1. The availability to Filmatic of the goods ordered;
   2. Timeous receipt by Filmatic of any drawings, designs and specifications that may be required by Filmatic from the debtor;
   3. Time shall not be of the essence of the contract and delivery dates shall be treated as approximate only, based on the latest information available to Filmatic. Under no circumstance shall the debtor be entitled to withdraw from or terminate the contract on account of any delay in delivery or have any claim of any nature whatsoever against Filmatic arising from late delivery;
   4. Filmatic shall be exempted from and shall not be liable under any circumstances whatsoever for any indirect or consequential damages of any nature whatsoever, or any loss of profit or special damages of any nature whatsoever, and whether in the contemplation of the parties or not, or which the debtor may suffer as a result of any delay in the delivery of the goods ordered;
9. Ownership in the goods sold and delivered to the debtor on credit shall pass to the debtor only when all amounts due by the debtor to Filmatic shall have been paid, notwithstanding delivery of the goods to the debtor.
10. The debtor agrees and acknowledges that in the event of-
    1. the debtor breaching any one or more of the terms and/or conditions herein contained;
    2. the debtor failing to pay any amount due and payable on due date;
    3. the debtor suffering any civil judgment to be taken or entered against it;
    4. the debtor causing a notice of surrender of its estate to be published in terms of the Insolvency Act No 24 for 1936, as amended;
    5. the debtor compromising with its creditors;
    6. the debtor’s estate being placed under any order of provisional or final sequestration or liquidation, provisional or final winding up, or provisional or final judicial management;
    7. the debtor dying; then and in that event Filmatic shall, without detracting from any other remedies which may be available to it at common law, be entitled to summarily cancel the sale of any goods to the debtor without notice to the debtor, and to rely on the provisions of clause 9, and to re-possess those goods sold and delivered by Filmatic to the debtor, or to claim specific performance of all of the debtor’s  obligations whether or not such obligations would otherwise then have fallen due for performance, in each event without prejudice to Filmatic’s right to claim damages.
11. In the event of Filmatic instructing attorneys to collect from the debtor an amount owing to Filmatic, the debtor agrees to pay all costs on the scale as between attorney and own client, including collection charges.
12. The debtor consents to 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 Filmatic exceeds the jurisdiction of the Magistrate’s Court as to the amount. Filmatic shall, in its discretion, be entitled to proceed against the debtor in any other Court of competent jurisdiction, notwithstanding the foregoing.
13. The debtor nominates as its domicilium citandi et executandi any of the addresses reflected on the face hereof under the heading “Registered Office/Business Address” or “Street Address” for service upon it of all notices and processes in connection with any claim for any sum due to Filmatic arising out of credit granted by Filmatic to the debtor.
14. No relaxation, indulgence or other failure or delay by Filmatic in enforcing it’s rights strictly shall be deemed to be a waiver of any of Filmatic’s rights in terms hereof, or shall constitute a notation of the provisions of this agreement or preclude Filmatic from the enforcement of the other rights of Filmatic or create any estoppel against Filmatic. No waiver asserted against Filmatic shall be effective against Filmatic unless in writing and signed by or on behalf of Filmatic.
15. It is a condition of each sale that goods are sold voetstoots and without any warranties whatsoever. Where Filmatic has given a written warranty in respect of any of the goods the only obligation of Filmatic arising out of the warranty will be, in the sole discretion of Filmatic, to replace defective goods or repair it or to accept the return of the goods against payment to the debtor of any moneys, or part thereof, paid by the debtor to Filmatic. The debtor shall be precluded from raising any complaints or disputing liability to Filmatic in any way unless it shall have notified Filmatic of its complaints or grounds of dispute in writing within 7 days of receipt of the goods in question. Notwithstanding the timeous raising of a complaint or dispute of liability by the debtor, the debtor shall, under no circumstances, be entitled to withhold payment in respect of the goods from Filmatic pending the resolution of such dispute or complaint.
16. Should the debtor have any complaint of whatsoever nature concerning any of the goods which are not manufactured by Filmatic, it shall be entitled to require Filmatic to cede to it any rights which Filmatic may have against the supplier of those goods but shall have no other claim against Filmatic in respect of the matter complained of. The debtor shall not be entitled to withhold payment from Filmatic in respect of such goods for any reason whatsoever.
17. When Filmatic is required to manufacture or supply goods to the debtor’s specifications and drawings or carries out work according to the debtor’s instructions, or those of its nominees, Filmatic accepts no responsibility for the efficiency or workability of goods so manufactured or work so carried out.
18. Filmatic shall not be liable to the debtor or to any other person for any indirect or consequential damages of any nature whatsoever, or any loss of profit or special damages of any nature whatsoever, and whether in the contemplation of the parties or not, which the debtor may suffer as a result of any breach by Filmatic of any of its obligations under these Terms and Conditions of Sale or out of any other cause whatsoever. The debtor hereby indemnifies Filmatic against any claim which may be made against Filmatic by any other person in respect of any matter for which the liability of Filmatic is excluded in terms of the foregoing.
19. Any agreement purporting to vary the terms or conditions of the Terms and Conditions of Sale, or any consensual cancellation, shall not be valid unless reduced to writing and signed by both the debtor and Filmatic.
20. In these Terms and Conditions of Sale, words importing one gender shall include the other gender, and words importing the singular, shall include the plural (and vice versa) and any reference to a natural person (whether in relation to a party or anyone else) shall include corporations and other juristic persons, and any association of persons (within the foregoing meaning) even if unincorporated; and any reference (whether to a party or to anyone else) which is expressed in the neuter gender shall be construed to include natural persons;
21. Should Filmatic agree to accept the return of any goods for credit, the debtor shall be liable to pay Filmatic a handling charge of not less than 10% on the invoiced price of the goods so returned.
22. Should the debtor at any stage change its form of legal entity, or the ownership in the business, or should there be a change in the shareholding or interest in the debtor, the debtor undertakes to notify Filmatic in writing by registered post within 7 days as from the date that the change takes effect. The debtor indemnifies Filmatic against loss or damage which may result from such change or from any failure on its part to notify Filmatic of the change