general TERMS AND CONDITIONS of sale

1. DEFINITIONS AND INTERPRETATION

1.1 In these Terms and Conditions, unless the context clearly indicates a contrary intention, the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings:

1.1.1  “Business Day” means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa;

1.1.2  “CPA” means the Consumer Protection Act, Act 68 of 2008, as amended from time to time;

3.1.1.3  “Credit Facility” means a formal credit facility granted by DC Auto-Motion to certain of its customers by way of

approval of a formal credit application;

1.1.4  “Customer” means any person or entity that contracts with DC Auto-Motion for the purchase and supply of Products;

1.1.5  “DC Auto-Motion” means DC Auto-Motion (Pty) Ltd, Registration Number 2011/143437/07;

1.1.6  “Material” – means all reports, documentation, data, information, software or inventions, irrespective of the media on which they occur, and includes, without limiting the generality thereof, all written and printed material, all micro-graphic and other reproductions of the written word, depiction and pictorial material, and all audio-visual, machine-readable and other information;

1.1.7  “NCA” means the National Credit Act, Act 34 of 2005, as amended from time to time;

1.1.8  “Parties” means the Customer and DC Auto-Motion collectively, and “Party” means either one of them as the context

may require;

1.1.9  “Products” means any and all products acquired/ordered by the Customer from DC Auto-Motion from time to time; and

1.1.10  “Terms and Conditions” means these general terms and conditions of sale.

1.2 In these Terms and Conditions, the words “clause” or “clauses” refer to clauses of these Terms and Conditions.

2. APPLICATION

2.1 Unless otherwise agreed in writing, only these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) shall apply to an order for the sale of Products, whether the order arises out of:

2.1.1  an offer made by DC Auto-Motion and accepted by the Customer;

2.1.2  an offer made by the Customer and accepted by DC Auto-Motion, including any such offer made by the Customer in response to a quotation by DC Auto-Motion; and/or

2.1.3  any other contract, agreement or arrangement entered into between the Parties.

2.2 For avoidance of doubt, these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) will override all terms and conditions of sale and/or purchase stipulated/advanced by the Customer, unless specifically agreed otherwise between the Parties in writing. In this regard, and unless specifically agreed otherwise in writing:

2.2.1  the Customer hereby renounces its own terms and conditions of purchase/sale, or any equivalent or like terms and conditions implemented by the Customer from time to time; and

2.2.2  clauses, provisions, terms, conditions etc. contained in, or forming part of, the Customer’s aforementioned terms and conditions (refer clause 2.2.1) shall not amend or modify these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)); and

2.2.3  no conflicting or other provisions, terms, conditions, clauses etc. in the Customer’s aforementioned terms and conditions (refer clause 2.1.1) shall be binding on DC Auto-Motion, in any manner or form.

2.3 These Terms and Conditions are freely available to each and every of DC Auto-Motion’s customers from time to time via DC Auto-Motion’s website at www.dcauto-motion.co.za and/or at DC Auto-Motion’s head office. It is clear that these Terms and Conditions are subject to change from time to time, as DC Auto-Motion may determine in its sole and absolute discretion, and it shall be and remain the Customer’s sole and absolute responsibility and liability to ensure that he/she/it remains up to date and knowledgeable on the latest version of these Terms and Conditions in issue from time to time. The Customer acknowledges that he/she/it shall be bound by the latest version of the Terms and Conditions in issue from time to time, notwithstanding its signature hereto.

3. QUOTATIONS AND ORDERS

3.1  Quotations delivered by DC Auto-Motion shall be valid for a period of 3 (three) Business Days only, unless specifically

recorded otherwise in writing by DC Auto-Motion.

3.2  The acceptance of quotations and the placing of orders shall not be binding on DC Auto-Motion, unless acknowledged and confirmed in writing by DC Auto-Motion.

3.3  DC Auto-Motion reserves the right to adjust prices quoted if the Customer fails to order and/or purchase the volumes originally given as a basis for the quotation.

3.4  Any and all orders shall be executed at the discretion of DC Auto-Motion and the mere receipt by DC Auto-Motion of an order shall not oblige DC Auto-Motion to supply or sell any Products ordered.

3.5  DC Auto-Motion shall not be obliged to deliver on an order that is below DC Auto-Motion’s indicated minimum order quantity (if any and as determined from time to time).

4. PRICE

4.1  In instances where a quotation has been delivered by DC Auto-Motion and accepted by the Customer, the purchase

price applicable will be based on the accepted quotation, subject to 3.1, 3.2 and 4.3.

4.2  Should no accepted quotation exist, the acceptance of an order is subject to the proviso that the Products will be supplied at the prices applicable as per DC Auto-Motion’s official price list in force from time to time, subject to clause 4.3.

4.3  If any of DC Auto-Motion’s costs/expenses in selling and delivering Products to the Customer (i.e. costs of sales, transport, delivery, etc.) have increased for any reason beyond DC Auto-Motion’s control, or in the ordinary course of DC Auto-Motion’s business, before delivery, then the purchase price, albeit as per accepted quotation DC Auto- Motion price list, shall be increased by the excess or, if the excess cannot be determined exactly, by a reasonable allowance for it.

4.4  All information contained in any price list of DC Auto-Motion is subject to change from time to time, as DC Auto- Motion may determine in its sole and absolute discretion, and it shall be and remain the Customer’s sole and absolute responsibility and liability to ensure that he/she/it remains up to date and knowledgeable on the latest version of each of DC Auto-Motion’s price lists in issue from time to time.

5. COSTING

5.1 Unless specifically agreed otherwise between the Parties in writing, all prices quoted by DC Auto-Motion and/or

referenced in DC Auto-Motion’s price lists applicable from time to time, will be deemed to be quoted and referenced:

5.1.1  exclusive of VAT;

5.1.2  exclusive of any and all costs and charges related to loading (incl. on-loading and off-loading), insurance, customs, duties, taxes, transport and packaging; and

5.1.3  on the basis of EXW delivery at a location nominated by the supplier.

6. DISCOUNTS AND REBATES

6.1  Prices charged will be strictly nett and not subject to any discount/rebate, unless otherwise agreed in writing between the Parties.

6.2  In the event that DC Auto-Motion agreed to grant a settlement, volume, trade or other discount/rebate, such discount/rebate shall only be effectively and formally granted where DC Auto-Motion receives full payment by due date. If DC Auto-Motion does not receive full payment by due date, the settlement or trade discount/rebate shall be regarded as null and void and the Customer shall be liable for payment of the full amount charged. Interest and penalty charges, as provided for in these Terms and Conditions, shall be levied on such full amount charged.

7. PAYMENTS

7.1 General

7.1.1  All amounts owing by the Customer to DC Auto-Motion from time to time shall be paid by the Customer to DC Auto- Motion:

7.1.1.1 on or before the due date for payment thereof;

7.1.1.2 via electronic funds transfer into such a bank account as DC Auto-Motion may nominate from time to time; 7.1.1.3 in South African currency free of bank and other charges; and

7.1.1.4 free from any and all deduction, withholding, set-off and/or counterclaim of any nature whatsoever.

7.1.2  Should any payment not be received by DC Auto-Motion from the Customer by the due date for payment thereof, DC Auto-Motion shall have the option, without prejudice to any of its other rights (albeit in terms of these Terms and Conditions or otherwise), to cancel or suspend further supply of Products and/or, by giving written notice thereof to the Customer, to require immediate payment of all amounts owing by the Customer to DC Auto-Motion, whether or not those amounts are actually due, and/or to take any other action it may deem necessary, in accordance with these Terms and Conditions or otherwise at law, until such payment is received.

7.1.3  All payments received by DC Auto-Motion from the Customer from time to time shall be appropriated firstly towards levied interest and thereafter to capital.

7.1.4  The Customer shall not withhold or delay payment to DC Auto-Motion for any reason whatsoever and/or at any time whatsoever.

7.2 Cash Payments

7.2.1  In the event that the Customer does not hold a Credit Facility with DC Auto-Motion, or the Parties determine that a

particular sale will be concluded on a “cash” basis, purchases shall be treated on the basis of:

7.2.1.1  cash before delivery; or

7.2.1.2  as the Parties may otherwise agree from time to time in writing.

7.2.2  Any payment to be made “before delivery” shall only be deemed to have been made once formal proof of payment has been delivered to DC Auto-Motion and the relevant amount reflects in DC Auto-Motion’s nominated bank account. Until such a time as the aforementioned has occurred, DC Auto-Motion shall have no obligation to commence with delivery of any Products ordered.

7.2.3  The sufficiency, and subsequent acceptance, of the “formal proof of payment” referred to in clause 7.2.2 above, shall be within the sole and absolute discretion of DC Auto-Motion.

7.2.4  Should the Parties agree to payment on a basis other than “cash before delivery” for a specific order, payment shall be made before 16h00 on the day agreed for payment.

7.3 Credit Facilities

7.3.1  In the event that the Customer holds a Credit Facility with DC Auto-Motion, the Customer shall make payment of any and all amounts owing in respect of the Credit Facility within the time frame allowed by that Credit Facility. The time frame for payment allowed by a Credit Facility shall be calculated as of the date of DC Auto-Motion’s invoice in respect of the Products to be paid.

7.3.2  DC Auto-Motion shall be entitled, in its sole and absolute discretion, to amend and/or withdraw any Credit Facility granted by it to the Customer.

7.3.3  The time frame for payment under Credit Facilities differs from one customer to the next. The Customer’s time frame for payment under the Credit Facility it holds (if any) shall be determined via the relevant Credit Facility documentation completed, signed and submitted by it and accepted by DC Auto-Motion.

7.4 Deposit

7.4.1 DC Auto-Motion may, in its sole and absolute discretion, require the Customer to pay a deposit in respect of any orders placed, irrespective of whether that Customer holds a Credit Facility or not. Should DC Auto-Motion require the Customer to pay a deposit, the requirement for payment of a deposit will be specified in the quotation delivered by DC Auto-Motion to the Customer in respect of those Products. Failure by the Customer to pay a deposit required by DC Auto-Motion, will entitle DC Auto-Motion to withhold supply of the Products to which the relevant order and deposit requirement relates.

8. INTEREST

8.1 Should any payment owing by the Customer to DC Auto-Motion not be received by the due date for payment thereof, the relevant amount shall accrue interest at the prevailing prime rate charged by Nedbank from time to time plus 2% (two percent) capitalised monthly in arrears, from the date on which payment falls due until the date on which payment is received in full.

9. CERTIFICATE

9.1 A certificate under the hand of any member, shareholder, director and/or manager of DC Auto-Motion (whose appointment need not be proved) as to the existence and the amount of the Customer’s indebtedness to DC Auto- Motion at any time, as to the fact that such amount is due and payable, the amount of interest accrued thereon and as to any other fact, matter or thing relating to the Customer’s indebtedness to DC Auto-Motion, shall be prima facie proof of the contents and the correctness thereof for the purposes of provisional sentence, summary judgment or any other proceedings of whatsoever nature against DC Auto-Motion in any competent court and shall be valid as a liquid document for such purpose.

10. DELIVERY

10.1  Unless the Parties agree otherwise in writing, delivery of Products will occur on the basis of EXW.

10.2  Time shall not be the essence of any order and any and all delivery dates which may be advanced must be (and will be) treated as approximate/estimated only, based on the latest information available to DC Auto-Motion. Under no circumstances shall the Customer be entitled to withdraw from and/or terminate any order on account of any delay in delivery or have any claim of any nature whatsoever against DC Auto-Motion arising from late delivery.

10.3  If the Customer fails to take delivery of Products upon DC Auto-Motion tendering delivery then:-

10.3.1  all risk in and to the Products shall pass immediately from DC Auto-Motion to the Customer, and

10.3.2  the Customer shall refund to DC Auto-Motion, on first demand, the reasonable costs (including storage and insurance) of keeping the Products during the period of that delay.

10.4  All risk, liability and responsibility in Products ordered shall pass to the Customer on either the due delivery date, if the Customer has not yet taken possession of the Products (refer clause 10.3 above), or on the moment delivery has been completed, whichever occurs first.

10.5  Notwithstanding any other provision to the contrary in any documents exchanged or delivered between or to the Parties, DC Auto-Motion’s obligation to deliver Products shall in all instances be subject to the following conditions precedent:

10.5.1  the availability of Products ordered and the availability of sufficient manpower to produce Products ordered and/or deliver Products ordered; and

10.5.2  timeous receipt by DC Auto-Motion of any and all specifications and information that may be required by DC Auto-Motion from the Customer.

10.6  Notwithstanding the delivery of any Products to the Customer, ownership and benefit therein shall remain vested in DC Auto-Motion until such a time as DC Auto-Motion has received payment of the full purchase price relating thereto. This shall apply even where credit or other trading/payment facilities is afforded to the Customer.

10.7  DC Auto-Motion reserves the right to repossess any Products delivered, without prejudice, or to resell such Products from the Customer’s premises (or such other premises as the Products may have been moved to), should payment not be received in full on due date for payment.

11. PRODUCT SPECIFICATIONS

11.1 It is noted and agreed that it shall at all times be the sole and absolute responsibility and liability of the Customer to ensure that correct and accurate Product specifications and descriptions are delivered to DC Auto-Motion with regard to each order. Any document (including order forms, quotations, e-mails, faxes, etc.) delivered or transmitted to DC Auto-Motion by the Customer, albeit a signed document or not, referencing the type, quantity, description and/or specifications of Products ordered, shall serve as:

11.1.1  absolute proof of the Customer’s agreement with and acceptance of the entire content referenced in such document; and

11.1.2  absolute confirmation and agreement by the Customer that the correct Products have been ordered by it.

11.2  It is noted and agreed that it shall at all times be the sole and absolute responsibility and liability of the Customer to ensure that correct and accurate Products (as relates to description, type, quantity, specifications, etc.) are delivered to it by DC Auto-Motion. A delivery note signed by the Customer or its representative (albeit a carrier or otherwise) shall serve as:

11.2.1  absolute proof of the Customer’s agreement with and acceptance of the entire content referenced in such document; and

11.2.2  absolute confirmation and agreement by the Customer that the correct Products ordered (including quantity, type, specification, description, etc.) have been delivered.

11.3  The Customer wholly indemnifies and undertakes to hold DC Auto-Motion completely harmless with regard to any and all claims, damages, losses, costs, expenses and/or any other negative result DC Auto-Motion may suffer as a result of DC Auto-Motion ordering and/or delivering incorrect Products (albeit as relates to quantity, type, specifications, description, etc.) based on the communications and/or confirmations made and/or delivered by the Customer.

11.4  If Products or any part thereof are to be supplied or delivered in accordance with any special specifications, instructions or information furnished by the Customer, the Customer shall not have any claim of any nature whatsoever against DC Auto-Motion and DC Auto-Motion shall in no form or manner be liable for any loss, damage, claim or cost sustained by the Customer or anyone else (albeit as a result of death, injury or otherwise) as a result of any error, discrepancy or defect in, or brought about by, those specifications, instructions and/or information.

12. RETURNS

12.1 The Customer acknowledges that it, or its representative in taking delivery of the Products, will at all times have a reasonable opportunity to inspect the Products before DC Auto-Motion’s delivery note is signed. The inspection will generally be aimed at satisfying the Customer that the Products delivered:

12.1.1 are of the type and quality reasonably contemplated by the Parties; and

12.1.2 correspond, in all material respects and characteristics, to that which an ordinary alert customer would have been entitled to expect, when considering the descriptions and/or a reasonable examination of any samples presented as basis for the order; and

12.1.3 in the case of special-order Products, reasonably conform to the material specifications of the special- order.

12.2 In the event that DC Auto-Motion’s delivery note is signed, irrespective of whether the right to inspection referenced in clause 12.1 has been exercised or not, it shall be deemed that the Customer is completely aware of and satisfied with the entire nature and extent of the Products delivered. Subsequently should the customer, subject to clauses 12.1.1 through to 12.1.3 be unsatisfied with the goods ordered and delivered according to his specifications listed on the order, DC Auto-Motion will have the sole right to either accept or reject the return of unopened goods in its original packaging within 5 business days from the delivery date subject to a handling fee charge of 25% on the total invoiced value (Ex VAT). For any specialized orders, the Customer will have no right or title to return any of the said Products to DC Auto- Motion. For avoidance of doubt, the Customer shall always have the opportunity to examine the Products before DC Auto-Motion’s delivery note is signed, albeit via third party representatives or otherwise.

13. WARRANTIES

13.1  DC Auto-Motion does not deliver or provide any guarantees/warranties of any nature whatsoever with regard to any

Products, except for those:

13.1.1  that are delivered or provided by a supplier of DC Auto-Motion on Products supplied by that specific supplier, and the benefit of which DC-Auto-Motion on passes to the Customer; or

13.1.2  that are prescribed by law; or

13.1.3  which are expressly provided in writing by DC Auto-Motion.

13.2  Any and all guarantees/warranties delivered by DC Auto-Motion, shall only cover defects that may develop during proper use, treatment, storage, dispensing and handling of the Products.

14. LIMITATION OF LIABILITY

14.1 DC Auto-Motion 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, whether in the contemplation of the Parties or not, which the Customer or anyone else may suffer as a result of any act and/or neglect of DC Auto-Motion of any nature whatsoever or otherwise.

14.2  DC Auto-Motion shall be exempted from and shall not be liable under any circumstances whatsoever for any damages of any nature whatsoever (albeit direct damages), whether in the contemplation of the Parties or not, which the Customer or anyone else may suffer as a result of any act and/or neglect of DC Auto-Motion of any nature whatsoever or otherwise, unless same was caused by the wilfully malicious and/or grossly negligent acts and/or neglects of DC Auto-Motion.

14.3  The Customer acknowledges that it shall ensure that it is fully acquainted with the condition of all purchased Products at all times, albeit via third party representatives or otherwise.

14.4  Notwithstanding anything contained herein or elsewhere to the contrary, DC Auto-Motion’s liability toward the Customer shall never exceed the amount/s actually paid by the Customer to DC Auto-Motion for the relevant Products to which the specific claim relates.

15. NON-PERFORMANCE

15.1  The Customer shall not have any claims of any nature whatsoever against DC Auto-Motion for any failure by DC Auto-Motion to carry out any of its obligations under an order or these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) as a result of vis major, force majeure, act of God, strike or lockout, shortage of labor or materials, breakdown of machinery delays in transport, accidents of any kind and default or delay by any sub-contractor or supplier of DC Auto-Motion, riot, political or civil disturbances, the elements, any act of any state or government or any authority, or any other cause whatsoever beyond DC Auto-Motion’s control.

15.2  The Customer shall not have any claims of any nature whatsoever against DC Auto-Motion for any failure by DC Auto-Motion to carry out any of its obligations under an order or these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) as a result of failure of carriers to furnish facilities for transportation, interference with supplies to DC Auto-Motion from the then existing sources of supply of any Product, such interference including expropriation, confiscation, nationalization, relinquishment of ownership or control over all or part of the Products by reason of request of or agreement with any governmental authority to whose jurisdiction DC Auto-Motion is subject or person purporting to act therefore, breakdown of or injuries to the facilities used in the production, transportation, receiving, handling or delivery of such Product or any allocation programmed or rationing or priorities in effect pursuant to government direction or request or instituted in co-operation with any governmental authority or person purporting to act therefore.

15.3  DC Auto-Motion shall not be required to settle strikes, differences with workmen or government claims by acceding to any demands when in the discretion of DC Auto-Motion, it would be inadvisable to accede to such demand. Notwithstanding the provisions of this clause Error! Reference source not found., the Customer shall not be relieved of any obligation to make payment in the normal course as stipulated for Products delivered to it.

15.4  If, for any cause referred to in clauses 15.1 and 15.2 above, DC Auto-Motion’s available supplies of Products become, or in its opinion will become, unable to meet the requirements of all customers at any time, then DC Auto-Motion shall be entitled to allocate those supplies among its customers (including the Customer and the Customer’s associated and affiliated companies) in such manner it deems fair and equitable in its sole and absolute discretion, and to vary its obligations to the Customer accordingly.

15.5  In the event that DC Auto-Motion is unable to comply with an order, for any reason which DC Auto-Motion did not actually foresee/anticipate, DC Auto-Motion shall be entitled to cancel the order by notice in writing. The Customer shall have no claims regarding such cancelled order and DC Auto-Motion shall not be liable, in any form or manner, for any claims, losses, damages and/or any other negative inferences suffered by anyone as a result thereof.

16. SUSPENSION OF DC AUTO-MOTION’S OBLIGATIONS

16.1 If any amount owed by the Customer to DC Auto-Motion, from any cause whatsoever, whether under an order or not,

is not paid on due date then (and without prejudice to any other rights DC Auto-Motion may have):

16.1.1  all amounts then owed by the Customer from any cause whatsoever, shall immediately become due and payable; and/or

16.1.2  DC Auto-Motion may retain in its possession, any Products of the Customer until all outstanding amounts have been paid; and/or

16.1.3  until payment is made, DC Auto-Motion may suspend the carrying out of any of its then uncompleted obligations from any cause whatsoever and whether under any order or not; and/or

16.1.4  terminate any Credit Facility granted to the Customer, whether agreed or not; and/or

16.1.5  retain any payment made by the Customer to DC Auto-Motion prior to the due date of the payment in question.

17. CANCELLATION

17.1  DC Auto-Motion may cancel any order or any uncompleted part of an order for any reason whatsoever, including the

following but not restricted thereto:

17.1.1  if the Customer commits a breach of any of the provisions of these Terms and Conditions (and/or the Credit Facility applicable between the Parties (if any));

17.1.2  if the Customer being an individual, dies or is provisionally or finally sequestrated or surrenders his/her estate; or

17.1.3  if the Customer being a partnership, the partnership is terminated; or

17.1.4  if the Customer being a legal entity/juristic person, is placed under a provisional or final order of liquidation or business rescue; or

17.1.5  if the Customer compromises or attempts to compromise generally with its creditors.

17.2  DC Auto-Motion’s rights in terms of clause 17.1 shall not be exhaustive and shall be in addition to its other rights under these Terms and Conditions (and/or the Credit Facility applicable between the Parties (if any)) or otherwise.

17.3  Upon the termination of an order for any reason whatsoever:

17.3.1  all amounts then owed by the Customer to DC Auto-Motion under the order shall become due and payable immediately, and

17.3.2  DC Auto-Motion may retake possession of any Products sold where ownership has not passed.

18. JURISDICTION, ARBITRATION AND COSTS

18.1  Regardless of the Parties’ place of execution, performance or domicile, these Terms and Conditions and all orders and all modifications and/or amendments thereto shall be governed by and construed under and in accordance with the laws of the Republic of South Africa.

18.2  Unless agreed otherwise in writing by DC Auto-Motion, international customers:

18.2.1  shall furnish South African Bank Guarantees with a financial institution within the Republic of South Africa, as specified by and acceptable to DC Auto-Motion;

18.2.2  shall choose a domicilium citandi et executandi at an address within the jurisdiction of the South African Courts.

18.3  Unless agreed otherwise in writing by DC Auto-Motion, all sums payable shall be converted to South African currency at a rate of exchange prevailing on date of Invoice, alternatively date of payment, whichever sum is the larger.

18.4  If any dispute or difference of any kind whatsoever shall arise between the Customer and DC Auto-Motion in connection with or arising out of an order or these Terms and Conditions, then the matter in dispute or difference shall be referred to arbitration in accordance with the provisions of AFSA (Arbitration Foundation of Southern Africa). The Arbitration shall be held in Pretoria, Republic of South Africa, in English before a single arbitrator and with a view of obtaining an expeditious result.

18.5  The Customer agrees that if any claim against the Customer is handed over to DC Auto-Motion’s attorneys for collection, the Customer shall be responsible for all attorney’s costs incurred by DC Auto-Motion, which costs shall include all collection costs, disbursements and costs on the scale between attorney and own client, inclusive of collection commission.

19. EQUIPMENT

19.1  All general containers and/or equipment of DC Auto-Motion, used by it for its own purposes such as transport and delivery of Products, shall remain the sole and exclusive property of DC Auto-Motion. The Customer shall ensure that same is returned to DC Auto-Motion only.

19.2  For as long as any general containers and/or equipment of DC Auto-Motion are in the possession, or under the control, of the Customer, the Customer shall apply and implement all reasonable measures to ensure that same is not damaged, destroyed or lost, in any form or manner, and remains safeguarded until returned to DC Auto-Motion.

20. CPA AND NCA APPLICATION

20.1  It is noted that both the NCA and the CPA (amongst other laws) may find application to an order/transaction between the Customer and DC Auto-Motion from time to time. As such, it is confirmed that nothing contained in these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) aims/intends to circumvent the NCA or the CPA in events where it may find application.

20.2  Notwithstanding that stated in 20.1 above, the NCA and CPA shall only apply to an order/transaction between the Parties where it is specifically provided, via the said Acts, that same applies and then only to the extent that same applies. In no way manner or form is intended that either of these Acts (albeit it in whole or partially) apply voluntarily.

20.3  Hence, for as far as the provisions of these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) contradict any provision of the CPA or NCA (or any other law) that apply to an order/transaction between DC Auto-Motion and the Customer, the applicable provision/s of the said law shall prevail in respect of that order/transaction (but only to the extent of the conflict).

21. MATERIALS

21.1  The Customer acknowledges and agrees that the copyright, and all other intellectual property rights, in, to and of, and the ownership of, any and all Materials made available and/or provided to him/her/it by DC Auto-Motion, or on behalf of DC-Auto-Motion from time to time, vests in and shall remain vested in DC Auto-Motion. The provisions of this clause 21.1 shall apply to all Materials made available and/or provided by DC-Auto Motion, irrespective of how, why and/or when the Materials where commissioned, produced and/or otherwise brought into being, and further irrespective of the reason and/or basis for the Materials being commissioned, produced and/or otherwise brought into being.

21.2  Save with the prior written consent of DC Auto-Motion, the Customer shall not at any time copy, duplicate or reproduce, in any manner or form whatsoever or for any reason whatsoever, the Materials made available and/or provided to him/her/it by DC Auto-Motion from time to time or any part thereof, or make any adaptations or translations of such Material.

22. MISCELLANEOUS

22.1  Applicable Law

The validity of these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)), its interpretation, the respective rights and obligations of the Parties and all other matters arising in any way out of its performance or expiration or earlier termination for any reason, shall be determined in accordance with the laws of the Republic of South Africa.

22.2  Costs

The Customer agrees that if any claim against the Customer is handed over to DC Auto-Motion’s Attorneys for collection, the Customer will be responsible for all attorney’s costs incurred by DC Auto-Motion, which costs shall include all collection charges, disbursements and costs on the scale between attorney and own client, and inclusive of collection commission.

22.3  Severability

22.3.1  It is agreed that each clause and each sub-clause in these Terms and Conditions (and the Credit Facility applicable

between the Parties (if any)) is severable, the one from the other;

22.3.2  If any clause or sub-clause is found to be defective or unenforceable for any reason by any competent court, the remaining clauses shall continue to be of full and competent force and effect.

22.4 Entire Terms and Conditions (and Credit Facility (if any)) and non-variation

22.4.1  These Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) represent all the terms and conditions pertaining to the sale of Products between DC Auto-Motion and the Customer. The Customer warrants that it understands all the terms and conditions and accepts them.

22.4.2  No alteration or variation of these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) shall apply unless the alteration or variation in question is expressly agreed to or issued in writing by DC Auto- Motion.

22.5  Confidentiality

The Customer and DC Auto-Motion agree to take all reasonable measures to preserve the confidential nature of an

order and the Terms and Conditions (and the Credit Facility applicable between the Parties (if any)).

22.6  Assignment of rights and obligations

22.6.1  The Customer may not cede or assign its rights or obligations in terms of any order or these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) to any third party without the prior written consent of DC Auto-Motion, which consent shall not be unreasonably withheld.

22.6.2  DC Auto-Motion may cede and assign its rights and obligations in terms of any order or these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)) to any third party without the prior written consent of the Customer.

22.7 Relaxation

No relaxation which DC Auto-Motion may give at any time and on any occasion in regard to carrying out of the Customer’s obligations in terms of any order or these Terms and Conditions (and the Credit Facility applicable between the Parties (if any)), shall prejudice or be a waiver of any of DC Auto-Motion’s rights to enforce those obligations on any subsequent occasion.