Credit Application, Deed of Suretyship and Standard Conditions of Agreement

Transcription

1 Credit Application, Deed of Suretyship and Standard Conditions of Agreement 1.Trading name of business: 2.Registered name of business: 3.Company/Close Corporation Registration No: Or ID Number/s when Sole Proprietor or Partnership: 4.Incorporated form of business: (Please indicate) Private Company Close Corporation Sole Proprietorship Partnership 5.Details of Proprietors/Directors/Member/Partners Full Name: Full Name: Full Name: (attach copies of ID Documents) 6.Registered practice number: (attach certificate) Department of Health Licence number (attach certificate)*(when applicable) 7.SA Pharmacy Council number:(sapc) or Health Professions Council of SA number: (HPCSA) or SA Veterinary Council number: (SAVC) SAPC number: HPCSA number: SAVC number: 8.VAT registration number: Date of establishment of business: 9.Business activities: 10.Registered Physical address: Street address: Block/Building: Suburb: Region/Province: Address for Account Statements: 11.Postal address: Postal Code: 12.Telephone area code & no: Mobile number: Fax area code & no: 13. Auditors/Financial officer's name if registered business is a legal entity e.g. PTY Ltd/CC/LTD Tel area code & no: Page 1 of 5

2 Distribution agent for Suppliers. 14.Banker's details: Institution: 15.Account Number: 16.Account Holder: 17.Type of Account: (attach cancelled cheque) Branch: Date opened: 18.If less than 3 years, previous Bankers: _ 19.Account Number: Branch: 20.Trade Reference 1: Name Tel ( ) 21.Trade Reference 2: Name Tel ( ) 22.Anticipated monthly purchases range between (lowest) R (highest) R _ 23.Account contact person: 24.Contact details: Back Orders: Please indicate your Back Order Requirements on the page 5: Credit limit required as per addendum on page 5: R Undersigned accepts the Standard Conditions of Agreement on page 3. The Customer acknowledges that any amount due for products or services will be due unconditionally within 30 days from the end of the month in which a Tax Invoice has been issued by IMPERIAL HEALTH SCIENCES provided that the Customer is a Credit Approved I hereby certify that all above information is correct. Each page of the credit application and the conditions of agreement needs to be initialled. Signature for Customer: Place Date Printed name(s): Corporate designation of signatory: Deed of Suretyship I, the undersigned, do herby irrevocably bind myself as surety and co-principal debtor for the entire outstanding sum in favour of Imperial Health Sciences, its order, successors in title or assigns, for the due fulfilment by the Customer of all its obligations to Imperial Health Sciences of whatsoever nature and howsoever arising, whether already incurred or which may from time to time be incurred. This is a continuing guarantee and my liability hereunder shall not be affected by any indulgence granted to the Customer by Imperial Health Sciences. I hereby renounce the benefits of excussion, division, debt not caused and cession of action, and choose as my nominated address for all purposes arising herein, the address set out under my signature hereunder. I agree to pay all legal costs on the scale as between attorney and client in the event of Imperial Health Sciences having to enforce of this Suretyship. I furthermore consent to the jurisdiction of the Magistrate s Court notwithstanding that the amount of the liability to Imperial Health Sciences may exceed the jurisdiction of such Court. I agree to be bound by the standard conditions of agreement on page 3 hereof. Signed at on this the day of Full Names Signature _ ID No. Address _ Witness Witness Page 2 of 5

3 Standard Conditions of Agreement 1. APPLICATION OF TRADING TERMS 4.6. Products will not be uplifted for credit without the Manufacturer consenting thereto. No products will be 1.1. The Customer agrees that (a) this Agreement represents the entire Agreement between the Customer and uplifted without a Pick-up slip from IMPERIAL HEALTH SCIENCES. IMPERIAL HEALTH SCIENCES a Division of IMPERIAL GROUP LIMITED (hereinafter called IMPERIAL HEALTH SCIENCES) and that no alterations or additions to this Agreement may be effected unless 4.7. Unauthorised returns will not be credited nor will IMPERIAL HEALTH SCIENCES be held responsible for the products. agreed to by both parties, reduced to writing and signed by the Customer and a duly authorised 5. ORDER CANCELLATION representative of IMPERIAL HEALTH SCIENCES; (b) this Agreement is applicable to all existing debts and future debts between the parties; (c) this Agreement is final and binding and is not subject to any suspensive or resolutive terms or conditions; (d) any conflicting conditions stipulated by the Customer are expressly excluded; (e) these terms supersede all previous conditions of Agreement without prejudice to 5.1. Any order is subject to cancellation by IMPERIAL HEALTH SCIENCES due to force majeure or any circumstance beyond the control of IMPERIAL HEALTH SCIENCES, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation. any securities or guarantees held by IMPERIAL HEALTH SCIENCES Any order is subject to cancellation by IMPERIAL HEALTH SCIENCES if the Customer breaches any 1.2. The Customer acknowledges that IMPERIAL HEALTH SCIENCES is authorised by each Manufacturer from whom the Customer purchases products through IMPERIAL HEALTH SCIENCES to be such Manufacturer s distribution agent. terms of this Agreement or makes any attempt of compromise, liquidation, sequestration, termination or judgement is recorded against the Customer or any of its principals. The customer gives consent that any legal action can be taken against them in the case of non-payment of the account This Agreement as well as any order only becomes final and binding on receipt and acceptance of this offer by IMPERIAL HEALTH SCIENCES at its business address in Centurion The Customer agrees that IMPERIAL HEALTH SCIENCES will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in clause 5.1 or 5.2 occur. 2. DEFINITIONS 5.4. If any products supplied to the Customer are of a generic nature and have become the property of the 2.1. the Customer is the party described in items 1 to 2 of the Credit Application hereinabove; Customer by operation of law (confusio or commixtio) the Customer shall be obliged on notice of 2.2. IMPERIAL HEALTH SCIENCES shall mean IMPERIAL GROUP LIMITED trading through its division IMPERIAL HEALTH SCIENCES an unlisted public company registered in terms of the company laws of cancellation of the Agreement to retransfer the same quantity of products in ownership to IMPERIAL HEALTH SCIENCES. South Africa; 6. INSURANCE 2.3. delivery shall mean performance in terms of the Agreement whereby IMPERIAL HEALTH SCIENCES delivers the products to the designated address as specified in writing upon which any and all risk associated with the products shall pass to the Customer; 6.1. The risk of damage to, destruction or theft of products shall pass to the Customer on acceptance of any order received in terms of this Agreement and the Customer undertakes to comprehensively insure the products until paid for in full. The Customer shall at a minimum have the following insurances: 2.4. products shall mean any products handled, transported or dealt with by or on behalf of or at the instance Goods in transit insurance; of IMPERIAL HEALTH SCIENCES or which come under the control of IMPERIAL HEALTH SCIENCES or Product liability insurance; and its agents, servants or nominees on the instructions of the Customer and includes any container, Commercial General Liability Insurance. transportable tank, flat pallet, package or other form of covering, packaging, container or equipment used in connection with or in relation to such products; 6.2. IMPERIAL HEALTH SCIENCES in no manner or form undertakes to be liable for any premium or charge associated with such insurance or policy and Customer shall at all times be solely responsible for any 2.5. relevant legislation means all or any payment, premium and charge or cost associated with the Insurance Policy Statutes, Subordinate Legislation and Common Law; 6.3. IMPERIAL HEALTH SCIENCES reserves the right to request proof of insurance at anytime from the Regulations, including but not limited to, Regulation No. R 510 of 10 April 2003, published in terms of the Medicines and Related Substances Act, No 101 of 1965; 7. LIABILITY AND INDEMNITY Ordinances and By-laws; and 7.1. Under no circumstances shall IMPERIAL HEALTH SCIENCES be liable for any consequential damages Directives, Codes of Practice, Circulars, Guidance Notes, Judgments and Decisions of any competent including loss of profits or for any delictual liability of any nature whatsoever and howsoever caused. Authority, to the extent that compliance with same is mandatory in relation to the subject matter of these terms and conditions; 7.2. Under no circumstances shall IMPERIAL HEALTH SCIENCES be liable for any damage arising from any misuse, abuse or neglect of the products or services Consumer Protection Act means the Consumer Protection Act 68 of 2008; 7.3. INDEMNITY IN RELATION TO THE CONSUMER PROTECTION ACT 2.7. Electronic Communications and Transactions Act means Electronic Communications and Transactions DEFINITIONS Act 25 of 2002; In this indemnity, the following terms have the meaning assigned to them below, namely: 2.8. Manufacturer means the Manufacturer of the products from whom the Customer purchases products through IMPERIAL HEALTH SCIENCES Harm means harm, as described in section 61 (5) of the Consumer Protection Act; and Parties means 3. CUSTOMER S WARRANTIES IMPERIAL HEALTH SCIENCES; and 3.1. The Customer is bound by and warrants in favour of IMPERIAL HEALTH SCIENCES: Customer, which for the purposes of this indemnity is a Supplier as defined in section 1 of the that the Customer is purchasing pharmaceutical products, which may include scheduled drugs, and confirms that it is registered with the Pharmacy Council and hereby agrees to provide the Manufacturer Consumer Protection Act, which also meets the requirement of section 61 (2) of the Consumer Protection Act; and/or IMPERIAL HEALTH SCIENCES with any information or documentation that is required to confirm And Party means either one of them, as the context indicates; this; Unless a contrary intention clearly appears, the terms used in this indemnity shall have the meaning that the Customer acknowledges that it does not rely on any representations made by IMPERIAL HEALTH assigned to them in section 1 or section 53, as the case may be, of the Consumer Protection Act. SCIENCES in regard to the products 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 technical data furnished by IMPERIAL HEALTH SCIENCES in respect of the The Parties acknowledge that in terms of section 61 of the Consumer Protection Act, the producer, importer, distributor, retailer and/or Supplier may be jointly and severally liable for an Harm caused wholly or partly as a consequence of: products or services orally or in writing will not form part of the Agreement in any way unless agreed to in writing by IMPERIAL HEALTH SCIENCES; supplying any unsafe products; or a product failure, defect or hazard in any products; or that it is the sole responsibility of the Customer to determine that the products or services ordered are suitable for the purposes of its intended use; inadequate instructions or warning provided to the consumer pertaining to any hazard arising from or associated with the use of any products, irrespective of whether the Harm resulted from any negligence on that the Customer agrees to pay all additional costs resulting from any acts or omissions by the Customer the part of the producer, importer, distributor, retailer or Supplier, as the case may be. including suspension of work, modification of requirements, failure or delay in giving particulars required to enable work to proceed on schedule or requirements that work be completed earlier than agreed; Each Party ( Indemnifying Party ) hereby indemnifies and hold harmless the other Party from and against any and all claims, actions, liabilities, damages, cost and expenses asserted against, imposed upon or that the Customer hereby confirms that the products or services on any Tax Invoice issued duly represent the products or services ordered by the Customer at the prices agreed to by the Customer and, where delivery / performance has already taken place, that the products 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 incurred by the other Party as a result of or arising out of any Harm alleged or proven by a consumer himself or herself, or other person contemplated in section 4(1) of the Consumer Protection Act to the extent such Harm is attributable to the negligent or intentional conduct of the Indemnifying Party or any contravention by the Indemnifying Party of any applicable law. from any defects; Each Party shall comply with its legal obligations in terms of all applicable health and safety legislation and that notwithstanding the provisions of clause above, all orders or agreed variations to orders, whether orally or in writing, shall be subject to these standard conditions and may not be revoked by the accordingly indemnifies in full the other party against all and any claims arising from non-compliance therewith. 8. PAYMENT 3.2. Products are guaranteed according to the Manufacturer's product specific warranties only and all other guarantees including common law guarantees are hereby specifically excluded. Services carry no guarantee The Customer agrees that the amount contained in a Tax Invoice issued by IMPERIAL HEALTH SCIENCES shall be due and payable either (a) cash on order; or (b) if the Customer is a Credit Approved Customer, within 30 days from date of Tax Invoice from the end of the month in which a Tax Invoice has 4. DELIVERY AND RETURNS been issued by IMPERIAL HEALTH SCIENCES. (30 Days net from date of statement) 4.1. IMPERIAL HEALTH SCIENCES shall be entitled in its sole discretion to split the delivery / performance of the products or services ordered in the quantities and on the dates it decides and further shall be entitled 8.2. The Customer agrees to pay the abovementioned amount at the offices of IMPERIAL HEALTH SCIENCES free of exchange and without any deduction or set-off. to invoice each delivery/performance separately Interest on overdue amounts shall be charged at the maximum permissible rate in terms of the National 4.2. IMPERIAL HEALTH SCIENCES reserves the right at its sole discretion to provide alternative products of the same quality and quantity at the prevailing prices to those ordered by the Customer should such Credit Act 2005 (Act No 34 of 2005) as amended, calculated from the due date referred to in paragraph 8.1 above products be superseded, replaced or their manufacture terminated The risk of payment by cheque through the post rests with the 4.3. Any waybill (copy or original) signed by the Customer or a third party engaged to transport the products and held by IMPERIAL HEALTH SCIENCES shall be prima facie proof that delivery was made to the 8.5. The Customer has no right to withhold payment for any reason whatsoever and 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 IMPERIAL HEALTH SCIENCES, reduced to writing and signed by the 4.4. Delivery and performance times quoted are merely estimates and are not binding on IMPERIAL HEALTH SCIENCES. Customer and a duly authorised representative of IMPERIAL HEALTH SCIENCES If IMPERIAL HEALTH SCIENCES agrees to engage a third party to transport the products, IMPERIAL HEALTH SCIENCES is hereby authorised to engage a third party on the Customer's behalf and on the terms deemed fit by IMPERIAL HEALTH SCIENCES and the Customer indemnifies IMPERIAL HEALTH SCIENCES against any claims against IMPERIAL HEALTH SCIENCES that may arise as a result thereof. Page 3 of 5

4 Document Version: 1.5 February The Customer agrees that the amount due and payable to IMPERIAL HEALTH SCIENCES may be determined and proven by a certificate issued and signed by any director or manager of IMPERIAL HEALTH SCIENCES, whose authority need not be proven or by any independent auditor. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the 8.7. The Customer agrees to accept the receipt of electronic format statements, tax invoices, shipment documents (proof of delivery), credit and debit notes from IMPERIAL HEALTH SCIENCES, which will be transmitted via , and the following conditions thereto as required by South African Revenue Services and in terms of the provisions of the Value-Added Tax Act for the issuing of tax invoices, credit and debit notes: Electronic documents (tax invoices, credit and debit notes) will be transmitted and issued to the Customer in 128bit encrypted PDF file format; Both the Customer and IMPERIAL HEALTH SCIENCES shall retain the electronic documents in its original encrypted format for a period of 5 years from the date of the delivery to which it relates; The transmitted electronic document will constitute the original statement, tax invoice, credit or debit note. No other tax invoice, credit or debit note will be issued in respect of any specific delivery, unless as a copy of the original document Any printout tendered by any party shall be admissible evidence and no party shall object to the admissibility of such evidence purely on grounds that same is computer evidence or that the requirements of the Electronic Communications and Transactions Act have not been met The Customer agrees that if an account is not settled in full (a) against order; or (b) within the period agreed in clause 8.1 above in the case of a Credit Approved Customer; IMPERIAL HEALTH SCIENCES is: (i) entitled to immediately institute action against the Customer at the sole expense of the Customer; or (ii) to cancel the Agreement and take possession of any products delivered to the Customer and claim damages. These remedies are without prejudice to any other right IMPERIAL HEALTH SCIENCES may be entitled to in terms of this Agreement or in law. IMPERIAL HEALTH SCIENCES reserves its right to stop supply immediately on cancellation or on non-payment IMPERIAL HEALTH SCIENCES shall be entitled to withdraw credit facilities at any time within its sole discretion In the event of cancellation, the Customer shall be liable to pay (a) the difference between the selling price and the value of the products at the time of repossession and (b) all other costs incurred in respect thereof. The value of repossessed or retained pledged products shall be deemed to be the value placed on them by any sworn valuator after such repossession, and such valuation shall be conclusive proof of the value. If the products are not recovered for any reason whatsoever, the value shall be deemed to be nil In the event of cancellation of the Agreement by IMPERIAL HEALTH SCIENCES, it shall be entitled to repossess any products that have been delivered to the Customer and remains unpaid by the due date The Customer is not entitled to sell or dispose of any products unpaid for without the prior written consent of IMPERIAL HEALTH SCIENCES. The Customer shall not allow the products to become encumbered in any manner prior to the full payment thereof and shall advise third parties of the rights of IMPERIAL HEALTH SCIENCES in the products. 9. APPLICABLE LEGISLATION 9.1. If IMPERIAL HEALTH SCIENCES is obliged in the execution of any of its duties and/or responsibilities to comply with any common law or legislative enactment ("the law") of any nature whatsoever then IMPERIAL HEALTH SCIENCES by complying therewith shall not be deemed to waive nor abandon any of its rights in terms of these trading terms and conditions If any of the terms of these trading terms and conditions is repugnant to or in conflict with the law, then and in such event the conflicting term embodied herein shall be deemed to be amended and/or altered to conform therewith, and such amendment and/or alteration shall not in any way affect the remaining provisions of these trading terms and conditions. 10. GOVERNING LAW This Agreement and its interpretation is subject to South African law The Customer hereby consents that IMPERIAL HEALTH SCIENCES shall have the right to institute any legal action in either the Magistrate's Court or the North Gauteng Division of the High Court at its sole discretion. These South African courts shall have exclusive jurisdiction in any litigation between the parties arising from whatsoever source The Customer shall be liable to IMPERIAL HEALTH SCIENCES for all legal expenses on the attorneyand-own-client scale incurred by IMPERIAL HEALTH SCIENCES in the event of any litigation being instituted in respect of 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 IMPERIAL HEALTH SCIENCES may demand The Customer agrees that IMPERIAL HEALTH SCIENCES will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate's Courts or in terms of Rule 47 of the Law of the Supreme Court 59 of NOTICES Any document shall be deemed duly presented to and accepted by the Customer (i) within 5 days of prepaid registered mail to any of the Customer's business or postal addresses or to the personal address of any director, member or owner of the Customer; or (ii) within 24 hours of being faxed to any of the Customer's fax numbers or any director, member's or owner's fax numbers; or (iii) on being delivered by hand to the Customer or any director, member or owner of the Customer; or (iv) within 48 hours if sent by overnight courier or (v) within 7 days of being sent by surface mail; or (vi) within 24 hours of being e- mailed to any address provided by the The Customer chooses its address for any notification or service of legal documents or processes as the business address or the physical addresses (nominated address for delivery) set out in the credit application herein above The Customer undertakes to inform IMPERIAL HEALTH SCIENCES in writing within 7 days of any change of Director, Member, Shareholder, Owner or Partner or address or within 14 days prior to selling or alienating the Customer s business and failure to do so will constitute a material breach of this Agreement. Upon receipt of such written notification, IMPERIAL HEALTH SCIENCES reserves the right, at its sole discretion, to withdraw any credit facility advanced to the 12. GENERAL The Customer agrees that no indulgence whatsoever by IMPERIAL HEALTH SCIENCES will affect the terms of this Agreement or any of the rights of IMPERIAL HEALTH SCIENCES and such indulgence shall not constitute a waiver by IMPERIAL HEALTH SCIENCES in respect of any of its rights herein. Under no circumstances will IMPERIAL HEALTH SCIENCES be estopped from exercising any of its rights in terms of this Agreement For the purposes of making credit risk management decisions and preventing fraud, the Customer hereby warrants that IMPERIAL HEALTH SCIENCES has consent to: Carry out a credit enquiry on the Customer and the Directors/Members/Partners/Trustees/Principals of the Customer from time to time with one or more credit bureaus, credit information agents, credit insurance companies or other creditors (trade references) of the Customer s in terms of this Agreement; IMPERIAL HEALTH SCIENCES may transmit details to credit bureaus, credit information agents, credit insurance companies or other creditors of the Customer of how the Customer has performed in meeting his/her/its obligations in terms of this Agreement; If the Customer fails to meet his/her/its commitments to IMPERIAL HEALTH SCIENCES, IMPERIAL HEALTH SCIENCES may record the Customer s non-performance with credit bureaus, credit information agents, credit insurance companies or other creditors of the Such information shall be retained for periods as stipulated in any applicable law, but no longer than the duration of the validity of this Agreement. Where the Customer has not used a facility under this agreement for 12 months, the Customer will be required to re-apply for such a facility Each provision of this Agreement is severable from the other provisions. Should any provision be found to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall nevertheless remain binding and continue with full force and effect The signatory hereby binds himself / herself in his / her personal capacity as Shareholder (in the case of a company), Member (in the case of a close corporation) or Owner or Partner as co-debtor jointly and severally for the full amount due to IMPERIAL HEALTH SCIENCES and agrees that these Standard Conditions will apply in the exact same way to him / her. Page 4 of 5

5 Document Version: 1.6 February 2017 Required Credit Limit per Client Trading name of business: Registered name of business: Name of Client Company Credit Limit Required Accepting Back Orders Yes No Xixia Mylan AstraZeneca Pharmaceuticals Galderma Laboratories Janssen Pharmaceutica Sport Health & Fitness Technologies Astellas Pharma Gulf Drug Company Specpharm Aspen Pharmacare Inova Pharmaceuticals Akacia Healthcare Accord Healthcare Activo Pharmaceuticals Ranbaxy SA Dezzo Trading Teva Pharmaceuticals Bausch & Lomb Boehringer Ingelheim Baxter Healthcare Cipla Medpro Amgen South Africa Lamar International Forrester Pharma Dr Reddy s Sonke Pharma Ranbaxy Pharma (Sun Pharma) Lebasi Sekpharma Innovata Zyora Alcon Page 5 of 5