These terms and conditions shall apply between ATOMIC POWER BOATS (PTY) LTD, Reg. No. 2021/465547/07, (“the Company”) and any person, firm, entity or company buying from or using the Company’s services (“the Customer/s”) and govern the contractual relationship between them:

1. No Order or request placed by the Customer shall become binding upon the Company until it has been accepted by a duly authorised representative of the Company at the Company’s head office which shall be deemed to be the place at which all contracts are concluded. It shall not be necessary for the Company to give formal notice of acceptance of any order to the Customer.

2. No terms or conditions appearing in any of the Customer’s documents, including the Customer’s buying order, which are at variance with these terms and conditions shall be binding upon the Company.

3. The Customer acknowledges that any sales representative taking an order from the Customer does not have the authority to bind the Company and that no representations, warranties or any other statements made or given by any employee of the Company shall be binding on the Company, unless given in writing under the signature of a duly authorised representative of the Company.

4. These terms and conditions shall apply to all contracts entered into between the parties (the Company and the Customer) and no variations thereof, including any variation of this clause, shall be binding upon the Company unless reduced to writing and signed by both parties.

5.1. Prices quoted by the Company are the Company’s current prices, which are a guide only. The price payable by the Customer will be the Company’s ruling price at the date of despatch or rendering of the services.

5.2. Prices are net and are not subject to discount unless a discount has been agreed upon in writing.

6.1. Payment of a deposit is required prior to the Company commencing the manufacture of any goods or boat, unless agreed to otherwise in writing, with the balance to be paid on demand by the Company. Any deposit paid to the Company is not refundable after the Company has commenced with the building or manufacture of any boat or goods, as the goods, including boats, supplied by the Company are customises for Customers.

6.2. Unless agreed otherwise, after payment of the specified deposit, payment of any balance due shall be made to the Company at intervals specified in writing by the Company, without any delay, withholding, deduction or set off.

6.3. Payment may not be withheld pending the settlement of any dispute and no set off, deduction or withholding of any payment is allowed by the Customer and all amounts must be paid within the agreed payment period.

7.1. The Company does not guarantee delivery on the date specified but will endeavour to give delivery on that date. Late delivery shall not invalidate any contract of sale between the parties nor render the Company liable for any damages whatsoever.

7.2. Where goods, such as boats, are delivered by the Company in the Company’s own transport, then delivery shall be deemed to have been effected once it is tendered at the agreed point of delivery. Offloading shall be the responsibility of the Customer and at the Customer’s own risk, whether or not the Customer requires the Company’s employees to effect or assist in the offloading.

7.3. Should the Company, at the Customer’s request, agree to engage a carrier to transport any goods, or boat, for the Customer then:–

7.3.1. the Company is authorised to engage a carrier on such terms and conditions as it
deems fit;

7.3.2. delivery to the carrier shall be deemed to be delivery to the Customer;

7.3.3. the Customer indemnifies the Company against all demands and claims which
may be made against it by the carrier so engaged together with any liability which
the Company may incur to the carrier arising out of the transportation of the goods;

7.3.4. the Company accepts no responsibility for goods damaged or lost in transit and the
Customer is responsible for lodging a claim with the carrier.

8. The risk of loss or damage in and to goods, including boats, sold shall pass to the Customer on delivery.

9. Notwithstanding anything herein to the contrary, ownership of goods, including boats, sold to the Customer vests in the Company until the Company has received payment of the full purchase price, notwithstanding that goods may have been purchased for re-sale or for construction or other purposes. The Customer will have the right to dispose of goods purchased in the ordinary course of business provided that it is expressly agreed and recorded in writing that the claim to any right of recovery of the purchase price shall be ceded to the Company as security for payment of any amount outstanding. Upon the termination of any contract of sale for any reason whatsoever, the Company may retake possession of any of the Company’s goods, including boats, whether processed or not in respect of which ownership has not passed to the Customer.

10. The Company reserves the right to cancel any contract with the Customer should its fulfilment be delayed or rendered impossible by war, invasion, insurrection, riot, order of any government, municipal or civil authorities, breakdown, accidents, labour disputes or any other cause beyond the reasonable control of the Company and or the Company’s suppliers. The Customer shall not be entitled to cancel the contract by reason of any delay in the delivery howsoever caused.

11.1. The Company may immediately cancel any contract between it and the Customer, or any uncompleted part of it, if the Customer:-

11.2. commits a breach of any of the terms and conditions hereof or of any other contract between the Company and the Customer, including any quote that has bene accepted;

11.2.1. being an individual, dies or is provisionally or finally sequestrated or surrenders his
Estate;

11.2.2. being a partnership, the partnership is terminated;

11.2.3. being a company or close corporation, is placed under provisional or final order of
liquidation or judicial management;

11.2.4. on any judgement being granted against the Customer;

11.2.5. compromises or attempts to compromise generally with any of the Customer’s
creditors.

11.3. If any amount owed by the Customer to the Company in respect of any claim is not paid on due date then all amounts owed to the Company by the Customer shall at once become due, owing and payable and any discount which the Customer may have been entitled to claim shall be forfeited.

11.4. All overdue amounts owing by the Customer to the Company shall bear interest at a rate of 2% per month, calculated and payable monthly in advance on the first of each and every successive month on the balance from time to time remaining owing by the Customer to the Company.

11.5. If any claim against the Customer is placed by the Company in the hands of its attorneys, and whether or not action is instituted, and without prejudice to any other rights which the Company may have, the Company shall be entitled to recover all legal costs incurred by it, including, without departing from the generality of the aforegoing, all attorney and own client charges, tracing fees and such collection commission as the Company is obliged to pay its attorneys, from the Customer.

12. The Company gives no warranties and makes no representations as to the suitability of any goods, including boats, sold for any specific purpose.

13.1. The Company shall not be liable in respect of any claim which has not been lodged at its head office in writing within ten (10) days of the date of delivery. A claim will not be deemed to have been lodged unless the nature of the claim is clearly stated in writing and unless the claim is accompanied by a copy of the delivery note. The Customer shall make available goods to which the claim relates for checking and weighing by the Company’s representative and for this purpose the Company’s representatives shall be entitled to make use of any of the Customer’s weighing apparatus free of charge. The Company shall be entitled to take samples of the goods to which the claim relates.

13.2. The Company shall be exempted from and shall not be liable under any circumstances whatsoever for:-

13.2.1. Any indirect or consequential damages of any nature whatsoever, howsoever arising, including any loss of profit which the Customer may suffer as a result of breach beyond its control or reasonable cancellation by the Company of any of its obligations;

13.2.2. Any innocent mistake on the part of the Company or that of its servants or agents in carrying out any of their obligations in terms of any agreement between the parties.

13.3. The Company’s liability in respect of any claim based on defective goods is limited to replacing such goods as against the return to it of the defective goods, that are proven to be so.

14. No indulgence or relaxation of rights granted by the Company shall be prejudicial to or constitute a waiver of any of the Company’s rights under this agreement or at law and any waiver of rights by the Company shall not be construed as such unless such a waiver is reduced to writing and signed by the Company.

15. The parties hereby consent to the jurisdiction of the Magistrate’s Court notwithstanding that the amount claimed by any party may otherwise be beyond its jurisdiction. This clause shall be deemed to constitute the required written consent conferring jurisdiction upon the said court pursuant to Section 45 of Act 32 of 1944 as amended. Provided, however, that the Company shall have the right at its sole opinion and discretion to institute proceedings in any other competent court in respect of any claim which, but for the aforegoing, would exceed the jurisdiction of the Magistrate’s Court.

16. A certificate signed by a Director of the Company reflecting particulars of the amount owing by the Customer shall, upon the mere production thereof, be binding upon the Customer and be prima facie proof of the matters stated therein and of the fact that such amount is due and payable in any legal proceedings between the Company and the Customer and will be valid, inter alia, as a liquid document against the Customer in any competent court.

17. Each and every undertaking herein shall be capable of independent enforcement, thus enabling any court or other competent tribunal to enforce the remainder of this agreement should it adjudge any particular undertaking or portion thereof to be invalid.

18. The Customer chooses as its domicilium citandi et executandi for all purposes at the street/delivery address and/r email address reflected in any order form. Any notice to be given or which may be given by the Company to the Customer in terms of or pursuant to this agreement, shall be given in writing and shall be deemed validly served if delivered personally or 7 (Seven) days after it shall have been posted by pre-paid registered post to the abovementioned address or sent by email to a given address for the Customer.

19. The Company may use information obtained from one or more credit bureaux to assess any business with the Customer or to withdraw any of the Customer’s existing credit facilities with the Company.

20. The Customer acknowledges and agrees that any information regarding his/her/their credit worthiness, defaults in payments to the Company, and details of how his/her/their account with the Company is conducted may be disclosed to any other creditor of the Customer or to one or more credit bureaux and that the Customer shall have no claim whatsoever against the Company for any damages of any nature whatsoever, including any loss of profit, which the Customer may suffer as a result of such disclosure.