DESERT FRUIT STANDARD TERMS AND CONDITIONS
1.
AGREEMENT
1.1. In these standard
terms and conditions (“T&Cs”), the “Supplier” shall mean Desert Fruit (Pty) Ltd (registration number CY/2005/0283 and the
“Customer” shall mean the party
purchasing any products supplied by
the Supplier (“Products”). The Supplier and the Customer are
collectively referred to as the “Parties”.
1.2. These T&Cs govern
the purchase of products by the Customer from the Supplier, and constitute all and the only terms and conditions relating to
such purchase of products, unless
specifically agreed otherwise in writing by the Supplier.
1.3. The supply by the Supplier
of any products is expressly made conditional on the Customer’s acceptance of these T&Cs,
in the absence of which
acceptance the Supplier would not have supplied any products
to the Customer. The Customer, by its signature, accepts and agrees to be bound
by these T&Cs.
1.4. If the Customer purchases Products from the
Supplier more than once in any consecutive 12
month period, the Customer shall be required to
sign the Supplier’s standard supply agreement, which once signed will supersede
these T&Cs entirely.
2.
ORDER AND SUPPLY
2.1. The Supplier shall only consider order
requests for Products in writing, which includes email and WhatsApp (each an
“Order Request”). Order Requests are subject to acceptance by the Supplier, who
shall be free to accept or decline same at its absolute discretion. Each Order
Request shall be deemed to be a separate offer by the Customer to purchase
Products in accordance with these T&Cs.
2.2. Should the Supplier accept an Order
Request:
2.2.1 without amendment to the Order Request
(i.e. ‘as is’), the Supplier shall issue to the Customer written notice
of acceptance and confirmation of the terms
and specifications as set out in the accepted Order Request;
or
2.2.2 with amendment(s) of any terms and/or specifications in the Order Request, the Supplier shall issue to the Customer written
acceptance, subject to the amended terms and/or specifications,
(each an “Order Confirmation”). The Order Confirmation
shall confirm the details of the Order, including the type and quantity of the Product
ordered, agreed specifications, agreed Incoterms® 2020 rules and the Customer’s
preferred date for delivery. The Customer shall confirm the terms and/or specifications
of the Order, by counter-signing the Order Confirmation, and emailing the
counter-signed Order Confirmation to the Supplier’s nominated authorised
representative.
2.3. No Order shall arise and no Order Request shall
be deemed to be accepted by the Supplier, unless and until the Supplier issues
an Order Confirmation.
2.4. The Customer shall not be entitled to amend
or cancel an Order Confirmation, unless agreed in writing by the Supplier. If
an Order Confirmation is amended or cancelled as aforesaid, the Customer shall be
liable to the Supplier for all costs reasonably incurred by the Supplier in fulfilling
the Order up until the date of such agreed amendment or cancellation, as the
case may be.
2.5. In the event of any conflict between the Order
Request and the Order Confirmation, the terms and specifications set forth in
the Order Confirmation shall take precedence.
3.1. The Purchase Price for each Order shall be
stipulated by the Supplier in the Order Confirmation.
3.2. Unless otherwise agreed with the Supplier,
the Customer is required to make upfront payment in full of the Purchase Price within
5 Business Days (being any day other a Saturday, Sunday or public holiday in Namibia)
after the date of counter-signature by the Customer of the Order Confirmation, or
such other date as the Supplier may agree in writing. Should the Customer fail to
make timeous payment of the Purchase Price as aforesaid, the Order shall forthwith
lapse and cease to be of any force and effect.
3.3. All payments by the Customer to the Supplier
shall be effected by means of EFT in cleared funds, free
of any deductions (including any costs incurred in making the payment) and without
set-off, in the currency confirmed by the Supplier in the applicable Order Confirmation,
into the bank account specified by the Supplier in the Order Confirmation.
3.4. The Customer shall transmit to the Supplier
an electronic payment remittance advice.
3.5. The Supplier shall be entitled to delay
delivery of the Product until full payment of the Purchase Price is reflected in
the Supplier’s nominated bank account. The Customer acknowledges that a failure
to make payment timeously may result in a delay in the delivery of Products,
and/or incur additional costs for the Customer, whether directly or indirectly,
for which delay and costs the Supplier shall not be liable.
3.6. Upon the Customer’s request, the Supplier
may, in its sole discretion, vary the payment terms in respect of a particular
Order, which variation shall be recorded by way of a written amendment to the
relevant Order Confirmation to be signed by each Parties’
nominated authorised representatives.
4.1. Against timeous receipt by the Supplier of
the full Purchase Price in the Supplier’s nominated bank account, the Supplier
shall deliver the Product to the Customer, and risk and benefit in and to the
Product shall transfer from the Supplier to the Customer, all in accordance
with the applicable Incoterms rule recorded in the relevant Order Confirmation.
4.2. Notwithstanding anything to the contrary,
ownership of the Product shall remain vested in the Supplier until the delivery
of the Product has been made in accordance with the agreed Incoterms rule
recorded in the relevant Order Confirmation.
4.3. Delays in the delivery of an Order shall not
entitle the Customer to (i) refuse to take delivery of
the Order; (ii) withhold payment of the Purchase Price or portion thereof.
4.4. The Supplier shall have no liability for any
failure or delay in delivering an Order to the extent that any such failure or
delay is caused by the Customer's failure to comply with its obligations under these
T&Cs or the relevant Order Confirmation.
4.5. Each delivery of Product shall be
accompanied by a delivery note from the Supplier showing the Order number, the
date of the Order, and the type and quantity of Product included in the Order.
5.1. On the agreed date of delivery, the
Customer shall ensure that its nominated authorised representative inspects the
Product at the place of delivery and shall satisfy itself that the Product
complies with the specifications in the Order Confirmation (“Specifications”).
5.2. Subject to clause 5.7, if the Customer, acting reasonably, is not satisfied that
the Product complies with the Specifications, the Customer shall be entitled to
notify the Supplier in writing with details of the alleged non-compliance of the
Product, provided that such written notice (“Complaint Notice”) is issued
within: (i) 24 hours after delivery for fresh
Product; and (ii) 72 hours after delivery for dried/frozen Product (“Complaint
Notice Period”). If the Customer fails to issue a Complaint Notice within the Complaint
Notice Period, the Customer shall be deemed to be satisfied with the Product, and
the Supplier shall have no further obligations in relation to the relevant
Order.
5.3. In the event that the Customer issues a
Complaint Notice within the Complaint Notice Period, the alleged non-compliant Product
(“Disputed Product”) will be retained by the Customer and stored in such a manner
as not to compromise or further compromise the Disputed Product, and otherwise in
accordance with the instructions of the Supplier.
5.4. The Supplier (or its duly authorised person)
will be entitled, within 14 Business Days after receiving a Complaint Notice, to
inspect the Disputed Product and investigate the Complaint Notice in order to
ascertain and confirm that the Disputed Product is, in fact, not in accordance
with the Specifications. The Customer shall furnish the Supplier with all
information and give the Supplier access to, amongst other things, all
documents and personnel that the Supplier may reasonably require for the
purposes of its investigation.
5.5. If pursuant to its investigation the
Supplier confirms that the Disputed Product is indeed not in accordance with the
Specifications, the Supplier shall, in its sole discretion,
be entitled to (i) replace the
Disputed Product within a reasonable time; or (ii) issue a credit note for, or repay,
the Purchase Price (or the relevant portion of the Purchase Price) of the
Disputed Product. Such repayment of the Purchase Price (or relevant portion
thereof) shall be effected by means of an EFT into a bank
account nominated by the Customer in writing, and shall be paid within 5
Business Days of receipt by the Supplier of the such bank account details.
5.6. Once the Supplier has replaced the Disputed
Product or issued the credit note or repaid the Purchase Price (or relevant portion
thereof), as the case may be, it shall have no further liability to the
Customer in respect of the relevant Order (including the Disputed Products), and
the Customer shall not have any claim of whatsoever nature against the
Supplier.
5.7. If the Customer disputes the outcome of the
Supplier’s investigation, either Party may refer the dispute to " Global
Quality Consultants LLC, attention: Mr Carl Wherrett, email: sales@globalqualityme.com, tel: +971 56 4032848
or his successor-in-title at the relevant time, or such other independent
industry expert as may be agreed by the Parties in writing at the relevant time
(“Independent Expert") for determination. The Independent Expert shall act
as an expert and not as an arbitrator, and:
5.7.1.
the determination of the Independent Expert shall (in the absence
of manifest error) be final and binding on the Parties;
5.7.2.
the
Party referring the dispute to the Independent Expert shall be liable for
Independent Expert‘s charges, provided that the Party
in whose favour the dispute is determined shall be
entitled to recover such charges from the other Party;
5.7.3.
the Independent
Expert shall be entitled to determine such methods and processes as he or it may,
in his or its sole discretion, deem appropriate in the circumstances provided that
the Independent Expert may not adopt any process which is manifestly biased,
unfair or unreasonable;
5.7.4.
the
Independent Expert shall consult with the relevant Parties (provided that the
extent of the Independent Expert's consultation shall be in his or its sole discretion)
prior to rendering a determination; and
5.7.5.
having
regard to the sensitivity of any confidential information, the Independent Expert
shall be entitled to take advice from any person considered by him or it to have
expert knowledge with reference to the matter in question.
5.8. The Supplier shall have no liability in
connection with the Disputed Product in any of the following events: (i) the Customer makes any use of any portion of the
Disputed Product after issuing a Complaint Notice; (ii) the non-compliance of
the Disputed Product arises because the Customer failed to follow the
Supplier’s oral or written instructions for the storage and use of the Product
or (if there are none) good trade practice regarding same; (iii) the
non-compliance of the Disputed Product arises as a result of fair wear and tear,
willful damage, negligence, or abnormal storage or working conditions of the Customer;
or (iv) the Disputed Product differs from the Specification as a result of
changes made by either Party to ensure that it complies with applicable
statutory or regulatory requirements applicable to the Disputed Product.
5.9. The Customer may not unilaterally return any
Product to the Supplier without the Supplier’s written consent, which consent shall
not be unreasonably withheld or delayed, and which consent shall not be
regarded as an admission of any defect or deficiency in the Product.
5.10.
Unless
otherwise agreed by the Supplier in writing, the return of any Product to the
Supplier shall be at the Customer’s expense.
5.11.
The Customer
undertakes to take all reasonable measures to mitigate any loss or damages which
it may suffer as a result of the delivery of a non-conforming or defective
Product.
5.12.
The
Customer acknowledges that any failure to comply with its obligations,
including attempts to set-off or withhold payment, shall void any claim that it
may have against the Supplier.
6.
PACKAGING AND HANDLING
The Supplier shall ensure that the Product is properly
packed and secured in a manner to enable it to reach its destination in good condition
and shall comply with all applicable Namibian laws, enactments, orders, regulations and other instruments relating to the packing, packaging, marking, storage,
handling and Delivery of the Product.
7.1.
Nothing in this clause 7 shall limit the Customer’s payment
obligations under these T&Cs.
7.2. The Supplier’s total liability (in
contract, delict, for misrepresentation, restitution or otherwise, and arising
out of any use made or resale
of the Product by the Customer, or of any product
incorporating the Product) to the Customer in respect of any one Order shall
never exceed the amount of the
Purchase Price for the Order.
7.3. Notwithstanding anything to the contrary,
the Supplier will not be liable to the Customer for any consequential or indirect damages or losses suffered by the Customer, including loss of profits, loss of sales or business, loss of any
agreement or contracts, loss of anticipated savings, loss of use or corruption of software, data or
information, or loss of or damage to goodwill.
8.1. The Customer is expressly informed that the
Product is offered on an “as is” basis and the Customer agrees to accept the Product
in that condition. No warranties or representations, express or implied or
tacit whether by law, contract or otherwise and whether they induced the
contract or not, which are not set forth in these T&Cs shall be binding on the
Supplier, the Customer irrevocably waiving any right (common law or otherwise) it
may have to rely thereon, and the Product is purchased on the basis that they
are taken “as is” and with the exclusion of all common law and other remedies including
aedilitian remedies, whether as to the suitability of
the Product sold for any specific purposes or (without limiting the generality
of the aforegoing) otherwise.
8.2. The warranties provided herein and the obligations
of the Supplier hereunder are in lieu of, and the Customer waives, all other
warranties, guarantees, conditions or liabilities, express or implied, arising by
law or otherwise, including any obligation of the Supplier in respect of any injury,
loss or damage (direct, indirect or consequential) arising out of the use of,
or inability to use, the Product and whether or not occasioned by the
Supplier's negligence (gross or otherwise) or any act or omission on its part.
Without limiting the aforegoing the Supplier does not warrant that the goods will
be fit for the purposes for which they are to be used by the Customer (notwithstanding
that the use to which the Customer intends to put the goods is known to the
Supplier). For the purposes hereof, any reference to the Supplier shall include
its servants, agents or contractors or any other person for whose acts or
omissions the Supplier may be liable in law. This also constitutes a stipulatio alteri in favour of such persons the benefits of which may be
accepted by them at any time.
8.3. If the Customer acquires the Product for
the purpose of on-selling the Product, whether the Customer is permitted to do so
or not (and nothing herein contained shall be deemed to allow the Customer to
on-sell goods acquired from the Supplier whilst ownership vests in the
Supplier), the Customer shall not advertise or issue or in any other way give or
make any warranties, guarantees or representations as to the goods in any form
whatsoever or offer to do so, which could result in liability being imposed
upon the Supplier.
If a Party (“the Defaulting Party”) breaches any of its obligations in terms of these
T&Cs and fails to remedy
such breach within
10 Business Days (“the Remedy Period”) of receipt of written notice
from the other Party (the “Aggrieved
Party”) requiring the breach to be remedied, the Aggrieved Party shall be entitled, in addition to
any other remedy available at law or under these T&Cs, including obtaining an interdict, at its option and
without prejudice to the Aggrieved Party's right to claim damages, to claim specific performance of any of the Defaulting Party’s obligations whether or not the due date for performance has
arrived, and to require the Defaulting Party to provide security to the satisfaction of the Aggrieved Party for the
Defaulting Party’s obligations.
10.1.
A Party
shall not be liable for a failure to perform any of its obligations insofar as it
is able to prove that: (i) such failure was due to an
impediment beyond its reasonable control; and (ii) it could not reasonably have
been expected to have taken into account such impediment and its effects upon such
Party's ability to perform at the time of application of these T&Cs; and
(iii) it could not reasonably have avoided or overcome the impediment or at
least its effects.
10.2.
For purposes
of this clause 10, the following
events (which enumeration is not exhaustive) shall be deemed to be impediments
beyond the control of each of the Parties, namely: (i)
war, whether declared or not, civil war, civil violence, riots and revolutions,
acts of piracy, acts of sabotage; (ii) natural disasters such as violent storms,
cyclones, earthquakes, floods and destruction by lightning; (iii) power
outages, pandemics/epidemics, explosions, fires and destruction of plant,
equipment, machinery and machines and of any kind of installations; and (iv)
acts or omissions of any government, government agency, provincial or local
authority or similar authority, any laws or regulations having the force of
law.
10.3.
Relief
from liability for non-performance of a Party’s obligations in terms of these T&Cs
or an Order Confirmation by reason of the provisions of this clause 10 shall commence on the date upon which the Party
seeking relief gives notice of the impediment relied upon and shall terminate
upon the date upon which such impediment ceases to exist, provided that if the Supplier
is the Party relying on the force majeure event to seek relief from its obligations
in terms of an Order Confirmation and the impediment continues for a period of
more than 20 Business Days, the Customer shall be entitled to terminate the
Order Confirmation by written notice to the Supplier.
11. GENERAL
11.1.
The
Customer shall be liable for all costs incurred by the Supplier in the recovery
of any amounts or the enforcement of any rights which it has hereunder on an attorney
and own client scale whether
incurred prior to or during the institution of legal proceedings or if
judgment has been granted, in connection
with the satisfaction or enforcement of such judgment.
11.2.
These T&Cs
shall be construed and governed by the laws of Namibia.
11.3.
The Parties
consent to the jurisdiction of the High Court of Namibia, in respect of all disputes
which may arise between them
in relation to, or arising out of, the implementation of these T&Cs.
11.4.
Unless specifically provided to the contrary, all amounts are exclusive of Value Added Tax as levied under the Namibian Value Added Tax Act,
No. 10 of 2000.
11.5.
No relaxation, indulgence or extension
of time granted
by any Party (“the Grantor”) to another Party shall
be construed as a waiver of any of the Grantor's rights in terms hereof, or a
novation of any of the terms of these T&Cs
or estop the Grantor from enforcing strict
and punctual compliance with the terms of
these T&Cs.
11.6.
All
the provisions of these T&Cs shall be severable and no provision shall be
affected by the invalidity of any
other provisions of these T&Cs.
11.7.
Each
of the Parties acknowledges and agrees that it has had independent professional advice.