YARA AFRICA FERTILIZER (PTY) LIMITED (PTY) LIMITED
Registration Number: 2011/003434/07
STANDARD CONDITIONS OF SALE
8.1 LIMIT THE RISK OR LIABILITY OF THE SELLER;
8.2 STIPULATE THE ASSUMPTION OF RISK BY THE PURCHASER;
8.3 CAUSE THE PURCHASER TO INDEMNIFY THE SELLER; and/or
8.4 CONTAIN ACKNOWLEDGEMENTS OF FACTS BY THE PURCHASER.
TERMS AND CONDITIONS APPLICABLE TO ALL PURCHASERS
11.1 The seller of the products with particulars as reflected on the application for credit is YARA AFRICA FERTILIZER (PTY) LIMITED (Registration Number: 2011/003434/07).
11.2 The particulars of the purchaser are reflected on the application for credit and/or the order in question.
11.3 The signatories to the credit application and these terms and conditions warrant that they are duly authorised to represent their principals and conclude this agreement.
11.4 The purchaser confirms the legal entity and particulars recorded in the credit application. Should any of these particulars change, the purchaser shall be obliged to in writing inform the seller accordingly.
12.1 The products sold from time to time are described in the order placed by the purchaser and/or the delivery note and/or invoice.
12.2 The seller shall be entitled but not obliged to sell and deliver products ordered verbally by the purchaser, in which event such delivery shall be binding upon the purchaser, unless the purchaser within 5 (FIVE) business days objects to such delivery.
12.3 Acceptance of the purchaser’s order by the seller shall take place when the seller accepts such order in writing and/or by executing of the order. The place of acceptance, which shall be deemed to be the place of contracting, shall be the place where the seller accepts the purchaser’s order.
13.1 The price payable for products ordered by the purchaser shall be the seller’s list price ruling at the date of delivery of the products in concern, unless the parties reach an agreement in writing, duly signed by both parties, with regard to any discount on such list price and/or a different price.
13.2 The said prices exclude additional costs, such as transportation. Such additional costs shall be agreed and/or stipulated separately from the purchase price.
14.1 Each delivery is to be considered as a separate contract and upon delivery to the purchaser, an invoice will be issued for the purchase price and the transportation charges, if applicable.
14.4 In the event that the parties reach an agreement in writing in respect of payment on terms other than indicated in clause 14.2 above and the purchaser is in default to make any payment according to such agreement, the full balance due on the date of such default shall immediately become due and payable.
14.5 The purchaser shall be liable for default interest at the maximum rate allowed in terms of the National Credit Act 34 of 2005 (“NCA”) for incidental credit on any outstanding amount, calculated from the due date for payment until payment in full, calculated daily and compounded monthly at the end of each month, unless otherwise agreed in writing.
14.6 Should any invoice not be paid on due date or should the seller at any time be dissatisfied with the financial position of the purchaser, the seller may refuse deliveries and may at its option enforce immediate payment for all deliveries already made. The seller shall be entitled to require of the purchaser to satisfy the seller that the purchaser will meet its obligations in respect of the past and future purchase prices. The contents of this clause 14.6 shall not prejudice any of the seller’s other rights that it may have in law.
14.10 Should the purchaser not have received the said monthly statement of account, it is obliged to inform the seller within 15 (fifteen) days of the end of any such given month and/or otherwise obtain a copy of such account.
14.11 If there is any dispute about the exact price payable by the purchaser to the seller, the purchase price for the product shall be the seller’s standard list price for the product or similar product in effect on date of delivery of the order, which is available for inspection by the purchaser. Should the prices not yet be fixed on the date of signing the order, the seller shall furnish such prices to the purchaser as soon as they are fixed. The purchaser shall be afforded seven days thereafter to accept or reject the fixed prices.
14.12 The seller shall be entitled to appropriate any payment received from the purchaser to any indebtedness of the purchaser to the seller, in respect of any sale of product or default interest.
14.13 Should the purchaser arrange with a co-operative or any third party to make payment of any amount due to the seller by the purchaser, a levy equivalent to 3% of the total amount reflected on the invoice(s) in question shall be paid by the purchaser to the seller, unless otherwise agreed in writing.
15.1 Delivery shall be effected at the seller’s premises, unless otherwise agreed in writing and subject to this clause.
15.2 Unless otherwise agreed, delivery shall be effected when the products are placed upon the wagon, carriage or vehicle of the carrier in the event that such carrier is contracted by the purchaser. Such carrier shall be the purchaser’s agent and delivery to the carrier shall be deemed to be good and sufficient delivery to the purchaser.
15.3 In the event that the parties agree that such carrier is contracted by the seller, delivery shall be effected when the products are off-loaded at the premises indicated on the order in question.
15.4 Any remuneration payable in respect of the transportation of the products is to be paid prior to delivery, except in the event that the parties agree otherwise in writing or the products are being purchased on an approved debtor’s account, then the payment will be due when the purchase price of the products is due.
15.5 The purchaser agrees to ensure that the purchaser or an authorised individual shall be present to accept delivery and sign on the delivery notice and warrants the authority of such individual to accept and sign.
15.6 The signing of a delivery notice by the purchaser shall constitute acceptance of the contents of the delivery notice, subject to the further terms of this agreement. However, regardless whether the purchaser signs the delivery notice, it shall record and furnish any dispute as to the contents thereof and/or of the delivery in writing to the seller within 5 (five) business days of delivery, failing which it shall constitute prima facie acceptance of the contents of the delivery notice and/or delivery. The seller records that the limitation of a 5 (five) days’ period is reasonably necessary to enable the seller to timeously investigate, verify and determine any such dispute.
15.7 For the same reasons, the seller shall not be liable for any damage to products or packaging caused during delivery, unless the seller is likewise informed in writing within 5 (five) business days after delivery.
16.1 The seller shall ensure that the products comply with the description thereof, as may legally be required.
16.2 The use of any trademarks under which the product is being supplied is conditional upon resale being made in the seller’s original packaging.
17.1 Ownership of the product shall only pass to the purchaser against payment of the full purchase price. Should the purchaser default in making timeous payment, the seller shall be entitled to return of the product, following due process.
17.2 Risk of loss or damage to the products shall pass to the purchaser upon delivery. The purchaser shall take all reasonable precautions to ensure the safekeeping, safe storage and safe handling of the products.
18.1 The seller is entitled to cancel this agreement summarily if any judgment is granted against the purchaser or if the purchaser commits any statutory act of insolvency.
18.2 If the purchaser is in breach of any of the terms and conditions stipulated herein and/or otherwise agreed between the parties, then the seller shall be entitled to claim immediate payment and/or performance by the purchaser of all the purchaser’s obligations, whether or not the due date for payment and/or performance shall have arisen, in either event, without prejudice to the seller’s right to terminate the agreement and/or claim damages. The aforegoing is without prejudice to such other rights as the seller may have at law and subject to sections 129 and 130 of the NCA, should the NCA be applicable.
18.3 The purchaser consents to the jurisdiction of the Magistrate’s Court (District Court or Regional Court) in respect of any legal proceedings resulting from this agreement. However, the seller shall be entitled to refer any dispute emanating from this agreement to a South African High Court with jurisdiction.
The South African law shall apply to this agreement and all subsequent transactions.
The clause headings in these Standard Conditions of Sale are inserted for reference purposes only and shall not be used in the interpretation thereof.
The purchaser hereby cedes all the book-debts and/or other claims currently due to him/her/it and which may become due to him/her/it in the future, to the seller as security for the due and proper fulfilment of the purchaser’s obligations towards the seller arising from whatsoever cause with regard to any amount already due and payable or which may become due and payable in the future. This cession is not limited to but includes any amount due to the purchaser arising from the sale of any agricultural products.
24.1 It is recorded that orders shall be accepted and the products be supplied subject to these terms and conditions indicated herein.
24.2 This agreement records the entire agreement between the parties. No variation, amendment, addition or consensual cancellation of this agreement or any provision or term hereof or any other document issued or executed pursuant to or in terms of this agreement, shall be binding or have any force or effect, unless reduced to writing and signed by or on behalf of the parties.
24.3 No relaxation or indulgence, including the acceptance of late payments by the seller, shall be deemed to be a waiver by the seller of any or their rights to enforce strict compliance by the purchaser of any of its obligations in terms hereof, nor is such relaxation or indulgence to be deemed a novation of any of the terms and conditions of this agreement.
24.4 No representative, agent or salesman of the seller has any authority to vary these conditions or to make any representation on the seller’s behalf and no purported variation of these conditions shall be of any effect unless it is in writing and duly signed by an authorized representative of the seller.
24.5 If any clause or term of this agreement should be invalid, unenforceable, defective or illegal for any reason whatsoever, then the remaining terms and provisions of this agreement shall be deemed to be severable therefrom and shall continue to be of force and effect.
24.6 The purchaser may not cede or assign any of his rights or obligations hereunder without prior written consent of the seller.
24.7 Any reference to the NCA and/or the CPA shall not by such reference and/or consensus and/or incorporation render such legislation applicable to this agreement and/or the purchaser, should such legislation not otherwise so be applicable by operation of law.
CLAUSES APPLICABLE SHOULD PURCHASER NOT BE SUBJECT TO THE CPA
25.1 Unless otherwise stated in any written guarantee given by the seller, the sale of the product shall be free from all conditions and warranties, whether statutory, under the common law or otherwise as to quality, fitness for any purpose and/or merchantability thereof.
25.2 Any recommendations or advice given by or on behalf of the seller are given in good faith but without liability on the part of the seller, and the usage or application of the product shall be entirely the responsibility of the purchaser, without reliance on any statement of the seller.
25.3 The seller shall not be liable for any special and/or consequential damages suffered by the purchaser. The seller’s liability shall in any event and in all circumstances where the seller might be liable, be limited to replacement of defective product or repayment of the purchase price, at the seller’s discretion.
25.4 It is recorded that, once the product has been sold and delivered as ordered, such product is non-returnable except in the event that the parties agree otherwise in writing, duly signed by both parties, in respect of such return.
28.1 The purchaser waives any claim for losses, damages or liability that he may have against the seller arising from, but not limited thereto, allegations that the product is not fit for the purchaser’s purposes.
28.2 Subject to the contents of clause 28.1 above, the seller shall not be liable for any contractual, delictual and/or consequential damages, including but not limited to loss of profit, loss of production and loss of market share arising from any alleged deficiency and/or disability of the product and/or any late delivery thereof. The seller’s liability will under all circumstances and notwithstanding how it arises, be limited, at the seller’s sole discretion, to the replacement of the particular product at no charge to the buyer.
28.3 The purchaser further indemnifies the seller against:
28.3.1 Any negligent and/or wilful act or omission by the purchaser or his employees or contractors with regard to the product or the use thereof;
28.3.2 Any losses, damages (including consequential damages) or liability caused by or arising from, without limitation, the use, transport or storage of the product after delivery thereof to the purchaser;
28.3.3 Any losses, damages (including consequential damages), death of or injury to third parties arising from the purchaser’s omission to furnish such third parties with information regarding, without limitation, inherent dangers, correct use, storage and disposal of the product and/or the purchaser’s omission to take all reasonable and necessary steps to prevent such events during the use, storage and disposal of the product by the purchaser; and
28.3.4 Any losses, damages (including consequential damages) caused by or arising from any breach of any warranty.
The purchaser warrants that he is acquainted with the use, characteristics and inherent dangers related to the product and furthermore warrants that he has complied with all statutory requirements and is in possession of the necessary permits, authorisations and official documents required for the handling, purchase, storage, transport, treatment, use and/or disposal of the product (if any).
Should the purchaser fail to dispute any entry on the seller’s monthly account within 90 (ninety) calendar days of the date of such account, the entries shall be accepted as correct and constitute conclusive proof of any such entry.
Should the seller institute legal action against the purchaser pursuant to any sale agreement, the purchaser shall be liable for payment of the legal costs of the seller on an attorney and own client scale.
CLAUSES APPLICABLE SHOULD THE CPA APPLY TO THE PURCHASER
32.1 The seller shall not be liable for any damages suffered by the purchaser resulting from late delivery of goods, save to the extent that the seller may be liable for such losses in terms of the provisions of section 47 of the CPA in the event of any shortages of the products.
32.2 Should any product be delivered erroneously, the purchaser shall within 10 (ten) business days after the delivery, inform the seller accordingly, in which event the purchaser may retrieve such erroneous delivery within 20 (twenty) business days.
In the event of any allegation that the goods are unsafe or defective, the seller shall not be liable for any damages caused where such characteristic, failure, defect or danger did not exist at the time of delivery of the products by the seller to the purchaser.
The parties agree that, given the purpose for which the goods are purchased, consequential damages in the event of breach of contract may be astronomical. Should the seller accept liability for such consequential damages, it will have a substantial impact on the cost of the goods for the purchaser. The purchaser consequently elects to limit the seller’s liability for all forms or breach of contract to the replacement of the products, free of charge, or repayment of the purchase price paid by the purchaser (at the election of the purchaser).
35.1 The seller shall ensure that the delivered product corresponds with the label description prescribed by law.
35.2 The purchaser undertakes to make himself familiar with all relevant characteristics of the product, as described in the seller’s catalogue, available from the seller’s agent and/or website, within 5 (five) days of the delivery date, and which description shall be deemed sufficient disclosure of all patent and latent characteristics of the product and the seller in addition tenders to address any further enquiries in this regard.
35.3 The product shall comply with all statutory quality requirements specifically applicable to product.
35.4 The seller shall therefore not be liable for any non-compliance in respect of the aspects set out in paragraph 35.2.
36.1 If any shortages of product occur for any reason whatsoever:
36.1.1 The seller shall take reasonable steps to inform the purchaser thereof as soon as it is practicable to do so;
36.1.2 The seller shall offer other product to the purchaser at the list price of such other product; and
36.1.3 The purchaser shall not under any circumstances have any claim against the seller of whatever nature resulting from such shortages of product, should such shortages be beyond the control of the seller.
Should any transaction be the result of direct marketing by seller’s agent and should such transaction be subject to the CPA, the purchaser shall have the right to terminate the transaction in writing, within 5 (five) business days after conclusion of the transaction or 5 (five) business days after delivery of the product. The purchaser shall at its own cost and risk return any product already delivered. The seller shall refund any payment made by the purchaser within 15 (fifteen) business days after such return or, when no product had been delivered, 15 (fifteen) business days after receiving notice of the rescission.
Should any party incur legal costs to enforce the agreement, the unsuccessful party shall pay the legal costs of the successful party on an attorney-and-client scale.
The purchaser confirms that it is an experienced farmer with at least such average business and literacy skills as could be expected from such consumer. The purchaser therefore confirms that this agreement in plain language is and understandable, alternatively confirms that he/she/it (the purchaser) is aware of the right and opportunity to have any clause explained by the seller.
APPLICATION OF TERMS AND CONDITIONS
42.1 The purchaser hereby confirms that he/she/it is aware of the above terms and conditions, that he/she/it is authorised to sign this agreement and that he/she/it has had sufficient opportunity to study and consider the terms and conditions prior to signing the agreement, and by signing the agreement he/she/it confirms and agrees that he/she/it has read, understood and accepted the terms and conditions of this sale agreement, and which terms and conditions will apply to all orders and purchases on the purchaser’s account or otherwise.
42.2 The parties agree that for an indefinite period any subsequent transactions concluded between them shall be governed by these terms and conditions, which shall be incorporated into each such transaction by reference.
The seller offers to contract with the purchaser on the terms and conditions contained in this sale agreement. With any purchases, the purchaser accepts such terms and conditions and a valid and binding agreement shall then come into existence.
It is expressly agreed that the terms and conditions stipulated herein are incorporated in any sales made by the seller to the purchaser.
The purchaser confirms that this agreement limits the seller’s liability, transfers risk and liability to the purchaser and contains indemnities and factual admission by the purchaser, which is accepted as such.
46.1 The seller shall at their sole discretion be entitled but not obliged to refer any dispute arising from the sale agreement for adjudication by arbitration in accordance with this clause 46.
46.2 Such arbitration must be held:
46.2.1 at Johannesburg or such other place nominated by the seller;
46.2.2 in the manner to be prescribed by the arbitrator in accordance with clause 46.5 below;
46.2.3 promptly, with the view to finalise the same within 45 (forty five) business days from the date on which the dispute is referred for arbitration or such longer period as determined by the arbitrator; and
46.2.4 subject to the provisions of the Arbitration Act 42 of 1965, as amended, save for where this clause 46 states otherwise.
46.3 The seller shall nominate 3 (three) possible arbitrators by written notice to the purchaser, which notice may be forwarded to the purchaser by facsimile or email to the facsimile number and/or email address nominated in clause 15 of the Application for Credit. The persons nominated as such shall be practising advocates practising as such for a period of at least 10 (ten) years and/or retired judges.
46.4 The seller shall, within 5 (five) business days from the date of transmission of such written notice, nominate 1 (one) arbitrator from the ranks of the said 3 (three) nominated arbitrators, to act as arbitrator in the matter, failing which the seller shall be entitled to nominate the arbitrator.
46.5 The parties shall within 5 (five) business days from the date of nomination of the arbitrator in accordance with clause 46.4 or as soon as possible thereafter on a date suitable to the arbitrator, schedule a pre-trial conference with the arbitrator to determine:
46.5.1 a timetable within which the exchange of such pleadings prescribed by the arbitrator and discovery must take place;
46.5.2 when the arbitration will take place;
46.5.3 the manner in which and the timeframe within which a joint trial bundle must be made available to the arbitrator; and
46.5.4 the manner in which testimony must be recorded.
46.6 The parties shall pay the costs related to the premises where the arbitration will be held as well as the recording and transcription of the arbitration proceedings in equal parts, subject to clause 46.8 below.
46.7 The parties further irrevocably agree that the decision of the arbitrator in such arbitration proceedings will be final and binding on them, and that there will be no right appeal in respect of such decision and that either party will be entitled to have such decision / award made an order of any competent court.
46.8 The arbitrator shall be entitled to make an order as to costs as he may deem fit.