CONDITIONS OF SALE
These terms and conditions apply to every agreement between the PURCHASER and the SELLER relating to the sale of goods including but not limited to, plant nutrient PRODUCTS, soil enhancers, growth regulators and related PRODUCTS (“the PRODUCTS”) and where appropriate, the furnishing of advice (“the Services”) in respect of the use and application of certain agricultural implements (“the Equipment”). Where any special terms are agreed upon by the parties, they shall only be binding if in writing and signed by representatives of both parties. Where there is any inconsistency between these conditions of sale and any special terms, the special terms shall prevail.
These terms and conditions shall override all the PURCHASER’s terms and conditions which are inconsistent herewith, whether express, implied or otherwise, including but not limited to terms, conditions, stipulations contained in the PURCHASER’s orders for PRODUCTS. None of the PURCHASER’s terms and conditions will be binding upon the SELLER unless specifically accepted in writing and signed by an authorised representative of the SELLER.
Any reference to any amendment and/or deletion and/or waiver and/or variation of these terms between the parties, will include by implication any agent; representative; employee or any other person which acts on behalf of any of the parties at any time.
No amendment and/or variation and/or deletion and/or waiver of any of the terms and conditions of any agreement, whether consensual or not, shall be of any force and effect, unless reduced to writing and signed by both the PURCHASER and THE SELLER. Notwithstanding the contents of this paragraph, any change to this document after signature may be done orally between the parties, on condition that same is recorded electromagnetically and subsequently reduced to writing.
No warranties, representations or guarantees have been made by the SELLER or on its behalf which may
2. PRICES AND DISCOUNT
Irrespective of any oral and/or written agreement signed by the PURCHASER and addressed to the SELLER, the SELLER reserves its right, within its sole discretion, to:
Approve or decline any order. Only a duly authorized manager of the SELLER is competent to approve or decline any order.
To approve or decline any order only once a credit verification has been conducted in respect of the PURCHASER, and/or it has been confirmed by an approved bank or related institution, that the necessary financing is in place.
Regardless of the price and/or discount as reflected on the face of any invoice, statement of account and/or order, the SELLER will be entitled to enforce the prices and discounts which are relevant on the date of delivery of the PRODUCTS.
The PURCHASER will forfeit any discount noted on the face of any invoice, statement of account and/or order, if any amount due in terms of such documentation is not paid timely by either the PURCHASER or his bank or related institution.
The price stated is exclusive of VAT.
In the event of any increase in the input costs of the PRODUCTS and/or a fluctuation in the exchange rate causing an increase in the input costs the SELLER shall be entitled to amend the purchase price of the goods by giving notice to the PURCHASER in respect thereof.
3. PAYMENT AND INTEREST
Unless a later date of payment is shown on the statement, payment will be made, free of deduction, set off and bank exchange, within 30 days after date of statement.
The parties understand that any agreement is not a credit transaction as provided for in terms of the National Credit Act no 34 of 2005 (“the Act”), but in as far as the transaction might qualify as an incidental credit as provided for in the Act, the parties will comply with the provisions of the Act.
In all cases where the PURCHASER uses an electronic banking facility or similar banking service to effect payment, such bank shall be deemed to be the agent of the PURCHASER.
Interest will be charged on arrears at a rate equal to a rate not exceeding the maximum rate prescribed in terms of the Act. Where purchases are made for the account of a third party, the PURCHASER will nevertheless remain liable for payment. Payment shall only be effective on the day it is received by the SELLER. All payments received from the PURCHASER shall be appropriated firstly towards costs, interest and then capital. All payments appropriated for the payment of outstanding capital, will first be applied to the oldest outstanding capital.
Notwithstanding any dispute between the SELLER and the PURCHASER, the PURCHASER shall not be entitled to refuse, delay or withhold payment or any part thereof.
4. DELIVERY, RISK AND OWNERSHIP
The following shall apply to the delivery of PRODUCTS:
Risk of loss or damage shall pass to the PURCHASER on delivery to the PURCHASER
In the event of dispatch by rail, delivery is free on rail, carriage forward, at the SELLER’s factory or warehouse or placed upon any railway truck, whether in any railway siding or elsewhere.
Transport costs in respect of a consignment to any siding or stopping place where there is no railway station and transport costs where road transport is used, is payable in advance by the PURCHASER but in such cases the SELLER may pay the costs, which costs shall in such cases be repaid by the PURCHASER to the SELLER on demand.
Until payment has been received in full by the SELLER, the delivered fertilizer remains the property of the SELLER.
On delivery the PURCHASER shall sign a delivery note and such a delivery note signed by the PURCHASER or any other person at the place of delivery shall be prima facie proof that the fertilizer has been delivered in good condition.
If the PURCHASER fails to take delivery of the fertilizer ordered or in any way delays the delivery of the fertilizer so ordered, then the risk in the fertilizer shall immediately pass to the purchaser who shall be liable to pay the SELLER for the PRODUCTS as well as the reasonable cost of storing, insuring and handling the fertilizer until delivery takes place, upon demand.
The SELLER where requested shall effect delivery of the goods to the PURCHASER and the SELLER shall be entitled to employ the services of sub-contractors if, unable to do so itself, to effect delivery including off-loading, the costs of which the PURCHASER shall be liable for.
The SELLER shall take all reasonable steps, within its power to deliver on the required date but does not guarantee timely delivery. The SELLER shall not be liable for loss or damage as a result of any delay or any other default which may arise from circumstances completely or partly beyond the SELLER’s control.
The SELLER reserves its right to cancel any order placed by the PURCHASER, whether a specific delivery date has been agreed, or not, in which event the PURCHASER will have no claim against the SELLER and furthermore, will indemnify the SELLER against any damages which the PURCHASER might suffer, or any third party might suffer.
Any advanced payments made in respect of an order placed, will be deemed to be a cash sale and will be held in trust as a credit in the PURCHASER’S account, until such time as the PURCHASER claims the amount, or in the event of the PRODUCTS or Services not being sold or provided on or before a specific date as specified in the order. The SELLER will be entitled to effect set off of such amounts against any outstanding amounts due to the SELLER in the PURCHASER’S account.
6. DAMAGING INGREDIENTS
Although the SELLER will take reasonable precautions to ensure that the goods delivered will be free of damaging materials or ingredients, the SELLER shall not be liable for any loss or damage, consequential or otherwise, suffered as a result of the presence of damaging materials or ingredients in the goods sold.
The PURCHASER shall exercise due care in the usage of the goods and shall ensure that the application of the goods shall be undertaken only by competent properly trained licensed, qualified persons in the employ of the PURCHASER and the PURCHASER shall ensure compliance and/or procure compliance with the specifications and instructions and recommendations of the SELLER and/or any party nominated by the SELLER to supply the goods.
7. OTHER CONDITIONS
The SELLER warrants that the Nitrogen, Phosphorous and Potassium (“NPK”) content of the goods will comply with the requirements as prescribed by legislation from time to time and that the weight of the goods will materially be as represented by the SELLER.
Save as provided in 7.1 above, the goods are sold “voetstoots” without any express or common law warranty concerning quality and suitability for any purpose. Subject to Item 7.3 below, the PURCHASER indemnifies the SELLER for any claims of third parties arising out of the supply of goods/fertilizer by the PURCHASER to the third party from any cause whatsoever or howsoever arising.
Should the goods not comply with one or both of the warranties in 7.1 or should the goods be defective in any other respect, the SELLER shall replace or supplement the defective goods free of charge but the SELLER shall under no circumstances be liable for any loss or damage to crops, soil or property or injury resulting from the use or handling of the goods irrespective whether the SELLER or his representative acted negligently or not.
No claim resulting from damage to the goods, or containers or shortages arising during delivery shall be considered unless the delivery note has been signed by or on behalf of the PURCHASER, the damages have been specified on the delivery note, and the claim is received by the SELLER within 21 days after receipt of the goods by the PURCHASER.
9. LEGAL COSTS AND JURISDICTION
The PURCHASER is liable for any tracing and/or legal costs on the scale as between attorney and own client including collection commission in respect of any litigation resulting from this contract and the PURCHASER consents to the jurisdiction of the magistrate’s court in respect of such litigation irrespective of the amount or value of the goods involved.
The SELLER is entitled to cede any of its rights and obligation in terms of any agreement to any person including his right of ownership to the PRODUCTS.
The PURCHASER however, will not be entitled, without prior written agreement with the SELLER to cede any of his rights and obligations in terms of any agreement to any persons.
11. SET OFF
The SELLER is entitled, under any circumstances apply set off in respect of any costs, damages, expenses or amounts that might be due by the PURCHASER to the SELLER.
The PURCHASER will under no circumstances be entitled to apply set off in respect of any amounts due to the SELLER.
The PURCHASER hereby indemnifies the SELLER against all or any claim arising from any cause of action whatsoever flowing from any agreement between the parties, as a result of any loss, damages, death or injury to any person or property.
13. EXCEPTIONS AND DEFENCES
Excussion – the right to require the debtor to proceed first against the debtor for payment of any debt owed to the creditor before proceeding against me/us;
Cession of action – the right to require the creditor to give cession of the action for payment of debts to me/us before any action against me/us may be taken;
The benefit of division of debt, the right of the PURCHASER to be liable for his/its pro-rate share of the principal debt only.
If the PURCHASER: 14.1.1 refuses or neglects to pay any amount due and owing to the SELLER in terms of any agreement;
on a regular basis commits a breach of any of the terms and conditions of any agreement;
The SELLER hereby expressly renounces the benefit of the following exceptions and defences:
14. BREACH AND CANCELLATION
is placed under a provisional or final order of sequestration or liquidation or business rescue, or is wound up voluntarily, or compromises or attempts to compromise generally with its creditors;
is not able to pay its debts, the Seller shall be entitled to summarily cancel any agreement by giving the PURCHASER written notice to that effect, without prejudice to any rights the SELLER may have as a result of that breach or cancellation.
In the event of the SELLER taking legal action, the PURCHASER will be liable for all legal costs incurred on an attorney and own client scale, including collection commission, any advocates fees as on brief, auditor’s fees or any other disbursements which the SELLER might incur, to enable the SELLER to enforce its rights in terms of any agreement, including transport costs to retake possession of the PRODUCTS from the PURCHASER or his agent.
15. NO RELAXATION
No relaxation which the SELLER may have permitted on any one occasion in regard to the carrying out of the PURCHASER’s obligations, shall prejudice or be regarded as a waiver of the SELLER’S rights to enforce those obligations any subsequent occasion or be considered a novation of any of the terms and conditions of this contract.
16. PROOF OF INDEBTEDNESS
A certificate signed by any director or manager of the SELLER, whose appointment it shall not be necessary to prove, showing the amount due and owing by the PURCHASER to the SELLER at any given time shall constitute prima facie proof of the facts therein stated for the purpose of all legal proceedings against the PURCHASER for recovery of the said amount or as the case may be.
The PURCHASER may settle the facility granted in terms hereof at any time with or without notice to the SELLER as provided for in the Act.
PURCHASER agrees and chooses the address referred to in the client information document to which these terms and conditions are attached for citation, service of legal proceedings, execution or any other purpose connected with any agreement. The PURCHASER undertakes to notify the SELLER within a period seven (7) days of any change of address or any change in any information contained in the client information document.
19. CREDIT BUREAUX
The PURCHASER confirms that the SELLER may transmit to any credit bureau data about the application, opening and termination of the PURCHASER’s account relating to any Agreement with SELLER.
The PURCHASER consents to the SELLER making enquiries about the PURCHASER’s creditor record with any registered credit bureau to confirm information provided to the SELLER and to assist the SELLER to conduct an assessment concerning the PURCHASER’s liabilities.
The PURCHASER permits the SELLER to make information regarding the application by the PURCHASER, any Agreement and its termination available to registered credit bureaux to assist others in making future assessment concerning the PURCHASER’s credit liabilities. Credit bureaus may use this information to develop a credit profile and a credit score on the PURCHASER’s credit worthiness.
The PURCHASER has the right to contact the credit bureau and to request information concerning the PURCHASER that that they have in their possession. The PURCHASER has the right to correct any inaccurate information concerning the PURCHASER’s that the credit bureaux have on record.
20. UNENFORCEABLE PROVISIONS
Each of the terms herein shall be a separate and divisible term and if any such term becomes unenforceable for any reason whatsoever, then that term shall be severable and shall not affect the validity of the other terms.
21. GOVERNING LAW
All agreements between the SELLER and the PURCHASER shall be construed and interpreted according to the laws of the Republic of South Africa.
22. CONSUMER PROTECTION ACT NO. 68 OF 2008
Should the provisions of the Consumer Protection Act (as amended) apply to this document or any transactions concluded pursuant thereto, the provisions of the Consumer Protection Act shall apply if there is any conflict existing between the provisions of this application and the Consumer Protection Act.
The SELLER undertakes to fully comply with the provisions of the Consumer Protection Act insofar as it applies to the PURCHASER.
11 St Andrews Drive
Durban North, 4051