
1. IN THESE CONDITIONS:
"
the goods" means the goods indicated on any company
forms, price lists, quotations, delivery notes, order and
invoices. "the Company" means Premier Foods Limited.
2. PRICE
2.1 The price ofthe goods shall bethe usual price currentatthetime
ofthe despatch ofthe goods.
2.2 Company price lists shall be considered
merely as a guide by the Customer and the Company has the
right, from
time
to time, for any reason and without notice to the
Customer, to change the prices of any of its goods,
whether such prices are reflected on price lists or
not. 3. PAYMENT
3.1 Payment is to be made according to the paymentterms
contained in the Company's confirmation of credit letter,
which the
Customer shall receive on approval of any credit facility
by the Company.
"
Standard paymentterms" on any document issued by the
Company shall mean that payment on an invoice is due and
payable on the last business day (which excludes a Saturday,
Sunday orany other day that banks are not open for business)
ofthe month following upon the date ofthe invoice. "Standard
payment date" shall mean such last business day.
3.2 Should the Customer fail to make
payment timeously or withhold payment or any portion
thereof for any reason
whatsoever
the Company shall be entitled to withdraw or reverse
any agreed discount or rebate and claim immediate payment
of
all amounts owing, or alternatively, atthe Company's
sole discretion, to set off the amount of such discount
or rebate
against any rebate or other credits or allowances or
payments due to the Customer.
3.3 The Customer shall not claim
the rightto any rebates and/or discounts on any basis
of
whatsoever nature unless
a manager or director ofthe Company shall have agreed
to such rebates and/or discounts in writing, and
further provided
always that such amount shall not be allowed on any
goods despatched if payment for any goods whatsoever
invoiced
prior thereto is overdue.
3.4 In all cases where the Customer
uses a postal, banking, electronic or similar such
service to effect payment, such
services shall be deemed to be the agent of the
Customer.
3.5 The Customer shall not be
entitled to claim set off or deduction in respect
of any payment
due by the Customertothe
Companyforgoods orservices supplied.
3.6 The Company may appropriate
all payments made by the Customerto such accounts
as it
may in its sole and absolute
discretion decide.
3.7 Should any amount not
be paid by the Customer on due date then
the whole
amount
in respect of all purchases
by the Customer shall become due, owing and
payable
irrespective ofthe dates when the goods were
purchased and the Customer shall be liable
to pay interest
in respect of
amounts unpaid as atthe due date atthe compound
rate of 2% (two per centum) above the prime
overdraft lending rate
ofthe
First National Bankfromtime to time on all
overdue amounts from due date until date
of payment,
calculated and payable
monthly in advance and should the said interest
not
be paid in full as aforesaid, the same shall
be added to the
principal
sum, and the total shall form the principal
debt which shall then bear interest in the
manner
as set out above.
3.8 The Company shall have
the rightto suspend deliveries andto exercise
its
rights in terms
of clause 9 of any amount
due by the Customer is unpaid. 4. CREDITFACILITIES
4.1 The Company reserves the right to withdraw any credit
facilities at any time without prior notice and the nature
and extent of such facilities shall at times
be in the
Company's sole discretion and the Company reserves the right to increase or
decrease to the extent of the said facilities at its sole discretion. The credit
limit
shall not be
deemed to bethe limit of a customer's indebtednesstothe Company. 5. ORDERS
5.1 Orders by the Customerforthe Company's goods, shall
be made in writing to such address as maybe nominated
by the Company from time to time.
5.2 Oral orders shall similarly be capable of acceptance
by the Company, but the Company will not be responsible for any errors
or misunderstandings
occasioned
by the
Customer's failure to make orders in writing.
5.3 Orders shall constitute irrevocable offers to purchase
the goods in question and shall be capable of acceptance by the Company
by the delivery of the
goods or by the
written acceptance or confirmation ofthe order.
5.4 The Customer shall provide the Company with an
order number when placing any order with the Company. 6. SUPPLY OF STOCK
6.1 Premier will supply its customers with a maximum stock
cover of 3 weeks based on the last 3 months purchases
by the customer. This will only be deviated
from
in highly
exceptional cases and if Premier Foods has, in its sole discretion, agreed
thereto in writing. 7. DELIVERY
7.1 In the event that the Company transports the goods
to the Customer, delivery and passing of the risk in
the goods, shall be deemed to have
taken place
when the goods
are off-loaded atthe Customer's premises. The signature of any employee
ofthe Customer on a Company delivery note orinvoice shall be prima facie
proof
ofthe proper
delivery ofthe goods.
7.2 In all cases where delivery to the Customer occurs
by carrier, the carrier shall bethe Customer's agent, and delivery
to such carrier by
the Company
shall be deemed to be
delivery to the Customer. The signature of any employee ofthe carrier
shall be prima facie proof of proper delivery to the Customer.
7.3 Should the Company, at the Customer's request,
agree to engage a carrier to transport goods to the Customer, such
carrier shall be the
Customer's
agent and the
Company shall engage the carrier on such terms and conditions as
it deems fit and the Customer indemnifies the Company against all
demands and
claims which
may be
made against it by the carrier so engaged and all liability which
the Company may incurto the carrier arising out ofthe transportation
ofthe
goods.
7.4 Delivery of goods to any delivery address
given by the Customer, shall constitute proper delivery of the
goods, despite
the fact that
such address
may not have
been the
address or premises of the Customer.
7.5 Whilst every effort will be made to despatch
goods as advised, the Company does not guarantee despatch on
any specific date and shall not
be liable
for any damages for failure to effect delivery/despatch timeously
for any reason
beyond the Company's reasonable control, including but not
limited to, inability to secure transport, labour, power, materials,
equipment or
supplies or by
reason of an act of God, war, civil disturbance, riot, state
emergency, strike, lockout
or other labour disputes, fire, flood, drought or legislation.
The Customer shall not be entitled to cancel any order by reason
or such
delay.
7.6 Inthe eventthatthe Company makes delivery
to the Customer in instalments, each instalments shall be
deemed to
bethe subject of a separate contract
and non-delivery or
delay in delivery of any instalment shall not affectthe balance
ofthe contract or entitle the Customer to cancel the contract.
7.7 When goods are delivered in instalments,
invoices relating to separate deliveries shall be paid
as if such goods
were the subject of a separate
order and no payment
shall
be postponed until such time as all the goods ordered have
been delivered.
7.8 If the Customer fails to take delivery
of the goods ordered, or in any way delays the delivery
of goods
ordered, then the risk in the goods
shall
immediately
pass to the
Customer and the Customer shall be liable to pay the
Company the reasonable costs of storing, insuring, and
handling
the goods, until delivery takes
place.
7.9 The Customer shall be barred from
lodging any claim in respect of discrepancies between
goods charged
and goods
delivered, unless the Customer
has specified
on the
delivery note, the nature of the discrepancy. 8. OWNERSHIP&RISK
8.1 Notwithstanding that all risk in and to all goods sold
by the Company to the Customer shall pass on delivery,
ownership in all goods sold and
delivered shall remain vested in the Company until the full purchase
price has been
paid
and in the event of a breach ofthese terms and conditions by the Customer,
or ifthe Customer is sequestrated or placed under liquidation or judicial
management or commits any act of insolvency or enters into any compromise
with its creditors
or fails to satisfy a judgement granted against it within 7 days of
the date of judgement or changes the structure of its
ownership, the Company
shall
be entitled to take possession of the goods without prejudice to any
further rights
vested in the Company, and is hereby irrevocably authorised to enter
upon the Customer's premises to take possession of such goods without
Court
order.
8.2 Goods in the possession of the Customer bearing
the Company name, trade marks and labels shall be deemed to be those
for which payment
has not
yet been made,
and
should any breach oftheseterms occur, may be re-possessed by the
Company in terms of paragraph 8.1.
8.3 The Customer shall fully insure the goods
purchased from the Company against loss or damage, until the
full purchase price has been paid
by the Customer
for such goods. Pending payment to the Company for goods purchased,
all benefits in terms of the insurance policy relating to the
insurance of
such goods
are ceded to the Company.
8.4 The Customer shall inform the Landlord of
the premises at which the goods are kept that such goods are
the sole and absolute property
of
the Company
until such time
as the full purchase price has been paidtothe Company by the
Customer. 9.
LEGAL PROCEEDINGS
9.1 Regardless ofthe place of execution or performance under these
terms and conditions or domicile ofthe Customer, these terms and
conditions and all modifications
and
amendments hereof, shall be governed by and decided upon and construed
under and in accordance with the laws ofthe Republic of South Africa.
9.2 The Company shall, at its option and notwithstanding
thatthe amount of its claim orthe nature of the relief sought by
it exceeds
the jurisdiction
of the
Magistrate's Court,
be entitled to institute action out of such court.
9.3 The Customer shall pay all legal costs,
including attorney/own client costs, tracing agent's fees and
collection charges which the
Company
may incur in
taking any steps
pursuantto any breach ofthese terms and conditions by the Customer.
9.4 A certificate issued and signed by any
director or manager of the Company, whose authority need
not be proved,
in respect of any
indebtedness
of the
Customer to the
Company or in respect of any other fact, including but without
limiting the generality of the aforegoing, the fact that
such goods were sold
and delivered,
shall be
prima
facie evidence ofthe Customer's indebtedness to the Company
and prima facie evidence of such other fact and prima facie
evidence
ofthe
delivery ofthe
goods.
9.5 The Customer's physical address as given
on the front page of this document, shall be recognised
as the Customer's domicilium citandi
et executandi (domicilium)
for
all purposes in terms of this agreement, whether in respect
of the serving of any court process, notices, the payment
of any
amount
or communications
of whatever
nature. 10. ARBITRATION
10.1 The Company has the sole option to refer any dispute
arising from or in connection with this agreement to
arbitration, which arbitration
shall
bind
both Company and
Customer.
10.2 The arbitrator must be a person agreed
upon by the parties or failing agreement, an arbitrator must
be appointed by the Arbitration
Foundation
of Southern Africa,
who
shall then finally resolve the dispute or issue in accordance
with the Rules ofthe Arbitration Foundation of SA 11. NEGOTIABLE INSTRUMENTS
11.1 Acceptance of a negotiable instrument by the Company
shall not be deemed to be a waiverofthe Company's rights
under this agreement.
In
relation to
cheques furnished
by the Customertothe Company, the Customer waives his rightto
insist on notice of dishonour or protest given to it in the eventthatthe
cheque is
dishonoured. 12. RETURNED GOODS
12.1 Goods sold by
the Company are not returnable save atthe option ofthe Company.
Should the Company in its
absolute discretion
electto
accept
the return of
any goods, the following will apply:¬
12.1.1 All goods returned must be complete,
clean, saleable and undamaged and in their original packaging;
12.1.2 The value of credit for goods returned
will be calculated at the invoice value when the goods
were purchased, less 10%
handling charge
unless the
cause for
goods being returned was solely the responsibilityorfaultfthe
Company in which latter event no handling fee will be
charged;
12.1.3 The Company will only receive
goods returned by the Customer if such goods are proven
to be
faulty to the satisfaction
ofthe
Company;
12.1.4 All goods are to be returned
atthe Customer's expense and the risk in the goods
remains with
the Customer until the
goods
are received
by
the Company;
and
12.1.5 Any claim for value of creditforgoods
returned to which the Customer is entitled to,
shall be made and received by
the Company
within 3 months
ofthe delivery
date in respect of such goods, failing which the
Customer shall irrevocably be deemed to have waived
any rights,
title, interest
and/or entitlement
to claim
such credit. The Company shall be deemed not to
have received such claim unless such claim is accompanied
by a duly completed
credit
note made
available to
the Customer by the Company. 13. WARRANTIES & INDEMNITY
13.1 Warranty on the goods sold is limited to the manufacturer's
warranty. All other warranties either expressed or implied,
including any warranty
that the
goods are fit for a particular purpose are expressly excluded.
The Company's liability for any breach of warranty shall
be limited to
and fully discharged
by the Company when it supplies, free of charge, goods replacing
those found to be defective, having regard to the use already
or previously
obtained from them. The Company's decision as to whether
goods are defective or
not
shall
be binding on all parties.
13.2 The Company disclaims all liability
to the Customer in connection with the Company's performance
orthe Customer's
use of the goods
supplied and
in no event
will the
Company be liable to the Customer for delictual, special,
indirect or consequential damages including but not limited
to, loss
of profits.
13.3 Any liability of the Company for
breach of contract will not exceed in the aggregate
of damages, costs, fees
and expenses
capable
of being
awarded to the
Customer, the
total price paid ordueto be paid by the Customerforthe
goods supplied. 14. GENERAL
14.1 This contract, which includes the credit application,
the confirmation of credit letter and the trade terms for
a particular
year, together
with invoices(s) represents the
entire agreement between the Company and the Customer and
shall govern all future contractual relationships between
the Company
and the
Customer and
shall also
be
applicable to all debts which the Customer may owe to the
Company prior to the Customer's signature hereto.
14.2 No amendment and/or alteration
and/or variation and/or deletion and/or addition and/or
cancellation of these terms
and conditions,
whether consensual
or unilateral
or bilateral shall be of any force and effect unless
reduced to writing and signed by a director of the Company.
No
agreement, whether consensual
or
unilateral or bilateral purporting to obligate the
Company to sign
a written agreement
to
amend, alter, vary, delete, add or cancel these terms
and conditions shall be of any force and effect
unless reduced to writing and signed by a director
of the Company.
14.3 No warranties, representations
or guarantees have been made by the Company or on
its behalf which may have
induced
the Customer
to
sign
this document.
14.4 No relaxation or indulgence
which the Company may give at any time in regard
to the carrying
out of the Customer's
obligations
in terms
of any
contract shall
prejudice
or be deemed to be a waiver of any ofthe Company's
rights in terms of any contract.
14.5 The Customer shall not cede
its right nor assign its obligation.
14.6 The Company shall at any
time in its sole discretion be entitled to
cede all or
any of its rights in terms of
this
application for
credit facilities
including all terms and
conditions to any third party without prior
notice to the Customer.
14.7 Any written notice to
the Company shall be addressed to the relevantDivisional
office.
14.8 The Customer undertakes
to notify the Company within a period of
seven days
of any change
of address or any
changes in the
information as set
out in this
agreement. 14.9 The headings in this document
are includedfor convenience and are notto
betaken into
accountforthe
purpose of interpreting
this agreement.
14.10 Each of the terms
herein, shall be separate and divisible
term and if
any such term
becomes unenforceable for any
reason whatsoever,
then
that term
shall
be severable
and shall not affectthe validity ofthe
other terms.
14.11 The terms and
conditions contained herein shall prevail
in the event
of a contradiction
between the terms and conditions
contained
herein and
any other
document signed
by the Company, unless such other document
specifically states otherwise, and
then only to the extent
required to give meaningful
interpretation
to such
overriding
provision. 15. DISCLOSURE OF CONFIDENTIAL INFORMATION
15.1 The Customer understands that the personal information
given in this credit application form is to be used by
the Company
for the purposes
of
assessing
its credit
worthiness. The Customer confirms that the information
given by it in the credit application form is accurate
and complete.
The
Customer
further
agrees to update
the
information supplied, as and when necessary, in orderto
ensure the accuracy ofthe above information, failing
which the Company
will
not be liable
for any inaccuracies.
15.2 The Company has the Customer's
consent at all times to contact and request information
from any persons,
credit bureaus
or businesses,
including
those
mentioned in
the credit application form and to obtain any information
relevant to the Customer's credit assessment, including
but not limited
to, information
regarding the
amounts
purchased from suppliers per month, length oftimethe
Customer has dealt with such supplier, type of goods
or services
purchased and
manner
and time of
payment.
15.3 The Customer agrees and understands
that information given in confidence to the Company
by athird party onthe
Customer
will not
be disclosedtothe
Customer.
15.4 The Customer hereby consents
to and authorises the Company at all times to
furnish credit information concerning
the
Customer's dealings with the
Company to a credit
bureau and to any third party seeking a trade
reference regarding the Customer in his dealings
with the
Company. |