T&C’s of Sale

TERMS AND CONDITIONS OF SALE

OF

AMBASSADOR FOODS (PROPRIETARY) LIMITED

(Registration number: 1999/003519/07)

("the Company")

THIS IS AN IMPORTANT DOCUMENT WHICH LIMITS YOUR RIGHTS – PLEASE READ IT CAREFULLY!
Application
These terms and conditions of Sale (“Terms and Conditions”) shall apply to any agreement for the sale of any nut or related products (“Goods”) by the Company to the Customer.
These Terms and Conditions supersede, replace and/or override any terms and conditions of the Customer. Any conditions of trade contained in any documents submitted by the Customer to the Company shall not apply, even if countersigned by the Company, and the Customer shall be deemed to have waived such conditions.
No alteration or variation of these Terms and Conditions shall be of any force and effect, unless expressly agreed to in writing and signed by a duly authorised representative of the Company.

Price
The Customer acknowledges that any price lists exhibited or issued by the Company are for information purposes only and are subject to change or variation without notice to the Customer.
The prices for Goods listed in any price lists of the Company may be subject to trade discounts which the Company, in its sole discretion, may extend to the Customer.
If any bona fide error of calculation or otherwise is made by the Company in any invoice, statement or any other document or communication (written or oral) emanating from the Company, such errors may be rectified by the Company as soon as is reasonably possible after discovery of the errors and the Customer shall be obliged to pay the Company the rectified amount.

Payment
Time for payment (by the Customer) in accordance with these Terms and Conditions shall be of the essence.
On delivery of the Goods to the Customer, the Company shall issue an invoice to the Customer. Payment terms shall be as is designated by the Company from time to time, and shall be effected free of deduction, demand, set-off, bank charges or commission.
Any amount not paid by the Customer on the due date for payment thereof shall bear interest calculated from the due date until the date of payment, compounded monthly in arrears, at the annual prime overdraft lending rate charged by Standard Bank of South Africa Limited from time to time.
If any amount owed by the Customer is not paid on the due date for payment therefore, the Company may, without prejudice to any other rights which it may have against the Customer, immediately suspend the carrying out of its then uncompleted obligations in terms hereof until full payment is made.
The Customer agrees that all payments made by it to the Company shall, firstly, be credited to any legal expenses (on an attorney and own client scale) which the Company may have incurred in connection with the enforcement or preservation of any of its rights against the Customer, then to any interest owing on overdue payments by the Customer to the Company and finally, to the principal debt owing by the Customer to the Company.
The Company may, in its sole discretion, agree to accept payment in instalments. In the event of non-payment of any instalment, the entire outstanding balance owed by the Customer to the Company shall become immediately due and payable.

Delivery
The Company shall, in its sole discretion and at its cost, supply the Goods to the Customer in such quantity as the Customer may in writing, from time to time, request.
The Company shall deliver the Goods to the Customer at the address specified by the Customer in the credit application form forming part hereof and submitted to the Company by the Customer, unless otherwise agreed to by the parties in writing. The Customer shall be responsible for any costs incurred by the Company in effecting delivery at such other place.
Where the Company delivers Goods to the Customer:
the Customer shall be responsible for the receiving, the proper unloading and the checking of the Goods in the presence of the person making the delivery;
the Customer shall, on delivery, sign a delivery note, and such signed delivery note shall be prima facie proof that the goods listed thereon have been delivered in good condition.
if the Goods are delivered to a carrier for subsequent delivery to the Customer, delivery to the Customer shall be deemed to have been duly effected on delivery to the carrier, who shall be the Customer's duly authorised agent for this purpose.
The time stipulated by the Company for delivery of the Goods is an estimate only and the Company shall not be liable to the Customer or any third party for any loss or damage whatsoever arising out of any delay in or early delivery of the Goods.
If no time for delivery of the Goods is stipulated by the Customer, delivery by the Company to the Customer shall take place within a reasonable time after receipt by the Company of a written request for delivery by the Customer.
Notwithstanding any other provision contained in these Terms and Conditions, the Customer may not claim any reduction of the purchase price for any damage to or shortages in any of the Goods delivered, unless the Company is notified of such claim in writing within three business days from the date of delivery of the Goods.

The Company shall, in its sole discretion, be entitled to effect delivery of Goods to the Customer in stages (and to invoice the Customer accordingly).
The Customer shall accept delivery of the Goods when tendered and shall be liable for any loss or damage suffered by the Company as a result of the Customer failing to accept delivery, for whatever reason.

Risk and Ownership in the Goods, Cession
The risk of damage to, and loss or destruction of the Goods supplied by the Company to the Customer (“Risk”) shall pass to the Customer immediately upon delivery of the Goods to the Customer. If the Customer, for whatever reason, is unable or unwilling to take delivery, the Risk shall pass to the Customer upon tender of delivery.
Until such time as the Customer has paid to the Company the full purchase price as well as any other amounts due and payable by the Customer to the Company in respect of any Goods:
ownership in the Goods shall, notwithstanding delivery of the Goods to the Customer, remain vested in the Company;
the Customer shall not be entitled to pledge or in any way encumber by way of security any of the Goods (which shall remain the property of the Company); and
any claim that the Customer may at any time have arising wholly or partially out of or in connection with the disposal by it of the Goods or some of them, shall be deemed to have been ceded to the Company as security for the Customer's obligations hereunder.

Credit Facilities
The Company may, in its discretion, grant the Customer credit facilities in order to effect payment for the Goods, and may, at any stage and without prior notification to the Customer, withdraw or vary such credit facilities. The Company shall not incur any liability whatsoever arising from or related to the withdrawal or variation by it of any credit facility.
The Company may, in its sole discretion, require that the Customer furnish it with acceptable security for the due performance of the Customer's obligations to the Company. Such security may include, without limitation, an irrevocable guarantee from a financial institution approved by the Company, a suretyship, or such other form of security as may be acceptable to the Company. Guarantees are to be made out in favour of Ambassador Foods (Proprietary) Limited, [●]. Credit facilities will only be granted by the Company once suitable security has been furnished to the satisfaction of the Company.

Return of Goods
On the request and at the cost of the Customer, the Company may, in its sole discretion, accept the return of Goods which are not damaged or subject to any claim by a third party. The Company shall give the Customer a credit reflecting the invoiced value of such returned Goods, less a 10% handling charge.

Warranties
The Company does not give any warranties whatsoever regarding the Goods.

Limitation of Liability
The Company shall not, under any circumstances whatsoever, whether in contract, delict or otherwise, be liable for any direct or indirect loss or damage arising out of or in connection with the Goods and/or these Terms and Conditions and howsoever caused, including, but not limited to, as a result of the negligence and/or gross negligence of the Company and/or its officers, employees and/or its agents.
Without limiting the generality of the foregoing, the Company shall, under no circumstances, be liable for any special, consequential, exemplary or incidental damages of any kind whatsoever and howsoever arising, including, but not limited to, loss of business and loss of profits.

Force Majeure

The Company shall not be liable to the Customer, or in default of these Terms and Conditions, for any reason beyond its control including, without limitation, strikes, lockouts, labour disputes, acts of God, acts of nature, acts of governments or their agencies, fire, flood, storm, power shortages or power failure, war, sabotage, inability to obtain sufficient labour, transportation, raw materials, fuel or utilities (“Force Majeure”).
The Company, when relying on Force Majeure, shall:
as soon as reasonably possible, notify the Customer that such an event has arisen; and specify the full facts relating thereto, at which time the Company's obligations shall be suspended wholly or in part, as the case may be, until the Force Majeure ceases.

Change in Ownership or Control
In the event that there is any direct or indirect change in the legal and/or beneficial control, ownership or legal form of the Customer (“Change of Control”) , the Customer shall be obliged to:
notify the Company of the details of such Change of Control within seven business days thereof; and
take all necessary steps (including the signature of any documents required) to effect an assignment to any new person or entity (as may be identified by the Company) of the rights and obligations of the Customer under any document of security provided to the Company pursuant hereto or in accordance with any application made by the Customer to the Company for credit facilities.
The Company shall be entitled, in its sole discretion, to terminate its business relationship with the Customer or any relationship to which these Terms and Conditions apply if it is not satisfied, in any way whatsoever, with the Change of Control.

Default
Should the Customer fail to comply with these Terms and Conditions in any way whatsoever, and fail to remedy such breach within seven days after having been given written notice to do so, the Company shall be entitled, in its sole discretion, to cancel this agreement. In this event:
all amounts due by the Customer to the Company shall immediately become due and payable;
the Company shall not be obliged to sell and deliver any further Goods to the Customer and may claim additional costs and expenses incurred as a result thereof;
the Company may retake possession of any Goods in respect of which ownership has not passed to the Customer; and/or
retain all amounts paid by the Customer up until the date of cancellation.
These rights of the Company shall in no way interfere with the Company's rights to claim damages from the Customer due to the Customer's non-compliance with these Terms and Conditions, or the Company's right to claim payment of any amount at that stage due by the Customer to the Company.
Notwithstanding the above, the Company shall be entitled to immediately cancel the agreement where the Customer:
fails to timeously obtain the necessary permits or similar authorisations to take delivery of the Goods;
is sequestrated or takes steps to place itself, or is placed, in liquidation, whether voluntary or compulsory, or in judicial management, in either case whether provisionally or finally;
takes steps to de-register itself or is de-registered;
commits an act of insolvency as defined in the Insolvency Act, 1936, or, being a corporate body, commits an act which would be an act of insolvency if committed by a natural person;
has a judgment recorded against it which remains unsatisfied for fourteen days;
fails to provide any security required by the Company; or
submits a compromised or similar offer to its creditors generally.
The Company's rights listed above are not exhaustive and shall be in addition to its common law rights.
In addition, the Customer shall pay any legal costs on the attorney and own client scale which the Company may incur in taking steps pursuant to a breach of the Customer's obligations owed to the Company.

Warranty of Authority

The Customer warrants that it has the power and authority to sign and perform in terms hereof and that the signature of these Terms and Conditions is duly authorised by all necessary actions of its directors, members or trustees and constitutes valid and binding obligations on it in accordance with the terms hereof.
In the event that the Customer’s signatory to these Terms and Conditions does not have the authority to sign, and/or the Customer the authority and/or capacity to perform its obligations in terms hereof, the signatory acknowledges that he/she shall be personally liable to the Company in respect of any amounts that may become due and payable to the Company in terms hereof.

General

The Customer nominates as its domicilium citandi et executandi (its chosen address) the physical trading address reflected on the face hereof, for service upon it of all notices and processes in connection herewith or any claim for any sum due to the Customer arising out of credit granted to the Customer by the Company.
These Terms and Conditions constitute the entire agreement between the Company and the Customer with regard to the matters dealt with herein and no representations, terms, conditions or warranties not contained in these Terms and Conditions shall be binding on either the Company or the Customer.
No extension of time or indulgence granted by the Company to the Customer shall constitute a waiver of any of the Company's rights and the Company shall not be precluded, as a consequence of having granted such extension or indulgence, from exercising any rights against the Customer which may have arisen in the past or which may arise in the future.
The Customer may not rely on any representation by the Company, its servants or agents which allegedly induced the Customer to enter into this agreement, unless such representation is recorded herein.
If any clause or term of these Terms and Conditions should be invalid, unenforceable or illegal, then the remaining terms and provisions of these Terms and Conditions shall be deemed to be severable therefrom.
The Customer shall not cede or assign any of its rights and/or obligations under these Terms and Conditions to a third party without the prior written consent of the Company. The Company may cede or assign its rights and/or obligations or any part thereof under these Terms and Conditions to a third party, provided that the Company shall notify the Customer in writing of such cession or assignment.
These Terms and Conditions shall be governed by the laws of the Republic of South Africa.
The Company shall be entitled, but not obliged, to institute any proceedings arising out of or in connection herewith in the Magistrates Court. In the event of the Company instituting proceedings in the High Court, the Customer hereby consents to the jurisdiction of the Witwatersrand Local Division of the High Court of South Africa.

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