General Terms and Conditions
Desert Fruit (Pty) Ltd (Registration # 2005/283)
Farm Eagles Rest 475, Ariamsvlei, Karas Region, Namibia
1. The below are the General Terms and Conditions (“GTC”) in terms of which Desert Fruit (Pty) Ltd (“Desert Fruit”) agrees to sell, supply and deliver such goods in such varieties and quantities as the Applicant (as defined in the Credit Application Form to which this GTC is attached (“Credit Application”)) may specify in the Credit Application and subject to approval of the Credit Application, on the further terms and conditions agreed to between the Parties in the Customer Order Form(s) (downloaded from Desert Fruit’s official website and duly completed by the Applicant in respect of each order in accordance with the instructions therein and duly signed off by Desert Fruit as evidence of its agreement thereto (“Order Form”) (“Goods”) to the Applicant, ( hereinafter referred to as the “Work”).
2. Desert Fruit and the Applicant are hereinafter referred to as the “Parties” and either one as “Party”.
3. This GTC, must at all times be read together with the Credit Application and Order Form, which shall apply to all Work and shall apply throughout the course of the Work unless otherwise agreed in writing by Desert Fruit, as set forth herein.
4. Desert Fruit reserves the right to amend, modify or change the GTC from time to time in its sole discretion, without the requirement of advance notice to the Applicant, and such changes shall be applicable to all pending Work to the extent such Work has not been concluded upon the date and time of such change. Mere publication on Desert Fruit’s official website of the amended GTC shall be sufficient to deem the GTC amended and binding on the Applicant.
5. Other than the GTC, Credit Application and Order Form, any additional terms of trade suggested or proposed to be applied by the Applicant (“Additional Terms”) in respect of the Work, shall only be valid and effective if expressly agreed to by Desert Fruit in writing, and signed by an expressly authorized director of Desert Fruit.
6. In the event of any conflict between the Additional Terms and this GTC (as read together with the Credit Application and Order Form), the GTC shall prevail.
7. All terms relating to the delivery of Goods shall be those terms provided for in the Incoterms® published by the International Chamber of Commerce, from time to time and commonly known as “INCOTERMS” and then such specific INCOTERMS agreed upon between the Parties in the Order Form.
8. The GTC shall be governed by and construed in accordance with the laws of the Republic of Namibia and subject to clause 12 hereof, the Parties herewith consent to the non-exclusive jurisdiction of the High Court of Namibia to determine any dispute or claim arising from this GTC, the Credit Application or the Order Form. The Applicant specifically waives any objection to the Namibian courts on the grounds that they are an inconvenient or inappropriate forum to settle disputes that may arise out of or in connection with the GTC, Credit Application or Order Form.
9. Compliance with all laws applicable in the jurisdictions in which the Work is to be performed is required of both Parties. The Parties specifically agree to act in compliance with all anti-corruption laws and financial intelligence laws applied in the countries in which the Work is performed.
10. No transaction with Desert Fruit, whether forming part of the Work or otherwise, shall, for purposes of any law, be construed or characterized as a “consumer” transaction at any time.
11. All trade terms and extensions of credit incorporated in the Work shall be on the basis of a ‘business to business’ transaction and the Parties expressly disclaim any intent to create a regulated financial transaction by such terms under the laws of any jurisdiction.
12. All disputes involving the Work shall be referred to arbitration in accordance with this clause 12.
12.1. This clause is a separate, divisible agreement from the rest of the GTC and shall –
12.1.1. not be or become void, voidable or unenforceable by reason only of any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority or other cause relating in substance to the rest of the GTC and not to this clause. The Parties intend that any such issue shall be subject to arbitration in terms of this clause; and
12.1.2. remain in effect even if the GTC terminates.
12.2. Any dispute between the Parties in regard to:
12.2.1. the existence of;
12.2.2. the rectification of;
12.2.3. the interpretation of;
12.2.4. the effect of;
12.2.5. the Parties’ respective rights and obligations under;
12.2.6. a breach of;
12.2.7. any matter arising out of; and/or
12.2.8. damages in contract, in delict, compensation for unjust enrichment or any other claim, arising from;
the GTC shall be decided in the manner set out in this clause.
12.3. Any Party that is of the view that a dispute of the nature referred to in 12.2 has arisen shall give written notice thereof to the other Party concerned, provided that such notice shall clearly identify the dispute and shall provide full particularity thereof, and the Parties shall thereafter take immediate steps to attempt to resolve the dispute.
12.4. If the Parties cannot agree on a resolution of the dispute within 10 (ten) business days of receipt of the notice referred to in 12.3, then the subject matter of the dispute shall be referred within a further period of 20 (twenty) business days to arbitration in accordance with this clause.
12.5. The said arbitration shall be held subject to the provisions of this clause:
12.5.1. at Windhoek;
12.5.3. otherwise in accordance with the rules of the Arbitration Foundation of Southern Africa;
it being the intention that if possible, it shall be held and concluded within 30 (thirty) business days after it has been demanded.
12.6. The arbitrator shall be, if the question in issue is:
12.6.1. primarily to a financial matter, a practicing-chartered accountant of at least 10 (ten) years’ standing nominated at the request of any Party by the President for the time being of the Institute of Chartered Accountants of Namibia;
12.6.2. relates to any other matter, an impartial commercial legal practitioner, whether practicing or non-practicing, or an advocate of not less than 10 (ten) years’ standing, nominated at the request of any Party by the President for the time being of the Law Society of Namibia.
12.7. The Parties irrevocably agree t