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 that the decision in the arbitration proceedings:
12.7.1. shall be binding on them,
12.7.2. shall be carried into effect,
12.7.3. may be made an order of any Court of competent jurisdiction.
12.8. The provisions of this clause shall not preclude either Party from seeking interim relief on an urgent basis in a court of competent jurisdiction.
12.9. The provisions of this clause are severable from the remainder of this GTC and shall survive the termination of this GTC.
12.10. Notice of a dispute or pending arbitration proceedings shall not entitle any Party to suspend compliance with any of its obligations in terms of this GTC or any agreement contemplated in this GTC.
12.11 The Parties agree that the written demand by a Party to the dispute in terms of this clause that the dispute or difference be submitted to arbitration, is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act 68 of 1969. The Applicant warrants that the representations made in the Credit Application and Deed of Suretyship (annexed hereto as Schedule 1) (where applicable), and the representations and/or certifications, testing, and other conformity requirements of the end user of the Goods (“Conformity Requirements”) as set out and provided for in the Customer Order Form, shall be accurate and truthful when made, and shall promptly be updated in writing to Desert Fruit when there is any change and shall be current and up to date at the time the Work is performed, and the Applicant acknowledges that Desert Fruit is relying upon these warranties and the Conformity Requirements in agreeing to perform the Work.
13. Should there be a lapse, change, failure, or error in the Conformity Requirements, the Applicant has the sole duty to timely deliver specific and detailed notice of such lapse, change, failure or error in writing to Desert Fruit and retain proof of timely delivery of same. In the event that Desert Fruit agrees to obtain replacement performance of the Work due to a lapse, change, failure or error in Conformity Requirements, then the Applicant shall indemnify Desert Fruit, upon demand, from any and all costs and expenses incurred by it in performing the replacement Work, to the extent that same is greater than the cost of performance of the Work on the initial Conformity Requirements.
14. The Order Form for the Work shall provide for, including but not limited to the specific quantity of Goods to be sold and delivered, the grade of the Goods required, , the purchase price of the Goods, the currency in which the purchase price of the Goods must be paid, when payment is to be made, , the required date of delivery of the Goods, the Conformity Requirements and the applicable INCOTERMS.
the Order Form may only be amended if agreed thereto in writing by Desert Fruit and signed by one of its duly authorised directors.
15. Interest on all unpaid amounts due by the Applicant to Desert Fruit in terms of which GTC shall bear interest at the publicity quoted basic rate of interest (percent, per annum, compounded monthly in arrears and calculated on a 365-day year (irrespective of whether or not the year is a leap year)) from time to time published by Desert Fruit’s local commercial bank as being its prime overdraft rate, as certified by any manager of such bank, whose appointment and designation need not be proven and whose certificate shall be prima facie proof of the applicable prime rate, plus 2%.
16. All amounts payable by the Applicant to Desert Fruit shall be paid so that the full amount due is at the disposal of the Desert Fruit, free of any deductions (including banking costs or charges) or set-off whatsoever and in the currency specified in the Order Form.
17. All claims arising as a result of the Work for which non-conformity of Goods or damage to the Goods or any other irregularity or deviation from the Work or Conformity Requirements is alleged (“Claim”) shall be initiated by the Applicant in writing within 48 hours after receipt of the Goods, specifying the Claim in sufficient detail to identify the defect or default, identify the required cure or repair and the time in which same is to be attended to, in order for the Claim to be resolved, and provide for timely inspection, restitution, or remedy by Desert Fruit.
18. Any failure on the part of the Applicant to comply with the GTC, or Order Form, or the requirements of the Claim process as provided for in clause 17 above and clause 20 below, including but not limited to any material interference with the appointment of or duties of the Desert Fruit Claim inspector or 3rd party contracted for that purpose by Desert Fruit shall void any right of the Applicant to recover performance (in whatsoever form or nature) under the Claim.
19. Without derogating from the generality of clause 18 above, in all events, failure to perform or comply with any other duties or obligations provided for in the GTC and/or Order Form (including but not limited to attempts by the Applicant at ‘set-off’, withholding of payment, or failure to make timely payment), shall void any Claim against Desert Fruit in its entirety.
20. In addition to all other requirements set forth in respect of any Claim, and requirements provided for in the GTC and the Order Form, , the Applicant has a duty to make safe from harm, theft, and spoliation the Goods forming the subject matter of the Claim and keep same in as good an order and condition as when the Goods was first received by the Applicant, or the Claim initiated (whichever occurs first). The Applicant has the affirmative duty at all times to have inspected the Goods at the first opportunity after delivery thereof to its specified address. In no event shall a Claim be accepted by Desert Fruit or shall it be required to act in terms thereof, if such Claim is not delivered to Desert Fruit (i) in writing containing the information required in clause 17 above (“Claim Notice”); (ii) the Claim Notice is delivered to Desert Fruit no later than within 72 hours of receipt of the shipment by the Applicant as per the applicable INCOTERMS; and (iii) Desert has confirmed receipt thereof in writing.
21. In respect of each Claim, which results, directly or indirectly from any fault or wrongdoing on the part of the Applicant (as may be determined by Desert Fruit in its discretion) shall entitle (but shall not oblige) and Desert Fruit shall have the sole discretion to determine whether or not to resolve the Claim by delivering a replacement of the Work, subject thereto that in such instance, the Applicant shall be liable for payment of all costs of the replacement Work and all costs occasioned by Desert Fruit as a result of having to deliver a replacement of the Work.
22. In respect of any Claim against Desert Fruit, Desert Fruit’s liability thereunder (in all respects and in relation to any and all other claims which the Applicant may make against Desert Fruit regarding the Work, whether known or unknown at the time of any Claim) shall be limited to the sum which shall not exceed the agreed purchase price of Goods in question, as provided for in the Order Form.
23. In all claims arising from a failure by the Applicant to pay the amounts specified in the Order Form and this GTC (“Payment Claim”), the following shall apply: the amount claimed (as reflected in the invoice issued by Desert Fruit to the Applicant) shall be prima facie proof of the amount owed by the Applicant to Desert Fruit and it shall be deemed not to be disputed by the Applicant if the Applicant does not dispute same in writing by way of written notice to Desert Fruit, and delivered to Desert Fruit within 72 hours of receipt of the applicable invoice by the Applicant, setting forth in detail the
basis upon which the Payment Claim is disputed (“Payment Dispute Notice”) and Desert Fruit confirms in writing, receipt of the Payment Dispute Notice.
24. In the event of a loss being suffered (from whatsoever cause arising but due to no fault of either Party) in respect of the Goods to be delivered as part of the Work, provided that payment thereof has not been made by the Applicant, the right to receive the proceeds of any recovery of such loss (“Casualty Loss”) shall first be for the benefit of Desert Fruit to the extent and until such time as payment in full is received for the Goods from the Applicant, and then to the Applicant or other person for whose benefit the Casualty Loss claim arose (if not Desert Fruit).
25. Credit insurance in respect of the credit facilities made available to the Applicant for the purchase of Goods as provided for herein, where applicable, may be required by Desert Fruit, at its sole discretion. The decision to so require the Applicant to obtain same, and the decision to claim thereunder from the credit insurance provider shall be solely in the discretion of Desert Fruit. If so required, the Applicant herewith agrees to fully comply with the terms and conditions of the applicable credit insurance required, including but not limited to reservations of ownership provisions imposed by the insurer. Desert Fruit shall not incur any liability in requiring the Applicant to obtain or make a claim under such credit insurance, and the Applicant shall not make or assert any claims of loss or otherwise against Desert Fruit for the exercise by it of such decision(s) to require credit insurance or a claim thereunder. Desert Fruit reserves the right to report any conduct of the Applicant to the credit insurance provider at its sole discretion.
26. Desert Fruit reserves the right to refuse to perform the Work or any portion thereof, if prior to the commencement of the Work, during the performance of the Work, and prior to payment for the Work and at such time, any portion thereof still remains to be performed, the Applicant becomes or is declared insolvent (whether provisionally or finally), is placed in liquidation (whether provisionally or finally) or any resolution is passed by it to be placed in liquidation (whether provisionally or finally) or any winding up proceedings is to be commenced with and/or the Applicant becomes subject to a receivership or business rescue or other similar process, or has committed an act of insolvency as provided for under the Insolvency Act 24 of 1936 (or similar law in its jurisdiction) or, in the discretion of Desert Fruit, it appears that there are other indications that the Applicant is not able to or it is uncertain to Desert Fruit whether the Applicant will be able to pay for the Work (“Insolvency Event”). Desert Fruit may, further, in the event of an Insolvency Event, in its sole discretion, determine to re-sell, re-direct, or otherwise dispose of the Goods not delivered and not paid for under the Work in a commercially reasonable manner and shall provide written notice to the Applicant of the decision to do so and the disposition of the Goods, within a reasonable time thereafter. Desert Fruit reserves all other rights of action it may have against the Applicant resulting from an Insolvency Event in law.
27. Acts and omissions beyond the control of Desert Fruit, such as but not limited to loss of insurance coverage for the Goods, acts of piracy, armed conflict, terrorist acts, natural disasters, currency instability in the country of intended destination of the Goods, and actions any government or acts of God (collectively “Force Majeure”), to the extent they interfere with, make impracticable, or render commercially unreasonable the performance of the Work, shall relieve and absolve Desert Fruit of its obligations for performing the Work. Desert Fruit shall provide written notice to the Applicant of the Force Majeure event. To the extent not compensated for by insurance coverage or through loss mitigation measures taken by Desert Fruit (to the extent possible and to the extent that it is commercially reasonable to do so), Desert Fruit shall be entitled to be paid for its costs of performing the Work (to the extent performed at the time of the Force Majeure event, and shall be entitled to be restored to the economic position it held prior to the Force Majeure event. In no event shall Desert Fruit be subject to a claim of any nature for any loss or damage arising from a Force Majeure event.
28. All provisions and the various clauses of this GTC are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this GTC which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect. The Parties declare that it is their intention that this GTC would be executed or agreed to without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof and/or agreement hereto.