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 Buyer may specify in the Recap of Terms (“RoT”), Credit Application and the Onboarding Documents and subject to the approval of the Credit Application, on the further terms and conditions as may be agreed to between the Parties in writing. The Recap of Terms (“RoT”) is to be completed by the Buyer in respect of each order in accordance with the instructions therein and duly signed off by the Buyer and Desert Fruit as evidence of the agreement between Desert Fruit and the Buyer as to the delivery of the goods (“Goods”) to the Buyer, (hereinafter referred to as the “Work”).

2. Desert Fruit and the Buyer are hereinafter referred to as the “Parties” and either one as “Party”.

3. This GTC, must at all times be read together with the Recap of Terms (“RoT”), the General Agreement, the Onboarding Documents and the Credit Application (where applicable), which shall apply to all Work and shall apply throughout the course of the Work unless otherwise agreed in writing by the Parties, as set forth therein.

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 Buyer, 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 Buyer.

5. Other than the GTC, Onboarding Documents, General Agreement and Recap of Terms (“RoT”), any additional terms of trade suggested or proposed to be applied by the Buyer (“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 authorized executive of Desert Fruit.

6. In the event of any conflict between the Additional Terms and this GTC (as read together with the Credit Application, Onboarding Documents, General Agreement and the Recap of Terms), 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 Recap of Terms (“RoT”).

8. The GTC shall be governed by and construed in accordance with the laws of the Republic of Namibia and 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 General Agreement, Onboarding Documents, Credit Application (where applicable) or Recap of Terms (“RoT”). The Buyer specifically waives any objection to the Namibian courts on the grounds that they are an inconvenient or inappropriate forum to settle disputes which may arise out of or in connection with the GTC, Onboarding Documents, Credit Application or Reap of Terms.

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. 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.

11. The Deed of Suretyship (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 Buyer acknowledges that Desert Fruit is relying upon these warranties and the Conformity Requirements in agreeing to perform the Work.

12. Desert Fruit reserves the right to request the Buyer to supply a Deed of Suretyship prior to finalizing this Agreement, any Recap of Terms, awarding a Credit Facility with Desert Fruit (“The Credit Facility”) or entering into a business-to-business relationship.

12.1. Full payment is due immediately if:

12.1.1. The Buyer has provided incorrect information regarding its creditworthiness.
12.1.2. Insolvency proceedings are initiated against the Buyer’s assets preceding or following the conclusion of the Recap of Terms.
12.1.3. Failing to provide a guarantee of being able to pay for Desert Fruit Goods.
12.1.4. If mala fide intentions in obtaining Goods from Desert Fruit become apparent. Mala fide intentions can be understood to being aware of
possible harm or loss to Desert Fruit and yet acting in spite thereof and with reckless disregard of the consequences to Desert Fruit.

12.2. Desert Fruit will not entertain Claim Reimbursements of advance payments made by Buyers if, inter alia, any of the clauses 12.1. have been
breached, observed, or come to light.

12.3. Desert Fruit reserves the right to use third parties for the collection of the debt should the Buyer default on the payment of the
obligation towards Desert Fruit.

13. All disputes involving the Work shall be referred to arbitration in accordance with this clause 13.

13.1. This clause is a separate, divisible agreement from the rest of the GTC and shall 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

13.2. This Clause will remain in effect even if the GTC terminates.

13.3. Any dispute between the Parties in regard to:

13.3.1 the existence of;
13.3.2 the rectification of;
13.3.3 the interpretation of;
13.3.4 the effect of;
13.3.5 the Parties’ respective rights and obligations; or
13.3.6 a breach of;
13.3.7 any matter arising out of; and/or
13.3.8 damages in contract, in delict, compensation for unjust enrichment;
13.3.9 or any other claim, arising from the GTC,

13.4. Any Party that is of the view that a dispute of the nature referred to in these General Terms and Conditions 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.

13.5. 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.

13.6. The said arbitration shall be held subject to the provisions of this clause:

13.6.1 at Windhoek;
13.6.2 informally;
13.6.3 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.

13.7. The arbitrator shall be, if the question in issue is:

13.7.1. 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;
13.7.2. 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.

13.8 The Parties irrevocably agree that the decision in the arbitration proceedings:

13.8.1 shall be binding on them,
13.8.2 shall be carried into effect,
13.8.3 may be made an order of any Court of competent jurisdiction.

13.9 The provisions of this clause shall not preclude either Party from seeking interim relief on an urgent basis in a court of competent jurisdiction.

13.10 The provisions of this clause are severable from the remainder of this GTC and shall survive the termination of this GTC.

13.11 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.

13.12 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 Buyer warrants that the representations made in the Credit Application and shall be decided in the manner set out in this clause.

14. Recap of Terms (“RoT”) 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 Recap of Terms (“RoT”) may only be amended if agreed thereto in writing by the Parties and signed by the duly authorised representatives.

15. Interest on all unpaid amounts due by the Buyer to Desert Fruit in terms of which GTC shall bear interest at 2%.

16. Should there be a lapse, change, failure, or error in the Conformity Requirements, the Buyer 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 Buyer 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.

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 Buyer in writing within 24 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 Buyer to comply with the GTC, or Recap of Terms, or the requirements of the Claim process, including but not limited to any material interference with the appointment of, or duties of the Desert Fruit Claim inspector, or a third party contracted for that purpose by Desert Fruit, shall void any right of the Buyer 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 Recap of Terms (including but not limited to attempts by the Buyer 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 Desert Fruit requirements provided for in the Recap of Terms, the General Agreement and Desert Fruit Invoice, the Buyer 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 were first received by the Buyer, or the Claim initiated (whichever occurs first). The Buyer has the affirmative duty at all times to have inspected the Goods within 24 (twenty four) hours 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:

20.1. in writing containing the information required as per clause 20;

20.2. the Claim is delivered to Desert Fruit no later than within 72 (seventy two) hours of receipt of the shipment by the Buyer as per the applicable INCOTERMS® (2020); and

20.3. Desert Fruit has confirmed receipt thereof in writing. In the event that any quality or condition problems are detected, the Buyer shall within 72 (seventy-two) hours after the time of arrival (“The Claims Period”) at the destination, inform Desert Fruit thereof, by making a written claim (“Claim”) containing:

20.3.1 The description of the Claim and the specification of reservation of acceptance of the Goods.
20.3.2 Pictures of the alleged detected discrepancies with date and time.
20.3.3 A copy of the consignment letter (provided by the carrier) with a description of the damages.
20.3.4 An accredited independent third-party verification of the of the Claim, which costs accrue to the Buyer as per Clause 26. Any variation to this clause must be agreed upon by both parties in writing.

21. Desert Fruit may entertain a claim subject to: 21.1. In respect of each Claim, which results, directly or indirectly from any fault or wrongdoing on the part of the Buyer (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 Buyer shall be liable for payment of all costs of the replacement Work and all costs occasioned by Desert Fruit as a result of decision to deliver a replacement of the Work.

21.2. 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 Buyer 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 Invoice Price of Goods in question, as provided for on Desert Fruit’s initial Invoice delivered to the Buyer as per the initial Recap of Terms Agreement. The Buyer shall indemnify Desert Fruit, from any and all costs and expenses incurred by Desert Fruit in performing the replacement Work, to the extent that replacement Work is greater than the cost of performance of the Work on the initial Recap of Terms Agreement and/or Invoice issued to the Buyer. Any amounts exceeding the initial Work shall be borne by the Buyer in respect of Claims entertained by Desert Fruit.

21.3. In all Claims arising from a failure by the Buyer to pay the amounts specified on the Desert Fruit Invoice the following shall apply: the amount claimed (as reflected on the Invoice issued by Desert Fruit to the Buyer) shall be prima facie proof of the amount owed by the Buyer to Desert Fruit and it shall be deemed not to be disputed by the Buyer if the Buyer does not dispute same in writing by way of written notice to Desert Fruit, and delivered to Desert Fruit within 72 (seventy two) hours of receipt of the applicable Desert Fruit Invoice by the Buyer, 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.

21.4. 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 Buyer, 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 by the Seller for the Goods from the Buyer.

22. In respect of each Claim, which results, directly or indirectly from any fault or wrongdoing on the part of the Buyer (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 Buyer 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.

23. 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 Buyer 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 Recap of Terms (“RoT”).

24. In all claims arising from a failure by the Buyer to pay the amounts specified in Recap of Terms (“RoT”) and this GTC (“Payment Claim”), the following shall apply; the amount claimed (as reflected in the invoice issued by Desert Fruit to the Buyer) shall be prima facie proof of the amount owed by the Buyer to Desert Fruit and it shall be deemed not to be disputed by the Buyer if the Buyer 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 Buyer, 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.

25. 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 Buyer, 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 Buyer, and then to the Buyer or other person for whose benefit the Casualty Loss claim arose (if not Desert Fruit).

26. Desert Fruit will only entertain bona fide claims for Goods delivered if a mutually agreed and recognized and accredited third party assessment of the Goods, such as by Greenway, has been undertaken and paid for by the Buyer and is submitted to Desert Fruit within 72 (seventy-two) hours (“The Claims Period”) of the arrival of the Goods at the Buyer’s destination. Any variation to this clause must be agreed upon by both parties in writing.

27. Desert Fruit reserves the right to appoint an official independent third-party surveyor or a Claims Inspector to verify any Claim from the Buyer whose ruling both the Buyer and the Seller hereby agree to accept, and for which the Buyer and Seller will be charged according to the outcome of the report of the appointed official surveyor. Any failure on the part of the Buyer to comply with the Recap of Terms or the requirements of the Claim process as provided for in these General Terms and Conditions including but not limited to any material interference with the appointment of or duties of the Desert Fruit Claim’s Inspector or third party contracted for that purpose (official independent third party surveyor) by Desert Fruit shall void any right of the Buyer to recover performance (in whatsoever form or nature) under the Claim.

28. In the cases where Desert Fruit will appoint an official independent third-party surveyor, the Buyer may not resell or alter any of the Goods, until the inspection report of the designated official surveyor has been issued and received by Desert Fruit.

29. Except if evidence is provided to the contrary, Desert Fruit shall regard the quantities indicated on the consignment notes, signed at the time of delivery, or other delivery documents as accurate.

30. Submitting a Claim shall never be any ground for suspending or settling the payment obligations to Desert Fruit.

31. The Buyer and Seller both undertake to always mitigate all potential losses to the greatest extent.

32. The Buyer and Seller both agree that any Claim regarding the quality or condition of the Goods presented after the Claims Period has expired, or which is not complying with the Claim Procedure established in this clause shall be considered an invalid Claim and shall relieve Desert Fruit from any liability regarding such Claim.

33. Desert Fruit is is only responsible for delivery to the specified destination but not to unload the Goods.

34. If the Buyer, for any reason, does not accept delivery of the Goods, then the Buyer must warehouse the Goods at the Buyer’s risk and expense. Desert Fruit will not entertain Claims for storage, security costs, sundries, petties, and the like.

35. Desert Fruit is expressly not liable for, but not limited to, any damages or loss due to theft while Goods are being transported to the destination, third party transport modes, cooling facility failures, incorrect transport storage temperatures, delay in shipment or mishandling, nor will Desert Fruit entertain such Claims. The Incoterms® (2020) define the responsibilities of the Seller and Buyer and specify responsibilities for paying and managing the shipment, insurance, documentation, customs clearance, and other logistical activities. Desert Fruit will indicate which Incoterms® (2020) is applicable on the Recap of Terms.

36. Credit insurance in respect of the credit facilities made available to the Buyer 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 Buyer 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 Buyer herewith agrees to fully comply with the terms and conditions. Desert Fruit shall not incur any liability in requiring the Buyer to obtain or make a claim under such credit insurance, and the Buyer 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 Buyer to the credit insurance provider at its sole discretion.

37. 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 Buyer 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 Buyer 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 Buyer is not able to or it is uncertain to Desert Fruit whether the Buyer 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 Buyer 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 Buyer resulting from an Insolvency Event in law.

38. 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 Buyer 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.

39. 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.