1.1. “Agent” means a person or company that is authorised to act for or in place of a Customer.
1.2. “Company” means Best Spirits of Africa Pty Ltd, and includes the agents and servants of the Company.
1.3. “Credit Facility Agreement” includes the terms and conditions contained in this document and payment terms specified in the Company’s confirmation of credit letter.
1.4. “Customer” means the party whose order is confirmed by the Company, and includes all agents and employees of that party.
2.1. These terms and conditions shall apply to any contract for the sale of any goods by the Company, whether the contract arose out of any offer made by the Company and accepted by the Customer, or any offer made by the Customer, and accepted by the Company, including such offer made by the Customer in response to a quotation from the Company.
2.2. The Company reserves the right to vary or amend the terms and conditions of this agreement at any time.
2.3. All such variations will be binding and enforceable on the Customer-
2.3.1. from the time that the Customer is notified thereof;
2.3.2. only if it has been reduced to writing and signed by a duly authorised Company.
- CONSUMER PROTECTION ACT
3.1. If the Customer is a juristic person, whose Nett asset value or annual turnover exceeds R2,000,000.00 (two million rand), the CPA shall not apply to this Agreement.
3.2. If the Customer is a natural person or juristic person, whose Nett asset value or annual turnover is less than R2,000,000.00 (two million rand), the CPA shall apply to this Agreement.
- CREDIT FACILITIES (if applicable)
4.1. A Customer who wants to benefit from the Company’s credit facility must complete the prescribed application form in full.
4.2. The approval of an application will take into account the Customer’s representation at the discretion of the Company.
4.3. If the applicant is approved, the Customer will receive a confirmation of credit letter from the Company setting out the credit limit and credit forms which will form part of the credit facilities agreement.
4.4. The Company may at any time withdraw any credit facilities without prior notice to the Customer or amend or vary the terms of a Customer’s credit facility. The Company furthermore reserves the right to review the extent, nature, and duration of such facilities at all times.
4.5. A Customer with approved credit facilities as aforesaid hereby undertakes to ensure that the credit limit is never exceeded. The Customer hereby agrees and undertakes to promptly make whatsoever payments are necessary to ensure that any such credit limit is never exceeded.
- DUTIES AND OBLIGATIONS
In the terms of this agreement –
5.1. The Company will provide the Customer with the goods agreed to in terms of the acceptance of the order.
5.2. The Customer will pay for the goods provided in accordance with this agreement on a cash on delivery basis, and comply with the terms of the credit facility, if applicable, and comply with any further terms agreed with the Company, in writing and from time to time.
5.3. The Customer undertakes to notify the Company, in writing within seven (7) days of any change in ownership of the Customers business, or should the Customer be a Company, of its share transactions whereby the majority shareholding is affected, failing which notice the entire balance owing, whether due or note, will immediately be deemed to be due and payable by the Customer. In addition to the foregoing, the Customer acknowledges that immediately upon any change of ownership in the Customer, any outstanding amount whether due or not shall be deemed to be forthwith payable by the Customer to the Company.
5.4. Should the Customer at any time be wound up, whether provisionally or finally (which liquidation or sequestration shall be deemed to be a material breach by the Customer) or be placed into business rescue, or similar, or in the event of the Customer being an individual or partnership and having his/its estate sequestrated, whether provisionally or finally, any goods delivered by the Company to the Customer and in respect of which payment has not been made at the date of the winding-up or sequestration (whether payment in respect thereof be due or not) shall immediately be returned to and recoverable by the Company and the agreement pursuant to which such goods were sold shall be deemed to have been cancelled in respect of the goods so returnable/recoverable.
5.5. The Customer acknowledges that should the correct goods be supplied and delivered and should these be returned at the Customer’s request due to no fault accruing to the Company, then such goods will be subject to a 10% handling charge which shall immediately become due and payable by the Customer. All payments and returns of goods to representatives or agents of the Company are entirely at the risk of the Customer. Goods should be returned directly to the Company’s place of business from where the goods were ordered.
5.6. The Customer acknowledges that in the event of it being a proprietorship, partnership, a company or close corporation and converting from a proprietorship, partnership or company to a close corporation or from a proprietorship, partnership, or close corporation to a company at any time hereafter, as the case may be, any surety/signatory in terms of this application for credit shall nevertheless still remain bound as a surety.
5.7. Signature by the Customer or by any representative of the Customer on the Company’s delivery note, shall be regarded as acceptance by the Customer that the goods reflected in such delivery note have been properly and completely delivered.
5.8. The risk in and to the goods shall pass from the Company to the Customer on the date of delivery notwithstanding that ownership will not pass to the Customer until full payment of the purchase price. Delivery shall be deemed to have taken place against the signature of the Customer’s delivery note, proof delivery to the Road carrier if the goods are transported by the Customer. The Road Carrier shall act as the agent of the Customer.
- GOODS SOLD AND ORDERED
6.1. The goods shall be regarded as having been sold “voetstoots” without any warranty against latent defects therein. No liability whatsoever shall arise furthermore on the part of the Company for any representation or warranty made or alleged to have been made at any time in respect of the goods sold by the Company to the Customer.
6.2. In the event of any order being given to the Company on an order form reflecting the Customer name as the entity from which the order emanates, such order shall be deemed to have emanated from the Customer, notwithstanding the fact that such order may have been given or signed by a person not authorized by the Customer and such order will be deemed to constitute valid delivery.
7.1. Unless otherwise specifically arranged and / or agreed with the Company, all goods which are sold on a cash on delivery basis must be paid on presentation of invoice, and all goods which are sold in terms of any credit facilities which are granted to a Customer are payable strictly within 30 days from the current statement date which date shall be deemed to be the last day of every month.
7.2. If a Customer defaults in making payment of any amount that has become due and owing, then the full balance outstanding will be due and payable and the Company may take such action as they see fit to recover money due.
7.3. The Customer shall be precluded from raising any complaints or disputing liability to the Company in any way unless it shall have notified the Company of its complaints or grounds of dispute in writing within seven (7) days of receipt of the goods in question. Subject to the foregoing, the Company shall in its discretion be entitled to either remedy any failure by adjusting or replacing the goods in question, or refund the whole or part (as the case may be) of the contract price paid to it by the Customer in respect of such goods.
7.4. Until such time as the Customer has paid the purchase price in full in respect of any purchase of goods, the ownership in and to all such goods shall remain vested in the Company. The Company shall, in its sole discretion, without notice to the Customer, be entitled to take possession of any such goods which have not been paid and in respect of which payment is overdue, in which event the Customer shall be entitled to a credit in respect of the goods so returned being the price at which the goods are sold or the value thereof as determined by the Company. The Customer hereby waives any right it may have for a spoliation order against the Company in the event that the Company take possession of any goods.
7.5. The Company does not appoint the post office as its agent for payments by post. All payments shall be made to the Company’s place of business from where the goods were ordered. In the event of any payments being mislaid or lost in the post, the Customer shall still be liable to the Company for payment.
8.1. No warranties, representations or guarantees have been made by the Company or on its behalf to induce the Customer to sign this document.
8.2. No relaxation or indulgence which the Company may at any time grant to the Customer 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 of the Company’s rights in terms hereof.
8.3. The headings of this document are included for convenience and are not to be taken into account for the purpose of interpreting this agreement.
8.4. Each of the terms herein shall be a separate and divisible term and if any such terms become unenforceable for any reason whatsoever, then that term shall be severable and shall not affect the validity of the other terms.
8.5. An extension of time or relaxation or indulgence granted by the Company to the Customer will not operate as or be deemed to be a waiver of the Company’s rights nor shall such relaxation or indulgence be deemed as a novation of any of the terms and conditions set out herein, or create estoppel against the Company.
8.6. Any agreement purporting to vary the terms of this agreement, or any consensual cancellation, shall not be valid unless reduced to in writing and signed by a duly authorised representative from both the Company and the Customer.
8.7. In these conditions unless the context otherwise requires, words imparting one gender shall include the other gender, words imparting the singular shall include the plural and vice versa and a natural person shall include an artificial person and vice versa.
8.8. The Company shall at any time be entitled to terminate this agreement and claim payment of any outstanding amount, whether the same be due or not, in the event of there being any breach by the Customer of any of the terms of this agreement.
8.9. In the event of a dispute between the parties, the Customer agrees that these terms and conditions shall take precedence over any other terms and conditions which it might have entered into.
8.10. The Customer agrees and acknowledges that in the event of –
8.10.1. The Customer breaching any condition contained in these conditions; or
8.10.2. The Customer failing to pay any amount due and payable on due date to the Company; or
8.10.3. The Customer suffering any civil judgment to be taken or entered against it; or
8.10.4. The Customer causing a notice of surrender of its estate to be published in the terms of the Insolvency Act No. 24 for 1936, as amended; or
8.10.5. The Customer dying; or
8.10.6. The Customer’s estate being placed under an order of final sequestration of final winding up or provisional or final judicial management, or business rescue, as the case may be;
then and in the event the Company shall, without detracting from any other remedies which may be available to it, be entitled to summarily cancel the sale of the goods to the Customer without notice to the Customer, and to repossess those goods sold and delivered by the Company to the Customer, or to claim specific performance of all the Customer’s obligations whether or not such obligations would otherwise have fallen due for performance, in either event, without prejudice to the Company’s rights to claim damages.
8.11. It is agreed that set-off shall operate automatically as a matter of law at the moment reciprocal debts between the Customer and the Company come into existence and independently of the will of the parties it shall not be necessary for either the Company or the Customer to specifically raise set-off. Upon the operation of an automatic set-off aforementioned, the debts shall be mutually extinguished to the extent of the lesser debt.
8.12. The Customer does hereby irrevocably and in rem suam cede, pledge, assign, transfer and make over unto and in favour of the Company, all of its rights, title, transfer and make over unto and in favour of the Company, all of its rights, title, interest, claim and demand in and to all claims/debts/book debts of whatsoever nature and description and howsoever arising which the Customer may now or at any time hereafter have against all and any person, companies, corporations, firms, partnerships, associations, syndicates and other legal personae whomsoever (the Customers’ debtors) without exception as a continuing covering security for the due payment if every sum of money which may now or at any time hereafter be or become owing by the Customer to the Company from whatsoever cause or obligation howsoever arising which the Customer may be or become bound to perform in favour of the Company.
8.13. Should it transpire that the Customer at any time entered into prior deed or cession or otherwise disposed of any of the right, title and interest in and to any debts which will from time to time be subject to this cession, then this cession shall operate as a cession of all the Customer’s revisionary rights. Notwithstanding the terms of the foregoing cession, the Customer shall be entitled to institute action against any of its debtors provided that all sums of money which the Customer collects from its debtors shall be collected on the Company’s behalf and provided further that the Company shall at any time be entitled to terminate the Customers right to collect such monies / debts.
8.14. The Customer agrees that the Company shall be entitled at any time or time hereafter to give notice of this cession to all or any of the Customers’ debtors.
8.15. The Customer further agrees that the Company shall at any time, be entitled to inspect any of the Customers’ books or records and in addition shall be entitled to take possession of such books and records (of whatsoever nature) to give effect to the terms of this cession.
- NOTICES AND SERVICE
9.1. The Customer nominates as its domicilium citandi et executandi, the address reflected on the face of this agreement under the heading business physical address and will be used by the Company for all communications with the Customer, including-
9.1.1. Service of any court process;
9.1.3. Payments of any amount.
9.2. The Customer undertakes to notify the Company forthwith in writing of any change of address.
- LEGAL PROCEEDINGS
10.1. The Customer consents to the jurisdiction of the Magistrate’s Court in terms of Section 45 of the Magistrate’s Court Act No. 32 of 1944 (as amended) having jurisdiction under Section 28 of the said Act, notwithstanding that the claim by the Company exceeds the normal jurisdiction of the Magistrate’s Court as to amount. The Company shall be entitled to proceed against the Customer in any other Court of competent jurisdiction, notwithstanding the foregoing.
10.2. In the event of the Company instructing Attorneys / Collecting Agency to collect from the Customer an amount owing to the Company, the Customer agrees to pay all costs on the scale as between Attorneys / Agency and Own client including collection charges, tracing fees and the like.
10.3. A certificate under the hand of any authorised representative of the Company as to the existence and the amount of the Customer’s indebtedness to the Company at any time, as to the fact that such amount is due and payable and as to any other fact, matter or thing relating to the Customer’s indebtedness to the Company, shall be conclusive proof of the content and correctness thereof and of the amount of the Customer’s indebtedness for the purpose of the provisional sentence or summary judgment or any other proceeding against the Customer in any Competent Court, and shall be valid as a liquid document for such purposes. It shall not be necessary to prove the appointment of the person signing such certificate and such certificate shall be binding on the Customer and shall be deemed to be sufficient particularly for the purpose of pleading or trial in any action or other proceeding instituted by the Company against the Customer.
10.4. Notwithstanding the terms above, the Company shall be entitled, but not obliged, whether legal action has commenced or not, to submit any dispute between the parties to arbitration. The arbitration shall be held in Cape Town within sixty days after it has been demanded before a mutually agreed person, and failing agreement to be selected by the President of the Legal Practice Council for the Western Cape. The arbitration shall be held in a summary manner and the strict rules of evidence shall not apply. The arbitrator shall decide on the issues of pleading and discovery but shall do so on the basis that the matter is to be expedited and brought to arbitration within the sixty day period and in an informal manner. The arbitrator shall decide the matter submitted to him according to what he considers just and equitable in the circumstances and therefore the strict rule of law need to be observed or take into account by him in arriving at this decision. The parties hereto agree that the decision of the arbitrator shall be binding on each of them, and shall be made an order of court of competent jurisdiction should it be necessary to execute under the arbitrators’ order. The arbitrator’s decision shall further be final and binding upon the parties and the arbitrator shall be entitled to make an order for costs in regard to arbitration.
- FORCE MAJEURE
11.1. If the agreement becomes wholly or partially impossible to perform due to causes beyond the control of the Company, such causes to include, but not be limited to; war, civil insurrection, vis maior, Government action and industrial disputes, the Company shall be permitted to rescind the agreement at its discretion. If deliveries of goods or services shall be delayed as a result of such causes, the Company shall not be construed as being in breach of the agreement.