STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES
1. INTRODUCTION
1.1. The terms and conditions of purchase and sale set out herein ("Terms and Conditions") shall apply to all procurement and supply of goods ("the Goods") and services ("the Services") by the Supplier to the Customer, its Subsidiaries and any Company or Individual within the Customer Group ("the Company"), where a procurement has arisen from a purchase order ("Purchase Order") issued by the Company or its Employees or Representatives and accepted by the Supplier, by way of any form of communication including but not limited to phone, text message, email, verbal or written.
1.2. This Agreement shall apply between the Supplier and the Customer issuing the Purchase Order.
1.3. The Supplier and the Customer shall collectively be referred to as "the Parties" and "Party" shall refer to any one of them.
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2. WHOLE AGREEMENT
2.1. The agreement between the Parties comprises of (a) these Terms and Conditions and (b) the provisions of any other specific conditions notified in writing by the Supplier to the Customer and (c) the provisions of any other specific conditions agreed in writing between the Parties.
2.2. The Agreement is the sole record of the agreement between the Parties and may only be varied or waived in a written, signed document between the Supplier and the Customer.
2.3. Any standard terms and conditions that the Customer may have notwithstanding their reference to or inclusion in any Purchase Order, or otherwise, shall not be binding on the Supplier.
2.4. No undertaking, representation, term or condition not incorporated in this Agreement and/or any Purchase Order shall be binding on either of the Parties.
2.5. The Parties agree that the Supplier is an independent contracting party and that the Agreement does not constitute a contract of agency, representation, employment or partnership with the Customer. The Supplier shall not incur any liability whatsoever for or on behalf of the Customer.
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3. PURCHASE ORDERS
3.1. Purchase Orders may be placed by the Customer by phone, text message, email, verbal or written communication.
3.2. Should there appear to be any discrepancy or ambiguity in description or quantities in a Purchase Order, the Customer shall immediately notify the Supplier for a decision before proceeding with the Purchase Order.
3.3. Amendment to the Purchase Order shall be subject the Supplier’s acceptance. No amendment to a Purchase Order will be valid unless agreed to in writing by both Parties and incorporated in an amended Purchase Order.
3.4. Purchase Orders may be cancelled by the Supplier at any time at the sole discretion of the Supplier.
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4. PRICE AND PAYMENT
4.1. The price for the Goods and/or Services ("the Price") shall be the price specified on the Invoice and shall be paid to the Supplier in the amount as indicated therein. Unless expressly stated to the contrary:
(a) the Price shall be exclusive of Tax and shall include standard packaging.
(b) the Customer shall be responsible for delivery costs.
4.2. Should the Customer have any dispute with price, the Customer shall notify the Supplier immediately upon receiving the invoice. The invoice shall be deemed accepted by the Customer unless immediate notification via email or text message is received by the Supplier.
4.3. There shall be no payment deductions made by the Customer relating to any Supplier invoice, without the Customer having received a Credit Note from the Supplier directly relating to any such deduction.
4.4. Standard Payment Terms are payment within seven (7) days of invoice, or before supply of any further order (whichever is the sooner).
4.5. The customer agrees to the Standard Payment Terms, unless the Parties have agreed in writing to any other payment terms.
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5. OWNERSHIP AND RISK IN THE GOODS
5.1. Ownership of the Goods shall remain with the Supplier until the Supplier has received payment for all outstanding invoices in full from the Customer. Part or partial payment of invoices does not constitute transfer of ownership of Goods.
5.2. If the Customer is collecting the Goods, it shall be the responsibility of the Customer to inspect the Goods and be satisfied with the quality of the Goods at the time of collection. No quality of Goods risk shall be borne by the Supplier after the Goods are in the possession of the Customer and have departed the premises of the Supplier.
5.3 If the Supplier is delivering the Goods to the Customer, the Customer must immediately inspect and be satisfied with the quality of the Goods upon delivery. Quality of goods risk shall be deemed passed to the Customer upon delivery, unless the Customer immediately raises a concern upon delivery of Goods.
5.4. It is the responsibility of the Customer to ensure that they have adequate frozen storage capacity and reliability, to receive and store frozen goods. There shall be no retrospective quality of Goods risk borne by the Supplier after the Goods are in possession of the Customer.
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6. WARRANTIES BY SUPPLIER
6.1. The Supplier warrants that Goods shall (unless otherwise stated in the Purchase Order) be new, merchantable, of agreed quality and description, in working order, fit for their intended purpose and free from contaminants, defects in materials, workmanship and design and shall be usable and durable for a reasonable period of time.
6.2. The Supplier warrants that the Goods are not subject to any lien, pledge, mortgage, notarial bond, judicial attachment or other encumbrance and that the Supplier is entitled to transfer ownership thereof to the Customer.
6.3. The Supplier warrants that there are no circumstances, facts or reasons which are known, or ought to be known by the Supplier, which should have been disclosed to the Customer and which would have influenced the Customer's decision in appointing the Supplier to supply the Goods and/or Services.
7. WARRANTIES BY CUSTOMER
7.1. The Customer enters this Agreement in solvent financial standing, without reason to believe in any way that they cannot or may not be able to meet their payment and other obligations under this Agreement.
7.2. Refrain from any conduct which may be detrimental to the image, good name and reputation of the Supplier.
7.3. Comply with all applicable laws including relevant statutes, ordinances, by-laws and regulations having any bearing on the Agreement and will obtain all necessary licenses, permits and approvals that it requires to perform its obligations and shall ensure that its employees do the same.
7.4. The Customer warrants that they have adequate, safe and effective frozen storage facilities, to reliably keep Goods frozen and maintain the integrity of the Goods.
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8. HEALTH AND SAFETY
8.1. The Customer shall abide by all Health and Safety requirements at the premises of the Supplier if visiting or collecting goods in accordance with the Suppliers established procedures.
8.2. The Customer shall ensure a safe workplace environment for delivery of Goods by the Supplier and ensure that its employees are fully conversant with and comply with the site rules.
8.3. The Parties shall co-operate with their respective Health and Safety rules, and any safety officer, and/or any other person in charge of the relevant premises and the follow any instructions and directives issued by such person.
9. INDEMNITY
9.1. The Customer indemnifies and absolves the Supplier from any claims, damages, losses and any other liability (whether jointly or individually) arising from any cause whatsoever or based on any ground of liability.
9.2. The Customer accepts risk of Goods liability upon collection or delivery of Goods and indemnifies the Supplier wholly from any first or third party claims arising from unsafe, defective, contaminated, hazardous or deficient Goods/Services brought against the Customer.
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10. ETHICAL BUSINESS PRACTICES
10.1. The Supplier is committed to conducting its business ethically and to achieving and maintaining the highest standards of corporate governance. The Supplier requires all of its business Customers, who play an important and valued role in its continuing business success, to behave ethically and to avoid engaging in corrupt business activities, unethical behavior, discrimination on the basis of race or gender.
10.2. The Customer shall not give or offer to give (directly or indirectly) to any person any bribe, gift, gratuity, commission or any other thing of value for obtaining favorable treatment or taking any action for the purpose of influencing any act or decision pertaining to the Supplier.
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11. PRIVACY AND DATA PROTECTION
11.1. The Customer shall at all times during the performance of its obligations in terms of this Agreement ensure that (a) no data collected from any person during the supply of the Goods/Service is sold, disclosed, commercially exploited, or used in any way other than as expressly authorized by the Supplier and (b) ensure that it processes data for only the express purpose for which it was obtained.
11.2. The Customer consents to the collection, processing and further processing of its personal information (including personal information contained in electronic communications) by the Supplier for the purposes of implementing this Agreement and facilitating the supply of Goods and/or Services.
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12. INTELLECTUAL PROPERTY RIGHTS
12.1. The Customer warrants that no aspect of this Agreement infringes any intellectual property rights and hereby indemnifies and holds harmless the Supplier against any loss, damages or expense sustained by the Customer as a consequence of any breach of this warranty.
12.2. Any and all intellectual property owned, developed or acquired by a Party prior to this Agreement coming into effect shall remain the sole and exclusive property of the Party who is the lawful proprietor thereof and any and all rights of the Parties in terms of this Agreement shall be subject to the other Party’s intellectual property rights.
12.3. Any intellectual property made, created or discovered by the Customer in the course and scope of this Agreement in connection with or relating to the business of the Supplier, shall be disclosed to the Supplier and shall belong to and be the absolute property of the Supplier.
13. CONFIDENTIALITY
13.1. The Customer agrees to treat as strictly confidential the operations, business and affairs of the Supplier and not to divulge any information relating thereto to any third party, agent or employee without the prior written consent of the Supplier, save as is required by law.
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14. BREACH
14.1. The Supplier reserves the right to terminate the Agreement and cease supply to the Customer, for any reason, at the sole discretion of the Supplier.
14.2. The Customer shall have no right of recourse, nor rights to claim damages or to enforce any other remedy to which it may be entitled whether in terms of the Agreement or in law as a result of any such termination.
14.3. In addition the Supplier shall be entitled to cancel the Agreement forthwith if:
(a) the Customer is either provisionally or finally wound-up/sequestrated or seeks to make a compromise with its creditors; or
(b) the Customer is provisionally or finally liquidated, is placed under judicial management or becomes financially distressed; or
(c) the Customer commits a breach of the Agreement which cannot be rectified; or
(d) during the course of supplying the Goods and/or the Services, the Customer contravenes the provisions of any applicable law.
14.4. In the event of any legal proceedings against the Customer, the Supplier shall be entitled to recover its legal costs on an attorney-and-client scale.
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15. FORCE MAJEURE
15.1. “Force Majeure Event" means an event that prevents or delays a Party from being able to perform an obligation other than the payment of money under this Agreement, where such event would constitute force majeure, such as wars, insurrections, strikes, acts of God, governmental actions or controls, water restrictions or other causes beyond the control of a Party;
15.2. Should any Party be prevented by reason of Force Majeure from performing its obligations in terms hereof, then such failure shall not be regarded as a breach of its obligations in terms hereof provided that:
(a) the Party hereto subject to Force Majeure shall give prompt notice to the other Party hereto of the nature and estimated duration of the Force Majeure concerned;
(b) the Parties hereto shall co-operate and collaborate together and use all reasonable efforts to overcome the Force Majeure concerned and/or nullify its effect; and
(c) any suspension of performance within the provisions of the above shall be limited to the period during which such inability shall exist and the period of this Agreement shall be interrupted by the period of such suspension.
15.3. If the aforementioned inability substantially or permanently prevents the continued performance by either Party of its obligations in terms of this Agreement for a period exceeding fourteen (14) consecutive days, then either Party shall be entitled, by giving notice in writing, to terminate this Agreement in respect of any of its obligations still to be performed hereunder.
16. NOTICES
16.1. The Supplier nominates its registered address for service upon it of all processes in connection with any claim arising from the Agreement. The Customer nominates its address as stipulated in the Customer On-Boarding Email for service upon it of all processes in connection with any claim arising out of the Agreement.
16.2. All notices and communications under the Agreement shall be given in English and in writing. For the purposes of the Agreement, "writing" means e-mails that have been acknowledged by the recipient or letters sent by registered post with proof of delivery. Oral agreements, notices or instructions are not binding on either Party.
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17. GENERAL
17.1. This Agreement shall be governed by the laws of the country in which the Goods were supplied to the Customer.
17.2. No failure or neglect by a Party to exercise any rights hereunder or to insist upon strict compliance with or performance of another Party’s obligations under the Agreement, shall constitute a waiver of the provisions of the Agreement and a Party may at any time require strict compliance with the provisions of the Agreement.
17.3. No indulgences or extensions of time or latitude which one of the Parties may allow to the other Party shall constitute a waiver by that Party of any of its rights, and it shall not thereby be prevented from exercising any of its rights which may have arisen in the past or may arise in the future.
17.4. Each of the provisions of the Agreement shall be considered as separate terms and conditions. In the event that the Agreement is affected by any legislation or any amendment thereto, or if the provisions herein contained are by virtue of such legislation or otherwise held to be illegal, invalid or unenforceable, then any such provisions shall be ineffective only to the extent of the illegality, invalidity or unenforceability and each of the remaining provisions hereof shall remain in full force and effect as if such illegal, invalid or unenforceable provision was not a part hereof.
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