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KRAFT FOODS
("The Seller")
STANDARD
TERMS & CONDITIONS OF SALES
1. APPLICATION
1.1 These Terms and
Conditions (the "Conditions") alone shall govern and be incorporated
in every contract for the sale of goods made by or on behalf of the Seller with
any customer ("the Buyer").
They shall apply in place of and prevail over any terms or conditions
(whether or not in conflict with or inconsistent with these Conditions),
contained or referred to in any documentation submitted by the Buyer or in
correspondence or elsewhere or implied by trade, custom, practice or course of
dealing unless specifically excluded or varied in writing by a director or
other authorised representative of the Seller and any purported provisions to
the contrary are hereby excluded or extinguished.
1.2 Acceptance by
the Buyer of delivery of the goods shall, without prejudice to Condition 2 or
any other manner in which these Conditions are accepted (including without
limitation the receipt by the Buyer of any document upon which these Conditions
are printed or incorporated) be deemed to constitute unqualified acceptance of
these Conditions.
1.3 If subsequent to
any contract of sale which is subject to these Conditions, a contract of sale
is made with the same buyer without reference to any conditions of sale or
purchase, such contract howsoever made shall be deemed to be subject to these
Conditions.
2. QUOTATIONS AND ACCEPTANCE
2.1 The Seller reserves the right to
accept or refuse any order in whole or in part.
2.2 A quotation by the Seller does not
constitute an offer and the Seller reserves the right to withdraw or revise a
quotation at any time prior to the Seller's acceptance
of the Buyer's order.
2.3 The Seller's
acceptance of the Buyer's order (including telephone orders) shall be effective
only when the Seller delivers the goods to the carrier for shipment to the Buyer
or to a person appointed by the Buyer.
3. PRICES
3.1 The prices
payable for the goods shall be those set out in the Seller's list prices and
any promotional discounts current at the date the goods are despatched to the
buyer. The Seller shall have the right
at any time to withdraw any discount or commission from its normal prices.
3.2 Unless otherwise stated, all prices
are quoted in South African (ZAR) currency.
3.3 Unless otherwise specified any tax or
duties payable by the Buyer shall be added to the price.
4. TERMS OF PAYMENT
4.1 Payment will be made in ZAR.
4.2 The payment must
be done from Buyer’s bank account as either direct transfer from Buyer’s bank
account into Seller’s bank account or by depositing cheques made out from
Buyer’s cheque book into Seller’s bank account. In exceptional cases and only
if agreed between the parties, the payment can be done by cheque made out from
Buyer’s cheque book and collected and deposited by Seller.
4.3 Payment of
invoices shall unless otherwise specified in writing be made in full without
any deduction, set-off or counterclaim within 30 days of the date of the
statement generated by the Seller and delivered to the Buyer, which statement
shall reflect all goods invoiced to the Buyer over the preceding period of 30 calendar days. Time of payment shall be of the essence of
all contracts between the Buyer and the Seller to which these Conditions apply. The Seller reserves the right to suspend the
provision of goods to the Buyer where any amounts are overdue under any
contract with the Buyer until all such amounts have been paid.
4.4 If required by the Seller the Buyer
shall make payment in full in cash in advance of despatch of the goods to the
Buyer.
4.5 If required by
the Seller the price of any goods shall be secured by an irrevocable letter of
credit satisfactory to the Seller established by the Buyer in favour of the
Seller immediately upon receipt of the Seller's Order Confirmation Report and
confirmed by a reputable bank agreed in advance with the Seller. The letter of credit shall be for the price
payable for the goods (together with any tax or duty payable) to the Seller and
shall be valid for at least 4 months or such longer period as shall have been
stipulated in writing by the Seller. The
Seller shall be entitled to payment on presentation to such bank of the
documents specified by the Seller.
4.6 Any extension of
credit allowed to the Buyer may be changed or withdrawn at any time, and in the
event that the Buyer shall have exceeded or will exceed the credit so granted,
the Seller reserves the right to withhold any further deliveries.
4.7 Interest shall
be payable on overdue accounts at the rate per annum equal to 2% over the prime
overdraft rate (nominal annual compounded monthly in arrears) from time to time
as quoted by First National Bank, to accrue from the due date for payment until
receipt by the Seller of the full amount whether before or after judgment.
4.8 If in the opinion
of the Seller the creditworthiness of the Buyer shall have deteriorated prior
to delivery of the goods the Seller may require full or partial payment of the
price prior to such delivery or the provision of security for payment by the
Buyer in a form acceptable to the Seller.
4.9 Any expenses of
any nature and howsoever arising (including but not limited to legal costs and
collection commission) incurred by the Seller as a result of the Buyer’s
failure to settle any amount when due
shall be borne by the Buyer.
5. DELIVERY
5.1 Delivery or
despatch dates mentioned in any quotation, Order Confirmation Report or
elsewhere are approximate only and not of any contractual effect and the Seller
shall not be under any liability to the Buyer in respect of any failure to
deliver on any particular date or dates.
Time for delivery shall not be of the essence of any contract to which
these Conditions apply and shall not be made so by the service of any notice.
5.2 Delivery shall
take place in accordance with the trade terms and shall be deemed to have taken
place in the event that the signature of the Buyer, or its representative
appears on the Sellers delivery note.
5.3 If the Buyer
refuses or fails to take delivery of goods tendered in accordance with any confirmed
order or fails to take any action necessary on its part to enable the Seller to
effect or complete delivery and/or shipment of the goods the Seller shall be
entitled to terminate the contract or arrangement with immediate effect, to
dispose of the goods concerned as the Seller may determine, and to recover from
the Buyer any loss and additional costs incurred as a result of such refusal or
failure (including without limitation storage costs from the due date of
delivery).
5.4
Unless otherwise expressly
agreed the Seller may effect delivery in one or more instalments. Where delivery is effected by instalments
each instalment
shall be treated as a separate contract governed by these
Conditions.
6. RISK AND TITLE
6.1 Subject to the provisions of 6.2 risk
in the goods shall pass to the Buyer on delivery of the goods.
6.2 Any goods in which title has passed to
the Buyer but are in the possession or control of the Seller shall be held by
the Seller at the Buyer's risk.
7. WEIGHT
All
goods in packaged form or sealed containers are sold at weight when packed; no
allowance is made in any case for shrinkage due to natural causes.
8. LIABILITY
8.1 THE SELLER SHALL NOT BE LIABLE TO THE
BUYER:
(a) FOR NON-DELIVERY UNLESS A WRITTEN CLAIM IS RECEIVED BY THE
SELLER WITHIN 6 WEEKS FROM THE DATE OF THE SELLER'S INVOICE;
(b) FOR DEFECTS IN
THE GOODS CAUSED BY FAIR WEAR AND TEAR, ABNORMAL OR UNSUITABLE CONDITIONS OF
STORAGE OR USE OR ANY ACT,
NEGLECT OR DEFAULT OF THE BUYER OR OF ANY THIRD PARTY;
(c) FOR OTHER
DEFECTS IN THE GOODS UNLESS NOTIFIED TO THE SELLER WITHIN 1 MONTH OF RECEIPT OF
THE GOODS BY THE BUYER, OR, WHERE THE DEFECT WOULD NOT BE APPARENT ON
REASONABLE, INSPECTION, WITHIN 3 MONTHS OF DELIVERY AND IT CAN BE SHOWN THAT
THE PRODUCT WAS DEFECTIVE AT THE TIME OF DELIVERY; and
(d) FOR SHORTNESS
OR EXPIRY OF SHELF LIFE UNLESS IT CAN BE SHOWN BY THE BUYER THAT THE PRODUCT
HAD EXPIRED AT THE TIME OF
DELIVERY.
8.2 IN THE EVENT OF A CLAIM, THE BUYER
MUST GIVE THE SELLER OR ITS REPRESENTATIVE AN OPPORTUNITY TO INSPECT THE GOODS
IN QUESTION.
8.3 WHERE LIABILITY
IS ACCEPTED BY THE SELLER UNDER CONDITIONS 10.1 THE SELLER'S ONLY OBLIGATION
SHALL BE AT ITS OPTION TO MAKE GOOD ANY SHORTAGE OR NON DELIVERY AND/OR AS
APPROPRIATE TO REPLACE OR REPAIR ANY GOODS FOUND TO BE DAMAGED OR DEFECTIVE
AND/OR TO REFUND THE COST OF SUCH GOODS TO THE BUYER.
8.4 THE SELLER'S
AGGREGATE LIABILITY TO THE BUYER WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT,
MISREPRESENTATION OR OTHERWISE SHALL IN NO CIRCUMSTANCE EXCEED THE COST OF THE
DEFECTIVE, DAMAGED OR UNDELIVERED GOODS WHICH GIVE RISE TO SUCH LIABILITY AS
DETERMINED BY NET PRICE LESS COMMISSIONS AND DISCOUNTS INVOICED TO THE BUYER IN
RESPECT OF ANY OCCURRENCE OR SERIES OF OCCURRENCES.
8.5 SUBJECT TO THIS CONDITION 10:
(a) ALL CONDITIONS,
WARRANTIES AND REPRESENTATIONS EXPRESSED OR IMPLIED BY STATUTE, COMMON LAW OR
OTHERWISE IN RELATION TO THE GOODS ARE HEREBY EXCLUDED;
(b) THE SELLER SHALL
BE UNDER NO LIABILITY TO THE BUYER IF THE BUYER MAKES USE OF THE GOODS, SELLS
THEM OR OTHERWISE DISPOSES OF THEM AFTER HAVING DISCOVERED THAT THEY ARE
DEFECTIVE OR DAMAGED OR THAT THE SHELF LIFE OF THE GOODS HAS EXPIRED;
(c) THE SELLER
SHALL BE UNDER NO LIABILITY TO THE BUYER FOR ANY LOSS, DAMAGE OR INJURY, DIRECT
OR INDIRECT, RESULTING FROM ANY DEFECTS OR DAMAGE TO THE GOODS, HOWSOEVER
CAUSED;
(d) THE SELLER
SHALL HAVE NO LIABILITY FOR ANY INDIRECT OR CONSEQUENTIAL LOSSES OR EXPENSES
SUFFERED BY THE BUYER, HOWSOEVER CAUSED, AND INCLUDING WITHOUT LIMITATION LOSS
OF ANTICIPATED PROFITS, GOODWILL, REPUTATION, BUSINESS RECEIPTS OR CONTRACTS,
OR LOSSES OR EXPENSES RESULTING FROM THIRD PARTY CLAIMS.
8.6 Notwithstanding
the foregoing, nothing contained in this clause 10 shall be deemed to preclude
the Seller in its sole and absolute discretion from accepting the return of
damaged and/or expired goods from the Buyer. In the event that the Seller
agrees to accept the return of such damaged and/or expired goods, and the buyer
produces the invoice to which the damaged and/or expired goods relate, the
Buyer will be credited the amount of the damaged and/or expired goods as per
the invoice. In the event that the damaged and/or expired goods cannot be
traced (and in this regard the Seller reserves the right to trace the invoice
via its own records) the Buyer will be credited at the prevailing price list
when the damaged and/or expired goods are returned to the Seller.
9. PACKAGING
The
Buyer shall meet the cost of any special packaging requested by the Buyer or
any packaging rendered necessary by delivery by any means other than the
Seller's
normal
means of delivery.
10. LICENCES AND CONSENTS
If
any licence or consent of any government or other authority shall be required
for the acquisition, importation, carriage, sale or use of the goods by the
Buyer the Buyer shall obtain the same at its own expense and if requested
produce evidence of the same to the Seller on demand. Failure to obtain any licence or consent shall
not entitle the Buyer to withhold or delay payment of the price. Any additional expenses or charges incurred
by the Seller resulting from such failure shall be for the Buyer's account.
11. FORCE MAJEURE
11.1 The Seller shall
not be liable to the Buyer for any loss or damage which may be suffered by the
Buyer as a direct or indirect result of the supply of goods by the Seller being
prevented, hindered, delayed, cancelled or rendered uneconomic by reason of
circumstances or events beyond the Seller's reasonable control ("force
majeure circumstances") including but not limited to acts of God, fire,
flood, storm, war, riot, armed conflict, rebellion, strike, lock-out trade
disputes or labour disturbance, accident, break-down of plant or machinery,
difficulty or increased expense in obtaining workmen, materials or transport.
11.2 In force majeure
circumstances the Seller may in its sole discretion terminate any contract for
the supply of goods pursuant to these Conditions or cancel delivery of goods to
the Buyer or may, with the agreement of the Buyer deliver goods at an agreed
rate of delivery commencing after any suspension of deliveries.
11.3
If due to force
majeure circumstances the Seller has insufficient stocks to meet all its
commitments the Seller may apportion available stocks
between
its customers at its sole discretion.
12. SAMPLES
Any
samples supplied to the Buyer are supplied solely for information and in no way
import any express or implied conditions or warranties as to quality,
description, fitness for purpose or merchantable quality and the Buyer shall be
deemed to have satisfied itself as to such matter prior to ordering the goods.
13. TERMINATION
13.1 If the Buyer
becomes insolvent or bankrupt or subject to any winding up procedure or make
any arrangements with its creditors or if receiver or administrator or
equivalent appointed of all or any of its assets or undertakings or any
reorganisation takes place for the purposes of amalgamation or reconstruction
the Seller may without prejudice to any of its other rights stop any goods in
transit and/or suspend further deliveries to the Buyer and/or by notice in
writing to the Buyer terminate with immediate effect any contract with the
Buyer.
13.2 Upon termination
of any contracts pursuant to Condition 13.1 any indebtedness of the Buyer to
the Seller shall become immediately due and payable and the Seller shall be
relieved of any further obligation to supply any goods to the Buyer pursuant to
such contracts.
14. ASSIGNMENT
None
of the rights or obligations of the Buyer under these Conditions may be
assigned by operation of law or otherwise without the prior written consent of
the Seller.
15. HEADINGS
The
headings of these Conditions do not form part of the Conditions and shall not
affect the interpretation.
16. SEVERABILITY
If
any of these Conditions is held to be invalid, illegal or unenforceable in any
respect whether in whole or in part such invalidity, illegality or
unenforceability shall not prejudice the effectiveness of the rest of these
Conditions or the remainder of any part of a Condition affected.
17. WAIVER
Failure
by the Seller to exercise or enforce any rights under any contract subject to
these Conditions shall not be deemed to be a waiver of any such right nor
operate so as to bar the exercise or enforcement of such right at any time
thereafter.
18. NOTICES
Any
notice hereunder shall be in writing and be deemed to have been duly given if
delivered by hand at or sent by prepaid registered post or airmail if overseas
or by telefax to the address or telefax number of the relevant party set out in
any contract between the parties or at its last known address. Notices shall be deemed to have been given if
delivered by hand at the time of delivery, if sent by post, two days after
posting or six days after posting if sent by airmail; and if sent by telefax,
when sent.
19. GOVERNING LAW
Any
contract to which these Conditions apply shall be governed by and construed in
accordance with the laws of the Republic of South Africa and the parties hereby
submit to the non-exclusive jurisdiction of the South African Courts.