AFGRI Equipment Conditions of Sale
PLEASE READ THE FOLLOWING PROVISIONS, TERMS AND CONDITIONS CAREFULLY AS THE SALE OF PARTS AND EQUIPMENT AND / OR RENDERING OF SERVICES BY AFGRI EQUIPMENT A DIVISION OF AFGRI OPERATIONS PROPRIETARY LIMITED WILL BE SUBJECT TO THESE PROVISIONS, TERMS AND CONDITIONS.
1.1 In this Agreement:
1.1.1 “Agreement” shall mean these terms and conditions and all annexures if applicable;
1.1.2 “AFGRI Equipment” shall mean AFGRI Equipment, a division of AFGRI OPERATIONS PROPRIETARY LIMITED, registration number 1995/005872/07, a limited liability private company duly registered in accordance with the laws of the Republic of South Africa with its registered address at 12 Byls Bridge Boulevard, Highveld Ext 73 Centurion 0157, including its divisions, subsidiaries, affiliates and trading partners and the divisions, subsidiaries, affiliates and trading partners of its holding company and its successors or assigns intended to be governed by the provisions contained in this Agreement;
1.1.3 “CPA” shall mean the Consumer Protection Act 68 of 2008, as amended from time to time, read with the Consumer Protection Regulations 2011, promulgated thereunder;
1.1.4 “Companies Act” shall mean the Companies Act 71 of 2008, as amended from time to time, read with the Companies Regulations 2011, promulgated thereunder;
1.1.5 “Order” shall mean an order for Parts and Equipment and / or Services placed on AFGRI Equipment by the Purchaser;
1.1.6 “Purchaser” shall mean the party placing the Order and includes the Purchaser’s successors and permitted assignees;
1.1.7 “Parts and Equipment” shall mean such parts and/or equipment provided by any division or branch of AFGRI Equipment and / or any of its subsidiaries and / or any nominee and /or approved suppliers, indicated on any AFGRI Equipment forms, price lists, quotations, delivery notes, orders and invoices;
1.1.8 “Party” shall mean any one of the Parties to this Agreement. The term “Parties” shall have a corresponding meaning;
1.1.9 “Prime Rate” shall mean the publicly quoted nominal rate of interest per annum charged by ABSA Bank Limited (“the Bank”) from time to time on unsecured overdraft facilities to its most favoured corporate Purchasers, as certified by any general manager of the Bank, whose authority or appointment it shall not be necessary to prove, calculated on a nominal annual compounded monthly basis in arrears (“nacm”); and
1.1.10 “Services” shall mean any services rendered by any division or branch of AFGRI Equipment and / or any of its subsidiaries and / or any nominee and / or approved suppliers, indicated on any AFGRI Equipment forms, price lists, quotations, delivery notes, orders and invoices.
1.2 In this Agreement, unless the context otherwise requires:
1.2.1 if any provision in a definition is a substantive provision conferring rights or imposing obligations on a Party, notwithstanding that it is only in the interpretation clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement;
1.2.2 in this Agreement a Party includes a reference to that Party’s successors in title and assigns allowed at law;
1.2.3 any reference in this Agreement to:
22.214.171.124 “business hours” shall be construed as being the hours between 07h30 and 17h00 on any business day. Any reference to time shall be based upon South African Standard Time;
126.96.36.199 “days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;
188.8.131.52 “law” means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law within the explicitly mentioned country;
184.108.40.206 “person” means any person, AFGRI Equipment, close corporation, trust, partnership or other entity whether or not having separate legal personality; and
220.127.116.11 “writing” means legible writing and in English and excludes any form of electronic communication contemplated in the Electronic Communications and Transactions Act, No 25 of 2002.
1.2.4 the words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it;
1.2.5 the words “shall” and “will” and “must” used in the context of any obligation or restriction imposed on a Party have the same meaning;
1.2.6 words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement;
1.2.7 unless otherwise provided, defined terms appearing in this Agreement in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning;
1.2.8 a reference to any statutory enactment shall be construed as a reference to that enactment as at the commencement date of this Agreement and as amended or substituted from time to time;
1.2.9 unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day;
1.2.10 if the due date for performance of any obligation in terms of this Agreement is a day which is not a business day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately succeeding business day;
1.2.11 where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention;
1.2.12 the rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply;
1.2.13 the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;
1.2.14 no provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a party to this Agreement;
1.2.15 any reference in this Agreement to “this agreement” or any other agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or document, as amended, varied, novated or supplemented from time to time; and
1.2.16 in this Agreement the words “clause” or “clauses” and “annexure” or “annexures” and “schedule” or “schedules” refer to clauses and annexures or schedules to this Agreement.
2.1 The terms and conditions set out in this Agreement, together with any other standard terms and conditions of AFGRI Equipment, shall govern the purchase of the Parts and Equipment and / or rendering of the Services to the Purchaser from AFGRI Equipment to the entire exclusion of all other terms and conditions. No terms and conditions endorsed on, delivered with or contained in the Purchaser’s documentation provided to AFGRI Equipment (“other terms”) will form part of this Agreement. THIS AGREEMENT CAN ONLY BE CHANGED, OR OTHER TERMS AGREED, IN WRITTEN CORRESPONDENCE SIGNED BY A DIRECTOR OR OTHER SENIOR OFFICER OF AFGRI EQUIPMENT. NO SUBSEQUENT BEHAVIOUR OF AFGRI EQUIPMENT, IN ACCEPTING THIS AGREEMENT FROM THE PURCHASER WITH PROPOSED AMENDMENTS, CAN BE TAKEN TO IMPLY ANY ACCEPTANCE BY AFGRI EQUIPMENT OF THOSE PROPOSED AMENDMENTS. THIS AGREEMENT IS AVAILABLE FROM AFGRI EQUIPMENT ON REQUEST AND IS POSTED ON AFGRI EQUIPMENT’S WEBSITE.
2.2 The Purchaser, by accepting any quotation from AFGRI Equipment, or placing any Order with AFGRI Equipment, acknowledges that all Parts and Equipment sold and/or Services rendered by AFGRI Equipment to the Purchaser shall be subject to and governed by the terms and conditions contained in this Agreement, together with any other standard terms and conditions of AFGRI Equipment.
2.3 In the event of a conflict between the terms and conditions of this Agreement and any other terms, the terms and conditions of this Agreement shall prevail. Any conflict between the provisions of the various sections of this Agreement and any other standard terms and conditions of AFGRI Equipment will be resolved in accordance with the following order of precedence (in descending order of priority) as follows:
2.3.1 in relation to conflicts pertaining to technical and / or financial issues and / or services and / or delivery issues specific to the Parts and Equipment and / or Services being provided, the order of precedence shall be: (a) the applicable standard terms and conditions of AFGRI Equipment (including the schedules attached thereto, if any), and (b) this Agreement; and
2.3.2 in relation to all other conflicts, the order of precedence shall be (a) this Agreement, (b) the applicable standard terms and conditions of AFGRI Equipment, and (c) the annexures/schedules to the foregoing documents in the same order of precedence attaching to the documents to which they are annexed.
3.1 The price of any Parts and Equipment sold and / or Services rendered shall be at the price as per AFGRI Equipment’s written quotation in respect of a specific Order, or in the absence of a written quote, shall be AFGRI Equipment’s usual current price at the time of dispatch of the Parts and Equipment from AFGRI Equipment’s premises and/or rendering of the Services, as the case may be.
3.2 Any price letters distributed or advertisements placed by AFGRI Equipment are for guideline purposes only and shall not be binding on AFGRI Equipment. AFGRI Equipment has the right, from time to time, for any reason and without notice to the Purchaser, to change the price of any Parts and Equipment and/or Services.
3.3 Notwithstanding the placing of an Order by the Purchaser and the acceptance thereof by AFGRI Equipment, AFGRI Equipment shall be at liberty to revise quotations or prices with or without notice to the Purchaser, inter alia in the event of an increase in the cost of production of the Parts and Equipment and/or rendering of the Services or currency fluctuations which occurs after the date of placing the Order.
3.4 The nature and extent of any credit facilities granted to the Purchaser, by AFGRI Equipment, including the credit facility itself, shall be in AFGRI Equipment’s sole discretion, and AFGRI Equipment reserves the right to increase, decrease or withdraw the facility or credit limit granted to the Purchaser at any time and for any reason, provided that AFGRI Equipment immediately informs the Purchaser.
3.5 The credit limit granted to the Purchaser shall not be deemed to be the limit of the Purchaser’s indebtedness to AFGRI Equipment.
3.6 AFGRI Equipment reserves the right to adjust the value of any trade in on the equipment if the trade-in has been subject to use in excess of that agreed, changed market prices, or if damaged in any way.
3.7 AFGRI Equipment shall use its reasonable endeavours to communicate any supplier specification changes to the Parts and Equipment, but will not be held liable for any such supplier specifications changes.
3.8 The Parts and Equipment will still be deemed to be “new” if it has been moved under its own power for; delivery to AFGRI Equipment, for its pre-delivery service, for demonstrations or delivery to the destination stipulated by the purchaser.
3.9 The following payment provisions shall apply where a deposit on the Parts and Equipment is required by AFGRI Equipment:
a) Deposit equals 8% of the purchase value;
b) Interest earned at prime less 2.5% (calculated on a straight-line method;
c) Deposits (including interest) are nonrefundable if the confirmed deal is cancelled by the purchaser; and
d) Deposits will be refunded (including interest) should the transaction not transpire / Parts and Equipment not delivered following a 12 month period from the order date or Supplier cancels delivery
4.1The Purchaser shall pay the amount due to AFGRI Equipment in accordance with the agreed trading terms, into an account specified by AFGRI Equipment to the Purchaser in writing from time to time, free of deduction, demand, sett-off, bank charges or commission.
4.2All amounts due to by the Purchaser to AFGRI Equipment shall be made directly to AFGRI Equipment. No payment made to AFGRI Equipment’s sales representatives, employees, agents or third parties shall be regarded as proper payment to AFGRI Equipment until such time as the funds have been credited to the Purchaser’s account as cleared funds.
4.3 No discount or rebate granted to the Purchaser shall be binding on AFGRI Equipment unless a manager or director of AFGRI Equipment has agreed to such discount or rebate in writing. NO OTHER PERSON MAY GRANT A DISCOUNT OR REBATE ON BEHALF OF AFGRI EQUIPMENT.
4.4 Should the Purchaser fail to make any payment, or any portion thereof, timeously and in full, AFGRI Equipment shall be entitled at its sole discretion to withdraw or reverse any agreed discount or rebate; alternatively to set off the amount owing by the Purchaser against any rebate, credit, allowance or payment (if any) due to the Purchaser by AFGRI Equipment.
4.5 SHOULD THE PURCHASER’S FINANCIAL POSITION BECOME UNSATISFACTORY TO AFGRI EQUIPMENT, AFGRI EQUIPMENT SHALL BE ENTITLED TO DEMAND PAYMENT FOR ANY CONSIGNMENT IN ADVANCE AND/OR TO DEMAND SATISFACTORY SECURITY FROM THE PURCHASER.
4.7 AFGRI Equipment will allocate any payments received under this Agreement firstly to costs and fees incurred by AFGRI Equipment, thereafter to arrear or penalty interest (if any), thereafter to interest and thereafter the balance (if any) to the principal debt due and / or owing to AFGRI Equipment, provided that the longest outstanding principal debt due and/or owing shall be settled first.
4.8 IN ALL CASES WHERE THE PURCHASER USES A POSTAL BANKING, ELECTRONIC OR SIMILAR METHOD OR SERVICE TO EFFECT PAYMENT, THE SUPPLIER OF SUCH SHALL BE DEEMED TO BE THE AGENT OF THE PURCHASER.
4.9 Unless the Purchaser objects to the correctness of any entry on any statement, delivery note and/or invoice within 7 (seven) days of the date of dispatch of such statement and/or invoice, the Purchaser shall be deemed to have accepted that such entries are correct and that it does not dispute such entries.
4.10 Notwithstanding the timeous raising of a complaint or dispute of liability by the Purchaser, the Purchaser shall, under no circumstances whatsoever, be entitled to withhold payment in respect of the Parts and Equipment delivered and / or Services rendered by AFGRI Equipment, pending the resolution of such dispute or complaint.
4.11 Where the due date for payment falls on a Sunday or South African public holiday, then the amount shall be paid by the Purchaser on the following business day, except if such succeeding business day falls into a subsequent month in which event the due date for payment shall be the immediately preceding business day.
5. DIRECT MARKETING
THE PURCHASER HEREBY STATES THAT THE PURCHASER HAS NOT ENTERED INTO THIS AGREEMENT AS A RESULT OF ANY CONTACT MADE EITHER IN PERSON OR BY MAIL OR ELECTRONIC COMMUNICATION BY AFGRI EQUIPMENT OR ITS REPRESENTATIVES FOR THE DIRECT OR INDIRECT PURPOSE OF PROVIDING OR OFFERING TO SUPPLY ANY PARTS AND EQUIPMENT OR SERVICES.
6.1 Orders for AFGRI Equipment’s Parts and Equipment and / or Services shall be made in writing and directed to the address as may be nominated by AFGRI Equipment from time to time.
6.2 ALL VERBAL ORDERS SHALL BE CAPABLE OF ACCEPTANCE BY AFGRI EQUIPMENT, BUT AFGRI EQUIPMENT SHALL NOT BE RESPONSIBLE FOR ANY ERRORS OR MISUNDERSTANDINGS OCCASIONED BY THE PURCHASER’S FAILURE TO REDUCE SUCH ORDERS TO WRITING.
6.3 An Order placed with AFGRI Equipment by the Purchaser shall constitute an irrevocable offer to purchase the Parts and Equipment and / or the Services in question and shall be capable of acceptance by AFGRI Equipment, at its sole discretion, which acceptance shall be evidenced by the delivery of the Parts and Equipment and / or rendering of the Services, written acceptance and/or confirmation of the Order.
6.4 SHOULD AFGRI EQUIPMENT SUBMIT A QUOTATION TO THE PURCHASER FOR THE SALE OF PARTS AND EQUIPMENT AND/OR RENDERING OF THE SERVICES, SUCH QUOTATION AND THE AVAILABILITY OF QUOTED ITEMS AND PRICES ARE ONLY VALID FOR A PERIOD OF 5 (FIVE) DAYS AFTER THE DATE OF EACH FORMAL LETTER OF CONTRACT ISSUED BY AFGRI EQUIPMENT TO THE PURCHASER AND ARE SUBJECT TO CHANGE AFTER THE AFOREMENTIONED 5 (FIVE) DAY PERIOD.
6.5 Any acceptance by the Purchaser after the aforementioned 5 (five) day period shall constitute a counter offer by the Purchaser to AFGRI Equipment.
6.6 Any price quoted by AFGRI Equipment shall be subject to minimum purchases as stated in the quotation.
6.7 AFGRI Equipment may require a deposit to be paid when an Order is placed, in such instance should the Purchaser not take delivery and/or not make payment of the balance of the Order in accordance with the term and conditions of this Agreement, AFGRI Equipment has the right to retain such deposit.
7.1 THE PURCHASER IS LIABLE FOR ANY TRANSPORT COSTS OF THE PARTS AND EQUIPMENT FROM THE PREMISES OF AFGRI EQUIPMENT TO THE DELIVERY ADDRESS OF THE PURCHASER.
7.2 The passing of risk in the Parts and Equipment shall occur when the Parts and Equipment is collected from the relevant AFGRI Equipment premises by the Purchaser. Should AFGRI Equipment transport the Parts and Equipment to the nominated delivery address of the Purchaser, delivery and passing of risk in the Parts and Equipment shall occur when the Parts and Equipment are offloaded at the nominated delivery address of the Purchaser.
7.3 SHOULD DELIVERY OF THE PARTS AND EQUIPMENT OCCUR BY CARRIER, SUCH CARRIER SHALL BE DEEMED TO BE THE PURCHASER’S AGENT AND DELIVERY TO SUCH CARRIER (AT THE COST OF THE PURCHASER) BY AFGRI EQUIPMENT SHALL BE DELIVERY TO THE PURCHASER. IN SUCH EVENT SIGNATURE BY THE CARRIER, OR ANY EMPLOYEE OF THE CARRIER, NOTWITHSTANDING THAT IT MIGHT BE INCORRECT, ON THE DELIVERY NOTE OR INVOICE SHALL BE PRIMA FACIE PROOF OF PROPER DELIVERY OF THE PARTS AND EQUIPMENT TO THE PURCHASER.
7.4 SIGNATURE BY THE PURCHASER, OR ANY EMPLOYEE OF THE PURCHASER, OR PERSON AT ANY ADDRESS NOMINATED BY THE PURCHASER, NOTWITHSTANDING THAT IT MIGHT BE INCORRECT, ON THE DELIVERY NOTE OR INVOICE SHALL BE PRIMA FACIE PROOF OF PROPER DELIVERY OF THE PARTS AND EQUIPMENT TO THE PURCHASER.
7.5 Should the Purchaser instruct AFGRI Equipment to engage a carrier to transport the Parts and Equipment, such carrier shall be deemed to be the Purchaser’s agent. AFGRI Equipment shall engage such carrier on any terms and conditions as it deems fit. THE PURCHASER SHALL AT ALL TIMES WHETHER DURING OR AFTER TERMINATION OR EXPIRY OF THIS AGREEMENT INDEMNIFY AND KEEP AFGRI EQUIPMENT INDEMNIFIED AGAINST ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND EXPENSES (INCLUDING ALL REASONABLE LEGAL FEES) INCURRED IN CONNECTION WITH ANY LITIGATION CONCERNING OR COMPROMISE ARISING OUT OF OR IN RELATION TO ANY CLAIMS MADE AGAINST AFGRI EQUIPMENT BY SUCH CARRIER SO ENGAGED.
7.6 Any delivery times quoted for delivery by AFGRI Equipment are estimates only and shall not entitle the Purchaser to cancel any Order (or this Agreement) and / or to claim any damages for failure by AFGRI Equipment to deliver within such delivery times unless such non-compliance by AFGRI Equipment falls outside the tolerance.
7.7 IN ADDITION TO CLAUSE 7.6, IN THE INSTANCE THAT AFGRI EQUIPMENT IS UNABLE TO DELIVER WITHIN THE DELIVERY TIMES QUOTED AS A RESULT OF AN ACT OF GOD, STRIKES, FIRE, RIOT, WAR (WHETHER DECLARED OR NOT), EMBARGOES, EXPORT CONTROL, FUEL SHORTAGES, ANY POWER FAILURE AND / OR SHORTAGES, INCLUDING BUT NOT LIMITED TO LOAD SHEDDING OR ANY OTHER REASON WHATSOEVER NOT WITHIN THE REASONABLE CONTROL OF AFGRI EQUIPMENT, THE OBLIGATIONS OF AFGRI EQUIPMENT SHALL BE DEEMED TO BE SUSPENDED. AFGRI EQUIPMENT SHALL GIVE THE PURCHASER NOTICE OF SUCH FACT AS SOON AS REASONABLY POSSIBLE AND THE PARTIES SHALL NEGOTIATE IN GOOD FAITH AS TO WHEN DELIVERY IS TO OCCUR. AFGRI EQUIPMENT SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED AS A RESULT OF EVENTS CONTEMPLATED IN THIS CLAUSE 7.7. IN THE INSTANCE THAT THE PARTIES SHOULD FAIL TO AGREE AS TO WHEN DELIVERY IS TO OCCUR AFGRI EQUIPMENT SHALL BE ENTITLED TO DELIVER WITHIN A REASONABLE PERIOD OF TIME.
7.8 The Parties hereby agree that AFGRI Equipment may, make delivery of the Parts and Equipment to the Purchaser in instalments or in such other manner as may be agreed to by the Parties. The Purchaser shall be obliged to accept delivery of each such instalment.
7.9 Where Parts and Equipment are delivered in instalments, the invoices relating to such separate deliveries shall be paid as if the Parts and Equipment was the subject of a separate Order. No payment shall be postponed or withheld by virtue of delay or non-delivery of any instalment, nor shall such non-delivery or delay of any instalment affect the balance of the Order or entitle the Purchaser to cancel the Order.
7.10 AFGRI Equipment shall be entitled to withhold delivery of any undelivered instalments until all payments for any delivered instalment have been made in full.
7.11 SHOULD THE PURCHASER FAIL TO TAKE DELIVERY OF THE PARTS AND EQUIPMENT PROMPTLY, OR IN ANY WAY DELAY DELIVERY OF THE PARTS AND EQUIPMENT, THE RISK IN SUCH PARTS AND EQUIPMENT SHALL IMMEDIATELY PASS TO THE PURCHASER AND THE PURCHASER SHALL BECOME LIABLE TO PAY AFGRI EQUIPMENT THE REASONABLE COSTS OF STORING, INSURING AND HANDLING THE PARTS AND EQUIPMENT, IN ADDITION TO THE PURCHASE PRICE, UNTIL DELIVERY TAKES PLACE.
8. OWNERSHIP AND RISK
8.1 OWNERSHIP IN ANY PARTS AND EQUIPMENT DELIVERED BY AFGRI EQUIPMENT TO THE PURCHASER SHALL REMAIN VESTED IN AFGRI EQUIPMENT UNTIL PAID FOR IN FULL, HOWEVER RISK IN AND TO THE PARTS AND EQUIPMENT WILL TRANSFER TO THE PURCHASER UPON DELIVERY TO THE PURCHASER ON SUCH TERMS AS SET OUT IN CLAUSE 7.
8.2 THE PURCHASER SHALL FULLY INSURE THE PARTSLANT AND EQUIPMENT PURCHASED AGAINST LOSS OR DAMAGE UNTIL THE FULL PURCHASE PRICE HAS BEEN PAID. PENDING PAYMENT FOR THE PARTS AND EQUIPMENT, ALL BENEFITS IN TERMS OF THE INSURANCE POLICY RELATING TO SUCH PARTS AND EQUIPMENT SHALL BE CEDED TO AFGRI EQUIPMENT; THE PURCHASER HEREBY IRREVOCABLY AND UNCONDITIONALLY CEDING SUCH BENEFITS AND AFGRI EQUIPMENT HEREBY ACCEPTING SUCH CESSION.
8.3 In compliance with Section 97 of the CPA, the Purchaser is required to disclose to AFGRI Equipment the location of the Parts and Equipment delivered to it by AFGRI Equipment of any change concerning the Purchaser’s residential address and/or the address of the premises in which any Parts and Equipment that are the subject of this Agreement are ordinarily kept and the name and the address of any other person to whom possession of the Parts and Equipment has been transferred. Should Purchaser cause the Parts and Equipment to be delivered to rented premises, the Purchaser shall immediately inform the landlord of such rented premises or any persons laying claim thereto of the reservation of ownership by AFGRI Equipment in respect of such Parts and Equipment.
8.4 Should AFGRI Equipment, at its sole discretion, pack and deliver the Parts and Equipment in returnable containers; such containers shall remain the property of AFGRI Equipment and shall be returned to AFGRI Equipment as soon as possible.
8.5 All costs related to the recovery of the Parts and Equipment, shall be for the account of the Purchaser. THE PURCHASER SHALL AT ALL TIMES WHETHER DURING OR AFTER TERMINATION OR EXPIRY OF THIS AGREEMENT INDEMNIFY AND KEEP AFGRI EQUIPMENT INDEMNIFIED AGAINST ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND EXPENSES (INCLUDING ALL REASONABLE LEGAL FEES) INCURRED IN CONNECTION WITH THE REMOVAL OF ANY REPOSSESSED PARTS AND EQUIPMENT.
9. WARRANTIES, REPRESENTATIONS AND INDEMNITIES BY AFGRI EQUIPMENT
9.1 AFGRI EQUIPMENT, ITS EMPLOYEES AND/OR AGENTS GIVE NO WARRANTIES OR GUARANTEES, WHETHER EXPRESS, IMPLIED OR TACIT, TO THE PURCHASER OTHER THAN THOSE WHICH AFGRI EQUIPMENT IS OBLIGED TO GIVE IN LAW, SUCH AS:
9.1.1 THAT THE PARTS AND EQUIPMENT ARE REASONABLY SUITABLE FOR THE PURPOSE FOR WHICH THEY ARE GENERALLY INTENDED;
9.1.2THAT THE PARTS AND EQUIPMENT ARE OF GOOD QUALITY AND IN GOOD WORKING ORDER;
9.1.3THAT THE PARTS AND EQUIPMENT WILL BE USABLE AND DURABLE FOR A REASONABLE PERIOD OF TIME, HAVING REGARD TO THE USE TO WHICH THEY WOULD NORMALLY BE PUT AND TO ALL THE SURROUNDING CIRCUMSTANCES OF THEIR SUPPLY; AND
9.1.4COMPLY WITH ANY APPLICABLE STANDARDS SET UNDER THE STANDARDS ACT NO. 29 OF 1993 OR ANY OTHER APPLICABLE PUBLIC REGULATION.
9.2 AFGRI EQUIPMENT, ITS EMPLOYEES AND/OR AGENTS SHALL NOT BE LIABLE (TO THE FULLEST EXTENT PERMISSIBLE BY LAW), WHETHER IN CONTRACT OR DELICT OR OTHERWISE, FOR ANY DEFECT IN THE PARTS AND EQUIPMENT DELIVERED OR SERVICES RENDERED, FOR ANY INJURY (UNLESS AS A RESULT OF GROSS NEGLIGENCE, WILFUL DEFAULT OR FRAUD BY AFGRI EQUIPMENT OR FOR ANY DAMAGE OR LOSS RESULTING FROM SUCH DEFECT OR ANY WORK DONE IN CONNECTION THEREWITH, WHETHER THROUGH THE NEGLIGENCE (EXCLUDING GROSS NEGLIGENCE) OR OTHERWISE OF AFGRI EQUIPMENT.
9.3 AFGRI EQUIPMENT, ITS EMPLOYEES AND/OR AGENTS SHALL NOT BE LIABLE (TO THE FULLEST EXTENT PERMISSIBLE IN LAW) FOR ANY LOSS OR DAMAGE OF WHATSOEVER NATURE SUSTAINED BY THE PURCHASER OR ANY OTHER PERSON, NOR SHALL AFGRI EQUIPMENT BE LIABLE FOR DELICTUAL, SPECIAL, DIRECT, INDIRECT, GENERAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING (BUT NOT LIMITED TO) LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS.
9.4 IN THE EVENT AFGRI EQUIPMENT, ITS EMPLOYEES AND/OR AGENTS IS FOUND TO BE LIABLE FOR DAMAGES IN TERMS OF THIS AGREEMENT, THE EXTENT OF AFGRI EQUIPMENT’S LIABILITY SHALL NOT EXCEED (TO THE EXTENT PERMISSIBLE IN LAW) THE VALUE OF THE PARTS AND EQUIPMENT SOLD AND DELIVERED AND/OR SERVICES RENDERED OR AN AMOUNT OF R50 000.00 (FIFTY THOUSAND RAND) WHICHEVER IS THE LOWEST.
9.5 AFGRI Equipment do not accept any responsibility whatsoever for the correctness of instructions which appear on the Parts and Equipment not manufactured by AFGRI Equipment.
9.6 WHERE AFGRI EQUIPMENT IS NOT THE MANUFACTURER OF THE PARTS AND EQUIPMENT AFGRI EQUIPMENT WILL USE REASONABLE ENDEAVOURS TO MAKE OVER TO THE PURCHASER THE BENEFIT OF ANY WARRANTY OR GUARANTEE GIVEN BY THE MANUFACTURER.
10. WARRANTIES, REPRESENTATIONS AND INDEMNITIES BY THE PURCHASER
10.1 The Purchaser makes the representations and warranties set out in this clause as at the acceptance date of this Agreement and for the duration of this Agreement and acknowledges that AFGRI Equipment has entered into this Agreement in reliance on these representations and warranties, each of which is material and a material representation inducing AFGRI Equipment to enter into this Agreement.
10.2 The Purchaser has the power to execute and deliver this Agreement and to perform all its obligations thereunder (including, without limitation, the payment of all amounts) and all corporate and other action required to authorise its execution and its performance of such obligations, have been duly taken.
10.3 The Purchaser is not prohibited in terms of its constitutional documents, or otherwise, from entering into this Agreement or transactions contemplated by it to which it is a party.
10.4 All information (as supplemented from time to time) that has been or will hereafter be made available to AFGRI Equipment by the Purchaser or any of its representatives in connection with the transactions contemplated herein is and will at all times be complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements were or are made.
10.5 The Purchaser agrees to supplement such information from time to time so that the same remains correct and acknowledges that AFGRI Equipment is acting in reliance on the accuracy of information supplied to it without independent verification.
10.6 No legal suit, action, proceeding or process or any other steps have been taken or, to the best of the Purchaser’s knowledge and belief, after having made all reasonable enquiries in this regard, threatened for the winding-up or liquidation (whether voluntary or involuntary, provisional or final) or de-registration of the Purchaser or for the appointment of a liquidator or similar officer over the Purchaser or over any assets of the Purchaser.
10.7 The Purchaser hereby warrants, represents and undertakes that:
10.7.1 the Purchaser is not carrying on business recklessly, with gross negligence, with intent to defraud or fraudulent purposes;
10.7.2 the Purchaser it is not carrying on business or trading under insolvent circumstances;
10.7.3 that no application to court for an administration order has been made in respect of the Purchaser;
10.7.4 the Purchaser will advise AFGRI Equipment immediately of any facts or circumstances which cause or which are reasonably likely to cause any representation or warranty to be false or misleading in any material respect; and
10.7.5 the Purchaser is in full compliance with all applicable laws, regulations and standard industry practices, which includes but is not limited to the protection of the environment and is not aware of any circumstances which may prevent full compliance in future.
10.8 THE PURCHASER SHALL AT ALL TIMES WHETHER DURING OR AFTER TERMINATION OR EXPIRY OF THIS AGREEMENT INDEMNIFY AND KEEP AFGRI EQUIPMENT INDEMNIFIED AGAINST ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND EXPENSES (INCLUDING ALL REASONABLE LEGAL FEES) WHICH MAY ARISE (BECAUSE OF THIS AGREEMENT OR ANY OTHER FACILITY AND/OR AFGRI EQUIPMENT HAVING AN INTEREST IN THE PURCHASER’S ASSETS) IN RESPECT OF A BREACH OF, OR A FAILURE TO MEET ANY OF THE AFORESAID REPRESENTATIONS, WARRANTIES AND/OR UNDERTAKINGS IN THIS CLAUSE 10.
10.9 The Purchaser undertakes to notify AFGRI Equipment immediately of:
10.9.1 any change of address;
10.9.2 cessation of business; and / or
10.9.3 change in ownership or shareholding of the Purchaser.
10.10 The Purchaser acknowledges and accepts that, notwithstanding any sale of business interest, he/she/ they shall remain liable in full for the settlement of the debt to AFGRI Equipment and he/she/they undertake to inform AFGRI Equipment within 7 (seven) days and by registered mail, of any such change.
10.11 The Purchaser hereby declares that the Purchaser has not specifically informed AFGRI Equipment of any particular purpose for which the Purchaser wishes to buy/acquire/use the Parts and Equipment.
10.12 The Purchaser hereby authorises AFGRI Equipment, the Purchaser’s other creditors, the Purchasers bank and auditors and / or credit bureaus to make credit information available to each other, and also authorises and consents to AFGRI Equipment drawing such credit information from any sources whatsoever regarding the Purchaser as it deems necessary, including information of the directors, members, partners and/or trustees.
10.13 THE PURCHASER SHALL AT ALL TIMES WHETHER DURING OR AFTER TERMINATION OR EXPIRY OF THIS AGREEMENT INDEMNIFY AND KEEP AFGRI EQUIPMENT INDEMNIFIED AGAINST ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND EXPENSES (INCLUDING ALL REASONABLE LEGAL FEES) RESULTING FROM ANY ADVICE GIVEN, RECOMMENDATIONS MADE, PRODUCTS SOLD OR USED OR ARISING FROM ANY CAUSE WHATSOEVER AS ENVISAGED IN THE PRECEDING PARAGRAPHS AND HEREBY WAIVES ANY SUCH CLAIM.
10.14AFGRI EQUIPMENT, ITS EMPLOYEES AND/OR AGENTS SHALL FURTHER NOT BE LIABLE (TO THE FULLEST EXTENT PERMISSIBLE IN LAW) TO THE CONSUMER FOR ANY LOSS OR DAMAGE SUSTAINED BY THE CONSUMER AS A CONSEQUENCE OF THE PRESENCE OF ANY POISONS OR TOXINS IN THE PARTS AND EQUIPMENT, INCLUDING (BUT NOT LIMITED TO) THE PRESENCE OF MYCOTOXIN OR AFLATOXIN.
11. EVENTS OF DEFAULT
Without derogating from the rights of AFGRI Equipment in law or otherwise, an event of default shall occur should:
11.1 the Purchaser fails to pay any amount to AFGRI Equipment on the due date thereof;
11.2 the Purchaser fails to comply with any term or condition of this Agreement and fail to remedy that breach, if capable of remedy, within 7 (seven) days after being called to do so;
11.3 the Client or any person or entity that provides security for the Client (“Obligor”) performs any act analogous to an act of insolvency specified in the Insolvency Act, 1936 or an act as defined in Section 344 of the Companies Act, 1973, read with Schedule 5 of the Companies Act, both as amended or substituted from time to time;
11.4 any asset deemed by AFGRI Equipment to be a material asset of the Purchaser or Obligor, be attached by any third party with a writ of execution and should the Purchaser fail within 14 (fourteen) business days of such attachment to take the necessary steps to have such attachment set aside and thereafter to pursue such steps with due diligence to a successful conclusion;
11.5 any judgment be granted against the Purchaser or Obligor and remain unsatisfied for a period of 7 (seven) business days after date of judgment or should the Purchaser fail within 7 (seven) business days of such judgment to take the necessary steps to appeal against or rescind such judgment and thereafter to pursue such appeal or rescission with due diligence to a successful conclusion;
11.6 any order of Court, whether provisional or final, and whether voluntarily or compulsorily, be granted for the winding up of the Purchaser or Obligor;
11.7 the Purchaser or Obligor gives notice to take steps to convene a meeting of its shareholders/directors to adopt a resolution placing it in liquidation or under business rescue in either case, whether provisionally or finally;
11.8 the Purchaser or Obligor enters into a compromise, composition or arrangement with its creditors generally, or any class thereof;
11.9 any warranty or representation made by the Purchaser or Obligor, which was taken into consideration, and was materially relied upon by AFGRI Equipment in accepting an Order from the Purchaser as set out hereunder or accepting the relevant security, guarantee or suretyship as collateral, be found to be untrue or incorrect in any material respect;
11.10 the Purchaser or Obligor becomes unable to conduct its normal course of business for whatsoever reason;
11.11 the Purchaser repudiates this Agreement; or
11.12 If any of the following occurs in relation to the Purchaser:
11.12.1 the Purchaser carries on business either recklessly, with gross negligence, with the intent to defraud or for fraudulent purposes;
11.12.2 the Purchaser carries on business or trades under insolvent circumstances; or
11.12.3 an application to court has been made for an administration order in respect of the Purchaser.
11.13 If the Purchaser fails to remedy such event of default (where capable of remedy) within the applicable grace period calling upon the Purchaser to do so, or if the event is not capable of remedy and AFGRI Equipment gives notice that such event has occurred and AFGRI Equipment is exercising its rights pursuant hereto, then:
11.13.1all the Purchaser’s indebtedness to AFGRI Equipment (actual or contingent) will be due and payable immediately irrespective of any terms or conditions otherwise applicable to such indebtedness;
11.13.2 AFGRI Equipment may demand and recover payment of all amounts so declared due or deemed to be due;
11.13.3 the Purchaser must pay interest calculated at the then prevailing Prime Rate plus 3 (three) percentage points, calculated on the amount so due and payable (including any unpaid interest which will be capitalized) calculated from the date of demand to date of receipt of payment;
11.13.4 AFGRI Equipment may exercise any or all of its rights under any security provided by the Purchaser or Obligor;
11.13.5 AFGRI Equipment may appropriate any amounts standing to the credit of any of the Purchaser’s accounts in AFGRI Equipment’s books in reduction or liquidation of the amounts owing to AFGRI Equipment;
11.13.6 AFGRI Equipment may refuse to supply further Parts and Equipment and/or Services to the Purchaser, including any Parts and Equipment and /or Services subject to an Order accepted by AFGRI Equipment but not delivered prior to the date of exercising such discretion and further that AFGRI Equipment shall not be held liable to the Purchaser for any loss or damage which the Purchaser may sustain as a result of AFGRI Equipment cancelling this Agreement or refusing to supply Parts and Equipment and / or Services; and
11.13.7 AFGRI Equipment may demand return of any Parts and Equipment not paid in which event the Purchaser shall return the Partsand Equipment forthwith to AFGRI Equipment at the Purchaser’s own cost and expense.
This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa and shall be subject to the exclusive jurisdiction of the Courts of the Republic of South Africa. The Parties agree that this Agreement shall be deemed to be entered into in the Republic of South Africa.
13. LEGAL PROCEEDINGS
13.1The Purchaser agrees and accepts that AFGRI Equipment shall be entitled, in its sole discretion, but not compelled or obliged to institute any legal proceedings, which may arise from or in connection with this Agreement, all costs and disbursements incurred by AFGRI Equipment, including legal costs on an attorney and own Purchaser basis in collecting arrears accounts from the Purchaser, shall be for the account of the Purchaser.
13.2 A certificate issued and signed by any director or manager of AFGRI Equipment, whose authority need not be proved, in respect of any indebtedness of the Purchaser to AFGRI Equipment; or in respect of any other fact including (but not limited to) the fact that the Parts and Equipment and / or Services were sold and delivered/rendered, shall be prima facie evidence of the Purchaser’s indebtedness to AFGRI Equipment.
13.3 The Purchaser’s registered address or physical address stated in an Order (or other similar document) shall be recognised as the Purchaser’s domicilium citandi et executandi for the service of any court documents resulting from this Agreement. The Purchaser’s physical, email and / or postal addresses as per this Agreement will be deemed to be the Purchaser’s service addresses for all other documents resulting from or in terms of this Agreement.
13.4 It will not be necessary for AFGRI Equipment to prove that the documents referred to in clause 13.3 above were received by the Purchaser. In the event of the Purchaser not receiving any of the documents in clause 13.3 above, the Purchaser must timeously acquire a duplicate from AFGRI Equipment, failing which it will be accepted that said documents were received by the Purchaser.
13.5 All amounts due to AFGRI Equipment shall be deemed to be a liquid amount for the purposes of provisional sentence or summary judgment.
14. NEGOTIABLE INSTRUMENTS
14.1 Acceptance of a negotiable instrument by AFGRI Equipment shall not be construed as a waiver of AFGRI Equipment’s rights.
14.2 In relation to cheques furnished by the Purchaser to AFGRI Equipment, the Purchaser waives its right to be given notice of dishonour in the event that such cheque is dishonoured.
15. RETURNED PARTS AND EQUIPMENT
15.1 AFGRI EQUIPMENT WILL PROVIDE THE PURCHASER WITH A CREDIT OR A REFUND FOR PARTS AND EQUIPMENT PURCHASED FROM AFGRI EQUIPMENT IN INSTANCES CONTEMPLATED BY LAW WHICH INCLUDES, BUT IS NOT LIMITED TO, THE PROVISIONS OF SECTION 20 AND SECTION 56 OF THE CPA.
15.2 Should the Purchaser not be familiar with the aforementioned sections AFGRI Equipment will provide the Purchaser with extracts of same upon the Purchaser’s written request.
15.3 PLEASE TAKE NOT THAT AFGRI EQUIPMENT MAY BE ENTITLED TO CHARGE THE PURCHASER A REASONABLE AMOUNT IN TERMS OF THE CPA IN INSTANCES THAT THE PURCHASER SHOULD RETURN ANY PARTS AND EQUIPMENT.
15.4 In addition to the aforementioned, when calculating any reasonable amount which AFGRI Equipment may be entitled to charge the Purchaser upon any return of the Parts and Equipment as contemplated in Section 20(6) of the CPA or otherwise AFGRI Equipment shall be entitled to, and the Purchaser hereby agrees, to take into consideration amongst other things, the following:
15.4.1depreciation in value of the Parts and Equipment once it is registered as second hand or may be reasonably deemed to be second hand; or
15.4.2value the Purchaser may have received through the use of such Parts and Equipment or the opportunity of the use of such Parts and Equipment.
16. AMENDMENT OR WAIVER
16.1 No modification, amendment or consensual cancellation of this Agreement shall be valid, unless reduced to writing and signed by duly authorised representatives of both Parties.
16.2 In the event of the modification, amendment or variation of any agreement between the Parties, this Agreement shall apply to such modification, amendment or variation except as may otherwise be expressly provided.
16.3 Any forbearance or indulgence by AFGRI Equipment in enforcing any of this Agreement shall not prejudice or restrict AFGRI Equipment’s rights or powers in terms hereof and no waiver of any breach shall operate as a waiver of any subsequent or continuing breach or a novation of AFGRI Equipment’s right in terms hereof.
17.1 Whilst AFGRI Equipment retains the right to cede and/or assign all and any of its rights or obligations under this Agreement provided the same will not prejudice the Purchaser, the Purchaser shall, however, not be entitled to cede and/or assign any of its rights or obligations in terms hereof without the prior, written, approval of AFGRI Equipment.
17.2 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement as at the date of signature of the Party last signing one of the counterparts. The Parties undertake to take whatever steps may be necessary to ensure that each counterpart is duly signed by each of them without delay.
17.3 This Agreement constitutes the whole of the agreement between the Parties hereto relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement, shall be binding on any of the Parties.
17.4 THE PURCHASER RENOUNCES THE BENEFITS OF THE LEGAL EXCEPTIONS: NON CAUSA DEBITI (AN EXCEPTION TAKEN TO THE EFFECT THAT THERE IS NO CAUSE FOR THE OBLIGATION AND RENUNCIATION PLACES THE ONUS ON THE PURCHASER TO PROVE THAT A DEBT DOES NOT EXIST); NON NUMERATE PERCUNIA (AN EXCEPTION WHICH MAY BE TAKEN BY THE PURCHASER ON THE GROUND THAT THE AMOUNT THEREOF WAS NOT PAID OVER) AND ERRORE CALCULI (A REVISION OF ACCOUNTS AND ERRORS OF CALCULATION AND NO VALUES RECEIVED).
17.5 The Parties agree that each individual provision of this Agreement shall be severable and that invalidity of any part of a term hereof shall not affect the validity of the remainder of this Agreement.