Conditions of Sale

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  1. In these terms and conditions of sale, unless the context indicates otherwise, the following words or phrases shall have the following meanings: –
    1. “the Goods” – means the goods specified on the Supplier’s quotations, purchase orders or invoices;
    2. “Purchaser” – means the person or legal entity to whom a quotation is addressed and/or the employees and sub-contractors of such person or legal entity and/or any person accepting delivery of the Goods from the Supplier;
    3. “Parties” – means the Purchaser and the Supplier;
    4. “Supplier” – means Consolidated Procurement, a division of AAH Hospitality Services CC, registration number 1985/005888/23 incorporated in South Africa OR Hospitality Procurement (East Africa) Ltd, registration number C.163199 incorporated in Kenya;
    5. “Third PartySuppliers” – means the various manufacturers or suppliers of the Goods from whom the Supplier purchases the Goods.
  2. Interpretation
    1. The headings in these terms and conditions of sale are for convenience only and are not to be taken into account for the purpose of interpreting any of these terms and conditions of sale.
    2. The rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (ie the eiusdem generis rule) shall not apply, and whenever the word “including” is used followed by specific examples, such examples shall not be interpreted so as to limit the meaning of any word or term to the same genus or class as the examples given.
    3. References to any amount shall mean that amount exclusive of VAT, unless the amount expressly includes VAT.
  3. Application
    1. These terms and conditions shall apply to any contract for the sale of any Goods by the Supplier, whether such contract arises out of:
      1. an offer made by the Supplier and accepted by the Purchaser; or
      2. an offer made by the Purchaser and accepted by the Supplier.
    2. These terms and conditions supersede, replace and/or override any terms and conditions of the Purchaser. Any conditions of trade on any of the Purchaser’s documents submitted to the Supplier shall not apply and the Purchaser shall be deemed to have waived such conditions.
  4. Price
    1. The purchase price of the Goods and all handling fees payable in respect thereof shall be as specified in the quotation provided by the Supplier to the Purchaser in accordance with clause 5.
    2. All prices quoted by the Supplier to the Purchaser shall exclude VAT and all costs and expenses relating to the packing, transportation, shipping and insurance of the Goods, including without limitation all customs and import duties which may be payable, all of which such charges shall be payable by the Purchaser in addition to the purchase price.
  5. Quotations
    1. Any quotation provided by the Supplier to the Purchaser shall be valid for a period of 30 days from the date thereof.
    2. Should the Purchaser accept a quotation, it shall place a purchase order with the Supplier in writing in the form of an import requisition or in any other form as may be agreed upon by the Parties, within the 30 day time period referred to in clause 5.1 above, failing which thequotation shall automatically lapse and will cease to be of any force and effect.
    3. Notwithstanding the terms of any purchase order placed with the Supplier, all purchase orders will be subject to these terms and conditions of sale.
  6. Terms Of Payment
    1. The purchase price of the Goods and any other charges in respect thereof, including all costs and expenses relating to the packing, transportation shipping of the Goods, all handling fees and the cost of any insurance taken out by the Supplier in the name of the Purchaser as specified in clause 9, shall be payable by the Purchaser upon presentation of an invoice in respect thereof.
    2. The purchase price of the Goods is payable upfront and there shall be no obligation on the Supplier to take any steps whatsoever to source, procure or deliver the Goods which are specified in any quotation which has been accepted by the Purchaser until such time as the purchase price has been discharged in full.
    3. The Supplier reserves the right to charge interest at the rate (nominal annual compounded monthly in arrears) from time to time published by the Standard Bank of South Africa Limited as its prime overdraft lending rate; plus 2% (two per cent), on any amounts which are not paid on the due date.
    4. The Supplier may in its sole discretion apportion any payments made by or on behalf of the Purchaser any indebtedness of the Purchaser to the Supplier, from whatever cause arising.
    5. Payment shall be effected free of deduction, demand, set off or bank exchange or commission.
  7. Delivery
    1. Unless arrangements are made to the contrary, the Supplier shall arrange for the Goods to betransported to the port of entry closest to the Purchaser’s premises by a reputable carrier selected by the Supplier. The Purchaser shall be responsible for collecting the Goods from the port of entry and shall be responsible for all costs and expenses related thereto.
    2. The carrier shall be deemed to be the Purchaser’s agent and delivery to the carrier shall be deemed to be delivery to the Purchaser. The signature of the Purchaser or carrier, or any person purporting to be an employee or agent of the Purchaser or carrier, as the case may be, on a delivery note shall be prime facie proof of the proper delivery of the Goods.
    3. The Supplier shall use its reasonable commercial endeavours to deliver the Goods within the time periods stipulated in the purchase order. The Supplier does not however guarantee dispatch on any specific date and shall not be liable for any loss or damage of whatever nature arising out of a failure to effect delivery/dispatch timeously for any reason. The Purchaser shall not be entitled to cancel any order by reason of any delay.
  8. Risk And Ownership
    1. Ownership and risk in and to the Goods shall pass to the Purchaser immediately the Goods are delivered to the carrier referred to in clause 7.
    2. For the avoidance of doubt and notwithstanding the provisions of 8.1, ownership of the Goods shall not pass to the Purchaser until the purchase price in respect of the Goods in question has been paid in full.
  9. Insurance
    1. The Customer shall be responsible for insuring the Goods whilst they are transported to the relevant port of entry and the Supplier shall not be under any obligation to insure the Goods unless specifically requested to do so by the Purchaser in writing.
    2. Should the Purchaser require the Supplier to insure any Goods on its behalf, the Supplier shall take out insurance in the name of the Purchaser and all the costs of such insurance shall be for the account of the Purchaser. The Supplier makes no warranties in regards to such insurance.
  10. Returned Goods
    1. Goods sold by the Supplier shall only be returnable if such Goods can be returned to the relevant Third Party Supplier and provided that such Third Party Supplier is willing to either replace the Goods in their entirety or provide a refund of the purchase price thereof and not merely a credit.
    2. All costs of returning any of the Goods shall be for the Purchaser’s account.
  11. Warranties
    1. The Supplier shall procure that the Purchaser will obtain that benefit of any warranties given to the Supplier by the relevant Third Party Supplier or any rights or remedies which the Supplier may have against such Third Party Supplier. For that purpose, the Supplier will seek to enforce any such warranties but will not be required to take any legal action in respect thereof unless requested to do so by the Purchaser and provided that the Purchaser indemnifies the Supplier against all and any costs which may be incurred by or awarded against the Supplier as a consequence of such legal action.
    2. The Supplier shall be absolved from all liability to the Purchaser in the event that it is unable, for any reason whatsoever, to recover any loss suffered from the relevant Third Party Supplier.
    3. To the extent that the Supplier is able to effect a cession in favour of the Purchaser of any warranties given to it by the Third Party Suppliers, it shall do so. In the event of such a cession, the undertaking contained in clause 11.1 shall cease to be of any further force or effect.
    4. Save as set out above, the Supplier gives no warranties, guarantees or representations whatsoever in respect of the Goods, whether express, implied or tacit and whether arising by law or otherwise.
  12. Limitation Of Liability
    1. Subject to the provisions of clauses 10 and11, the Supplier will not be liable under any circumstances, whether in contract, delict or otherwise, for any direct or indirect loss or damages whatsoever, arising out of or in connection with these terms and conditions and howsoever caused, including by not limited to late or defective delivery, defective, faulty or negligent workmanship or material, or any act, default or omission of its employees, suppliers, agents or sub-contractors or other persons for whom in law it may be liable. Without limiting the generality of the foregoing, the Supplier shall, under no circumstances, be liable to the Purchaser for any special, consequential, exemplary or incidental damages of any kind howsoever arising, including but not limited to, loss of business and loss of profits.
    2. Any liability of the Supplier for breach of contract will not exceed in the aggregate of damages, costs, fees and expenses capable of being awarded to the Purchaser, the total price paid or due to be paid by the Purchaser for the Goods supplied.
    3. Breach And Termination
      1. Either of the Parties shall be entitled, without prejudice to any other remedy it may have, to terminate this agreement as a consequence of a breach by the other Party (“the Defaulting Party”) of any of the terms of this agreement, provided that:
        1. the breach is a material breach which goes to the root of this agreement and the breach is incapable of being remedied by the payment of compensation or otherwise; or
        2. if the breach is capable of being remedied by payment of compensation or otherwise, the Defaulting Party fails to remedy the breach within 30 (thirty) business days of the receipt of written notice calling upon it to do so or, if the breach is not reasonably capable of being remedied within such 30 (thirty) day period, within such further period as may be reasonable in the circumstances but which shall not exceed a further 30 (thirty) business days.
      2. Either of the Parties shall furthermore have the right to terminate this agreement on 30 (thirty) days’ written notice to the other if –
        1. the other Party goes into liquidation whether compulsory or voluntary; or
        2. a judicial manager is appointed over the whole or any part of the other Party’s assets; or
        3. the other Party enters into any arrangement for the benefit of its creditors; or
        4. the other Party threatens to do any of the above things; or
        5. it appears that the other Party is unable to pay its debts or meet any of its contractual obligations; or
        6. the other Party ceases or threatens to cease to carry on all or any material part of its business.
      3. Any termination of this agreement shall be without prejudice to any right accruing to either Party prior to the date of termination.
      4. Upon the cancellation of this agreement for any reason whatsoever:
        1. all amounts due by the Purchaser to the Supplier shall immediately become due and payable;
        2. the Supplier shall not be obliged to sell and deliver any further Goods to the Purchaser and may claim additional costs and expenses incurred as a result thereof;
        3. the Supplier may retake possession of any Goods in respect of which ownership has not passed; and
        4. the Supplier may retain all amounts paid by the Customer up until the date of cancellation.
  13. Legal Proceedings
    1. These terms and conditions shall be governed by the laws of the Republic of South Africa in the case of AAH Hospitality CC being the supplier OR governed by the law of Kenya should Hospitality Procurement (East Africa) Ltd be the supplier.
    2. The Supplier shall, at its option and notwithstanding that the amount of its claim or the nature of the relief sought by it exceeds the jurisdiction of the Magistrate’s Court, be entitled to institute action out of such court.
    3. A certificate issued and signed by any director or manager of the Supplier, whose authority need not be proved, in respect of any indebtedness of the Purchaser to the Supplier or in respect of any other fact, shall be prima facie evidence of such indebtedness and/or other fact.
    4. The Purchaser shall pay all costs, which the Supplier may incur in taking any steps pursuant to any breach of these terms and conditions by the Purchaser.
  14. General
    1. These terms and conditions represent the entire agreement between the Supplier and the Purchaser and shall govern all current and future contractual relationships between the Supplier and the Purchaser.
    2. No amendment, alteration, variation, deletion, addition and/or cancellation of these terms and conditions, shall be of any force and effect unless reduced to writing and signed by a duly authorised representative of the Supplier.
    3. No warranties, representations or guarantees have been made by the Supplier or on its behalf which may have induced the Purchaser to enter into this agreement.
    4. No relaxation or indulgence which the Supplier may give at any time in regard to the carrying out of the Purchaser’s obligations in terms of these terms and conditions shall prejudice or be deemed to be waiver of any of the Supplier’s rights in terms hereof.
    5. The Purchaser shall not cede or assign any of its rights or obligations under these terms and conditions without the prior written consent of the Supplier. The Supplier may cede or assign all or any of its rights and/or obligations hereunder to any third party without prior notice.
    6. Each term and condition herein, shall be separate and divisible and if any such term and/or condition becomes unenforceable for any reason whatsoever, then that term and/or condition shall be severable and shall not affect the validity of the other terms and conditions.