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Standard Conditions of Sale

  1. These standard conditions of sale will apply to all orders for and/or sales of product and the rendering of services Pride Milling Company (Pty) Limited, being the credit provider (“the seller”) to the customer (“the purchaser”), including all orders and or amendments thereof; as well as all deliveries and payments.
  2. The seller sells products and renders services to purchasers that are either:
    2.1. subject to the Consumer Protection Act 68 of 2008 (“the CPA”); or
    2.2. fall outside the ambit of the CPA.
  3. The CPA contains arrangements that only apply to such purchasers subject to the CPA, which arrangements are inapplicable to purchasers falling outside the ambit of the CPA.
  4. For purposes of convenience, these standard conditions of sale contain the following three sets of clauses:
    4.1. Clauses applicable to all purchasers, regardless of whether they are subject to the CPA or not, to wit clauses 1 to 23, 39 to 42;
    4.2. Clauses only applicable to purchasers falling outside the ambit of the CPA, to wit clauses 24 to 30; and
    4.3. Clauses only applicable to purchasers subject to the CPA, to wit clauses 31 to 38.
  5. These three sets of clauses are clearly distinguished and the purchaser acknowledges that he/she/they is/are aware of this distinction.
  6. The CPA is not applicable to a juristic person with an asset value or an annual turnover exceeding R2 million. In terms of the CPA, a juristic person includes a body corporate (for example a company or close corporation), partnership and a trust.
  7. The purchaser records that he/she/they is/are:
    7.1. able to determine whether he/she/they is/are subject to the CPA or not and therefore able to identify which clauses are applicable to such purchaser; or
    7.2. alternatively is/are aware that he/she/they may approach the seller for advice and confirmation of the applicability of the CPA.
  8. PURCHASERS SUBJECT TO THE CPA ACKNOWLEDGE THAT THE CLAUSES APPLICABLE TO THEM MIGHT:
    8.1. LIMIT THE RISK OR LIABILITY OF THE SELLER;
    8.2. STIPULATE THE ASSUMPTION OF RISK BY THE PURCHASER;
    8.3. CAUSE THE PURCHASER TO INDEMNIFY THE SELLER; and/or
    8.4. CONTAIN ACKNOWLEDGEMENTS OF FACTS BY THE PURCHASER.
  9. THE PURCHASER SUBJECT TO THE CPA ACKNOWLEDGES THAT HE/SHE/THEY IS/ARE AWARE OF THE CLAUSES REFERRED TO IN CLAUSE 8, AGREE(S) TO BE BOUND BY SUCH CLAUSES AND CONFIRM(S) THAT HE/SHE/THEY UNDERSTAND(S) THE CONTENTS AND IMPACT OF SUCH CLAUSES; ALTERNATIVELY HE/SHE/THEY IS/ARE AWARE OF THE FACT THAT THE SELLER TENDERS TO EXPLAIN SUCH CLAUSES TO THE PURCHASER, SHOULD ANY SUCH CLAUSE BE UNCLEAR.
  10. THE PURCHASER SUBJECT TO THE CPA SIGNIFIES HIS/HER/THEIR KNOWLEDGE OF AND CONSENT TO SUCH CLAUSES.

Terms and conditions applicable to all purchasers

  1. THE PARTIES:
    11.1. The seller of the products with particulars as reflected on the application for credit is PRIDE MILLING COMPANY (PTY) LIMITED (Registration Number: 2001/001140/07).
    11.2. The purchaser of the products is reflected on the application for credit.
    11.3. The signatory(ies) to the credit application and these terms and conditions warrant(s) that he/she/they is/are duly authorised to represent their principals and conclude this agreement.
    11.4. The purchaser confirms the legal entity and particulars recorded in the credit application. Should any of these particulars change, the purchaser will be obliged to in writing inform the seller accordingly.
  2. THE PRODUCTS:
    12.1. The products sold from time to time are described in the order placed by the purchaser and/or the delivery note and/or invoice.
    12.2. The seller will be entitled but not obliged to sell and deliver products ordered verbally by the purchaser, in which event such delivery will be binding on the purchase.
    12.3. Acceptance of the purchaser’s order by the seller will take place when the seller accepts such order in writing and/or by execution of the order. The place of acceptance, which will be deemed to be the place of contracting, will be the place where the seller accepts the purchaser’s order.
    12.4. In the event that an order is placed by the purchaser, such order will constitute an irrevocable offer to purchase the products in question and acceptance of such order/offer will constitute a sale on the terms and conditions stipulated herein, to the exclusion of any conditions to the contrary attached to or forming part of the purchaser’s order.
    12.5. No order which has been accepted by the seller may be cancelled by the purchaser, except with the prior written consent of the seller.
    12.6. The purchaser will be responsible for ensuring the accuracy of any order submitted by the purchaser.
  3. THE PRICES:
    13.1. The price payable for products ordered by the purchaser will be the seller’s list price ruling at the date of delivery of the products in question, unless the parties reach an agreement in writing, duly signed by both parties, with regard to any discount on such list price and/or a different price.
    13.2. The said prices include additional costs, such as transportation.
  4. PAYMENT OF PURCHASE PRICE:
    14.1. Each delivery is to be considered as a separate contract and upon delivery to the purchaser, an invoice will be issued for the purchase price.
    14.2. The seller’s payment terms are strictly cash with order, alternatively and in the event that the purchaser has a pre-approved account with the credit provider to be settled in agreed terms.
    14.3. The parties record that discounts may be granted to the purchaser as a quid pro quo for timeous payment. Should the purchaser therefore fail to make timeous payment, all such discounts previously granted will lapse and the full amount will therefore immediately be due and payable by the purchaser.
    14.4. In the event that the parties reach an agreement in writing in respect of payment on terms other than indicated in clause 14.2 above and the purchaser is in default to make any payment in accordance with such agreement, the full balance due on the date of such default will immediately become due and payable.
    14.5. The purchaser will be liable for default interest calculated at the maximum rate prescribed from time to time under the National Credit Act of 2005 from the date following the due date for payment until payment in full, unless otherwise agreed in writing.
    14.6. Should any invoice not be paid on the due date or should the seller at any time be dissatisfied with the financial position of the purchaser, the seller may refuse deliveries and may at its option enforce immediate payment for all deliveries already made. The seller will be entitled to request the purchaser to satisfy the seller that the purchaser will meet his/her/their obligations in respect of the past and future purchase. The contents of this clause 14.6 will not prejudice any of the seller’s other rights that it may have in law.
    14.7. All payments will firstly be applied to redeem the interest, then any legal costs and thereafter the capital due in respect of the sale of the product.
    14.8. The invoiced value will be paid by the purchaser to the seller without any deduction whatsoever, free of exchange and/or set-off on or before the due date.
    14.9. If there is any dispute with regard to the exact price payable by the purchaser to the seller, the purchase price for the product will be the invoiced price for the product or similar product in effect on the date of delivery of the order
    14.10. The seller will be entitled to appropriate any payment received from the purchaser to any indebtedness of the purchaser to the seller, in respect of any sale of product or default interest.
  5. DELIVERY:
    15.1. Delivery will be effected at the seller’s premises, unless otherwise agreed in writing and subject to this clause.
    15.2. Unless otherwise agreed, delivery will be effected when the products are placed on the wagon, carriage or vehicle of the carrier in the event that such carrier is contracted by the purchaser. Such carrier will be the purchaser’s agent and delivery to the carrier will be deemed to be good and sufficient delivery to the purchaser.
    15.3. In the event that the parties agree that such carrier is contracted by the seller, delivery will be effected when the products are off-loaded at the premises indicated on the order in question.
    15.4. The purchaser agrees to ensure that the purchaser or an authorised individual will be present to accept delivery and sign on the delivery notice and warrants the authority of such individual to accept and sign the same.
    15.5. The signing of a delivery note by the purchaser will constitute acceptance of the contents of the delivery note, subject to the further terms of this agreement.
    15.6. For the same reasons, the seller will not be liable for any damage to products or packaging caused during delivery, unless indicated on the Proof of Delivery Note.
  6. QUALITY AND TRADEMARKS:
    The seller will ensure that the products comply with the description thereof, as may legally be required.
  7. OWNERSHIP AND RISK:
    17.1. Ownership of the product will only pass to the purchaser against payment of the full purchase price. Should the purchaser default in making timeous payment, the seller will be entitled to return of the product, following due process.
    17.2. Risk of loss or damage to the products will pass to the purchaser upon delivery. The purchaser will take all reasonable precautions to ensure the safekeeping, safe storage and safe handling of the products.
  8. BREACH:
    18.1. The seller is entitled to cancel this agreement summarily if any judgment is granted against the purchaser or if the purchaser commits any statutory act of insolvency.
    18.2. If the purchaser is in breach of any of the terms and conditions stipulated herein and/or otherwise agreed between the parties, then the seller will be entitled to claim immediate payment and/or performance by the purchaser of all the purchaser’s obligations, whether or not the due date for payment and/or performance will have arisen, in either event, without prejudice to the seller’s right to terminate the agreement and/or claim damages. The aforegoing is without prejudice to such other rights as the seller may have at law and subject to sections 129 and 130 of the NCA, should the NCA be applicable.
    18.3. The purchaser consents (in terms of Section 45 of the Magistrates’ Court Act, Act 32 of 1944, or any amendment thereof or any substituting legislation) to the jurisdiction of the District Court or Regional Court that has jurisdiction in terms of Section 28(1) of the said Act, notwithstanding the claim amount exceeding the respective Courts’ monetary jurisdiction. Notwithstanding the aforegoing, the seller will have the right, at their discretion, to institute any legal proceedings in any competent High Court with jurisdiction.
  9. NOTICES AND DOMICILIA:
    19.1. The parties choose as their domicilia citandi et executandi their respective addresses set out in this clause for all purposes arising out of or in connection with this agreement, at which addresses all the processes and notices arising out of or in connection with this agreement, its breach or termination may validly be served upon or delivered to the parties.
    19.2. For the purposes of this agreement the seller’s address will be Unit 5, Oxford Office Park, 3 Bauhinia Street, Highveld Technopark, Centurion 0167 and the purchaser’s address will be either the physical address completed in paragraph 15 of the Credit Application (if applicable) or the delivery address stipulated on a particular order.
  10. FORCE MAJEURE:
    20.1. The seller will not be liable for any loss, damage or injury occasioned by the purchaser by default in the performance of any obligation under these Standard Conditions of Sale if the default is caused by any occurrence whatsoever which is not within the control of the seller, including but not limited to industrial action, accident, power failure, breakdown of plant or machinery, order of any government authority, and, subject to clause 20.2 below, shortage of raw materials required for or in connection with the manufacture of the products. The seller will give the purchaser written notice of the occurrence at the earliest opportunity.
    20.2. In the event that the seller is prohibited or delayed to deliver the products to the purchaser at the agreed time by any event contemplated in clause 20.1 above, the seller may, as soon as possible after advising the purchaser thereof in writing, cease, postpone or decrease deliveries to the extent the seller deems fit.
  11. CLAUSE HEADINGS:
    The clause headings in these Standard Conditions of Sale are inserted for reference purposes only and will not be used in the interpretation thereof.
  12. CESSION OF BOOK-DEBTS AND CLAIMS AS SECURITY:
    The purchaser hereby cedes all the book-debts and/or other claims due to him/her/them to the seller as security for the due and proper fulfilment of the purchaser’s obligations towards the seller arising from whatsoever cause with regard to any amount already due and payable or which may become due and payable in the future.
  13. GENERAL CLAUSES:
    23.1. It is recorded that orders will be accepted and the products be supplied subject to these terms and conditions indicated herein.
    23.2. This agreement records the entire agreement between the parties. No variation, amendment, addition or consensual cancellation of this agreement or any provision or term hereof or any other document issued or executed pursuant to or in terms of this agreement, will be binding or have any force or effect, unless reduced to writing and signed by or on behalf of the parties.
    23.3. No relaxation or indulgence, including the acceptance of late payments by the seller, will be deemed to be a waiver by the seller of any or their rights to enforce strict compliance by the purchaser of any of its obligations in terms hereof, nor is such relaxation or indulgence to be deemed a novation of any of the terms and conditions of this agreement.
    23.4. No representative, agent or salesman of the seller has any authority to vary these conditions or to make any representation on the seller’s behalf and no purported variation of these conditions will be of any force and effect unless it is reduced to writing and duly signed by an authorised representative of the seller.
    23.5. Should any clause or term of this agreement be invalid, unenforceable, defective or illegal for any reason whatsoever, then the remaining terms and provisions of this agreement will be deemed to be severable therefrom and will continue to be of force and effect.
    23.6. The purchaser may not cede or assign any of his/her/their rights or obligations hereunder without the prior written consent of the seller.
    23.7. Any reference to the NCA and/or the CPA will not by such reference and/or consensus and/or incorporation render such legislation applicable to this agreement and/or the purchaser, should such legislation not otherwise so be applicable by operation of law.

Clauses applicable should purchaser not be subject to the CPA

  1. WARRANTY AND RETURNS:
    24.1. Unless otherwise stated in any written guarantee given by the seller, the sale of the product will be free from all conditions and warranties, whether statutory, under the common law or otherwise as to quality, fitness for any purpose and/or merchantability thereof.
    24.2. Any recommendations or advice given by or on behalf of the seller are given in good faith but without liability on the part of the seller, and the usage or application of the product will be entirely the responsibility of the purchaser, without reliance on any statement of the seller.
    24.3. The seller will not be liable for any special and/or consequential damages suffered by the purchaser. The seller’s liability will in any event and in all circumstances where the seller might be liable, be limited to replacement of defective product or repayment of the purchase price.
    24.4. It is recorded that, once the product has been sold and delivered as ordered, such product is non-returnable except in the event that the parties agree otherwise in writing, duly signed by both parties, in respect of such return.
  2. LODGING OF CLAIMS:
    25.1. The purchaser will be entitled to inspect the product immediately upon receipt thereof and will inform the seller in writing of faulty product or defects in the product within 5 (five) days from the date of delivery.
    25.2. In the event that the purchaser fails to give the notice contemplated in clause 25.1 above, the quantity and quality of the delivered product will be prima facie regarded to have been delivered free from defects in accordance with these Standard Conditions of Sale.
    25.3. In the event that the purchaser gives notice to the seller in accordance with clause 25.1 above and the seller is satisfied that the product is defective, then the seller will replace a portion of the product with product of the same quantity.
  3. DELIVERY:
    26.1. The seller does not guarantee delivery on any specified date but will endeavour to effect delivery as near as possible to the date stated on the order and/or acceptance thereof. The purchaser will not be entitled to repudiate or withdraw from the sale on the grounds of late or non-delivery, nor to place the seller in mora with regard to delivery, nor will the seller be liable for any damages suffered by the purchaser in the event of late delivery by the seller.
    26.2. The product reflected on the delivery note will be regarded to be an agreed amendment to the order in question, to the extent that it differs from such order, unless the purchaser refuses receipt thereof in writing within 5 (five) days from receipt thereof.
  4. LIABILITY AND WAIVER:
    27.1. The purchaser waives any claim for losses, damages or liability that he/she/they may have against the seller arising from, but not limited thereto, allegations that the product is not fit for the purchaser’s purposes.
    27.2. Subject to the contents of clause 27.1 above, the seller will not be liable for any contractual, delictual and/or consequential damages, including but not limited to loss of profit, loss of production and loss of market share arising from any alleged deficiency and/or disability of the product and/or any late delivery thereof. The seller’s liability will under all circumstances and notwithstanding how it arises, be limited, in the seller’s sole discretion, to the replacement of the particular product at no charge to the purchaser or repayment of the purchase price paid by the purchaser.
    27.3. The purchaser further indemnifies the seller against:
    27.4. Any negligent and/or wilful act or omission by the purchaser or his/her/their employees or contractors with regard to the product or the use thereof;
    27.5. Any losses, damages (including consequential damages) or liability caused by or arising from, without limitation, the use, transport or storage of the product after delivery thereof to the purchaser;
    27.6. Any losses, damages (including consequential damages), death of or injury to third parties arising from the purchaser’s omission to furnish such third parties with information regarding, without limitation, inherent dangers, correct use, storage and disposal of the product and/or the purchaser’s omission to take all reasonable and necessary steps to prevent such events during the use, storage and disposal of the product by the purchaser; and
    27.7. Any losses, damages (including consequential damages) caused by or arising from any breach of any warranty.
  5. WARRANTY BY PURCHASER IN RESPECT OF PRODUCT:
    The purchaser warrants that he/she/they is/are acquainted with the use, characteristics and inherent dangers related to the product and furthermore warrants that he/she/they has/have complied with all statutory requirements and is in possession of the necessary permits, authorisations and official documents required for the handling, purchase, storage, transport, treatment, use and/or disposal of the product (if any).
  6. FAILURE TO DISPUTE ACCOUNTS:
    Should the purchaser fail to dispute any entry on the seller’s monthly account within 90 (ninety) days of the date of such account, the entries will be accepted as correct and constitute conclusive proof of any such entry.
  7. LEGAL COSTS:
    Should the seller institute legal action against the purchaser pursuant to any sale agreement, the purchaser will be liable for payment of the legal costs of the seller on an attorney and own client scale.

Clauses applicable should the CPA apply to the purchaser

  1. DELIVERY:
    31.1. The seller will not be liable for any damages suffered by the purchaser resulting from late delivery of goods, save to the extent that the seller may be liable for such losses in terms of the provisions of Section 47 of the CPA in the event of any shortages of the products.
    31.2. Should any product be delivered erroneously, the purchaser will within 10 (ten) business days after the delivery, inform the seller accordingly, in which event the purchaser may retrieve such erroneous delivery within 20 (twenty) business days.
  2. QUALITY:
    In the event of any allegation that the goods are unsafe or defective, the seller will not be liable for any damages caused where such characteristic, failure, defect or danger did not exist at the time of delivery of the products by the seller to the purchaser.
  3. INDEMNITY:
    The parties agree that, given the purpose for which the goods are purchased, consequential damages in the event of breach of contract may be astronomical. Should the seller accept liability for such consequential damages, it will have a substantial impact on the cost of the goods for the purchaser. The purchaser consequently elects to limit the seller’s liability for all forms or breach of contract to the replacement of the products, free of charge, or repayment of the purchase price paid by the purchaser (at the election of the purchaser).
  4. LIMITATION OF THE SELLER’S LIABILITY:
    34.1. The seller will ensure that the delivered product corresponds with the label description prescribed by law.
    34.2. The purchaser undertakes to familiarise himself/herself/themselves with all relevant characteristics of the product, as described in the seller’s catalogue, available from the seller’s agent and/or website, within 5 (five) days of the delivery date, and which description will be deemed sufficient disclosure of all patent and latent characteristics of the product and the seller in addition tenders to address any further enquiries in this regard.
    34.3. The product will comply with all statutory quality requirements specifically applicable to product.
    34.4. The seller will therefore not be liable for any non-compliance in respect of the aspects set out in paragraph 34.2.
  5. SHORTAGES:
    35.1. If any shortages of product occur for any reason whatsoever:
    35.1.1. The seller will take reasonable steps to inform the purchaser thereof as soon as it is practicable to do so;
    35.1.2. The seller will offer other product to the purchaser at the list price of such other product; and
    35.2. The purchaser will not under any circumstances have any claim against the seller of whatever nature resulting from such shortages of product, should such shortages be beyond the control of the seller. In addition, the future supply and availability of product ordered by the purchaser remains dynamic, unpredictable and beyond the control of the seller. The seller will therefore not be liable for any early, late, short or insufficient deliveries and/or inability to deliver.
    35.3. The purchaser will familiarise himself/herself/themselves and comply with all statutory prescriptions in the handling of the product.
  6. COOLING-OFF PERIOD:
    Should any transaction be the result of direct marketing by seller’s agent and should such transaction be subject to the Consumer Protection Act 68 of 2008, the purchaser will have the right to terminate the transaction in writing, within 5 (five) business days after conclusion of the transaction or 5 (five) business days after delivery of the product. The purchaser will at his/her/their own costs and risk return any product already delivered. The seller will refund any payment made by the purchaser within 15 (fifteen) business days after such return or, when no product had been delivered, 15 (fifteen) business days after receiving notice of the rescission.
  7. LEGAL COSTS:
    Should any party incur legal costs to enforce the agreement, the unsuccessful party will pay the legal costs of the successful party on an attorney-and-client scale.
  8. PLAIN LANGUAGE:
    The purchaser confirms that it is an experienced person with at least such average business and literacy skills as could be expected from such consumer. The purchaser therefore confirms that this agreement is in plain language and is understandable, alternatively confirms that he/she/they (the purchaser) is/are aware of the right and opportunity to have any clause explained by the seller.

Application of Terms and Conditions

  1. APPLICATION TO ALL TRANSACTIONS:
    39.1. The purchaser hereby confirms that he/she/they is/are aware of the above terms and conditions, that he/she/they is/are authorised to enter into this agreement and that he/she/they has/have had sufficient opportunity to study and consider the terms and conditions prior to entering into the agreement. These terms and conditions will be applicable on all orders and sales on the purchaser’s account or otherwise.
    39.2. The parties agree that for an indefinite period any subsequent transactions concluded between them will be governed by these terms and conditions, which will be incorporated into each such transaction by reference.
  2. BINDING AGREEMENT:
    The seller offers to contract with the purchaser on the terms and conditions contained herein. By signing this agreement, the purchaser accepts these terms and conditions as binding on him/her/them and a valid agreement is concluded as such. The seller will nonetheless counter-sign the agreement but the failure to do so will not invalidate the conclusion of the agreement.
  3. INCORPORATION BY REFERENCE:
    It is expressly confirmed that the terms and conditions stipulated herein are incorporated into any sales made by the seller to the purchaser.
  4. LIMITATION OF RISKS
    The purchaser acknowledges that the sale agreement limits the liabilities of the seller, transfer risks and liabilities to the purchaser and contains indemnities and factual admissions by the purchaser, which are accepted as such.
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