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General Sales Terms & Conditions

NANTURF (PTY) LTD (Reg. Number 2012/094132/07)

Parties

NANTURF (PTY) LTD (“Vendor”), with its registered office at Nanturf Warehouse, N2 Highway, Mossel Bay, Western Cape, 6500

Purchaser, refers to the party that agrees to buy goods or services from the Vendor under the terms of this agreement (“Purchaser”).

The parties agree as follows:

1. Interpretation

  1. In this Agreement unless the context indicates otherwise:
    “Agreement” means this agreement and its schedules, including any variations, additions, or amendments as may be agreed in writing by the Parties from time to time.
    “Business Day” means any day other than a Saturday, Sunday, or a statutory public holiday in South Africa.
    “Delivery Date” means the date (or dates) and time (or times) that the Fertilizer Products will be delivered to the Purchaser’s premises.
    “Effective Date” means the date of execution of this Agreement or, if signed by the Parties on different dates, the date on which the last Party to sign the Agreement signs it.
    “Fertilizer Products” means all or any part of the fertilizer, turf nutrition, and turf health products listed in Schedule 1.
    “Product Warranty” means the warranties relating to the fertilizer products.
    “Maintenance Materials” means the documentation required to store and use the Fertilizer Products, including safety instructions, handling guidelines, and any other similar documents.
    “Parties” means the Vendor and the Purchaser and includes their successors and permitted assigns, and “Party” means any one of them.
    “Purchase Price” means the total amount payable by the Purchaser to the Vendor for the Fertilizer Products as specified in Schedule 1.
  2. Schedules: The Schedules to this Agreement form part of this Agreement.
  3. Sections, clauses, and schedules: References to sections, clauses, and Schedules are references to this Agreement’s sections, clauses, and Schedules.
  4. Statutes and regulations: References to any statutory provision will include any statutory provision which amends or replaces it and any subordinate legislation made under it.

2. Sale & Supply

  1. The Vendor agrees to sell, and the Purchaser agrees to buy, the Fertilizer Products on the terms and conditions of this Agreement.
  2. The Vendor makes no representation, statement, warranty, or undertaking to the Purchaser in relation to the quality and/or description of the Fertilizer Products, other than those contained in the Product Warranty.
  3. The parties agree that, given the subject matter of this Agreement, and the identity of the parties, the provisions of the Consumer Protection Act 2008 do not apply to the sale and purchase of the Fertilizer Products, and it is fair and reasonable to contract out of such provisions.

3. Delivery & Acceptance

  1. Vendor will deliver the Fertilizer Products. Purchaser will pay all freight, insurance, and other shipping expenses, as well as any special packing expenses. Vendor will use commercially reasonable efforts to meet the quoted delivery dates and may deliver partial shipments of Fertilizer Products.
  2. Purchaser is deemed to have accepted the Fertilizer Products upon delivery unless Purchaser notifies Vendor at the time of delivery of any loss, damage, shortage, or other non-conformity. Without such notice, Purchaser will have no right to reject the Fertilizer Products and must pay the Invoice price for such products. Purchaser has no right to suspend or delay delivery of Fertilizer Products.
  3. If Purchaser fails to accept delivery of Fertilizer Products, Vendor may store the products at Purchaser’s risk and expense. Purchaser will promptly pay for the reasonable costs of storage and insurance. Vendor will not accept any returns of Fertilizer Products without prior written authorization.

4. Title & Risk

  1. Title to the Fertilizer Products will pass to the Purchaser upon delivery, provided that full payment of the Purchase Price has been made.
  2. Risk in the Fertilizer Products will pass to the Purchaser once the products leave the Vendor’s possession.
  3. Until title to the Fertilizer Products passes to the Purchaser, the Purchaser will:
    (a) Hold the products as bailee;
    (b) Maintain the products in good order and condition; and
    (c) Preserve the products in their present form.
  4. The Purchaser acknowledges that the retention of title in this clause 4 gives rise to a security interest in the products to secure the Purchaser’s performance of its obligations to the Vendor under the National Credit Act 2005.
  5. The Purchaser undertakes to:
    (a) Promptly do all things, execute all documents, and provide any information the Vendor may reasonably require to enable the Vendor to perfect and maintain the perfection of its security interest;
    (b) Give the Vendor not less than ten (10) Business Days prior written notice of any proposed change in its name and/or any other change to its details; and
    (c) Immediately obtain agreements and waivers from any third party that has a security interest in the products, ensuring the Vendor retains a first priority security interest.

5. Payment

  1. The Purchaser agrees to pay the Vendor the total Purchase Price in accordance with the payment terms specified on the Vendor’s tax invoice.
  2. Any taxes, Government levies, insurance, clearance, forwarding, and other expenses arising from the delivery to or removal from the Purchaser’s premises, payable under this Agreement, are to be paid by the Purchaser immediately upon receipt of notice from the Vendor.
  3. Unless otherwise specified, all prices will be quoted and billed exclusive of duties and taxes, including VAT (as defined in the Value-Added Tax Act 1991).

6. Returns

  1. The Vendor will only accept returns of the Fertilizer Products in exceptional and justified (in the Vendor’s sole discretion) cases. Any refund will depend upon the age, condition, and saleability of the products.
  2. It is the Purchaser’s responsibility to check the Fertilizer Products upon receipt and confirm they are undamaged and complete. If the Purchaser believes the products to be faulty, they shall follow the Vendor’s instructions for return or replacement of the products.
  3. The Purchaser will follow the instructions and advice in the Maintenance Materials on matters dealing with the storage and use of the Fertilizer Products.

7. Intellectual Property

  1. All intellectual property rights in the Fertilizer Products, including any improvements or modifications, remain the exclusive property of the Vendor. The Purchaser is granted a non-exclusive, non-transferable license to use any documentation provided with the products, only for the purposes and in the manner specified in this Agreement.
  2. The Purchaser shall not copy, modify, reverse engineer, or otherwise interfere with the Vendor’s intellectual property without prior written consent.

8. Force Majeure

  1. Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if foreseen, was unavoidable.
  2. Extended Definition: In addition to natural disasters, strikes, lockouts, or other labour disputes, the definition of Force Majeure shall also include government actions or regulations affecting the production, distribution, or sale of Fertilizer Products.

9. Termination

  1. This Agreement shall commence on the Effective Date and shall continue in full force and effect, unless terminated earlier in accordance with its terms, until the Purchaser complies with clause 5.1 (if applicable).
  2. Either Party may terminate this Agreement with immediate effect by written notice to the other Party if the other Party commits a material breach of the Agreement which:
    (a) Is capable of being cured and following notice from the other Party requiring the Party to cure the breach, that Party does not cure the breach within thirty (30) Business Days of the receipt of written notice of the breach; or
    (b) Is not capable of being cured (other than by the payment of money).
  3. This clause 9 is without prejudice to any other right, power or remedy under this Agreement, at law, or otherwise, that either Party has in respect of a default by the other Party.
  4. The termination of this Agreement shall not affect any accrued rights or liabilities of either Party, nor shall it affect the continuance of any provision of this Agreement which is intended to continue in force after termination.

10. Data Protection

  1. Both Parties shall comply with all applicable requirements of the Protection of Personal Information Act 2013 and any other relevant data protection legislation in relation to the personal data processed in connection with this Agreement.
  2. The Purchaser acknowledges that the Vendor may collect, store, use, and disclose their personal information in accordance with the Vendor’s Privacy Policy.

11. Liability

  1. In no event shall the Vendor be liable for any general, consequential, incidental, indirect, special, loss of profit or opportunity, exemplary or punitive, special or other damages resulting from the Vendor’s performance or failure to perform under this Agreement.
  2. Except where expressly provided in this Agreement:
    (a) The Vendor’s liability shall not exceed the Purchase Price paid by the Purchaser for the Fertilizer Products;
    (b) Damage limitations provided in this Agreement and the remedies stated herein shall be the Purchaser’s sole and exclusive remedy;
    (c) The Vendor shall not be liable to the Purchaser for any damages or injunctive relief due to the termination of this Agreement;
    (d) This limitation on liability shall survive failure of any essential purpose.
  3. These terms do not restrict or modify the application of any conditions or warranties that may be applicable under the Consumer Protection Act 2008 or any other relevant South African laws, the exclusion, restriction, or modification of which is not permitted by law.

12. Indemnification

  1. The Purchaser will indemnify and hold the Vendor harmless from and against any and all losses, claims, damages, expenses, or liabilities of any kind arising out of or in connection with:
    (a) Any breach by the Purchaser of any of its obligations under this Agreement;
    (b) Any use, storage, or handling of the Fertilizer Products that is not in accordance with the Maintenance Materials;
    (c) Any on-sale of the Fertilizer Products to a third party.
  2. If the Purchaser on-sells the Fertilizer Products to a third party, the Purchaser will indemnify the Vendor against all costs, claims, damages, expenses, and losses (including legal expenses on an indemnity basis) suffered or incurred by the Vendor as a result of any action, claim, demand, or proceedings brought by a third party against the Vendor for any loss, damage, or personal injury resulting from the Fertilizer Products.

13. Warranties

  1. Subject to any express warranties in this Agreement, all warranties, guarantees, and representations made to the Purchaser, expressly or impliedly, by statute or otherwise, are excluded and disclaimed, and the Purchaser acknowledges not relying upon them.

14. Warranty Policy

  1. The Vendor provides a warranty for the Fertilizer Products, detailed in the Warranty Policy, available separately.
  2. The Purchaser acknowledges having read, understood, and agreed to the Warranty Policy terms prior to entering this Agreement.
  3. The Warranty Policy forms part of this Agreement. However, if there is any conflict or inconsistency between this Agreement and the Warranty Policy, the terms of this Agreement shall prevail.
  4. The Purchaser agrees to comply with the Warranty Policy, including the procedure for making claims under the warranty.

15. Confidentiality

  1. Each Party shall not disclose any confidential information of the other Party, except as required by law or any governmental or regulatory authority.
  2. Each Party may disclose the other Party’s confidential information to its employees, officers, representatives, or advisers who need to know such information for exercising the Party’s rights or fulfilling its obligations under this Agreement. Each Party shall ensure that its employees, officers, representatives, or advisers comply with this clause.

16. Dispute Resolution

  1. Both parties commit to resolving any disputes amicably through open dialogue and negotiation before resorting to formal dispute resolution mechanisms.
  2. If a dispute arises out of or relates to this Agreement, a party may not commence court proceedings unless it has complied with this clause, except where urgent interlocutory relief is sought.
  3. The dispute must first be referred to mediation administered by a mediator agreed upon by the Parties or appointed by the Arbitration Foundation of Southern Africa (AFSA).

17. General

  1. Amendments: No amendment of this Agreement shall be effective unless in writing and executed by each Party or by an authorized representative.
  2. Counterparts: This Agreement may be executed in counterparts, each of which constitutes a duplicate original, but all together constitute one agreement.
  3. Entire Agreement: In the absence of a signed “Dealer Terms Agreement,” this Agreement stands as the primary reference. If a signed “Dealer Terms Agreement” exists, both documents are to be read in conjunction. In the event of any inconsistency, the terms of the signed “Dealer Terms Agreement” take precedence.
  4. Further Assurances: Each Party shall execute documents and do all acts reasonably required to implement and carry out its obligations under this Agreement.
  5. Severability: If any provision of this Agreement is or becomes unenforceable, illegal, or invalid, it shall be deemed severed without affecting the validity of the remainder of this Agreement.
  6. No Waiver: No failure or delay by a Party to exercise any right, power, or remedy under this Agreement shall operate as a waiver. A waiver of any breach must be in writing and signed by the Party against whom the waiver is claimed. A waiver of any breach shall not be a waiver of any other or subsequent breach.
  7. Set Off: The Vendor may deduct or set off any amount payable by it to the Purchaser under this Agreement against any amount payable by the Purchaser to the Vendor.
  8. Governing Law: This Agreement is governed by the laws of South Africa, and the Parties submit to the exclusive jurisdiction of the courts of South Africa.

18. Safety & Compliance

  1. Hazardous Materials: The Purchaser acknowledges that the Fertilizer Products may contain hazardous materials and agrees to handle and store them in accordance with all applicable safety and health regulations, including but not limited to those stipulated by the Occupational Health and Safety Act 1993.
  2. Regulatory Compliance: The Purchaser agrees to comply with all applicable laws, regulations, and guidelines concerning the use, handling, transportation, storage, and disposal of the Fertilizer Products, including but not limited to the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 1947.
  3. Safety Data Sheets (SDS): The Vendor shall provide the Purchaser with Safety Data Sheets (SDS) for all Fertilizer Products, at the Purchaser’s request. The Purchaser agrees to review and follow the recommendations in these SDS.

19. Environmental Impact

  1. Environmental Regulations: The Purchaser agrees to comply with all applicable environmental laws and regulations, including the National Environmental Management Act 1998, in the use, handling, storage, and disposal of the Fertilizer Products.
  2. Spill Response: The Purchaser agrees to have in place an adequate spill response plan to address any accidental release of Fertilizer Products. The Purchaser shall notify the Vendor and appropriate authorities immediately in the event of a spill or accidental release.

20. Product Liability & Indemnity

  1. Product Liability: The Vendor shall not be liable for any damages, losses, or injuries resulting from the misuse or improper handling of the Fertilizer Products by the Purchaser or any third party.
  2. Indemnity for Third-Party Claims: The Purchaser agrees to indemnify and hold the Vendor harmless from any third-party claims arising out of or in connection with the use, handling, storage, or disposal of the Fertilizer Products, except where such claims are due to the Vendor’s gross negligence or wilful misconduct.

21. Quality & Shelf Life

  1. Quality Assurance: The Vendor warrants that the Fertilizer Products meet the quality standards specified in the Product Warranty at the time of delivery. The Vendor makes no warranty regarding the suitability of the products for any specific purpose unless expressly stated.
  2. Shelf Life: The Purchaser acknowledges that Fertilizer Products may have a limited shelf life and agrees to use the products before the expiration date provided by the Vendor. The Vendor shall not be liable for any degradation in product quality due to the Purchaser’s failure to use the products within the specified period.

22. Recall

  1. Product Recall: In the event that any Fertilizer Products are recalled, whether voluntarily or by order of any regulatory authority, the Purchaser agrees to cooperate fully with the Vendor and comply with all instructions regarding the return or disposal of the recalled products.
  2. Recall Costs: The Vendor shall bear the reasonable costs associated with any product recall, except where the recall is due to the Purchaser’s handling, storage, or use of the products in violation of this Agreement or applicable laws and regulations.

23. Insurance

  1. Insurance Coverage: The Purchaser agrees to maintain adequate insurance coverage for the Fertilizer Products while they are in the Purchaser’s possession, including coverage for theft, damage, and liability for any claims arising from the use or handling of the products.
  2. Proof of Insurance: The Purchaser shall provide the Vendor with proof of such insurance coverage upon request.