Tobruk International GmbH, hereinafter refered to as the "COMPANY" sets forth the following terms and conditions of sales to all Customers who place an order, hereinafter referred to as “Agreement”.
 

1. Each delivery of goods to The Customer is a separate agreement.

2. All invoices are payable within 14 days from date of invoice, except where otherwise agreed to in writing.

3. The Customer will not have the right to withhold any payment of goods delivered, against non- delivery or late delivery of any other goods. All payments made by The Customer to the Company shall be made without set-off or deduction of any nature whatsoever, into the bank account stipulated by the Company in writing for this purpose.

4. The Customer agrees that any claims in respect of weight will be reported in writing immediately to the COMPANY upon delivery of the goods. The Customer further agrees that any claims in respect of quality will be reported in writing to the COMPANY within 48 hours of delivery. If the COMPANY is not notified within the time periods referred to above, the goods shall be deemed to

 

(i)free from defect,

 

(ii) of good and merchantable quality

 

(iii) fit for the purpose for which the goods would normally be used. No claims will be entertained if the provisions of this clause are not complied with.

5. Should the Customer refuse to accept the goods as referred to in the invoice upon delivery thereof, then the risk in the goods shall immediately pass to The Customer and The Customer shall be liable to pay to the COMPANY the reasonable costs of storing, insuring, and handling the goods, until delivery takes place. In the event of The Customer unreasonably delaying or failing to take delivery at all of goods tendered by the COMPANY for delivery to The Customer , the COMPANY shall be entitled, but not obliged to dispose of the goods on such terms and conditions and at such price as it in its sole discretion may determine and The Customer shall be liable for any shortfall between the price obtained by the COMPANY and the amount originally invoiced to The Customer as well as any other costs incurred by the COMPANY.

6. If in the exercise of its discretion the COMPANY, shall agree, at the request of The Customer, to accept the return of any goods for credit, which goods were correctly supplied by the COMPANY and are not defective or subject to any claim, then The Customer shall automatically, and without the necessity for any further agreement, be liable to pay the COMPANY a handling charge of 10% on the invoice price of the goods so returned.

7. The Customer agrees that the signature of an employee of The Customer on the COMPANY’s official Delivery Note, Invoice, Waybill or the Waybill of any authorised carrier will be prima facie proof of proper delivery and that the payment for those goods will be according to the agreed terms.

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8. Delivery of goods to any delivery address given by The Customer shall constitute proper delivery of the goods, notwithstanding the fact that such address may not have been the address or premises of The Customer.

9. Notwithstanding that all risk in and to all goods sold by the COMPANY to The Customer shall pass on delivery, ownership in all goods sold and delivered shall remain vested in the COMPANY until the full purchase price has been paid.

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10. Any commercial cold store charges incurred after 7 days of the goods being so stored will be charged to The Customer ’s account. Collection of the goods from such commercial cold storage facility must be within 7 days of delivery of the goods into such storage to avoid the imposition of these charges.

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11. The price of goods and payment date shall be specified each time for each order, a change in the market price of goods shall not release The Customer from its obligation to pay the entire amount owing for the goods.

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12. The Customer agrees to pay any bank charges incurred by the COMPANY where The Customer makes payment pursuant to an Agreement in cash or by way of cash deposit.

13. The Customer hereby undertakes to inform the COMPANY in writing of the revocation of any authority delegated to its employees, agents and/or representatives. Any Agreements entered into before the notification in writing of the revocation of this authority will remain of force and effect and binding upon The Customer.

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14. If the COMPANY is unable to fulfill its obligations due to unforeseen circumstances including but not limited to the negligence of 3rd parties, condemnation of product by veterinary authorities, force majeure, the failure to obtain quota and/or rebate permits as well as the imposition of tariffs and/or safe guards and other like / similar situations, the Agreement will remain enforceable subject to the election of the COMPANY whether to suspend the operation of the Agreement under these circumstances for such period as determined by the COMPANY in its sole and absolute discretion or to cancel the Agreement in these circumstances on 30 calendar days' written notice to The Customer , without liability to The Customer.

15. Orders will only be processed by the COMPANY upon receipt of The Customer ’s signed acceptance confirmation. Until such time as the COMPANY receives written signed acceptance confirmation thereof, the COMPANY is at liberty to sell the goods to any third party at its sole discretion.

16. Dates of departure and arrival and delivery of goods by the COMPANY to The Customer are estimated. While the COMPANY endeavors to adhere to estimated times of departure (ETD’s) and estimated times of arrival (ETA's) it cannot be held responsible where dates change in circumstances beyond its control and The Customer hereby irrevocably and unconditionally indemnifies and holds the COMPANY harmless in respect of any loss, liability, cost, expense and damage of whatsoever nature which it may incur as a result of the a foregoing.

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17. Non-compliance with the dates as aforementioned does not constitute breach on the part of the COMPANY or affect the validity of the Agreement. The COMPANY shall not be liable under any circumstances for any delay in the delivery of goods purchased by The Customer .

18. While care is taken to ensure that quantities are accurate, the COMPANY reserves the right to supply 10% more or less than the quantity ordered.

19. Any quality disputes to be referred to Societé Générale de Surveillance (SGS), an international inspection and auditing service. Both parties agree to be bound by their findings. Costs to be paid by the party against whom the arbitrator rules, unless otherwise agreed to in writing.

20. All specifications, illustrations, drawings, price lists, dimensions, advertising, brochures and other data furnished by the COMPANY in respect of the goods, and whether in writing or not, are furnished on the basis that they will not form part of the Agreement or be relied upon by The Customer for any purpose, unless and to the extent that they are expressly stated by the COMPANY to form part of the Agreement.

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21. Should The Customer :

 

21.1 fail to comply with any term or condition of the agreement; and / or

 

21.2 be sequestrated, liquidated or placed under insolvency or rehabilitation; and / or

 

21.3 enter into a settlement or negotiation with creditors; and / or

 

21.4 allow the granting of a judgment against it; and / or

 

21.5 fail to comply with such judgment within 7 days of becoming aware of it.

 

the COMPANY will immediately be entitled to claim payment of the total amount, plus interest and costs payable by The Customer in terms of this agreement.

22. Where any amount remains unpaid by The Customer to the COMPANY on the due date thereof, such amount shall bear interest at the prime overdraft lending rate charged by the COMPANY'S bankers plus 2% per year effected daily to the point that both the debt and interest or recovery fees are recovered in full. Any payments made by The Customer in respect of outstanding amounts shall be allocated by The Customer firstly towards interest, thereafter legal costs and collection commission incurred by the COMPANY in recovering such outstanding monies and finally towards capital but always in such order as determined by the COMPANY in its sole and absolute discretion.

23. A certificate under the hand of any manager of the COMPANY as to the existence of an amount of the indebtedness of The Customer to the COMPANY at any time, as to the fact that such amount is due and payable, the amount of interest accrued thereon, and the rate of interest applicable thereto and as to any other fact, matter or thing relating to the indebtedness of The Customer to the COMPANY shall be prima facie proof of the contents and correctness thereof and the amount of indebtedness of The Customer hereunder for the purpose of provisional sentence or summary judgment or any other proceedings against The Customer and shall be valid as a liquid document for those purposes. It shall not be necessary to prove the appointment of the person signing any such certificate.

24. The Customer expressly agrees that any debt owed by it to the COMPANY shall be prescribed only after the passing of a period of 5 years from when the debt becomes due and payable irrespective of howsoever the debt may have arisen.

25. The COMPANY reserves the right to withdraw any credit facilities at any time without prior notice to The Customer and the nature and extent of such facilities shall at all times be at the COMPANY's sole discretion. The COMPANY reserves the right to increase or decrease the said credit facility to such extent as it may deem appropriate in its sole and absolute discretion.

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26. The credit limit of the account shall not be deemed to be the limit of The Customer ’s indebtedness to the COMPANY.

27. All documents, cash, cheques, bank drafts or other remittances, sent to the COMPANY through the post or electronically transmitted shall be deemed not to have been received by the COMPANY unless and until they are actually received by the COMPANY. In the event that any payment to the COMPANY is effected electronically or otherwise, then The Customer bears the risk in respect of such payment until such time as the payment is received and cleared into the COMPANY’s bank account.

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28. Customers of the Company irrevocably and unconditionally provides the COMPANY with permission to:

 

28.1 obtain financial information from Applicant's Auditors, any information it may require from The Customer's Bankers, information it may require from The Customer’s Trade Suppliers as well as to provide Trade References on its trading performance to suppliers requesting Trade References and Industry Trade Bodies;

 

28.2 including its insurers to submit any of the information provided in the application forming part of this Agreement to any credit bureau for verification and to submit such information to such credit bureaus for whatsoever purpose and for such credit bureaus to store such information on their databases.

29. No act, omission, course of dealing, forbearance, delay or indulgence by the COMPANY in enforcing any of the Terms and Conditions of these terms and conditions shall affect or prejudice any of the subsequent rights of the COMPANY, and no such matter shall be treated as any evidence of waiver of the COMPANY rights thereunder, nor shall any waiver by the COMPANY of a breach by Applicant of any one or more of the Terms and Conditions of these terms and conditions operate as a waiver of subsequent breach thereof.

30. No cancellation, waiver, variation, alteration or amendment to the Terms and Conditions shall be valid or binding upon the COMPANY unless reduced to writing and signed by a duly authorized Director of the COMPANY.

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31. All aspects relating to these terms and conditions and all aspects incidental thereto including but not limited to its interpretation, implementation, operation and enforcement shall be governed by the British Law.

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32. If any provision of these terms and conditions shall be held to be invalid, illegal or unenforceable, or shall be required to be modified, the validity, legality and enforceability of the remaining provisions shall not be affected thereby.

33. In addition to the aforesaid and at the option of the Company, the Company shall be entitled to:

 

33.1 cancel all sale orders in respect of all undelivered goods and/or to suspend further deliveries without liability to The Customer. The Customer shall remain liable for payment of all outstanding amounts in respect of the goods which have been delivered up to the date of such cancellation; and/or

 

33.2 Resell the goods whereof the delivery has been so suspended to any third parties in mitigation of damages and without liability to The Customer , in this regard The Customer irrevocably waives any right it may have to claim for the difference should the Company sell the goods n excess of the agreed contract price.