Terms and Conditions of Use of the ABI Web Order Site
Amalgamated Beverage Industries, the Soft Drink Division of The South
African Breweries (Pty) Limited, Registration Number: 1998/006375/07
These terms and condition are binding and enforceable against all persons
that access the web site of The South African Breweries Limited (“the ABI
web order site”) in terms of section 11(3) of the Electronic Communications
and Transactions Act 25 of 2002 (“ECTA”).
Any use of the ABI web order site will automatically bind you to these terms
and conditions and is an acceptance of and full agreement to these terms and
conditions, forming a Contract between you and ABI (see “T&C” below). If
you do not agree to these T&C, do not continue to use the ABI web order site.
A copy of the ECTA may be downloaded from http://www.polity.org.za under
the heading "Legislation and Policy".
Consumer Protection Act 68 of 2008 (“CPA”):
Definitions and interpretation
a.
"ABI" means Amalgamated Beverage Industries, the Soft Drink Division of The
South African Breweries (Pty) Limited, Registration Number: 1998/006375/07
"ABI web order site" means the ABI site located which may be accessed at
b.
https://www.abiorder.co.za/b2b_sab/b2b/login_frame_abi.jsp
and includes any portal, part or any aspect of the ABI website whatsoever. The
ABI web order site is owned and operated by ABI;
c.
"User" or “you” means any person who accesses, enters, browses or uses any
part or aspect of the ABI web order site, even if that person only visited the
home page of the ABI web order site, and may include the account holder/trade
customer and/or any person that operates on the customer‟s account;
d.
“T&C” or “Contract” or “Agreement” means the current, applicable
version/s of these terms and conditions (and any other terms and conditions
that may appear in any part of the ABI web order site), which:
i.
you agree to anew every time you either visit, browse, access or use
(“use”) any part or aspect of the ABI web order site;
ii.
you are bound by as soon as you access or use any part or aspect of
the ABI web order site;
iii.
are a Contract or Agreement between you and ABI; and which
iv.
may be changed and/or updated by or on behalf of ABI from time to
time.
e.
"Purchaser/s" means any person that does or attempts to transact, order
and/or purchase any products on the ABI web order site;
f.
“Account” means any account, credit or payment facility or reference number
that the User uses to trade with ABI and by virtue of which the User has access
to the ABI web order site;
g.
“person” means any natural person, or any other entity;
h.
“Trade Terms” means the current, applicable version of the Application to
i.
Trade and Terms and Conditions of Sale in connection with an Account,
including the Credit Application and any other terms and conditions which are
issued, updated or changed by or on behalf of ABI from time to time;
Other terms & conditions that also apply to you This agreement applies
along with the other terms & conditions of the bank that govern your accounts,
our services and our relationship with you. Certain of the products and services
that we make available to you on the service channels also have their own
terms and conditions.
IMPORTANT:
You are contracting with ABI when you access, enter, browse or use any
1.
part or aspect of the ABI web order site, and/or purchase any products on the
ABI web order site.
 STATEMENTS

To help you to monitor transactions on your account we may make
account statements available to you or you may request a statement
from any ABI branch. You must review your statements regularly.

We may either make your statements available electronically
(online) or we may send you your statements via email.

You may be charged an additional fee for statements requested
over and above those normally provided. Statements are not
automatically sent out on certain accounts. Please refer to the account
rules/terms and conditions.

Your statement will show all the transactions on your account for
the period written on the statement.

You must check each entry on your statement carefully as soon as
you receive/retrieve your statement.

You must report any errors or unauthorised transactions to us
within 30 (thirty) days from statement date so where possible we can
assist you to rectify the matter. If you don‟t do this we will be entitled
to assume the statement and transactions were correct or authorised
even if they were not. We will not be liable for any loss or damage you
suffer because of this.
Transactions carried out, but not yet credited or debited to your account
will not appear on your statement.

2.
To the extent that we are permitted by law, we have the right, without
notice to you, to combine any or all accounts that you may have with
us and to set off any amount that you owe us against any amount that
we hold to your credit for whatever reason. However, we reserve the
right to combine only some of your accounts and then we will be
entitled to claim from you any amount in respect of an account that
has not been combined.
Disclaimer & Limitation of Liability
2.1
Subject to the provisions of sections 43(5) and 43(6) of the ECTA, if
applicable, and as far as allowed by law, ABI (including its owners,
employees, suppliers, Internet service providers, partners, affiliates
and agents) shall not be liable for any damage, loss or liability of any
nature incurred by whomever and resulting from:
2.1.1
2.1.2
2.1.3
2.1.4
2.2
2.3
2.4
2.5
3.
access to the ABI web order site;
access to web sites linked to the ABI web order site;
inability to access the ABI web order site;
inability to access web sites linked to the ABI web order
site;
2.1.5
content available on the ABI web order site;
2.1.6
services available from the ABI web order site;
2.1.7
downloads and use of content from the ABI web order
site;
2.1.8
any other reason not directly related to ABI gross
negligence.
The ABI web order site is supplied on an "as is" basis and has not
been compiled to meet the User's individual requirements. It is the
responsibility of the User to satisfy himself or herself, prior to
entering into this agreement with ABI, that the content available from
and through the ABI web order site meet the User's individual
requirements and is compatible with the User's computer hardware
and/or software.
Information, ideas and opinions expressed on the ABI web order site
should not be regarded as professional advice or the official opinion
of ABI and Users are encouraged to consult professional advice
before taking any course of action related to the information, ideas or
opinions expressed on the ABI web order site.
ABI does not make any warranties or representation that content and
services available from the ABI web order site will in all cases be
true, correct or free from any errors. ABI shall take all reasonable
steps to ensure the quality and accuracy of content available from the
ABI web order site.
ABI does not make any warranties or representations that the ABI
web order site shall be available at all times. Users acknowledge that
the ABI web order site may be unavailable due to updates or other
causes beyond the reasonable control of ABI, including, but not
limited to virus infection, unauthorised access, power failure or other
"acts of God".
Allowed Use & Licence
3.1
ABI licenses the User to view, download and print the content of the
ABI web order site, provided that such content is used for the
intended purposes of the ABI web order site. ABI may determine,
change and/or stipulate the intended uses of the ABI web order site
at any time and it is the User‟s obligation to make sure that the User
is fully aware of the intended purpose at any time that the User uses
the ABI web order site.
3.2
Content from the ABI web order site shall not be used or exploited by
Users for any commercial and non-private purposes without the prior
written consent of ABI.
3.3
Users may only access and use the ABI web order site for legal
purposes.
3.4
The caching of the ABI web order site shall only be allowed if:
3.4.1
The purpose of the caching is to make the onward
transmission of the content from the ABI web order site
more efficient;
3.4.2
The cached content is not modified in any manner
whatsoever;
3.4.3
The cached content is updated at least every 12
(twelve) hours; and
3.4.4
The cached content is removed or updated when so
required by ABI.
3.5
If any User uses content from the ABI web order site in breach of the
provisions detailed herein:
3.5.1
ABI reserves the right to claim damages from the User;
3.5.2
ABI reserves the right to institute criminal proceedings
against the User; and
3.5.3
ABI shall not be liable, in any manner whatsoever, for
any damage, loss or liability that resulted from the use
of such content by the User or any third party who
obtained any content from the User.
Hyperlinks and Linking
3.6
ABI may provide hyperlinks to web sites not controlled by ABI (target
sites) and such links do not imply any endorsement, agreement on or
support for the content of such target sites; and
3.7
ABI does not editorially control the content on such target sites and
shall not be liable, in any manner whatsoever, for the access to,
inability to access or content available on or through such target
sites.
3.8
Hyperlinks to the ABI web order site from any other source shall be
directed at the home page of the ABI web order site. ABI nonliability for deep linking is based on the fact that deep links bypass
these terms and conditions.
3.9
Persons that wish to link to content beyond the home page of the ABI
web order site shall do so at their own risk and indemnify ABI against
any loss, liability or damage that may result from the use of content
from the ABI web order site, if such content was accessed through a
hyperlink not directed at the home page of the ABI web order site.
3.10
ABI shall not be liable, in any manner whatsoever, for any damage,
loss or liability that resulted from the use of content from the ABI
web order site, if such content was accessed through a hyperlink not
directed at the home page of the ABI web order site.
3.11
Users may quote small and reasonable amounts of content available
from the ABI web order site only if such quote is placed in inverted
commas and acknowledged.
3.12
No person may frame the ABI web order site, in any manner
whatsoever, without the prior written consent of ABI.
3.13
Apart from bona-fide search engine operators and use of the search
facility provided on the ABI web order site by Users, no person may
use or attempt to use any technology or applications (including web
4.
5.
crawlers or web spiders) to search or copy content from the ABI web
order site for any purposes, without the prior written consent of ABI.
3.14
All licenses and/or permissions granted in terms of this clause 2 are
provided on a non-exclusive and non-transferable basis and may be
terminated or cancelled by ABI at any time without giving reasons
therefore.
3.15
Even though some hyperlinks are part of these terms and conditions,
if any of the hyperlinks do not operate or function properly or at all,
these terms will still be valid and the interpretation of these terms
and conditions will not be affected by that.
Intellectual Property Rights & Domain Name Use
4.1
All intellectual property on the ABI web order site, including but not
limited to content, trademarks, domain names, patents, design
elements, software, databases, text, graphics, icons and hyperlinks
are the property of or licensed to ABI and as such, are protected from
infringement by domestic and international legislation and treaties.
Subject to the rights licensed to the User in clause 2 (which may be
terminated or cancelled by ABI at any time without giving reasons
therefore), all other rights to intellectual property on the ABI web
order site are expressly reserved to ABI and are owned by or licensed
to ABI at all times.
4.2
ABI and all other marks, brand names, designs and/or logos on the
ABI web order site are trademarks (whether registered or not) or
another form of the Intellectual Property and Users agree not to use
the trademarks or any other form of Intellectual Property as an
element of a domain name or sub domain name. When the User
receives a request from ABI to do so, a User shall immediately stop
all use of such trademarks or any other form of Intellectual Property
and/or domain name and transfer it to ABI at the cost of the User.
Disclosures Required by Section 43 of the ECTA
Access to the services, content, software and content downloads available from
the ABI web order site is classified as "electronic transactions" in terms of the
ECTA and therefore Users have the rights detailed in Chapter 7 of the ECTA and
ABI has the duty to disclose the following information:
5.1
5.2
5.3
5.4
5.5
5.6
5.7
The full name and legal status of the web site owner: Amalgamated
Beverage Industries, the Soft Drink Division of The South African
Breweries (Pty) Limited, Registration Number: 1998/006375/07
Street address: 65 Park Lane, Sandown, Sandton, 2144;
Postal address: P.O. Box 782178, Sandton, 2146;
Physical address for receipt of legal service: 65 Park Lane, Sandown,
Sandton, 2144;
Main business: The main business of ABI is detailed at
http://www.abi.co.za;
The web site address of the ABI web order site is:
https://www.abiorder.co.za/b2b_sab/b2b/login_frame_abi.jsp
The official e-mail address of the ABI web order site is:
[email protected]
5.8
5.9
5.10
5.11
5.12
5.13
5.14
5.15
Membership of self-regulatory or accreditation bodies: ARA;
Codes of conduct to which the ABI web order site subscribes: ARA;
The Manual published in terms of section 51 of the Promotion of
Access to Information Act 2 of 2000 of the owner of the ABI web
order site may be viewed on the ABI site.
Management: The management profile of ABI is available from:
http://www. abi.co.za;
The costs associated with the access and use of the ABI Product is
available from [email protected]
Alternative dispute resolution: Subject to urgent and/or interim relief,
all disputes regarding:
5.13.1
access to the ABI web order site;
5.13.2
the inability to access the ABI web order site;
5.13.3
the services and content available from the ABI web
order site; or
5.13.4
these terms and conditions,
shall be referred to arbitration in terms of the expedited rules of the
Arbitration Foundation of South Africa and such arbitration
proceedings shall be conducted in Johannesburg in English. The
arbitration ruling shall be final and the unsuccessful party shall pay
the costs of the successful party on a scale as between attorney and
own client. The expedited rules of the Arbitration Foundation of South
Africa may be downloaded from the following web site:
http://www.arbitration.co.za;
Cooling-off period: In terms of the operation of section 42(1)(d) of
ECTA, the cooling-off provisions of the ECTA do apply to this web
site; and
Users may lodge complaints or queries concerning the ABI web order
site with ABI at the Customer Interaction Centre (CIC) Tel: 0860 000
722 Email: [email protected]
6.
Changes & Amendments
ABI expressly reserves the right, in its sole and absolute discretion, to do any
of the following, at any time without prior notice:
6.1
change these terms and conditions;
6.2
change the content and/or services available from the ABI web order
site;
6.3
discontinue any aspect of the ABI web order site or service(s)
available from the ABI web order site; and/or
6.4
change the software and hardware required to access and use the
ABI web order site.
We can change the terms and conditions that apply to you, the way
6.5
you access your accounts, any services we provide. We can also add
new rules, products or stop existing products at any time. We will
only notify you of material changes and unless you cancel this
agreement before the date on which the changes take effect, you will
be bound to them.
7.
Privacy
7.1
ABI shall take all reasonable steps to protect the personal information
8.
9.
of Users and for the purpose of this clause, "personal information"
shall be defined as detailed in the Promotion of Access to Information
Act 2 of 2000 (PAIA). The PAIA may be downloaded from:
http://www.polity.org.za
7.2
ABI may electronically collect, store and use the following personal
information of Users:
7.2.1
name and surname;
7.2.2
contact numbers;
7.2.3
non-personal browsing habits and click patterns;
7.2.4
e-mail address; and
7.2.5
IP address.
7.3
ABI collects, stores and uses the abovementioned information for the
following purposes:
7.3.1
communicate requested information to the User; and
7.3.2
to compile non-personal statistical information about
browsing habits, click-patterns and access to the ABI
web order site.
7.4
Information detailed above is collected either electronically by using
cookies or is provided voluntarily by the User. Users may determine
cookie use independently through their browser settings.
7.5
ABI may collect, maintain, save, compile, share, disclose and sell any
information collected from users, subject to the following provisions:
7.5.1
ABI shall not disclose personal information from Users
unless the User consents thereto;
7.5.2
ABI shall disclose information without the User‟s consent
only through due legal process; and
7.5.3
ABI may compile, use and share any information that
does not relate to any specific individual.
7.6
ABI owns and retains all rights to non-personal statistical information
collected and compiled by ABI.
Stock Availability
Products appearing on the ABI web order site are subject to stock
availability and ABI‟s Trade Terms and all related trading policies and
other terms. See ABI‟s Trade and Credit conditions on page 11.
Security
9.1
ABI shall take all reasonable steps to secure the content of the ABI
web order site and the information provided by and collected from
Users from unauthorised access and/or disclosure. However, ABI
does not make any warranties or representations that content shall
be 100% safe and secure;
9.2
ABI is under no legal duty to encrypt any content or communications
from and to the ABI web order site and is also under no legal duty to
provide digital authentication of any page on the ABI web order site;
9.3
Users may not deliver or attempt to deliver, whether on purpose or
negligently, any damaging code, such as computer viruses, to the
ABI web order site or the server and computer network that support
the ABI web order site. Notwithstanding criminal prosecution, any
person who delivers any damaging code to the ABI web order site,
10.
11.
12.
whether on purpose or negligently, shall, without any limitation,
indemnify and hold ABI harmless against any and all liability,
damages and losses ABI and its partners / affiliates may suffer as a
result of such damaging code;
9.4
Users may not develop, distribute or use any device to breach or
overcome the security measures of the Product and ABI reserves the
right to claim damages any and all persons concerned with a security
failure or breach; and
9.5
Any User who commits any of the offences detailed in sections 85 to
88 of the ECTA shall, notwithstanding criminal prosecution, be liable
for all resulting liability, loss or damages suffered and/or incurred by
ABI and its partners / affiliates. The ECTA may be downloaded from:
http://www.polity.org.za
9.6
Software & Equipment
It is the responsibility of the User to acquire and maintain, at his/her
own expense, the computer hardware, software, lines and access
accounts required to access the Internet and the ABI web order site
and/or download content from this web site.
AUTHORISED USERS
If you complete the necessary Power of Attorney form, we will allow
10.1
another person to use your account.
You will be liable for all debts incurred by such authorised users
10.2
including our fees and charges, any overdrawn amounts plus interest
on those amounts. You will be liable for any actions and omissions on
the part of the authorised user.
You understand the risks involved in giving another person access to
10.3
the account and have considered the restrictions that should apply.
You must provide correct and up to date information about the
10.4
authorised users on your account/s and you alone are responsible for
deciding and checking what rights must be given to authorised users.
You can cancel your authority at any time by completing the required
10.5
bank forms. You will be liable for all transactions made before the
authority was cancelled. The authority given to any authorised users
comes to an end when you terminate the authority or where the law
provides, such as on your death or if you become legally
incompetent.
Reporting inaccurate Content and Removal & Correction of Content
Users are encouraged to report untrue, inaccurate, defamatory,
illegal, infringing and/or harmful content available from the ABI web
order site to ABI and ABI undertakes to correct and/or remove such
content or any part thereof if the person reporting such content
provided reasonable grounds to prove the alleged nature of the
content.
Interception of Communications
12.1
Subject to the provisions of the Regulation of Interception of
Communications (RIC) Act 70 of 2002, the User agrees to ABI‟ right
to intercept, block, filter, read, delete, disclose and use all
communications send or posted by the User to the ABI web order
site, its staff and employees; and
12.2
The User agrees and acknowledges that the consent provided by the
13.
14.
15.
16
User in clause 12.1 satisfies the "writing" requirement as detailed in
the ECTA and the RIC Act.
Entire Agreement & Severability
13.1
Subject to the provisions of the “Allowed Use and Licence” (Clause 3
above), these terms and conditions constitute the entire agreement
between ABI and the User and shall take precedent over any
disclaimers and/or legal notices attached to any communications
and/or postings received by ABI from the User.
13.2
Any failure by ABI to exercise or enforce any right or provision shall
in no way constitute a waiver of such right or provision.
13.3
In the event that any term or condition detailed herein is found
unenforceable or invalid for any reason, such term(s) or condition(s)
shall be severable from the remaining terms and conditions. The
remaining terms and conditions shall remain enforceable and
applicable.
13.4
No amendment to this agreement or any rules and no waiver of any
of our rights will be of any force unless it is recorded in writing and
signed or issued by our authorised representatives.
Agreement in Terms of Section 21 of the ECTA
The User and ABI agree that:
14.1
the User shall be bound to these term and conditions and such
agreement is concluded in Johannesburg (South Africa) at the time
that the User enters the ABI web order site for the first time or
immediately after the User indicated consent as required in the
“Allowed Use and Licence” (Clause 3 above);
14.2
data messages (as defined in the ECTA) addressed by the User to ABI
shall only be deemed to have been received if and when responded
to;
14.3
data messages (as defined in the ECTA) addressed to the User by ABI
shall be deemed to be received by the User as detailed in section
23(b) of the ECTA;
14.4
data messages (as defined in the ECTA) addressed by the User to ABI
shall be deemed to have been created and send by the User from
within the geographical boundaries of South Africa;
14.5
electronic signatures, encryption and/or authentication is not required
for valid electronic communications between the User and ABI; and
14.6
the User agrees and warrants that data messages that are sent to
ABI from a computer, IP address or mobile device normally used by
or owned by the User, was sent and/or authorised by the User
personally.
Applicable & Governing Law
Subject to clause 5.13 above (Alternative dispute resolution), the ABI web
order site is hosted, controlled and operated from the Republic of South Africa
and therefore the South African law enforced by the South African courts
governs the use or inability to use the ABI web order site, its content, services
and these terms and conditions.
General
 You must tell us immediately if you are placed under an administration
order, are sequestrated.

If your estate is provisionally or finally sequestrated or if you pass
away, or become legally incompetent the full amount you owe us will
become due and payable and access to the funds in your account will
be restricted.

If we need to take legal action against you, one of our managers (who
does not need to prove his appointment) will produce a certificate to
the court, recording the amount you owe us. If you disagree with this
certificate, you will have to prove that it is incorrect.

In the case of fraud, suspected fraud, or where the law compels us, we
can freeze or close your account and/or stop a service without notice
to you.

If there is a dispute about any matter or record, our records (certified
as correct by any ABI manager whose authority need not be proved)
will serve as prima facie proof unless you can prove the contrary.

Unless we agree to this, you may not cede or pledge any of your rights
or delegate any of your duties under your and our agreement.
While we may give you extra time to comply with your obligations or
decide not to exercise some of our rights, you must not assume that
this means that our agreement with you has been changed or that it
no longer applies to you. We can still insist on the strict application of
any or all of our rights at a later stage.
We may terminate this agreement at any time by giving you
reasonable notice of termination.


17.
Legal Costs
ABI shall not be liable for costs incurred by Users to obtain professional advice
relating to these terms and conditions.
TRADE AND CREDIT CONDITIONS - AMALGAMATED BEVERAGE INDUSTRIES,
THE SOFT DRINK DIVISION OF THE SOUTH AFRICAN BREWERIES (PTY)
LIMITED, REGISTRATION NUMBER: 1998/006375/07
These terms and condition are binding and enforceable against all persons
that access the web site of Amalgamated Beverage Industries, the Soft Drink
Division of The South African Breweries (Pty) Limited
Amalgamated Beverage Industries (“the ABI web order site”) in terms of
section 11(3) of the Electronic Communications and Transactions Act 25 of
2002 (“ECTA”).
PLEASE NOTE:
These terms contain certain disclaimers, waivers, exclusions of liability,
acknowledgements of fact and obligations, which may have serious
consequences and/or financial implications. It is important for the Purchaser
to read and understand these terms as well as the implications they may
have for the Purchaser and/or its representatives.
By using the ABI WEB ORDER Website you (“the Purchaser” or “the Credit
Applicant”) agree to the following:
A.
With effect from either the date upon which the Purchaser signs (either by hand
or electronically) any application form to trade with cash and/or credit facilities,
or the date when goods are first taken delivery of by the purchaser, whichever is
earlier, every transaction entered into between the Seller and the Purchaser in
respect of any goods sold to the Purchaser, shall be governed by the following
Terms and Conditions.
B.
All details and/or undertakings provided by the Purchaser on any credit
application form/s and/or Trade Terms and Conditions of Sale forms are
incorporated by reference into these terms.
CREDIT AND SECURITY:
The Seller may:
1.1 Perform a credit search on the applicant‟s record with one or more of the
registered Credit Bureaux when assessing the applicant‟s application for credit.
1.2. Monitor the credit applicants payment behaviour by researching his/her record
at one or more of the Credit Bureaux.
1.3. Use new information and data obtained from any Credit Bureau in respect of
the applicant‟s future credit applications.
1.4.
Record the existence of the applicant‟s account with any Credit Bureau.
1.5. Record and transmit details of how the applicant has performed, and how the
account is conducted by the applicant in meeting his/her obligations on the account
with any Credit Bureau.
1.6. Perform a credit search on any members or shareholders of the applicant and
access information about their personal credit records and any other businesses in
which they are involved, when the Seller deems it necessary to do so for the purposes
of the applicant‟s account.
1.7.
Use information obtained from one or more Credit Bureaux to assess future
credit application by the applicant. ABI reserves the right to reduce the credit facility
depending on the risk of the applicant from time to time.
The Credit Applicant acknowledges and agreed that any information regarding
his/her credit worthiness, defaults in payment to the credit grantor, and details of
how his/her account the Credit Grantor is conducted may be disclosed to any other
creditor of the Applicant or to one or more Credit Bureaux, subject to the terms of the
National Credit Act 34 of 2005 (“NCA”).
The Purchaser agrees that the Seller may adjust the Purchaser‟s credit limit from time
to time and will notify the Purchaser thereof, and the Purchaser will accept these
adjusted limits without having to resign their initial application document.
The Purchaser acknowledges that it shall be entirely within the discretion of the Seller
at any time and without having to give any reasons therefore to withdraw the trading
facilities that may be granted as a result of this application.
The Purchaser undertakes to furnish the Seller on demand with any security that the
Seller may, in its sole and absolute discretion require and all costs pertaining to the
drafting and stamping of any such security shall be for the account of the Purchaser
and the Purchaser hereby authorises and grants unto the Seller the right to debit
his/her account with such cost and disbursements.
MISREPRESENTATION AND PERSONAL SURETYSHIP BY SIGNATORY:
Any misrepresentation, false representation or non-disclosure made by the
representative and/or person signing this document shall have the effect that the
person signing this document assumes liability as Co-Principal Debtor for any amount
owing to the supplier in respect of any supply made in pursuance of this information
herein furnished by him/her.
AMOUNTS OWING TO ABI, PAYMENTS AND DEFAULT BY PURCHASER:
The Purchaser shall be responsible for the payment of all amounts owing to the Seller
(ABI) in respect of all goods sold to any retail sales point controlled by the Purchaser,
as set out on any invoice and/or statement/account issued by or on behalf of the
Seller or credit status printout from the Seller‟s computer systems from time to time,
on the payment terms stipulated on any such invoice and/or statement/account
issued by or on behalf of the Seller or credit status printout.
The Purchaser accepts the condition that cash payments cannot be accepted by the
driver or representative of the Seller. Cash payments will be accepted by the Seller
directly into the Seller‟s bank account.
Unless otherwise agreed in writing, the prices at which the goods are sold, shall be
the Seller‟s ruling price as at date of delivery of the goods, whether notified to the
Purchaser or not.
Any discount reflected on the Seller‟s price list and/or invoice and/or statement which
the Seller may afford to the Purchaser from time to time and any change in respect
thereof is subject to the sole and absolute discretion of the Seller.
Any monies paid by the Purchaser may be appropriated or allocated by the Seller at
its Sole discretion in payment of any amount outstanding (including interest and/or
penalties), due and payable by the Purchaser to the Seller.
Any invoice and/or statement/account issued by or on behalf of the Seller or credit
status printout from the Seller‟s computer systems, shall be prima facie evidence of
the amount due by the Purchaser to the Seller, valid as a liquid document for
purposes of any provisional sentence, summary judgment or other proceedings
instituted by the seller against the purchaser; and deemed to be sufficiently particular
for the purpose of pleading or trial in any action or other proceedings instituted by the
seller against the purchaser. It shall not be necessary to prove the authority and/or
appointment of the person signing any such certificate.
Unless the Purchaser objects in writing to the balance outstanding which appears on
any monthly statement of the Seller writhing 15 (fifteen) days from the date of the
statement, the balance outstanding which appears on the statement shall be prima
facia proof of the amount due and owing and it shall rest with the Purchaser to prove
that such amount in not due and owing.
In the event of the Purchaser failing to make payment in terms hereof, all amount/s
owing by the Purchaser to the Seller shall forthwith become due and payable and
bear interest at a rate equal to 2 percentage points above the prime overdraft rate
charged by the Sellers Commercial Bankers from time to time, calculated from the
date which payment in terms of this clause should have been made, to date or both
days inclusive.
All returned payment/s, debit orders, defaults or unpaid items shall attract an
administration charge.
Should the Seller institute legal action against the Purchaser owing to the Purchaser‟s
failure to comply with any of the provisions hereof, the Purchaser agrees to pay the
following costs incurred by the Seller:
All legal costs incurred as a result of the Seller instructing an attorney, on the scale as
between attorney and own client, as well as collection commission and tracing fees,
where applicable.
Notwithstanding any credit granted by the Seller to the Purchaser, the full
outstanding amount, irrespective of any terms afforded to the Purchaser, shall
immediately become due, owing and payable in the event of the estate of the
Applicant being provisionally or finally sequestrated, liquidated or placed under
judicial management whether provisionally or finally, or placed under curatorship or in
the event of death of a Sole Proprietor, Sole Member or Director of the Purchaser.
DELIVERY – RISK AND OWNERSHIP
The risk in the goods shall pass to the Purchaser on delivery at the outlet. The
Purchaser shall be responsible to obtain delivery of goods purchased save that the
Seller may in its discretion agree to effect delivery on such terms at is may from time
to time determine. Notwithstanding the a foregoing, it is hereby agreed between the
Seller and the Purchaser that in the event of any „Cash on Delivery‟ transaction, right
of ownership in and to the goods shall not pass to the Purchaser until the full amount
of the purchase price has been received by the Seller.
The Purchaser undertakes, in the event of him/her not being the owner of the
premises where the goods are delivered, to notify the Landlord of the right of
ownership in and to the goods and also furnish the Seller on request with the name,
address and telephone number of the Landlord in respect of all goods in which
ownership is reserved as herein provided.
RETURNABLE CONTAINERS AND DEPOSITS
All returnable containers supplied to the customers, including but not restricted to
bottles, crates, pallets & layers boards remain the property of ABI at all times.
Returnable containers supplied to the customers must be returned to ABI within
reasonable time after use, in a satisfactory condition for re-use, fair wear and tear
excepted (as determined by the Seller). Refundable deposits will be charged on all
returnable containers supplied by ABI at varying rates advised to customers from
time to time. Deposits charged will be refunded in full where the containers are
returned in a satisfactory condition for re-use. Where returnable containers are
returned in an unsatisfactory, non- reusable condition or where returnable containers
are not returned to ABI, the refundable deposit shall be forfeited. Bottles and other
containers supplied in cases, pallets or other returnable outer packaging should only
be returned in similar cases, pallets or outer packaging as originally supplied with a
single type/size of bottle per case, pallet or outer package. ABI reserves the right to
reverse refunds where containers are subsequently found to be in an unsatisfactory
condition. Except by prior agreement, such refund shall be applied to the invoice
raised for delivery of goods made at the same time as the containers were collected.
VAT will be charged/credited at the rate ruling at time of delivery on the net value of
delivered and returned containers on each invoice.
DELIVERY:
The Purchaser accepts the condition that cash payments cannot be accepted by the
driver or representative of the Seller.
The Seller will endeavour to fulfil the terms of any order made by the Purchaser
within a reasonable time or within the time stipulated (if any), but the Seller accepts
no liability for late deliveries; it being expressly agreed that time shall not be of the
essence of the Contract.
The Seller reserves the right to suspend deliveries hereunder as long as the Purchaser
is in default in payment for any prior delivery.
Unless the Purchaser requests in writing the delivery of the goods in exact quantity as
specified and such condition of delivery is agreed upon by the Seller, the shortages or
surplus of the goods sold hereunder shall be charged according to the Seller‟s nearest
packaging unit.
No claim by the Purchaser in respect of the fulfilment of the terms of any order made
by the Purchaser, or of delivery, whether in respect of the form of delivery,
acceptance or acknowledgment of delivery of the goods, short delivery or nondelivery of the goods or in respect of the terms of or validity of any order made shall
be considered by the Seller unless such claim shall have been made in writing and
delivered to the Seller, within 7 (seven) days of date of delivery as reflected on the
delivery note concerned.
Failure by the Purchaser to submit a claim in respect of any individual transaction
within the aforesaid period shall constitute acknowledgement on the part of the
Purchaser that the goods have been duly delivered to the Purchaser in terms of a
valid order by the Purchaser as, and in the quantity ordered, and on the date
specified.
Purchaser hereby irrevocably renounces (in respect of each individual transaction)
any right to which it may be entitled in law as far as the delivery, short delivery or
non-delivery of the goods is concerned, or acceptance or acknowledgement of
delivery of the goods or otherwise in respect of the validity, nature and/or
interpretation of the order, should the Purchaser fail to submit a claim in the manner
and period aforesaid.
Force Majeure – Circumstances beyond the Control of ABI:
The Seller shall not be obligated to accept or fulfil any order made or shall the Seller
be liable in any respect whatsoever for its failure to perform hereunder due to
contingencies beyond its control, including, but not limited to acts of God,
Government laws, activities of enemies of the State, civil disturbance, riot, strikes,
lockouts, transport delays or accidents. The Seller shall have the right to omit during
the period of such contingency all or any portion of the quantity deliverable during
such period, but shall deliver the goods thereafter as and when circumstances permit.
Disclaimer, Exclusion of Warranties and Liability by ABI
The Seller gives no warranties whatsoever that the goods are suitable for any purpose
other than consumption as alcoholic beverages, the Seller shall not be liable for any
loss of profits, consequential, special, contingent or other damage or loss which may
have allegedly been suffered by the Purchaser or may have resulted from any delay in
supplying the goods or from any failure by the Seller to perform any of its obligations
hereunder, or under any other Contract or otherwise.
BREACH BY PURCHASER AND TERMINATION OF CREDIT AND TRADE TERMS
BY ABI:
In the event that the Purchaser breaches any term of this agreement, Seller shall be
entitled to provide the Purchaser with 14 (fourteen) days‟ written notice to the
Purchaser to remedy the breach.
In the event that the Purchaser fails to remedy the breach within the above notice
period, ABI shall, without any prejudice to any rights that it may have in law, be
entitled to:
1.
2.
3.
4.
Cancel any/all trade and/or credit terms, facilities or arrangements and take
any/all legal steps against the Purchaser for the recovery of all amounts set
out herein, and in any other trade and/or credit terms, facilities or
arrangements; and/or
suspend any/all trade and/or credit terms, facilities or arrangements; and/or
suspend deliveries to the Purchaser; and/or
set off all amounts set out herein, and in any other trade and/or credit
terms, facilities or arrangements owed by the Purchaser to Seller against any
payments that may be due by Seller to the Purchaser (for whatever reason).
GENERAL
The Purchaser consents to the jurisdiction of the Magistrate‟s Court for the purpose of
any action instituted against it, upon or arising out of the terms herein set out
notwithstanding the fact by virtue of the amount of relief claimed the said action
would otherwise not be witting the jurisdiction of the Magistrate‟s Court.
The Purchaser chooses the physical address provided from time to time by the
Purchaser/contained in any application form to trade with cash and/or credit
facilities as the address at which the Purchaser will take service and receive
any legal documents. The contact details provided from time to time by the
Purchaser/contained in any application form to trade with cash and/or credit
facilities shall be the contact details where the Seller may send any notices,
letters or any other communications to the Purchaser.
The Contract shall be governed by, construed and take effect in all respects in
accordance with the law of the Republic of South Africa.
No relaxation or indulgence granted by the Seller or no omission by the Seller
timorously or diligently to enforce any right under this agreement, shall be deemed to
amount to a waiver of that or any other right, nor to be a waiver of that or any other
right for the future.
The provisions of the Agreement are severable and in the event that any one or more
of the conditions or terms hereof are illegal, the remaining provision and terms shall
be valid and enforceable.
The terms and conditions herein set out constitute the whole agreement between the
Seller and the Purchaser and no violation or amendment thereof shall be of any force
or effect, unless same is reduced to writing and signed by both the Seller and the
Purchaser.
The Purchaser‟s signatories here below warrant that he/she/they are duly authorised
to and by his/her/their signatures certify that the information set out in the form is
true and correct and that there have been no omissions or misrepresentation which
could prejudice the granting of trade facilities and/or credit terms.