​1. DEFINITIONS

1.1 In this Retailer Agreement, the following expressions bear the meanings given to them below, and equivalent expressions will have similar meanings:

 

1.1.1 “Agreement” means this entire Retailer Agreement.

 

1.1.2 “CPA” means the Consumer Protection Act (Act 68 of 2008), as amended.

 

1.1.3 “Maria’s Coffee” means Our Yard (Pty) Ltd with registration number 2017/386044/07.

 

1.1.4 “Parties” means Maria’s Coffee and the Retailer jointly, and “Party” means either of them individually.

 

1.1.5 “Personal Information” means personal information as defined in POPI.

 

1.1.6 “POPI” means the Protection of Personal Information Act (Act 4 of 2013).

 

1.1.7 “Products” means any and/or all the products acquired/ordered by the Retailer from Maria’s Coffee from time to time.

 

1.1.8 “Retailer” means the person/entity whose details are recorded under the heading “Proprietor / Owner Details” above.

 

1.1.9 “Signatory” means the person signing this Agreement, as more fully identified below.

 

2. INFORMATION

2.1 The information and documentation provided under the “Applicant Details” and “Proprietor / Owner Details” sections above will form the basis of Maria’s Coffee’s decision on whether or not to appoint the Retailer as a retailer of Maria’s Coffee Products.

 

2.2 The Retailer warrants and guarantees that all information provided by, for and/or on behalf of the Retailer is complete, true, accurate and correct.

 

2.3 The Retailer will notify Maria’s Coffee, in writing, of any changes in the information provided, within 7 (seven) days from such changes taking effect.

 

2.4 In the event that the provisions of clause 2.3 above are breached, all amounts owing by the Retailer to Maria’s Coffee will immediately become due and payable, and same will be paid on first demand being made by Maria’s Coffee.

 

3. PERSONAL INFORMATION

3.1 By entering this Agreement, the Retailer authorizes Maria’s Coffee to collect, store and use Personal Information of the Retailer for communication (including marketing and advertising) or statistical purposes. The Retailer is, however, entitled to decline any marketing communication by emailing Maria’s Coffee in this regard.

 

3.2 Maria’s Coffee will be entitled, allowed and authorized to use the name(s), photograph(s) and/or other relevant Personal Information of the Retailer for purposes of Maria’s Coffee’s marketing and advertising campaigns. The Retailer herewith agrees and consents to the aforementioned.

 

3.3 Maria’s Coffee has the right, permission and authority to publish the Retailer’s name and photographs (at no fee) in any advertising, promotional, print, point-of-sale or public relations material. The Retailer herewith agrees and consents to the aforementioned.

 

3.4 The nature of any and all publication, marketing and/or advertising referred to above will be determined in the sole and absolute discretion of Maria’s Coffee.

 

3.5 All publicity and other materials will be the sole property of Maria’s Coffee.

 

3.6 Maria’s Coffee will not breach the provisions of POPI in processing the Retailer’s Personal Information.

 

3.7 Notwithstanding that recorded in clause 3.6 above, the Retailer notes and agrees that its Personal Information will be stored on Maria’s databases and other information technology infrastructure, where it may be accessible by third-party technicians and other service providers engaged by Maria’s Coffee from time to time. Although Maria’s Coffee aims to bind and subject these technicians and other service providers to confidentiality and non-disclosure arrangements, Maria’s Coffee cannot and will not be liable and/or accountable for the acts and/or neglects of those technicians and other service providers in respect of the Personal Information of the Retailer. The Retailer notes and accepts the aforementioned and agrees thereto, which includes that it will not raise any demand, claim, suit or action against Maria’s Coffee for, regarding and/or in respect of the acts and/or neglects of the said technicians and other service providers.

 

4. SCOPE AND APPLICATION

4.1 This Agreement will only become effective and binding upon Maria’s Coffee delivering its written and signed confirmation of the Retailer’s appointment as a retailer of Maria’s Coffee’s Products. Until the delivery of such confirmation, this Agreement will be regarded as an application for appointment as a Retailer of Maria’s Coffee’s Products only.

 

4.2 Whether the Retailer is formally appointed as a retailer of Maria’s Coffee’s Products or not will be within the sole and absolute discretion of Maria’s Coffee.

 

4.3 Unless otherwise agreed in writing and signed by both Parties:

 

4.3.1 only this Agreement will apply to any and all orders, sales and/or deliveries of the Products between the Parties;

 

4.3.2 this Agreement will override any and all terms and conditions of trade, or any equivalent or like terms and conditions, stipulated/advanced by the Retailer from time to time;

 

4.3.3 the Retailer renounces any and all of its own terms and conditions of trade, or any equivalent or like terms and conditions implemented by the Retailer from time to time, in any and all orders, sales and/or deliveries of the Products between the Parties.

 

5. RETAILER

5.1 The Retailer warrants and guarantees that it will always acquire the Products from Maria’s Coffee for the purposes of marketing and selling same as a retailer to the general public. The Retailer will never act as a wholesaler, which includes that it will deliver all endeavours necessary to ensure that it does not sell the Products to anyone who intends, or will, resell same.

 

5.2 Nothing contained in this Agreement will appoint the Retailer as an exclusive retailer of the Products, whether with regard to the Products or the territory in which it trades. Maria’s Coffee will be entitled to appoint such a number of additional retailers as it deems fit in its sole and absolute discretion, including within the direct or indirect territory in which the Retailer trades or otherwise.

 

5.3 Should the Retailer have more than one retail branch, a list of those retail branches with their physical and contact details must accompany this application.

 

6. QUOTES

6.1 Any and all quotations delivered by Maria’s Coffee will be valid for a period of 14 (fourteen) days only, as of date of the quotation.

 

6.2 Maria’s Coffee reserves the right to adjust prices quoted if the Retailer fails to order/purchase the volumes of Product originally given as a basis for the quotation.

 

7. ORDERS

7.1 All orders for any Products must be placed on Maria’s Coffee’s order form or in writing.

 

7.2 The Retailer will be solely responsible and liable for the accuracy and correctness of any orders submitted by it to Maria’s Coffee.

 

7.3 No order for any Products will be binding on Maria’s Coffee. It is understood that all orders for Products will be executed at the discretion of Maria’s Coffee, and the mere receipt by Maria’s Coffee of an order for Products will not oblige Maria’s Coffee to supply or sell any Products ordered.

 

7.4 Maria’s Coffee will never be obliged to deliver on an order that is below Maria’s Coffee’s indicated minimum order quantity, if any and as determined from time to time.

 

7.5 Each separate order for the Products will, upon confirmation by Maria’s Coffee, be deemed to constitute a separate contract, and accordingly any breach by Maria’s Coffee in relation to any one order will not entitle the Retailer to terminate, cancel or vary any other order placed by it.

 

8. PRICE

8.1 In instances where a quotation has been delivered by Maria’s Coffee and accepted by the Retailer, the purchase price applicable will, subject to clauses 6.1, 6.2 and 8.3, be based on the accepted quotation.

 

8.2 Should no accepted quotation exist, the acceptance of an order by Maria’s Coffee is subject to the proviso that Products will, subject to clause 8.3, be supplied at the prices applicable as per Maria’s Coffee’s official price list at date of delivery.

 

8.3 If any of Maria’s Coffee’s costs/expenses in selling and delivering the Products to the Retailer, including costs of sales, transport, delivery, etc., have increased for any reason beyond Maria’s Coffee’s control, then the purchase price, whether as per accepted quotation or Maria’s Coffee’s price list, may be increased by the excess or, if the excess cannot be determined exactly, by a reasonable allowance for it.

 

9. DISCOUNTS AND REBATES

9.1 Prices charged by Maria’s Coffee will be strictly net and not subject to any discount/rebate, unless otherwise agreed in writing between the Parties.

 

9.2 In the event that Maria’s Coffee agrees to grant a settlement, volume, trade or other discount/rebate, such discount/rebate will only be effectively and formally granted where Maria’s Coffee receives full payment by due date. If Maria’s Coffee does not receive full payment by due date, the settlement or trade discount/rebate will be regarded as null and void and the Retailer will be liable for payment of the full amount charged. Interest and penalty charges, as provided for below, will be levied on such full amount charged.

 

10. PAYMENT

10.1 General

10.1.1 All payment by the Retailer to Maria’s Coffee will be made:

 

10.1.1.1 via electronic funds transfer or cash deposit only, into such a bank account as Maria’s Coffee may nominate in writing from time to time; and

 

10.1.1.2 on due date for payment, free of any and all deduction, set-off and withholding of any nature whatsoever; and

 

10.1.1.3 in South African currency.

 

10.1.2 Should any payment not be received on or before the due date for payment, Maria’s Coffee will have the option, without prejudice to any of its other rights, to cancel or suspend further supply of Products and/or, by giving written notice thereof to the Retailer, to require immediate payment of all amounts owing by the Retailer to Maria’s Coffee, whether or not those amounts are actually due, and/or to take any other action it may deem necessary in accordance with this Agreement, until such payment is received.

 

10.1.3 In the event that an order will be delivered in more than one consignment, each consignment will be deemed to be a separate sale divisible from the others, and the Retailer will be liable to pay the price of the Products delivered in respect of each consignment. Such liability will not be affected in the event of the sale of any other consignment not materializing for any reason whatsoever.

 

10.2 Cash Payments

10.2.1 In the event that the Parties determine that a particular order/sale will be concluded on a cash basis, orders/sales will be treated on the basis of cash before delivery.

 

10.2.2 Concurrently with delivery of any Products ordered to the Retailer, Maria’s Coffee will deliver its invoice related to the order/sale.

 

10.2.3 Any and all payment to be made on the basis of cash on delivery must be made before delivery.

 

10.3 Credit Facilities

10.3.1 In the event that the Retailer holds a Credit Facility with Maria’s Coffee, the Retailer will make payment within the timeframe prescribed via the Credit Facility it holds.

 

10.3.2 Concurrently with delivery of any Products ordered to the Retailer, Maria’s Coffee will deliver its invoice related to the order/sale, which invoice will be due and payable within the timeframe prescribed via the Credit Facility held by the Retailer.

 

10.3.3 The Retailer’s timeframe for payment under the Credit Facility it holds, if any, will be determined via the relevant Credit Facility documentation completed, signed and submitted by it and accepted by Maria’s Coffee, if accepted.

 

11. INTEREST AND CERTIFICATE

11.1 All amounts not paid by the Retailer on due date for payment will bear interest at the maximum rate of interest permitted under the NCA from time to time with regard to incidental credit agreements, or at such lesser rate as Maria’s Coffee may determine from time to time in its sole and absolute discretion.

 

11.2 All payments received by Maria’s Coffee from the Retailer will be appropriated firstly towards levied interest and thereafter to capital.

 

11.3 A statement under the hand of any shareholder, director and/or manager of Maria’s Coffee, whose appointment need not be proved, as to the existence and the amount of the Retailer’s indebtedness to Maria’s Coffee at any time, as to the fact that such amount is due and payable, the amount of interest accrued thereon, and as to any other fact, matter or thing relating to the Retailer’s indebtedness to Maria’s Coffee, will be prima facie proof of the contents and the correctness thereof for the purposes of provisional sentence, summary judgment or any other proceedings of whatsoever nature against the Retailer in any competent court and will be valid as a liquid document for such purpose.

 

12. DELIVERY

12.1 Maria’s Coffee will deliver the Products only to the Retailer’s delivery address stipulated under the heading “Applicant Details” above or any attached list of secondary branches, which entails that:

 

12.1.1 Maria’s Coffee will arrange, but not pay for, delivery of the Products to said delivery address; and

 

12.1.2 the Retailer will be invoiced for delivery according to the provided price list for delivery.

 

12.1.3 All risk in the Products will pass to the Retailer upon such time as the Products have been dispatched from Maria’s Coffee.

 

12.2 Notwithstanding any other provision to the contrary in any documents exchanged or delivered between or to the Parties, Maria’s Coffee’s obligation to deliver the Products will in all instances be subject to the availability of the Products ordered.

 

12.3 Any and all delivery dates which may be advanced must be, and will be, treated as approximate/estimated only, based on the latest information available to Maria’s Coffee, and may be changed at the discretion of Maria’s Coffee without the written consent of the Retailer.

 

13. OWNERSHIP

13.1 Notwithstanding the delivery of any Products to the Retailer, ownership and benefit therein will remain vested in Maria’s Coffee until such time as Maria’s Coffee has received payment of the full purchase price relating thereto.

 

13.2 Maria’s Coffee reserves the right to repossess any Products delivered, without prejudice, or to resell such Products from the Retailer’s delivery address stipulated under the heading “Applicant Details” above, or such other premises as the Products may have been moved to, should payment not be received in full on due date for payment.

 

13.3 Until such time as ownership in the Products has passed to the Retailer:

 

13.3.1 the Retailer will hold the Products on behalf of Maria’s Coffee, and will keep the Products separate from those of the Retailer and third parties and properly stored, protected, insured and identified as Maria’s Coffee’s property;

 

13.3.2 Maria’s Coffee may at any time require the Retailer to deliver up to Maria’s Coffee the Products for which Maria’s Coffee has not received full payment on due date, and if the Retailer fails to do so forthwith, Maria’s Coffee may act as provided for in clause 13.2 above; and

 

13.3.3 the Retailer will not pledge or in any way charge by way of security, for any indebtedness, any of the Products which remain the property of Maria’s Coffee.

 

14. INSPECTION

14.1 The Retailer acknowledges that it, or its representative in taking delivery of the Products, will always have a reasonable opportunity to inspect the Products. The inspection will generally be aimed at satisfying the Retailer that the Products delivered are:

 

14.1.1 of the type, quality and quantity reasonably contemplated; and

 

14.1.2 correspond, in all material respects and characteristics, to that which an ordinary alert customer would have been entitled to expect, when considering the description and/or a reasonable examination of any samples presented as basis for the order.

 

15. RETURNS

15.1 In the event that the Retailer’s delivery note is signed, irrespective of whether the right to inspection referenced in clause 14.1 has been exercised or not, it will be deemed that the Retailer is completely aware of and satisfied with the entire nature and extent of the Products delivered. Subsequently, the Retailer will have no right or title to return any of the said Products to Maria’s Coffee based on any of the reasons contemplated in clauses 14.1.1 and 14.1.2 above.

 

15.2 Maria’s Coffee will only accept a return of Products in circumstances where it is obliged by law to do so or where it specifically in writing agrees to do so.

 

15.3 In events where Maria’s Coffee’s acceptance of a return is prescribed and necessitated by law:

 

15.3.1 it will either replace the Product returned or refund the Retailer the amount(s) paid for the Product, as the law may prescribe; and

 

15.3.2 the costs and risk regarding such a return will be carried by the Party prescribed to carry such risk and cost in the relevant law.

 

15.4 In events where Maria’s Coffee’s acceptance of a return is based solely on its agreement to such return, i.e. it is not dictated by law:

 

15.4.1 Maria’s Coffee may, in its sole and absolute discretion, determine whether it will replace the Products or provide the Retailer with a credit note regarding such Products returned; and

 

15.4.2 the costs and risk regarding such a return will be carried by the Retailer.

 

15.5 Any and all Products refunded, replaced or credited under credit note by Maria’s Coffee will become the sole and absolute property of Maria’s Coffee, which will be entitled to do with same whatever it pleases.

 

16. TRADEMARKS

16.1 It is specifically noted that the Retailer will have no right, title or authority to, nor will it:

 

16.1.1 make any modifications to the Products or their packaging;

 

16.1.2 make, alter, remove or tamper with any marks, numbers or other means of identification used on or in relation to the Products;

 

16.1.3 use, in relation to the Products, any marks, logos, names, etc., other than the trademarks and other marks with which they are delivered/issued by Maria’s Coffee;

 

16.1.4 use any marketing materials in relation to the Products, whether brochures, pamphlets, booklets or the like, which have not been developed, designed and delivered or approved by Maria’s Coffee, or on behalf of Maria’s Coffee by such person/entity commissioned by Maria’s Coffee to do so.

 

17. STORAGE AND ACCESS

17.1 The Retailer will be absolutely and solely liable and responsible for the safe and correct storage of the Products delivered to it.

 

17.2 The Retailer acknowledges that Maria’s Coffee may deliver directives and requirements from time to time regarding the method and manner for storage of the Products, including minimum requirements/criteria for storage facilities. The Retailer agrees that non-adherence to such directives and requirements may lead to immediate termination/cancellation of this Agreement by Maria’s Coffee.

 

17.3 In addition to any other directives and requirements Maria’s Coffee may deliver, it is noted and agreed that any storage facilities employed by the Retailer will be damp- and rodent-free. The Products will furthermore not be stored directly against any walls.

 

18. WARRANTIES

18.1 Maria’s Coffee does not deliver or provide any guarantees/warranties of any nature whatsoever with regard to any Products, except for those prescribed by law or which are expressly provided in writing by Maria’s Coffee, whether via product packaging or otherwise.

 

18.2 Any and all guarantees/warranties delivered by Maria’s Coffee will only cover defects that may develop during proper use, treatment, storage, dispensing and handling of the Products.

 

19. LIMITATION OF LIABILITY

19.1 Maria’s Coffee will be exempted from and will not be liable under any circumstances whatsoever for:

 

19.1.1 any indirect or consequential damages of any nature whatsoever, or any loss of profit or special damages of any nature whatsoever, whether in the contemplation of the Parties or not, which the Retailer or anyone else may suffer as a result of any act and/or neglect of Maria’s Coffee of any nature whatsoever;

 

19.1.2 any claims for any alleged shortage in delivery, unless written notice of the short-delivered claim is received by Maria’s Coffee on the day the Retailer has taken possession of the Products. The aforementioned will remain subject to the Retailer’s risk and liability, including risk of damage and loss, in the Products in accordance with the delivery terms referenced above.

 

19.2 Notwithstanding anything contained herein or elsewhere to the contrary, Maria’s Coffee’s liability toward the Retailer will never exceed the amount(s) actually paid by the Retailer for the Products to which the specific claim relates, unless specifically prescribed otherwise by law.

 

20. NON-PERFORMANCE

20.1 The Retailer will not have any claims of any nature whatsoever against Maria’s Coffee for any failure by Maria’s Coffee to carry out any of its obligations under an order or this Agreement as a result of vis major, force majeure, act of God, strike or lockout, shortage of labour or materials, breakdown of machinery, delays in transport, accidents of any kind, default or delay by any subcontractor or supplier of Maria’s Coffee, riot, political or civil disturbance, the elements, any act of any state or government or any authority, or any other cause whatsoever beyond Maria’s Coffee’s control.

 

20.2 The Retailer will not have any claims of any nature whatsoever against Maria’s Coffee for any failure by Maria’s Coffee to carry out any of its obligations under an order or this Agreement as a result of failure of carriers to furnish facilities for transportation, interference with supplies to Maria’s Coffee from the then-existing sources of supply of any raw materials, such interference including expropriation, confiscation, nationalization, relinquishment of ownership or control over all or part of the raw materials, or breakdown of or injuries to the facilities used in the production, transportation, receiving, handling or delivering of such materials.

 

20.3 Maria’s Coffee will not be required to settle strikes, differences with workmen or government claims by acceding to any demands when, in the discretion of Maria’s Coffee, it would be inadvisable to accede to such demand. If, for any cause referred to in clauses 20.1 and 20.2 above, Maria’s Coffee’s available supplies of Products become, or in its opinion will become, unable to meet the requirements of all customers at any time, Maria’s Coffee will be entitled to allocate those supplies among its customers, including the Retailer, in such manner as it deems fair and equitable in its sole and absolute discretion, and to vary its obligations to the Retailer accordingly.

 

20.4 In the event that Maria’s Coffee is unable to comply with an order, for any reason which Maria’s Coffee did not actually foresee/anticipate, Maria’s Coffee will be entitled to cancel the order and Maria’s Coffee will not be liable, in any form or manner, for any claims, losses, damages and/or any other negative inferences suffered by anyone as a result thereof.

 

21. CANCELLATION

21.1 Maria’s Coffee may cancel any order or any uncompleted part of an order and/or this whole Agreement for any reason, including the following, but not restricted thereto:

 

21.1.1 if the Retailer commits a breach of any of the provisions of this Agreement;

 

21.1.2 if the Retailer, being an individual, dies or is provisionally or finally sequestrated or surrenders his/her estate;

 

21.1.3 if the Retailer, being a partnership, the partnership is terminated;

 

21.1.4 if the Retailer, being a legal entity/juristic person, is placed under a provisional or final order of liquidation or judicial management; or

 

21.1.5 if the Retailer compromises or attempts to compromise generally with its creditors.

 

21.2 Maria’s Coffee’s rights in terms of clause 21.1 will not be exhaustive and will be in addition to its other rights under this Agreement or otherwise.

 

22. CPA AND NCA

22.1 It is noted that both the NCA and the CPA may find application to an order/transaction between the Retailer and Maria’s Coffee from time to time. As such, it is confirmed that nothing contained in this Agreement aims or intends to circumvent the NCA or CPA in events where either may find application.

 

22.2 Notwithstanding that stated in clause 22.1 above, the NCA and CPA will only apply to an order/transaction between the Parties where it is specifically provided, via the said Acts, that same applies, and then only to the extent that same applies. In no way, manner or form is it intended that either of these Acts, whether in whole or partially, apply voluntarily.

 

22.3 For as far as the provisions of this Agreement may contradict any provision of the CPA and NCA that may apply to an order/transaction between the Retailer and Maria’s Coffee, the applicable provision(s) of the said law will prevail, subject however to clause 22.4.

 

22.4 It is noted and agreed that:

 

22.4.1 the only credit agreement, as defined in the NCA, that could arise between Maria’s Coffee and the Retailer in terms of and under this Agreement is an incidental credit agreement, as defined in the NCA; and

 

22.4.2 the Retailer may be a juristic person, as defined in the NCA.

 

22.5 Based on that stated in clause 22.4 above, the applicability, and the extent of applicability, of the NCA, if any, on this Agreement and/or the relationship, whether contractual or otherwise, between the Retailer and Maria’s Coffee, will be determined from time to time in accordance with not only the provisions of section 4 of the NCA, but also specifically sections 5 and 6 of the NCA.

 

23. CREDIT APPLICATION

23.1 Acceptance

23.1.1 It is within Maria’s Coffee’s sole and absolute discretion whether or not to grant a Credit Facility to the Retailer. Maria’s Coffee will apply and implement its own assessment criteria applicable from time to time.

 

23.1.2 A Credit Facility will only be formally granted upon Maria’s Coffee formally approving the Retailer’s application therefor in writing.

 

23.1.3 In the event that a Credit Facility is not granted as applied for, but the Retailer is nonetheless approved as a retailer of Maria’s Coffee’s Products in writing, all of the terms and conditions of this Agreement will nonetheless be binding upon the Retailer.

 

23.2 Cancellation

23.2.1 Maria’s Coffee reserves the right, at any time and for any reason whatsoever, to suspend, discontinue, cancel or vary any Credit Facility granted to the Retailer.

 

23.2.2 In the event of the rights described in clause 23.2.1 above being exercised, all amounts owing by the Retailer to Maria’s Coffee will immediately become due and payable and same will be paid on first demand being made by Maria’s Coffee.

 

23.2.3 In the event that a Credit Facility granted is suspended, discontinued, cancelled or varied, the remainder of this Agreement will nonetheless remain binding on the Retailer for as far as the Retailer is retained as an authorized retailer of Maria’s Coffee’s Products.

 

23.3 Credit Screening

23.3.1 Maria’s Coffee may investigate the Retailer’s consumer credit information, as defined in the NCA, with any registered credit bureau at any time it so desires, whether before or after its acceptance of the application for a Credit Facility in terms hereof.

 

23.3.2 In events where the Retailer defaults with regard to any payment due and owing to Maria’s Coffee, Maria’s Coffee may list/register the Retailer’s consumer credit information, as defined in the NCA, with such registered credit bureaus/agencies as Maria’s Coffee deems fit and proper in its sole and absolute discretion. It is however understood that if, at the time of such intended listing/registration, the relationship between Maria’s Coffee and the Retailer constitutes that of a credit agreement in terms of the NCA and the NCA actually applies, Maria’s Coffee will give the Retailer 20 (twenty) business days’ advance notice of such intended listing/registration.

 

23.3.3 The Retailer warrants and guarantees that it is not over-indebted in any form or manner. In this regard, the Retailer warrants and guarantees that it is able to, in a timely manner, satisfy all of its obligations under all credit agreements to which it is a party, having regard to its:

 

23.3.3.1 financial means, prospects and obligations; and

 

23.3.3.2 probable propensity to satisfy, in a timely manner, all the obligations under all credit agreements to which the Retailer is a party, when considering its history of debt repayment.

 

23.3.4 The Retailer warrants and guarantees that neither it, nor any of its members/directors/shareholders/trustees, are under any form of debt review as provided for in the NCA.

 

23.3.5 The Retailer warrants and guarantees that it will immediately inform Maria’s Coffee should the positions warranted and guaranteed in clauses 23.3.3 and 23.3.4 above change in any form or manner or for any reason whatsoever.

 

24. PERSONAL SURETY

24.1 In the event that the Signatory is acting for and on behalf of a company, trust, partnership or close corporation, he/she may be required to enter and conclude the personal surety.

 

24.2 It is recorded that Maria’s Coffee may, before appointing the Retailer as a retailer of Maria’s Coffee’s Products and/or granting the Retailer any Credit Facilities, require further persons to enter into and conclude the personal surety attached hereto, in which event Maria’s Coffee will make such requirement clear in writing.

 

25. MISCELLANEOUS

25.1 Costs

25.1.1 The Retailer agrees that if any claim against the Retailer is handed over to Maria’s Coffee’s attorneys for collection, the Retailer will be responsible for all attorneys’ costs incurred by Maria’s Coffee, which costs will include all collection charges, disbursements and costs on the scale between attorney and own client, and inclusive of collection commission.

 

25.2 Severability

25.2.1 It is recorded that each paragraph, clause and each sub-clause in this Agreement is severable, the one from the other.

 

25.2.2 If any paragraph, clause or sub-clause is found to be defective or unenforceable for any reason by any competent court, the remaining clauses, paragraphs and sub-paragraphs will continue to be of full force and effect.

 

25.3 Applicable Law

25.3.1 The validity of this Agreement, its interpretation, the respective rights and obligations of the Parties and all other matters arising in any way out of its performance, expiration or earlier termination for any reason, will be determined in accordance with the laws of the Republic of South Africa.

 

25.4 Interpretation

25.4.1 The headings in the Agreement are for convenience only and are not to be considered for the purpose of interpreting this Agreement.

 

25.4.2 The terms of this Agreement, having been negotiated, will not be interpreted against the Party who procured its preparation and drafting, nor will exclusion clauses contained in this Agreement be construed against the Party relying on same.

 

25.4.3 The expiration or termination of this Agreement will not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

 

25.4.4 In this Agreement, the use of the word “including” followed by specific examples will not be construed as limiting the meaning of the general wording preceding it, and general words that follow specific words in a list will not be construed as referring only to the types of things identified by the specific words.

 

25.4.5 In this Agreement, an expression which denotes:

 

25.4.5.1 any gender includes the other genders;

 

25.4.5.2 a natural person includes a juristic person and vice versa; and

 

25.4.5.3 the singular includes the plural and vice versa.

 

25.5 Entire Agreement and Non-Variation

25.5.1 This Agreement represents all the terms and conditions pertaining to the sale of Products between Maria’s Coffee and the Retailer. The Retailer warrants that it understands all the terms and conditions and accepts them.

 

25.5.2 No alteration or variation of this Agreement will apply unless the alteration or variation in question is expressly agreed to or issued in writing by Maria’s Coffee.

 

25.6 Confidentiality

25.6.1 The Retailer and Maria’s Coffee agree to take all reasonable measures to preserve the confidential nature of an order and this Agreement.

 

25.7 Assignment of Rights and Obligations

25.7.1 The Retailer may not cede or assign its rights or obligations in terms of any order or this Agreement to any third party without the prior written consent of Maria’s Coffee, which consent will not be unreasonably withheld.

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25.7.2 Maria’s Coffee may cede and assign its rights and obligations in terms of any order and this Agreement to any third party without the prior written consent of the Retailer.

 

25.8 VAT

25.8.1 All prices referred to exclude VAT.

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25.9 Relaxation

25.9.1 No relaxation which Maria’s Coffee may give at any time and on any occasion in regard to carrying out of the Retailer’s obligations in terms of any order or this Agreement will prejudice or be a waiver of any of Maria’s Coffee’s rights to enforce those obligations on any subsequent occasion.

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