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Buyer makes a firm offer to purchase the products (“Product(s)”) described in an order submitted 1) through Seller’s website at afrosfarmequipments.com or 2) by fax, email or other contact with MESA’s Customer Service Desk (the “Order”) using the procedures described in such website and under these Terms and Conditions. Except as otherwise specified herein, Seller accepts Buyer’s offer at the earlier of when (a) Seller sends Buyer a written acceptance (by email, fax, or otherwise), (b) Seller ships Buyer’s Order, or (c) Seller accepts by the signature of its Contract Manager. Seller’s acceptance and this Contract is conditioned on Seller’s on-going credit review and approval of Buyer and Seller’s on-going determination that Buyer and this Contract comply with all applicable laws and regulations in South Africa, and Seller’s compliance policies and programs. Without limiting Seller’s other remedies, Seller may require payment in advance should it determine that Buyer’s credit is unsatisfactory. Seller reserves the right to make partial shipment of one or more Products contained in the Order, and unless otherwise specified in Seller’s written acceptance, partial shipment of an Order shall be acceptance of only that portion of an Order. For Products not currently in Seller’s inventory, Seller may either (x) place such Products on backorder and notify Buyer of such status, unless such Products will be in Seller’s inventory within thirty (30) days, or (y) in Seller’s sole discretion, terminate this Contract with respect to Products not in Seller’s inventory by notice to Buyer.
Notwithstanding the foregoing, acceptance is strictly limited to the terms and conditions in this Contract. These Terms and Conditions will apply to Seller’s invoice referred to in Section 7 into which these Terms and Conditions are incorporated. Seller objects to and rejects any provision additional to or different from the terms hereof that may appear in Buyer’s purchase order, acknowledgement, confirmation, writing, or in any other prior or later communication from Buyer to Seller, or arising out of course of dealing or usage in the trade, unless such provision is expressly agreed to by Seller in a writing signed by Seller. Buyer’s commencement of performance shall in all cases constitute Buyer’s unqualified and unconditional acceptance of the terms and conditions of these Terms and Conditions and Seller’s invoice.
Products shall be delivered FCA (as defined in Incoterms 2010) Seller’s facility (location designated on Seller’s acknowledgement). Buyer shall select the carrier and mode of transportation. Seller will include copies of documentation supporting prepaid freight charges (e.g., carrier invoices or UPS shipping log/manifest), if any, with its invoices. Buyer shall be responsible for costs of insurance and transportation and for all import duties, taxes, or other expenses incurred or licenses or clearance required at any port of entry and destination. Unless expressly stated in writing by.Seller, all shipment and delivery dates are estimates. Title and risk of loss or damage to the Products sold shall pass to Buyer upon delivery to a carrier FCA point, as applicable
Buyer’s irrevocable acceptance of the Products shall be conclusively presumed unless Buyer gives written notice of a defect within ten (10) days after receipt. If Seller delivers non-conforming Product(s) as per Order, Seller may at its option and at Seller’s expense promptly correct or replace the Part(s). If Buyer returns a Product for convenience, the Product must be a Product that Seller normally keeps in stock, Seller must be notified and agree to the return of the Product, the Product must be returned within 30 calendar days of purchase, and the Product must be in pristine condition in an unopened container. Products returned for convenience will be charged a 10% restocking fee.
Seller warrants that at the time of delivery all Products furnished hereunder shall be free from defects in material and workmanship. The warranty for Products shall run for a period of [insert if applicable] from the delivery of such Products to Buyer. The Buyer shall give Seller written notice describing the defect immediately upon discovery of the defect. If it is shown to Seller’s satisfaction that the Products fail to conform to this warranty, Seller shall at its option and at its expense either repair or replace the Products or credit Buyer’s account for such Parts. This warranty extends only to the Buyer.
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF SELLER AND THE REMEDIES OF BUYER DESCRIBED IN THIS SECTION ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF SELLER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES AGAINST SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMANCE OR DEFECT IN ANY PRODUCTS PROVIDED UNDER THIS CONTRACT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; OR ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF SELLER.
Seller’s warranty obligations described in this Section are subject to the following conditions:
The warranted Product(s) have been used under normal operating conditions and have not been subject to the misuse, mishandling, negligence, accident, or ingestion of foreign material.
The warranted Product(s) have not been altered, repaired, or serviced since purchase by anyone other than Seller or its authorized agent.
The warranted Product(s) have been maintained in accordance with original manufacturer requirements and with any written instructions provided by Seller.
All transportation costs and risk of loss of warranted Product(s) shipped for correction of defects to and from the facility designated by Seller shall be borne by Seller.
All original documentation supplied by Seller to Buyer and an engineer’s report detailing the reason for removal or failure, need to be returned with the warranted Product(s) for warranty consideration.
If Seller determines that the Product(s) are not covered by the warranty described in this Section, Buyer will pay Seller for work performed and material furnished in connection with the teardown, investigation, reassembly, and any authorized repair or maintenance services performed, in accordance with Seller’s then current charges.
SELLER WILL HAVE NO OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY) OR IN TORT, AND WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF SELLER, OR OTHERWISE, FOR DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, REVENUE OR PROFIT BY BUYER OR ANY CUSTOMER), OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO THIS CONTRACT INCLUDING, WITHOUT LIMITATION, ANY NON-CONFORMANCE OR DEFECT IN ANY PRODUCTS PROVIDED UNDER THIS CONTRACT. OR DELAY IN PERFORMANCE. WITHOUT LIMITING THE FOREGOING, SELLER’S MAXIMUM LIABILITY HEREUNDER WILL NOT EXCEED THE AMOUNT ACTUALLY PAID TO SELLER FOR THE PRODUCTS SUBJECT TO THE CLAIM. THE PARTIES AGREE THIS PROVISION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS CONTRACT.
No action may be maintained by Buyer unless written notice of the claim is delivered to Seller within thirty (30) days after the event subject to the claim first becomes known to Buyer, but in no case may Buyer maintain an action unless it is brought within one (1) year after the cause of action accrues.
Buyer is liable for and shall pay all taxes, impositions and charges imposed by any United Arab Emirates (“South Africa”) or non-South Africa taxing authority arising out of or in connection with this contract. “Taxes” are defined as all taxes, fees, charges or duties and any interest, penalties, fines or other additional tax, including but not limited to sales, use, value added, gross receipts, stamp, custom, withholding, excise, transfer and similar taxes, or other taxes imposed in connection with the performance of this contract, except South Africa federal and Emirate income taxes imposed on Seller. Buyer will promptly reimburse Seller on demand for any Taxes that are imposed on and paid by Seller or for which Seller is responsible for collection in connection with this contract. If Buyer is required by the legal requirements of any applicable jurisdiction to deduct any withholding tax from payments made to Seller under this Contract, the amount paid to Seller shall be increased such that, after the withholding and payment of tax on such amounts, Seller shall receive the amount payable to it hereunder determined without regard to such withholding tax.
Payment shall be made in South Africa Rand. One of the following provisions will apply and will be designated by the Seller in the acknowledgement to Buyer’s order:
Seller shall forward its invoice to the address specified in this contract. Payment shall be due thirty (30) days from the date of the invoice
Payment shall be made by electronic funds transfer. Buyer shall transfer funds within 24 hours from date of invoice.
If such invoice or any part thereof shall not be paid, it is agreed that Buyer shall pay to Seller with the payment of any such unpaid amount a FINANCE CHARGE computed on a monthly periodic rate of one percent (1%) per month which is an ANNUAL PERCENTAGE RATE of twelve percent (12%).
Seller shall not be liable for delays in performance from causes beyond the reasonable control of Seller. Examples of these causes include, but are not limited to (a) acts of God or of the public enemy, (b) acts of the Government in either its sovereign or contractual capacity, (c) fires, (d) floods, (e) epidemics, (f) quarantine restrictions, (g) strikes, (h) freight embargoes, (i) unusually severe weather, (j) earthquakes, and (k) inability, after commercially reasonable diligence, to obtain raw materials. Seller shall notify Buyer in writing within 10 days after the beginning of any such cause.
This contract shall be interpreted, construed and enforced in all respects in accordance with the laws of Emirate of Dubai. It is the firm intention of each party that all disputes and differences arising out of this Contract shall be settled amicably by consultation between the parties. Any dispute or difference which any party believes cannot be so settled shall be referred by that party to the Dubai Courts which shall have exclusive jurisdiction over such dispute or difference and to whose jurisdiction all the parties hereby submit. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
Any noticed required or allowed under this Contract must be in writing and delivered to Seller at the address specified at the end of these Terms and Conditions and to Buyer at the address stated in the Order or the place of delivery of the Product(s), or such other address as a party may provide to the other party by like notice.
Headings used in these Terms and Conditions are for the convenience of the parties and do not form a part of or may be used to construe this Contract. No consideration will be given to the fact or presumption that one party had a greater or lesser hand in drafting this Contract. Neither party has an employee, agent, “borrowed servant,” partner, fiduciary, or other relationship, other than buyer and seller, and except as expressly stated herein, neither party has the right to control or direct the other party.
These Terms and Conditions and the Order contain the entire agreement of the Parties and supersedes any and all prior agreements, understandings and communications between Buyer and Seller related to the subject matter of this contract. When in conflict, these Terms and Conditions control over the Order. No amendment or modification of this contract shall bind either party unless it is in writing and is signed by authorized representatives of Buyer and Seller.
(a) In performing the obligations of this contract, the Buyer will comply with all applicable statutes and government rules, regulations and orders, MESA’s business conduct policy and procedures (if any) and any other laws and regulations of South Africa or any applicable jurisdiction.
Buyer will further comply with United States export control and sanctions laws, regulations, and orders, as they may be amended from time to time, applicable to the export and re-export of goods, software, technology, or technical data (“Items”) or services, including without limitation the Export Administration Regulations (“EAR”), International Traffic in Arms Regulations (“ITAR”), and all regulations and orders administered by the U.S. Department of Treasury, Office of Foreign Assets Control (collectively, “Export Control Laws”).
(b) The Party conducting the export shall be responsible for obtaining the required authorizations. The Party conducting the re-export shall be responsible for obtaining the required authorizations. Each party shall reasonably cooperate and exercise reasonable efforts to support the other party in obtaining any necessary licenses or authorizations required to perform its obligations under this contract.
(c) The party providing any Items under this contract shall, upon request, notifies the other party of the Items’ Export Control Classification Numbers (“ECCNs”) as well as the ECCNs of any components or Products thereof if they are different from the ECCN of the Item at issue.
(d) Buyer shall not, without the prior express written consent of Seller, as authorized by its Contract Manager, use the Products in any way involving military end-customers other than the U.S. government. This restriction shall apply to any use, sale, proposal or offer to sell or provide Products to any military end-customers other than the U.S. government anywhere, and shall include any national Army, Navy, Air Force, or other agency of national defence, as well as defence contractors where Buyer knows or has reason to know that the part is likely to be used by, delivered to or benefit a defence agency anywhere.
Any failure, delay, or forbearance by Seller in enforcing any provision of this contract will not be construed as a waiver or relinquishment of such provision. If any provision of this contract is or becomes void or unenforceable by law, the remainder shall be valid and enforceable.
This contract shall not be assignable by Buyer without the prior written consent of Seller.
Without limiting any other provision of this Contract, Seller may terminate this agreement at any time by giving thirty days (30) written notice to Buyer.
Seller may terminate this contract in the event of:
Buyer’s suspension, dissolution or winding-up of Buyer’s business
Buyer’s insolvency, or its inability to pay debts, or its nonpayment of debts, as they become due
The institution of reorganisation , liquidation or other such proceedings by or against Buyer or the appointment of a custodian, trustee, receiver or similar person for Buyer’s properties or business
An assignment by Buyer for the benefit of its creditors
Any action of Buyer for the purpose of effecting or facilitating any of the foregoing, or
In the event that Seller suffers a loss of tooling necessary to produce such parts. Buyer agrees that Seller’s rights to terminate this Contract are reasonable, and that upon termination, Seller shall not be responsible to Buyer and Buyer shall not make any claim against Seller for any payment or indemnity for loss of goodwill, loss of profit, investments made, or otherwise.
Buyer unconditionally and irrevocably agrees that the execution, delivery, and performance of this Contract constitutes private and commercial acts rather than public or governmental acts, and agrees that in the event any legal proceedings are brought against it or its assets in relation to this Contract, no immunity (sovereign or otherwise) from such legal proceedings shall be claimed by it or on behalf of it, or with respect to its assets. Buyer hereby waives any such rights or immunity (sovereign or otherwise) which it or its assets now have or may acquire in the future, to the maximum extent permitted by applicable law.
Buyer agrees to reimburse Seller for the costs Seller incurs (including attorneys’ fees) in any action or proceeding brought to enforce any provision of this Contract, or where any provision is validly asserted by Seller as a defence.