Terms & Conditions – Fresh 365 International

Supplier Agency

1. The Parties to this Agreement are the Seller and the Buyer to which these terms and conditions apply.

2. DEFINITIONS

2.1. In this Agreement, clause headings are for convenience only and shall not be used in its interpretation and, unless inconsistent with the context, words referring to:

2.1.1. one gender include a reference to the other gender;

2.1.2. natural persons include artificial persons and vice versa.

2.2. The following expressions shall, unless otherwise stated or inconsistent with the context in which they appear in this Agreement, bear the following meanings and cognate expressions shall bear corresponding meanings:

2.2.1. “Agreement” means this agreement as fully defined in the Term and Conditions.

2.2.2. “Business Day” – means any day other than a Saturday, Sunday or public holiday in the Republic of South Africa;

2.2.3. “Produce” shall mean the Fruit, Vegetables or Flowers, as per the commodities, varieties, grades and sizes as described in a Purchase Order to be sold by the Seller to the Buyer in terms of this Agreement;

2.2.4. “Seller” means the party supplying the Buyer with Produce;

2.2.5. “Buyer” means Fresh 365 International (PTY) Ltd.

2.2.6. “Commencement Date” means the date at which the Seller first delivers Produce to the Buyer;

2.2.7. “Contract Period” means the period starting on Commencement Date and continuing for an indefinite period, provided that any Party can terminate the Agreement on at least 30 (THIRTY) calendar days’ written notice to the other Party;

2.2.8. “Protocol” means the standards prescribed by legislation and governing bodies (being associations, bodies, councils and the like having jurisdiction over the parties and the cultivation, growing, packing and distribution of fresh Produce in South Africa) in respect of good agricultural practices, cultivation, growing, packing and the distribution of the Produce that the parties are compelled to implement and adhere to;

2.2.9. “Purchase Order” means a written advice issued by the Buyer to the Seller, in the format, identifying the fresh Produce which the Buyer wishes to acquire at an agreed price and at the time periods as indicated therein as well as containing the following information:

2.2.9.1. Quantity (i.e. cartons);

2.2.9.2. Variety, Grade and Size Count;

2.2.9.3. Place of Delivery;

2.2.9.4. Period of Delivery;

2.2.9.5. Pack format and packaging specifications;

2.2.9.6. The Agreed price per carton and time of payment;

2.2.9.7. Buyer’s inspection criteria on delivery of the Produce;

2.2.10. “The Parties” shall mean the Seller and the Buyer and “Party” shall mean any one of them as the context may require;

2.2.11. “Season” means the calendar year;

2.2.12. “Seller’s Invoice” means the Invoice to be delivered by the Seller on receipt of the Purchase Order;

2.2.13. “Schedule” means the Schedule to which these terms and conditions are attached;

2.2.14. “Variety” means a variety of Produce;

2.3. Expressions defined in these Terms and Conditions shall bear the same meanings in schedules or annexures to the Agreement which do not themselves contain their own conflicting definitions.

2.4. Any reference to days (other than a reference to Business Days), months or years shall be a reference to calendar days, months or years, as the case may be.

2.5. Where any term is defined within the context of any particular clause in these Terms and Conditions, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of these Terms and Conditions, notwithstanding that that term has not been defined in this interpretation clause.

2.6. The expiration or termination of these Terms and Conditions shall not affect the provisions of such Terms and Conditions which expressly provides 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.

2.7. The rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply.

2.8. The words “include”, “including” and “in particular” shall be construed as being by way of example or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding word/s.

2.9. The words “other” and “otherwise” shall not be construed eiusdem generis with any preceding words where a wider construction is possible.

2.10. The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s;

3. COMMENCEMENT DATE

3.1. This Agreement shall come into operation on the Commencement date.

3.2. All Produce purchased by the Buyer from the Seller in terms of the Purchase Order(s) submitted and confirmed in the Seller’s Invoice(s) will be subject to the terms and conditions of this Agreement.

4. HARVEST ESTIMATION

4.1. The Seller shall on the Commencement Date and thereafter when requested by the Buyer, provide a harvest estimate in the form of a written schedule stipulating an estimate of the following (“Harvest Estimate”):

4.1.1. the varieties and grades of Produce to be harvested for the Season;

4.1.2. the size count of Produce to be harvested for the Season;

4.1.3. the volume of Produce to be harvested for the season;

4.2. If changes occur in the Harvest Estimate, the Seller must

inform the Buyer as soon as reasonably possible and provide an updated schedule.

4.3. The Seller shall then provide the Buyer on a weekly basis on such date and times as may be requested by the Buyer with a schedule sent by e-mail correspondence, stipulating the estimated variety, grades and count of Produce available for delivery in the following week in order for the Buyer to consider submitting a Purchase Order in terms of clause 5.

5. PURCHASE ORDERS / THE SALE

5.1. Within 1 (ONE) Business Day of receipt of the schedule referred to in clause 4.3 the Buyer shall have the first option to place a written Purchase Order, with the Seller.

5.2. Each Purchase Order placed by the Buyer shall constitute a separate purchase contract between the Parties in respect of the supply of the Produce and shall come into existence upon the Seller’s acceptance of the Purchase Order, which acceptance shall be confirmed by the Seller through e-mail correspondence and an invoice by the Seller (“Seller’s Invoice”) to the Buyer.

5.3. The Buyer will immediately notify the Seller should there appear a discrepancy between the Purchase Order and the Seller’s Invoice and the Seller will be obliged to immediately rectify the discrepancy on its invoice within 24 (TWNETY FOUR) hours thereafter, failure of which no separate purchase contract shall come into existence between the Parties in respect of the supply of the Produce.

6. PACKAGING INSTRUCTION

6.1. The Seller shall be responsible for the packing of the Produce in accordance with any applicable Protocols as well as any relevant packaging instructions provided in the Purchase Order.

6.2. The Seller will be responsible for sourcing, acquiring and paying for all packaging material and packaging costs.

7. DELIVERY

7.1. The Buyer will only accept delivery of the Produce, in accordance with the applicable Protocols as well as the delivery instructions provided for in the Purchase Order.

7.2. The Seller will be liable for all costs associated with the delivery of the Produce to the place of delivery in terms of the conditions specified in the Purchase Order.

7.3. Delivery of the Produce shall occur at the premises specified in the Purchase Order and acceptance of delivery of the Produce will only occur once the requirements as provided for in the Purchase Order has been fulfilled (“Date of Delivery”). It is recorded that the Buyer must either accept (without prejudice to its rights in terms of this Agreement) or reject the entire batch of Produce forming part of the delivery and not only parts of it. THE SELLER WILL HAVE NO RECOURSE AGAINST THE BUYER SHOULD THE BUYER REJECT THE ENTIRE BATCH OF PRODUCE DUE TO IT NOT MEETING THE REQUIREMENTS AS STIPULATED IN THE PURCHASE ORDER.

7.4. The Buyer shall as soon as possible after such delivery and fulfilment of the conditions in clause 7.3, deliver a delivery note to the Seller which will serve as prima facie proof of

acceptance of the delivery of the Produce and proof of Date of Delivery.

8. TRANSFER OF OWNERSHIP, RISK AND BENEFIT

8.1. Ownership in the Produce shall transfer from the Seller to the Buyer on the Date of Delivery, unless the Buyer is acting as agent, and not principle.

8.2. All risk and benefit in respect of the Produce, shall vest with the Buyer from Date of Delivery. unless the Buyer is acting as agent, and not principle.

9. WARRANTY AND INDEMNITY

9.1. THE SELLER HEREBY WARRANTS THAT THE PRODUCE TO BE DELIVERED IN TERMS OF THE PURCHASE ORDER TO THE BUYER, IS FREE FROM ALL INHERENT DEFECTS THAT COULD INFLUENCE THE QUALITY AND/OR CONDITION AND/OR APPEARANCE OF THE PRODUCE UNTIL DISPOSAL OF THE PRODUCE BY THE SELLER TO THE END USER THEREOF (WHICH IS DESTINED FOR THE LOCAL SOUTH AFRICAN MARKET).

9.2. THE SELLER WARRANTS THAT THE SELLER IS THE SOLE OWNER OF THE PRODUCE, ABLE TO DISPOSE OF SAME AT DATE OF DELIVERY AND THAT THE PRODUCE IS FREE FROM ANY REAL RIGHTS OR ANY ENCUMBRANCES.

9.3. THE SELLER INDEMNIFIES THE BUYER FROM AND AGAINST ANY CLAIMS, COSTS, DAMAGES OR EXPENSES SUFFERED OR INCURRED BY THE BUYER AS A RESULT OF BREACH BY THE SELLER OF THE AFORESAID WARRANTIES AND/OR CHEMICAL TREATMENT OF THE PRODUCE AND/OR CHEMICAL RESIDUES AND/OR OTHER HARMFUL CONTENT OF WHATSOEVER NATURE FOUND IN THE PRODUCE AND/OR IN THE PACKAGING THEREOF.

9.4. THE SELLER HEREBY INDEMNIFIES AND HOLDS HARMLESS THE BUYER FROM AND AGAINST ANY CLAIMS OF WHATSOEVER NATURE INSTITUTED BY THIRD PARTIES IN RELATION TO THEIR USE OF THE PRODUCE, INCLUDING BUT NOT LIMITED TO CLAIMS AND LIABILITIES ARISING FROM THE PROVISIONS OF THE CONSUMER PROTECTION ACT, NO 68/2008 AND ARISING FROM THE SELLER’S ACTIONS IN RESPECT OF THE PRODUCE PRIOR TO THE DATE OF DELIVERY, SAVE FOR CLAIMS HAVING ITS CAUSE OF ACTION DUE TO THE BUYER’S ACTIONS AFTER THE DATE OF DELIVERY OF THE PRODUCE IN QUESTION.

10. PURCHASE CONSIDERATION AND PAYMENT

10.1. The purchase consideration and payment terms for each contract of sale of Produce shall be indicated in the Purchase Order and confirmed by the Seller’s Invoice, unless the Buyer is acting as an Agent, whereby a sale account will be issued, and an agreed commission will be taken by the Buyer.

10.2. Payment of the full purchase consideration shall always be subject to the delivery note being issued by the Buyer, confirming that the Produce delivered meets the requirements as set out in the Purchase Order.

10.3. Should the Buyer allege and prove with reasonable satisfactory evidence that the Seller at any time breached its warranty in terms of clause 9.1 (whether intentional or unintentional), the Buyer shall be entitled to a discount on the balance of any purchase consideration still owing to the Seller which shall be equal to the difference in the monetary value(s) of the selling price the Buyer would have achieved had the Seller not breached its warranty in terms of clause 9.1 hereof and the actual monetary value the Buyer realized on the Produce in question (as evidenced by a written report issued by the Buyer) (“Discount”).

10.4. The Seller shall upon receipt of written notice from the Buyer issue the Buyer within 7 (SEVEN) working days with appropriate credit note(s) equal to the value of the Discount(s) in question (“Credit Notes”). The Seller shall however not be obliged to issue any Credit Notes if it is in disagreement with the independent report issued by a third-party inspection authority or if the Seller can prove that the breach of its warranty in terms of clause 9.1 was as a direct result of the actions by the Buyer or another Third Party after the Date of Delivery of the Produce in question.

11. BREACH

11.1. In the event of any of the Parties (the “Defaulting Party”) committing a breach of any of the terms of this Agreement and failing to remedy such breach within a period of 10 (TEN) days after receipt of a written notice from another Party (the “Aggrieved Party”) calling upon the Defaulting Party so to remedy, then the Aggrieved Party shall be entitled, at its sole discretion and without prejudice to any of its other rights in law, either to claim specific performance of the terms of this Agreement or to cancel this Agreement forthwith and without further notice, and to claim and recover damages from the Defaulting Party.

12. DOMICILE

12.1. The Parties select as their respective domicilia citandi et executandi for the purpose of legal proceedings and for the purposes of giving or sending any notice provided for or necessary in terms of this Agreement, the addresses as more fully described in the Buyers and Sellers Invoices.

12.2. Any notice addressed to a Party must be sent by e-mail correspondence, unless it is required that the notice or documents be given by hand.

12.3. Notwithstanding anything to the contrary herein contained, a written notice or other communication actually received by a Party shall be adequate written notice or communication to it notwithstanding that the notice was not sent or delivered to its chosen address.

13. DISPUTE RESOLUTION

13.1. Unless otherwise agreed to between the Parties in writing, any dispute arising from or in connection with this Agreement shall be determined in accordance with the Commercial Rules of the Arbitration Foundation of South Africa (“Foundation”) by an arbitrator or arbitrators nominated by the Foundation.

13.2. Any award made by the Foundation will be binding on both parties.

13.3. Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.

14. AUTHORITY AND CAPACITY

14.1. The signatories to this Agreement, signing this Agreement on behalf of the Parties, and by initialing any documents referred to herein, warrant that they are authorised to engage the respective named Seller or Buyer (as applicable) to the Agreement, by virtue of authority and / or capacity.

15. ENTIRE AGREEMENT

15.1. This Agreement contains all the terms and conditions of the Agreement between the Parties. Where terms and conditions are contrary to this Agreement, the terms and conditions of this Agreement are to be considered by all Parties as superior terms and conditions. No further terms and conditions may be incorporated without the written consent of both Parties.

15.2. If a provision of this Agreement is reasonably capable of an interpretation which would make that provision valid and enforceable and an alternative interpretation that would make it void, illegal, invalid or otherwise unenforceable, then that provision shall be interpreted, so far as is possible, to be limited and read down to the extent necessary to make it valid and enforceable. 15.3. Subject to clause 15.2, if any provision of this Agreement is found by a court of competent jurisdiction to be void, illegal, invalid or otherwise unenforceable, such provision shall be severed and the remainder of this Agreement shall continue in full force and effect to the fullest extent permitted by Law.

15.4. The Parties reciprocally undertake in favour of one another to act in the utmost good faith towards one another in procuring the implementation of the provisions of this Agreement.

15.5. The termination of this Agreement, for whatever reason, will not affect the rights of either Party which may have accrued as at the date of termination and will further not affect any rights and obligations which specifically or by their nature survive the termination of this Agreement.

This Agreement may be executed in one or more counterparts (including those copies received via e-mail transmission), each of which shall be deemed to be an original and all of which shall be taken together and deemed to be one instrument.

Standard Air Freight Sales

1. THE PARTIES

The Parties to this Agreement are the Seller and the Buyer on all Airfreight Fruit, Vegetables, and Flower as per Definitions.

2. DEFINITIONS

In this agreement or Term and Conditions, unless the context requires a contrary interpretation, the following words and expressions shall have the meanings herein assigned to them:
2.1. “AWB” means Airway Bill.
2.2. “Seller” means Fresh 365 International (PTY) Ltd.
2.3. “Buyer” means the party that is purchasing from the Seller.
2.4. “Confirmation of Sale Document and/or Seller Invoice” is a secondary document to be issued by the Seller with each shipment of Fruit confirming the details of the sale.
2.5. “Fruit, Veg, & Flowers” shall mean the products, as per the commodities, varieties, grades and sizes as described in the Confirmation of Sale Document or Seller’s Invoice to be sold by the Seller to the Purchaser in terms of this agreement.
2.6. “Incoterms” means the “Incoterms 2010” version issued by the International Chamber of Commerce.
2.7. “PPECB” shall mean the Perishable Products Export Control Board or Similar Export Control Board.
2.8. “The parties” shall mean the Seller and the Purchaser.
2.9. “this agreement” means the standard terms and conditions and all annexures and schedules thereto and any amendments to the foregoing affected in terms of this agreement.
2.10. “FPEF” Fresh Produce Exporters Forum based in South Africa.
2.11. “Sellers Claim Policy” An accompanying policy to this contract to inform the Buyer of all Quality related claim procedures which need to be followed for any quality dispute to be valid.

3. THE SALE

A Confirmation of Sale Document and/or Seller Invoice will be issued for each shipment and will form part of this agreement and will be legally binding. All Fruit, Veg, and Flowers purchased from the Seller will be subject to the terms and conditions of this agreement.

4. DELIVERY

The Fruit, Veg, or flowers will be sent via air freight, to the destination specified by the Buyer and within the time period specified in the Confirmation of Sale Document and/or Seller’s Invoice.

5. PURCHASE CONSIDERATION AND PAYMENT

5.1. The purchase consideration will be indicated on the Confirmation of Sale Document and/or Seller’s Invoice.
5.2. Payment of the Purchase Consideration and credit conditions will be stipulated in the Confirmation of Sale Document and/or Seller’s Invoice.
5.3. Where the parties have agreed to payment by Documentary Credit, the Buyer must arrange for a Documentary Credit in favour of the Seller, to be issued by a reputable bank, accepted for trade by Nedbank Bank of South Africa, and subject to the Uniform Customs and Practices for Documentary Credits published by the International Chamber of Commerce.
5.4. A penalty on late payments may be charged by the Seller at a rate of up to 0,06% per day. This will be at the Seller’s discretion and be calculated from the original due date of the Seller’s Invoice. The Seller will be required to inform the Buyer of the rate to be charged one week in advance of applying such a penalty.
5.5. If the Seller is required to use a 3rd party debt collection agency, legal representative, or use the Seller’s Credit insurance to collect any monies that are over 30 days due, the Buyer agrees that these collection charges or fees will be added to the total collectable amount being collected from the Buyer.

6. RETENTION OF TITLE

6.1. The Fruit, Veg, and Flowers described in the Confirmation of Sale Document and/or Seller Invoice will remain the property of the Seller until all amounts payable by the Buyer in terms of this agreement are received by the Seller. In the event that the Buyer does not pay the amount payable as per the payment terms, the Seller will be entitled to take possession of other Fruit, Veg, and Flowers to similar or same value at the Port of Arrival (POA), and also claim damages from the Buyer, without derogating from the remedies available to the Seller in terms of this agreement.

7. DOCUMENTS

7.1. The Seller must provide the documents indicated by the applicable INCOTERM and according to the terms set out in the Confirmation of Sale Document and/or the Seller’s Invoice.
7.2. Two sets of original documents will accompany each shipment, with one being handed to the airline and the other being placed inside or attached to a marked box to be used the Seller.
7.3. The Buyer will specify the Consignee & Notify Party and Invoicing Details to the Seller.
7.4. Any additional requests by the Buyer regarding Documents will be specified on the Confirmation of Sale Documents and/or the Seller’s Invoice.
7.5. When possible, copies of the shipping documents will be transmitted electronically to the Buyer within 12 hours of each shipment by the Seller or the Sellers appointed forwarding agent.

8. QUALITY DISPUTES.
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8.1. The Seller will have the Fruit, Veg, or Flowers inspected by the PPECB or the relevant overseas Phyto inspection authority at the time and place of shipment, and the Inspection cost will be determined in accordance with the selected Incoterm.
8.2. Any dispute must be raised within 24 hours of arrival at Port Of Arrival (POA).
8.3. The Buyer further undertakes to submit an internal quality report, as per the Seller’s Claim Policy (see Annexure A), to the Seller within 24 hours of the receipt of the Fruit, Veg, Flowers. Should quality problems be identified, the Buyer is to provide the Seller with sufficient evidence in the report of such quality problems. An Independent Survey Company can be appointed by the Seller within a reasonable timeframe of being notified by the Buyer of a quality problem. A Seller representative may also be appointed to inspect the fruit, Veg, Flowers in the same period. The Seller undertakes to forward the resulting Independent Survey report to the Buyer if and when requested by the Buyer.
8.4. In the event of a quality dispute, the Buyer is to make sure that no affected carton/boxes are sold until both parties agree on a course of action, as per the Seller’s Claim Policy (see Annexure A)
8.5. Should the quality of the Fruit, Veg, Flowers be such that repacking is required, an Independent Survey Report will be required to verify this. The Buyer must notify the Seller in writing that repacking is required, and the Buyer must get repacking permission from the Seller, which should be done within 24 hours of the Independent Survey being done. The cost of repacking must be negotiated and agreed to in writing between the Seller and the Buyer before repacking commences. Repacking of the fruit, Veg, Flowers must commence within one working day after approval. The final repacking report must be supplied to the Seller within 12 hours of repacking, as per the Seller’s Claim Policy (see Annexure A)
8.6. If the Buyer is responsible for any delays in the releasing/clearing/collection of cargo at the POA, or where the cold chain has not been managed properly by the Buyers clearing agent or at the Buyers offloading depot, and shelf life has been compromised as a result of the delay or cold chain management, the Buyer will have no right to a formal claim or dispute.
8.7. Any storage at (POA) over 24 hours will require written permission by the seller on a per shipment basis.
8.8. The Seller’s Claim Policy must be adhered to, with failure resulting in no claim or dispute being entertained by the Seller. Failure to comply to Seller claim policy will be considered as a frivolous dispute.

9. Credit INSURANCE

In shipments where credit insurance is in place, and a credit limit and payment terms were issued by the Seller. It is the Buyers responsibility to ensure that:

9.1. The Buyer communicates with the Credit Insurance provider if and when the Buyer is contacted directly by the Credit Insurance provider.
9.2. On shipments where a dispute is raised between the two parties, the Buyer must conform to this Agreement, and the Seller Claim Policy for any such disputes to be accepted as valid by Credit Insurance Provider and the Seller. – (See clause 17 for related conditions with regards to Arbitration & Mediation)

10. REPORTS

The parties agree to provide the other party with the documents and/or reports as per this Agreement and the Confirmation of Sale Document and/or the Seller’s Invoice

11. COMMERCIAL TERMS

Whenever possible INCOTERMS will be used. (To be found at: www.incoterms.com) If it is not possible to use an INCOTERM, a fully detailed explanation of the term to be used must be given in Confirmation of Sale Document and/or the Seller’s Invoice. This explanation will give exact details of what is and is not to be included in the price, and when risk transfers.

12. FORCE MAJEURE

Should the performance of any party to the agreement be rendered impossible through events beyond the control of such party which, shall include, without limitation, an act of God or state of war or sabotage, fire, drought, floods, excessive rainfall, disease, epidemic, civil commotion, riot, strike, lock-out or change in the law or statutory license or permission affecting the performance of such obligation (but excluding such cause for which the party claiming such inability is responsible or should have been able to avert had reasonable care been taken), and whether or not the events effects the Seller or the Seller’s suppliers, the performance of such party will be varied by the extent to which proper performance was rendered impossible.

13. BREACH

In the event of any of the parties (the “defaulting party”) committing a breach of any of the terms of this agreement and failing to remedy such breach within a period of 10 (ten) days after receipt of a written notice from another party (the “aggrieved party”) calling upon the defaulting party so to remedy, then the aggrieved party shall be entitled, at its sole discretion and without prejudice to any of its other rights in law, either to claim specific performance of the terms of this agreement or to cancel this agreement in writing forthwith and without further notice, and to claim and recover damages from the defaulting party.

14. DOMICILE

14.1. The parties select as their respective domicilia citandi et executandi for the purpose of legal proceedings and for the purposes of giving or sending any notice provided for or necessary in terms of this agreement, the addresses as more fully described in the Seller’s Confirmation of Sale Documents and/or the Seller’s Invoice.
14.2. Each of the parties will be entitled from time to time to vary its domicilium by written notice to the other to any other address which is not a post office box or poste restante and/or to vary its telefacsimile number and/or e-mail address.
14.3. Any notice addressed to a party must be sent by telefax or by e-mail, unless it is required that the notice or documents be given by hand. Any notice:
14.3.1. given by fax shall be deemed to have been received at the time of transmission; or
14.3.2. hand delivered by one party to the other during normal business hours shall be deemed to have been received when delivered: or
14.3.3. Sent by e-mail by one party to the other in which event it shall be deemed to have been received when the sender receives confirmation of receipt of the e-mail.
14.4. Notwithstanding anything to the contrary herein contained, a written notice or other communication actually received by a party shall be adequate written notice or communication to it notwithstanding that the notice was not sent or delivered to its chosen address.

15. CHOICE OF LAW AND JURISDICTION

15.1. Any suit, action or appeal by the Seller or Buyer is restricted to a suit action or appeal through a South Africa Court. The courts of South Africa shall have exclusive jurisdiction to determine all questions and matters relative to this Agreement or arising out of it.

15.2. This contract is subject to the UNIDROIT General Principles of Law (Principles of International Commercial Contracts, 1994). (To be found at: www.unidroit.org). Wherever the UNIDROIT principles are silent, this contract is subject to the United Nations Convention on Contracts for the International Sales of Goods (UNCISG). (To be found at: http:/www.jus.uio.no/lmm/un.contracts.international.sale.of.goods.convention1980/doc.html)
15.3. Where the above is both silent, this Agreement shall be construed and have effect in all respects as a settlement constituted under the laws of South Africa and the provisions of this Agreement shall operate in accordance with such laws.

16. ARBITRATION & MEDIATION

In the event of a dispute arising that the parties cannot settle by mutual consent, both parties agree to submit to arbitration in South African as their preferred call of action as per below.

• The Seller will have the right to appoint an arbitrator of choice for general disputes, both parties agree to arbitration under current terms of MARC Arbitration in South Africa, under its direction. Such process and subsequent award will be binding on both parties.
• When determining specifically if a dispute between the two parties is frivolous or valid in nature for the purposes of a Credit Insurance claim by the Seller, both parties agree to use the services of the FPEF in South Africa to Mediate or Arbitrate between the two parties to establish the validity of a claim. Both parties are bound by the outcome of the findings.
• If either party fails to comply to the above and appoint a representative to ARBITRATION or MEDIATION, it will be deemed as an obstruction of process, and the Arbitration or Mediation process may continue in their absence, and it will be noted in the findings that the defaulting party was obstructive to the process.

17. TERMS AND CONDITIONS

This agreement, and all annexures– by attachment or reference, contain all the terms and conditions of this agreement between the parties. Where terms and conditions are contrary to this agreement, the terms and conditions of this agreement are to be considered by all parties as superior terms and conditions. No further terms and conditions may be incorporated without the written consent of both parties.

Annexure A

Fresh 365 International Claim Policy & Procedure.

Seller’s responsibility for inspection of Fruit, Veg, Flowers prior to export

1. All Fruit, Veg, Flowers must be inspected and passed for export by the relevant fruit export control board servicing the designated country of origin of the Fruit (“Export Board”).
2. All Fruit, Veg, Flowers must be packed according to or above the mandatory minimum market standards as prescribed by the relevant Export Board, such as PPECB in South Africa. The Seller at the request of the Buyer shall supply these standards.

Buyer’s responsibility for inspection and adherence to quality control procedure

3. Should the Buyer require additional specifications or standards to the mandatory Industry minimum standard, these standards are to be sent by the Buyer in writing to the Seller, by e-mail, within a reasonable time (Minimum 1 week) prior to packing of the Fruit, Veg, Flowers.
4. The shipped Fruit, Veg, Flowers must be inspected within 24 hours of arrival at Airport or Port Of Arrival (POA) and/or within 12 hours of the collection of the shipment from the POA.
5. If the Buyer intends claiming from the Seller.
5.1. The Buyer has to inform the seller in writing within 24 hours of arrival at Port Of Arrival (POA) and, within 12 hours of the collection of the shipment at the POA.
5.2. The temperature recorder must be taken from the marked box in the airline pallet or loading unit shipped. The temperature information must be downloaded to establish if there has been any temperature malfunction(s) and / or fluctuation(s) during transit. If the temperature has fluctuated during transit, the seller is to:
5.2.1. Notified the Seller immediately by telephone and by e-mail.
5.2.2. The Seller and Buyer are to both put the Airline on notice of a claim and invite the Airline to come and do a Joint Independent survey. This communication is to be done via e-mail and both parties are to copy in when communicating with the airline or airline representative.
5.3. If a claim is to be raised by the Buyer, A general overview of the shipment must be done and documented in a general overview report delivered to the Seller within the above-mentioned timeframes, via e- mail to quality@fresh365.biz The Buyer is also send this general overview report to the relevant person at the Seller, who was responsible for the sale (see “General Overview Report”).
5.4. The Buyer is to get the Seller’s permission to make any sales in the event of a quality claim being raised.
6. If shipment cannot be collected and inspected with in the above timeframes mentioned above, or the conditions cannot be met in respect of points 5.1 – 5.4, the Buyer must notify the Seller in writing, for an exception to be granted to the Buyer.

General Overview Report

7. The General Overview Report must state whether the Buyer intends claiming on quality related issues and the Buyer must present detailed information to the Seller, so that the Seller is able to make an informed decision on whether it should appoint an independent inspection authority to do a survey. The Seller is to confirm in writing and acknowledge receipt of the General Overview Report. If the Buyer has not received this acknowledgment receipt with 24 hours, the Buyer is to contact the Seller by phone, and resend the General Overview Report, requesting the acknowledgment of receipt. The communication from the Buyer must include the reason(s) for the claim together with all necessary supporting information.
8. Reason(s) for the claim must be summarized into any one or combination of the following:
8.1. claim based on major defects;
8.2. claim based on minor defects;
8.3. claim based on phytosanitary requirements;
8.4. claim based on packaging.
8.5. Claim based on temperature affecting shelf life.
8.6. Claim based on contents of shipment being different to what was ordered and stated on the invoice.
8.7. Claim being for other Reasons which need to be detailed by Buyer.
9. Supporting information must include the following minimum items:
9.1. A number of color photos to sufficiently demonstrate the quality issue;
9.2. The Sellers Reference Number, which is either the Invoice number, or AWB number.
9.3. The commodity, variety, sizes, and grower codes (PUC) being claimed;
9.4. Number of affected boxes or cartons & the identification numbers or barcodes for the boxes/carton being claimed.
9.5. The flight details, including AWB number, and Airline,
9.6. The downloaded details from temperature recorder – temperature graph (the Buyer agrees and warrants that it will have in place the relevant software available to do the temperature downloads for the temperature recorder);
9.7. The address where the boxes are stored and contact detail of person of Buyer where Fruit, Veg, Flowers can be inspected or surveyed. This information is to be used by Fresh 365 International or the surveyor in case of marine insurance claim.
9.8. The quantification of the claim (estimation of cost, damage or loss).

Independent Survey

10. Should the General Overview Report indicate to the Seller that an independent survey is required, the Seller is required to contact and instruct the relevant inspection authority to conduct an independent survey, unless there is a written instruction sent by the Seller via e-mail to the Buyer to appoint a surveyor on behalf of the Seller.
11. The inspection authority to conduct any survey, shall be nominated by the Seller and/or the growers of the Fruit. T Seller and/or the growers of the Fruit will not accept a claim which is based on an independent inspection authority appointed by the Buyer, unless there is a written instruction sent by the Seller via e-mail to the Buyer to appoint a surveyor on behalf of the Seller.
12. The Buyer is to do the following:
12.1. Isolate the cartons or boxes that are under claim, and stop any sale of affected cartons or boxes. Sales may only occur once the inspection authority (appointed by the Seller) has concluded the survey, and both Parties have agreed on the course of action; (see Discount Sale- Open Consignment Sale- and Buy Back Procedure(s)
12.2. Provide the inspection authority access to the storage facility where the claimed fruit, Veg, Flowers are situated;
12.3. Arrange that all claimed cartons or boxes are easily accessible to the inspection authority;
12.4. Provide the inspection authority with a sufficiently area to conduct survey, which has good lighting;
12.5. To present the inspection authority with any carton or box requested for survey by them.
13. The Parties must then ensure that the final survey report is distributed to the Buyer and Seller.
14. Should the Independent report mention non adherence by the buyer to points 12.1-12.5, the report will make reference to this, resulting in a claim being considered as invalid.
15. Should the outcome of the survey be in contradiction to the Buyer’s claim (whether whole or only in part), the cost of the survey will be for the account of the Buyer, and the cost will be invoiced by the Seller to the Buyer.
16. The findings of the survey will be binding on both Parties and all claims should be settled within 14 (fourteen) days of receipt of the independent inspection authority survey being presented to the Buyer, or within a reasonable period of time if agreed to in writing, but not exceeding 30 (thirty) days).
17. The Parties must agree together on a course of action to be taken that will minimize the commercial loss of affected Fruit. This course of action(s) shall include the following:
17.1. repacking of the affected Fruit, Veg, Flowers (see Repack Procedure below);
17.2. discount(s) applied to the affected Fruit, Veg, Flowers (see Discount Sale Procedure below);
17.3. open consignment sale of the affected Fruit, Veg, Flowers (see Open Consignment Sale Procedure below);
17.4. buy back of the affected Fruit, Veg, Flowers (see Buy Back Procedure below).

Repacking Procedure

18. Should the quality of the affected Fruit, Veg, Flowers be such that the Parties agree to repack the affected shipment, such repacking shall commence within 24 hours of the agreement to repack in accordance with the repacking procedure detailed below.
19. The cost of repacking must be negotiated and agreed to in writing between the Seller and the Buyer before repacking commences.
20. The affected Fruit, Veg, Flowers once repacked, will be subject to the original purchase price and payment terms agreed to between the Parties. (i.e. the Fruit will then be treated as Fruit that arrived according to the agreed quantity, quality and specifications).
21. A final repacking report must be supplied by the Buyer to the Seller within 48 hours of repacking. The Seller agrees to reimburse the Buyer for the repacking cost, as per the cost agreed to. If cost is higher than those agreed to, the Seller has the right to request copies of the service provider’s invoices to prove justification of the higher billing.
22. The Seller Agrees to reimburse the Buyer for any fruit losses due to waste or grade/class reclassification in the repacking process.
23. Any deviation from the repacking procedure mentioned herein, must first be negotiated and agreed to between the Parties in writing.
24. The following repacking procedure must be followed:
24.1. select one Box at a time and note the following:
24.1.1. Barcode Number;
24.1.2. Variety;
24.1.3. Grade;
24.1.4. Count;
24.1.5. Grower Code;
24.2. after all the Fruit, Veg, Flowers have been graded and repacked, the following should be documented:
24.2.1. Date Repacked;
24.2.2. Time taken to repack carton;
24.2.3. Percentage Class 1 Fruit, Veg, Flowers.
24.2.4. Percentage Class 2 Fruit; Veg, Flowers
24.2.5. Percentage Waste Fruit; Veg, Flowers.
24.2.6. Major defects found:
24.2.7. Percentage of defects;
24.2.8. Report compiled by Name ___________, Signature _______, Date __________.

Discount Sale- Open Consignment Sale- and Buy Back Procedure(s)

25. Subject to all the correct procedures being followed as highlighted herein; and subject to claim being valid and being confirmed by the independent inspection authority appointed by the Seller, the Parties must reach an agreement on a course of action to be taken that will minimize the commercial loss of affected Fruit, Veg, Flowers. The following procedures must be followed by the Parties:

25.1. Discount Sale Procedure: Either Party shall be entitled to issue to the other Party with a written request indicating the discount it wishes to give / receive on the affected Fruit, Veg, Flowers sold; should the Parties be unable to reach agreement within 24 hours, from the date of receipt of the written request, on the amount of discount to be given/received for the affected Fruit sold, the Parties shall proceed to the following procedure:

25.2. Open Consignment Sale Procedure: Either Party shall be entitled to issue to the other Party a written request indicating that the affected Fruit, Veg, Flowers must be sold on open consignment to the open Market on such terms and conditions it may deem appropriate at the time; A full sales report must be provided to the Seller by the Buyer. Should the Parties however be unable to reach agreement within 24 hours, from the date of receipt of the written request, on the terms and conditions on which the affected Fruit will be sold in the open market, the Parties shall proceed to the following procedure:

25.3. Buy Back Procedure: The Seller shall then be entitled to issue the Buyer with a written offer indicating the terms and conditions on which the affected Fruit, Veg, Flower should be bought back or taken back from the Buyer. Should the Parties however be unable to reach agreement within 24 hours, from the date of receipt of the written request, on the terms and conditions on which the affected Fruit, Veg, Flowers should be bought back by the Seller from the Buyer, The Fruit, Veg, Flowers will be purchased or handed back at original invoice value.

Standard Term and Conditions for Sea freight Sales

1. THE PARTIES

The Parties to this Agreement are the Seller and the Buyer on all Airfreight Fruit, Vegetables, and Flower as per Definitions.

2. DEFINITIONS

In this agreement or Term and Conditions, unless the context requires a contrary interpretation, the following words and expressions shall have the meanings herein assigned to them:

2.1. “BOL” Bill of Lading.

2.2. “Seller” means Fresh 365 International (PTY) Ltd.

2.3. “Buyer” means the party that is purchasing from the Seller.

2.4. “Confirmation of Sale Document and/or Seller Invoice” is a secondary document to be issued by the Seller with each shipment of Fruit confirming the details of the sale.

2.5. “Fruit, Vegetables” shall mean the products, as per the commodities, varieties, grades and sizes as described in the Confirmation of Sale Document or Seller’s Invoice to be sold by the Seller to the Purchaser in terms of this agreement.

2.6. “Incoterms” means the “Incoterms 2010” version issued by the International Chamber of Commerce.

2.7. “PPECB” shall mean the Perishable Products Export Control Board or Similar Export Control Board.

2.8. “The parties” shall mean the Seller and the Purchaser.

2.9. “this agreement” means the standard terms and conditions and all annexures and schedules thereto and any amendments to the foregoing affected in terms of this agreement.

2.10. “FPEF” Fresh Produce Exporters Forum based in South Africa.

2.11. “Sellers Claim Policy” An accompanying policy to this contract to inform the Buyer of all Quality related claim procedures which need to be followed for any quality dispute to be valid.

3. THE SALE

4. DELIVERY

The Fruit, & Vegetables will be sent via sea freight, to the destination specified by the Buyer and within the time period specified in the Confirmation of Sale Document and/or Seller’s Invoice.

5. PURCHASE CONSIDERATION AND PAYMENT

5.1. The purchase consideration will be indicated on the Confirmation of Sale Document and/or Seller’s Invoice.

5.2. Payment of the Purchase Consideration and credit conditions will be stipulated in the Confirmation of Sale Document and/or Seller’s Invoice.

5.3. Where the parties have agreed to payment by Documentary Credit, the Buyer must arrange for a Documentary Credit in favour of the Seller, to be issued by a reputable bank, accepted for trade by Nedbank Bank of South Africa, and subject to the Uniform Customs and Practices for Documentary Credits published by the International Chamber of Commerce.

5.4. A penalty on late payments may be charged by the Seller at a rate of up to 0,06% per day. This will be at the Seller’s discretion and be calculated from the original due date of the Seller’s Invoice. The Seller will be required to inform the Buyer of the rate to be charged one week in advance of applying such a penalty.

5.5. If the Seller is required to use a 3rd party debt collection agency, legal representative, or use the Seller’s Credit insurance to collect any monies that are over 30 days due, the Buyer agrees that these collection charges or fees will be added to the total collectable amount being collected from the Buyer.

6. RETENTION OF TITLE

6.1. The Fruit, Veg, and Flowers described in the Confirmation of Sale Document and/or Seller Invoice will remain the property of the Seller until all amounts payable by the Buyer in terms of this agreement are received by the Seller. In the event that the Buyer does not pay the amount payable as per the payment terms, the Seller will be entitled to take possession of other Fruit & Vegetables, to similar or same value at the Port of Arrival (POA), and also claim damages from the Buyer, without derogating from the remedies available to the Seller in terms of this agreement.

7. DOCUMENTS

7.1. The Seller must provide the documents indicated by the applicable INCOTERM and according to the terms set out in the Confirmation of Sale Document and/or the Seller’s Invoice.

7.2. Two sets of original documents will accompany each shipment, with one being handed to the airline and the other being placed inside or attached to a marked box to be used the Seller.

7.3. The Buyer will specify the Consignee & Notify Party and Invoicing Details to the Seller.

7.4. Any additional requests by the Buyer regarding Documents will be specified on the Confirmation of Sale Documents and/or the Seller’s Invoice.

7.5. When possible, copies of the shipping documents will be transmitted electronically to the Buyer within one week of each shipment by the Seller or the Sellers appointed forwarding agent.

8. QUALITY DISPUTES.

8.1. The Seller will have the Fruit & vegetables inspected by the PPECB or the relevant overseas Phyto inspection authority at the time and place of shipment, and the Inspection cost will be determined in accordance with the selected Incoterm.

8.2. Any dispute must be raised within 72 hours of arrival at Port Of Arrival (POA).

8.3. The Buyer further undertakes to submit an internal quality report, as per the Seller’s Claim Policy (see Annexure A), to the Seller within 24 hours of the receipt of the Fruit & Vegetables. Should quality problems be identified, the Buyer is to provide the Seller with sufficient evidence in the report of such quality problems. An Independent Survey Company can be appointed by the Seller within a reasonable timeframe of being notified by the Buyer of a quality problem. A Seller representative may also be appointed to inspect the fruit & Vegetables in the same period. The Seller undertakes to forward the resulting Independent Survey report to the Buyer if and when requested by the Buyer.

8.4. In the event of a quality dispute, the Buyer is to make sure that no affected carton/boxes are sold until both parties agree on a course of action, as per the Seller’s Claim Policy (see Annexure A)

8.5. Should the quality of the Fruit & Vegetables be such that repacking is required, an Independent Survey Report will be required to verify this. The Buyer must notify the Seller in writing that repacking is required, and the Buyer must get repacking permission from the Seller, which should be done within 24 hours of the Independent Survey being done. The cost of repacking must be negotiated and agreed to in writing between the Seller and the Buyer before repacking commences. Repacking of the fruit & Vegetables must commence within one working day after approval. The final repacking report must be supplied to the Seller within 12 hours of repacking, as per the Seller’s Claim Policy (see Annexure A)

8.6. If the Buyer is responsible for any delays in the releasing/clearing/collection of cargo at the POA, or where the cold chain has not been managed properly by the Buyers clearing agent or at the Buyers offloading depot, and shelf life has been compromised as a result of the delay or cold chain management, the Buyer will have no right to a formal claim or dispute.

8.7. Any storage at (POA) over 24 hours will require written permission by the seller on a per shipment basis.

8.8. The Seller’s Claim Policy must be adhered to, with failure resulting in no claim or dispute being entertained by the Seller.

Failure to comply to Seller claim policy will be considered as a frivolous dispute.

9. Credit INSURANCE

In shipments where credit insurance is in place, and a credit limit and payment terms were issued by the Seller. It is the Buyers responsibility to ensure that:

9.1. The Buyer communicates with the Credit Insurance provider if and when the Buyer is contacted directly by the Credit Insurance provider.

9.2. On shipments where a dispute is raised between the two parties, the Buyer must conform to this Agreement, and the Seller Claim Policy for any such disputes to be accepted as valid by Credit Insurance Provider and the Seller. – (See clause 17 for related conditions with regards to Arbitration & Mediation)

10. REPORTS

The parties agree to provide the other party with the documents and/or reports as per this Agreement and the Confirmation of Sale Document and/or the Seller’s Invoice

11. COMMERCIAL TERMS

12. FORCE MAJEURE

13. BREACH

14. DOMICILE

14.2. Each of the parties will be entitled from time to time to vary its domicilium by written notice to the other to any other address which is not a post office box or poste restante and/or to vary its telefacsimile number and/or e-mail address.

14.3. Any notice addressed to a party must be sent by telefax or by e-mail, unless it is required that the notice or documents be given by hand. Any notice:

14.3.1. given by fax shall be deemed to have been received at the time of transmission; or

14.3.2. hand delivered by one party to the other during normal business hours shall be deemed to have been received when delivered: or

14.3.3. Sent by e-mail by one party to the other in which event it shall be deemed to have been received when the sender receives confirmation of receipt of the e-mail.

14.4. Notwithstanding anything to the contrary herein contained, a written notice or other communication actually received by a party shall be adequate written notice or communication to it notwithstanding that the notice was not sent or delivered to its chosen address.

15. CHOICE OF LAW AND JURISDICTION

15.3. Where the above is both silent, this Agreement shall be construed and have effect in all respects as a settlement constituted under the laws of South Africa and the provisions of this Agreement shall operate in accordance with such laws.

16. ARBITRATION & MEDIATION

In the event of a dispute arising that the parties cannot settle by mutual consent, both parties agree to submit to arbitration in South African as their preferred call of action as per bellow.

· The Seller will have the right to appoint an arbitrator of choice for general disputes, both parties agree to arbitration under current terms of MARC Arbitration in South Africa, under its direction. Such process and subsequent award will be binding on both parties.

· When determining specifically if a dispute between the two parties is frivolous or valid in nature for the purposes of a Credit Insurance claim by the Seller, both parties agree to use the services of the FPEF in South Africa to Mediate or Arbitrate between the two parties to establish the validity of a claim. Both parties are bound by the outcome of the findings.

· If either party fails to comply to the above and appoint a representative to ARBITRATION or MEDIATION, it will be deemed as an obstruction of process, and the Arbitration or Mediation process may continue in their absence, and it will be noted in the findings that the defaulting party was obstructive to the process.

17. TERMS AND CONDITIONS

Annexure A

Fresh 365 International Sea Freight Claim Policy & Procedure.

Seller’s responsibility for inspection of Fruit & Vegetables prior to export

1. All Fruit & Vegetables must be inspected and passed for export by the relevant fruit export control board servicing the designated country of origin of the Fruit (“Export Board”).

2. All Fruit & Vegetables must be packed according to or above the mandatory minimum market standards as prescribed by the relevant Export Board, such as PPECB in South Africa. The Seller at the request of the Buyer shall supply these standards.

Buyer’s responsibility for inspection and adherence to quality control procedure

4. The shipped Fruit & Vegetables must be inspected within 72 hours of arrival at Port Of Arrival (POA) and/or within 24 hours of the collection of the shipment from the POA.

5. If the Buyer intends claiming from the Seller.

5.1. The Buyer has to inform the seller in writing within 72 hours of arrival at Port Of Arrival (POA) and, within 24 hours of the collection of the shipment at the POA.

5.2. The temperature recorder must be taken from the marked box in the airline pallet or loading unit shipped. The temperature information must be downloaded to establish if there has been any temperature malfunction(s) and / or fluctuation(s) during transit. If the temperature has fluctuated during transit, the seller is to:

5.2.1. Notified the Seller immediately by telephone and by e-mail.

5.2.2. The Seller and Buyer are to both put the Airline on notice of a claim and invite the Airline to come and do a Joint Independent survey. This communication is to be done via e-mail and bother parties are to copy in when communicating with the airline or airline representative.

5.3. If a claim is to be raised by the Buyer, A general overview of the shipment must be done and

documented in a general overview report delivered to the Seller within the above-mentioned timeframes, via e- mail to quality@fresh365.biz The Buyer is also send this general over view report to the relevant person at the Seller, who was responsible for the sale (see “General Overview Report”).

5.4. The Buyer is to get the Seller’s permission to make any sales in the event of a quality claim being raised.

6. If shipment cannot be collected and inspected with in the above timeframes mentioned above, or the conditions cannot be met in respect of points 5.1 – 5.4, the Buyer must notify the Seller in writing, for an exception to be granted to the Buyer.

General Overview Report

8. Reason(s) for the claim must be summarized into any one or combination of the following:

8.1. claim based on major defects;

8.2. claim based on minor defects;

8.3. claim based on phytosanitary requirements;

8.4. claim based on packaging.

8.5. Claim based on temperature affecting shelf life.

8.6. Claim based on contents of shipment being different to what was ordered and stated on the invoice.

8.7. Claim being for other Reasons which need to be detailed by Buyer.

9. Supporting information must include the following minimum items:

9.1. A number of color photos to sufficiently demonstrate the quality issue;

9.2. The Sellers Reference Number, which is either the Invoice number, or BOL number.

9.3. The commodity, variety, sizes, and grower codes (PUC) being claimed;

9.4. Number of affected boxes or cartons & the identification numbers or barcodes for the boxes/carton being claimed.

9.5. The flight details, including BOL number, and Airline,

9.6. The downloaded details from temperature recorder – temperature graph (the Buyer agrees and warrants that it will have in place the relevant software available to do the temperature downloads for the temperature recorder);

9.7. The address where the boxes are stored and contact detail of person of Buyer where Fruit & Vegetables can be inspected or surveyed. This information is to be used by Fresh 365 International or the surveyor in case of marine insurance claim.

9.8. The quantification of the claim (estimation of cost, damage or loss).

Independent Survey

11. The inspection authority to conduct any survey, shall be nominated by the Seller and/or the growers of the Fruit. T Seller and/or the growers of the Fruit will not accept a claim which is based on an independent inspection authority appointed by the Buyer, unless there is a written instruction sent by the Seller via e-mail to the Buyer to appoint a surveyor on behalf of the Seller.

12. The Buyer is to do the following:

12.1.Isolate the cartons or boxes that are under claim, and stop any sale of affected cartons or boxes. Sales may only occur once the inspection authority (appointed by the Seller) has concluded the survey, and both Parties have agreed on the course of action; (see Discount Sale- Open Consignment Sale- and Buy Back Procedure(s)

12.2.Provide the inspection authority access to the storage facility where the claimed fruit & Vegetables are situated;

12.3.Arrange that all claimed cartons or boxes are easily

accessible to the inspection authority;

12.4.Provide the inspection authority with a sufficiently area to conduct survey, which has good lighting;

12.5.To present the inspection authority with any carton or box requested for survey by them.

13. The Parties must then ensure that the final survey report is distributed to the Buyer and Seller.

14. Should the Independent report mention non adherence by the buyer to points 12.1-12.5, the report will make reference to this, resulting in a claim being considered as invalid.

15. Should the outcome of the survey be in contradiction to the Buyer’s claim (whether whole or only in part), the cost of the survey will be for the account of the Buyer, and the cost will be invoiced by the Seller to the Buyer.

16. The findings of the survey will be binding on both Parties and all claims should be settled within 14 (fourteen) days of receipt of the independent inspection authority’s survey being presented to the Buyer, or within a reasonable period of time if agreed to in writing, but not exceeding 30 (thirty) days).

17. The Parties must agree together on a course of action to be taken that will minimize the commercial loss of affected Fruit. This course of action(s) shall include the following:

17.1.repacking of the affected Fruit & Vegetables (see Repack Procedure below);

17.2.discount(s) applied to the affected Fruit & Vegetables (see Discount Sale Procedure below);

17.3.open consignment sale of the affected Fruit & Vegetables (see Open Consignment Sale Procedure below);

17.4.buy back of the affected Fruit & Vegetables (see Buy Back Procedure below).

Repacking Procedure

18. Should the quality of the affected Fruit & Vegetables be such that the Parties agree to repack the affected shipment, such repacking shall commence within 24 hours of the agreement to repack in accordance with the repacking procedure detailed below.

19. The cost of repacking must be negotiated and agreed to in writing between the Seller and the Buyer before repacking commences.

20. The affected Fruit & Vegetables once repacked, will be subject to the original purchase price and payment terms agreed to between the Parties. (i.e. the Fruit will then be treated as Fruit that arrived according to the agreed quantity, quality and specifications).

21. A final repacking report must be supplied by the Buyer to the Seller within 48 hours of repacking. The Seller agrees to reimburse the Buyer for the repacking cost, as per the cost agreed to. If cost is higher than those agreed to, the Seller has the right to request copies of the service provider’s invoices to prove justification of the higher billing.

22. The Seller Agrees to reimburse the Buyer for any fruit losses due to waste or grade/class reclassification in the repacking process.

23. Any deviation from the repacking procedure mentioned herein, must first be negotiated and agreed to between the Parties in writing.

24. The following repacking procedure must be followed:

24.1.select one Box at a time and note the following:

24.1.1. Barcode Number;

24.1.2. Variety;

24.1.3. Grade;

24.1.4. Count;

24.1.5. Grower Code;

24.2.after all the Fruit & Vegetables have been graded and repacked, the following should be documented:

24.2.1. Date Repacked;

24.2.2. Time taken to repack carton;

24.2.3. Percentage Class 1 Fruit & Vegetables.

24.2.4. Percentage Class 2 Fruit; Veg, Flowers

24.2.5. Percentage Waste Fruit; Veg, Flowers.

24.2.6. Major defects found:

24.2.7. Percentage of defects;

24.2.8. Report compiled by Name ___________, Signature _______, Date __________.

Discount Sale- Open Consignment Sale- and Buy Back Procedure(s)

25. Subject to all the correct procedures being followed as highlighted herein; and subject to claim being valid and being confirmed by the independent inspection authority appointed by the Seller, the Parties must reach an agreement on a course of action to be taken that will minimize the commercial loss of affected Fruit & Vegetables. The following procedures must be followed by the Parties:

25.1.Discount Sale Procedure: Either Party shall be entitled to issue to the other Party with a written request indicating the discount it wishes to give / receive on the affected Fruit & Vegetables sold; should the Parties be unable to reach agreement within 24 hours, from the date of receipt of the written request, on the amount of discount to be given/received for the affected Fruit sold, the Parties shall proceed to the following procedure:

25.2.Open Consignment Sale Procedure: Either Party shall be entitled to issue to the other Party a

written request indicating that the affected Fruit & Vegetables must be sold on open consignment to the open Market on such terms and conditions it may deem appropriate at the time; A full sales report must be provided to the Seller by the Buyer. Should the Parties however be unable to reach agreement within 24 hours, from the date of receipt of the written request, on the terms and conditions on which the affected Fruit will be sold in the open market, the Parties shall proceed to the following procedure:

25.3.Buy Back Procedure: The Seller shall then be entitled to issue the Buyer with a written offer indicating the terms and conditions on which the affected Fruit, Veg, Flower should be bought back or taken back from the Buyer. Should the Parties however be unable to reach agreement within 24 hours, from the date of receipt of the written request, on the terms and conditions on which the affected Fruit & Vegetables should be bought back by the Seller from the Buyer, The Fruit & Vegetables will be purchased or handed back at original invoice value