TURFBAY Terms & Conditions of Sale

In these terms and conditions, the undermentioned word shall have the meaning as mentioned hereunder except if it is clearly stated or mentioned otherwise.

1. “Purchaser” the natural or juristic person purchasing the Equipment from the Seller, whose particulars appear on the Quote.
2. “Seller” means Turfbay George (Pty) Ltd with registration number 2017/026038/07 t/a Turfbay Equipment.
3. “Equipment” or “Goods” means the equipment/product/goods as specified in the Quote.
4. “month” means a calendar month;
5. “the parties” means the parties to this agreement, and “party” means one of them;
6. expressions in the singular also denote the plural, and vice versa;
7. words and phrases denoting natural persons refer also to juristic persons, and vice versa;
8. Clause headings appear in this agreement for purposes of reference only and shall not influence the proper interpretation of the subject matter.
9. pronouns of any gender include the corresponding pronouns of the other genders.

1. Any amendments to these Terms and Conditions of Sale must be made in writing and signed by both parties.
2. No agent, employee, or representative of Turfbay Equipment has the authority to bind Turfbay Equipment to any affirmation, representation, or warranty concerning the goods sold under this Agreement, beyond that specifically included in this written Agreement.

1. The Seller agrees to sell, and the Purchaser agrees to buy, the Equipment on the terms and conditions of this Agreement.
2. The Seller makes no representation, statement, warranty, or undertaking to the Purchaser in relation to the quality and/or description of the Equipment, other than those contained in the Equipment Warranty.
3. The Puchaser acknowledges that all marketing material used by the Seller in the marketing of the Equipment shall not override any information contained in this agreement and that all parties shall be bound only by the terms and conditions of this agreement. The Purchaser will therefore not be entitled to rely on representations contained in any of the Seller’s marketing material for the purpose of cancellation or for the purpose of claiming damages from the Seller.
4. The parties agree that the sale and purchase of the Equipment under this agreement are conducted under the understanding that, where applicable, the provisions of the Consumer Protection Act 2008 (CPA) will be observed. If the Buyer is purchasing the Equipment for personal, family, or household use, and qualifies as a consumer under the CPA, the protections afforded by the CPA will apply and cannot be waived. However, if the Buyer is purchasing the Equipment for commercial purposes and not as a consumer as defined by the CPA, the parties agree it is fair and reasonable to contract out of the provisions of the CPA. The Buyer confirms their understanding of their status under the CPA and accepts the terms of this agreement accordingly.

1. The Seller will deliver the Goods. The Purchaser will pay all freight, insurance, and other shipping expenses, as well as any special packing expenses. The Seller will use commercially reasonable efforts to meet the quoted delivery dates and will have the right to deliver partial shipments of Goods.
2. The Purchaser is deemed to have accepted the Goods upon delivery unless the Purchaser notifies the Seller at the time of delivery of any loss, damage, shortage, or other non-conformity. In the absence of such notice, the Purchaser will have no right to reject the Goods or Services and will be required to pay the Invoice price for such Goods. The Purchaser will have no right to suspend or delay delivery of Goods.
3. If the Purchaser fails to accept delivery of Goods, the Seller will have the right to store or arrange storage of the Goods at the Purchaser’s risk and expense. The Purchaser will promptly pay for the reasonable costs of storage and insurance of the Goods. The Seller will not accept any returns of Goods without the Seller’s prior written authorization.

1. Title to the Equipment will pass to the Purchaser upon delivery of the Equipment, provided that full payment of the Purchase Price has been made.
2. Risk in the Equipment will pass to the Purchaser following the Equipment leaving the possession of the Seller.
3. Until title to the Equipment passes to the Purchaser, the Purchaser will:
   (a) hold the Equipment as bailee;
   (b) maintain the Equipment in good order and condition; and
   (c) preserve the Equipment in their present form.
4. The Purchaser acknowledges that, pursuant to the provisions of the National Credit Act 2005, the retention of title in this clause 4 gives rise to a security interest in the Equipment to secure the Purchaser’s performance of its obligations to the Seller.
5. The Purchaser undertakes to:
   (a) promptly do all things, execute all documents, and/or provide any information which the Seller may reasonably require to enable the Seller to perfect and maintain the perfection of its security interest;
   (b) give the Seller not less than ten (10) Business Days prior written notice of any proposed change in its name and/or any other change to its details; and
   (c) immediately on request by the Seller (and at the Purchaser’s expense) obtain from any third party such agreements and waivers of any security interest that a third party has in the Equipment, to ensure that at all times the Seller has a first priority security interest in the Equipment.

1. Claims for defective goods or discrepancies in quantity must be made in writing within seven (7) days of receipt of goods. Failure to make such claims within the specified time period constitutes unqualified acceptance of the goods and a waiver of all such claims by the Buyer.

1. The Purchaser agrees to pay the Seller the total Purchase Price in accordance with the payment terms (e.g., net 30, due upon receipt, etc.) as specified on the Seller’s tax invoice.
2. Any taxes, Government levies, insurance, clearance, forwarding, and other expenses arising from the delivery to or removal from the Purchaser’s premises, payable pursuant to this Agreement, are to be paid by the Purchaser immediately upon receipt of notice from the Seller.
3. Unless otherwise specified, all prices will be quoted and billed exclusive of duties and taxes, including VAT (as defined in the Value-Added Tax Act 1991).

1. The Seller will only accept returns of the Equipment in exceptional and justified (in the Seller’s sole discretion) cases. Any refund made will depend upon the age, condition, and saleability of the Equipment.
2. It shall be the Purchaser’s responsibility to check the Equipment upon receipt and confirm whether the Equipment is undamaged and complete. If the Purchaser believes the Equipment to be faulty in any respect, the Purchaser shall follow the Seller’s instructions for return or repair of the Equipment.
3. The Purchaser will at all times follow the instructions and advice in the Maintenance Materials on matters dealing with the maintenance and operation of the Equipment.

1. The Seller provides a warranty for the Equipment, the details of which are laid out in our Warranty Policy, available separately.
2. The Purchaser acknowledges that it has read, understood, and agreed to the terms and conditions of the Warranty Policy prior to entering this Agreement.
3. The Warranty Policy forms a part of this Agreement. However, in the event of any conflict or inconsistency between the terms of this Agreement and the Warranty Policy, the terms of this Agreement shall prevail.
4. The Purchaser agrees to comply with the terms of the Warranty Policy, including the procedure for making claims under the warranty.

1. All second-hand and refurbished machinery (“Goods”) are sold “voetstoots,” meaning “as is,” without any warranty, express or implied, unless explicitly stated otherwise in writing by (“Seller”).
2. The Buyer acknowledges and agrees that they have had the opportunity to inspect the Goods prior to purchase and accepts the Goods in their current state and condition.
3. The Seller provides no warranty regarding the condition, performance, or suitability of the Goods, except where a specific written warranty is provided.
4. The Buyer assumes all risks and liabilities associated with the use of the Goods.
5. Due to the nature of the Goods being sold “as is,” returns and refunds are not accepted unless otherwise agreed upon in writing by the Seller. If a return is accepted, it will be subject to the terms and conditions set forth by the Seller at the time of agreement.
6. The Seller shall not be liable for any direct, indirect, incidental, or consequential damages resulting from the purchase, use, or inability to use the Goods.
7. Any specific warranty provided by the Seller will be limited to the terms explicitly stated in the warranty document and will not extend to any other aspect of the Goods.
8. The Purchaser confirms that he is aware that he is entitled to appoint an expert and/or person with technical skills and knowledge at his own cost to detect defects concerning the Equipment.

1. Unless alternative arrangements are made, all repairs to machinery, including warranty repairs, must be carried out at the Seller’s premises.
2. The Buyer is responsible for transporting the equipment to and from the Seller’s location at their own cost.
3. This condition applies to all repairs, including those covered under any specific written warranty provided by the Seller.
4. The Seller is not liable for any transport costs incurred by the Buyer in relation to the repair of the machinery.
5. Prior notice must be given to arrange an appointment for repairs.

1. The Buyer is liable for any tracing costs and legal costs on the scale as between attorney and own client including collection commission in respect of any litigation resulting from this contract and the Buyer consents to the jurisdiction of the magistrate’s court in respect of such litigation irrespective of the amount or value of the goods involved. Turfbay Equipment may however, in its sole discretion, institute legal action in the High Court in which case the Buyer consents to the jurisdiction of the South Western Cape Local Division.

1. Orders accepted by Turfbay Equipment can only be cancelled with our prior written consent. In the event of an approved cancellation, the Buyer may be liable for cancellation charges, which include expenses already incurred and commitments made by Turfbay Equipment.

1. No failure or delay on the part of Turfbay Equipment in exercising any rights under these Terms shall operate as a waiver of that right nor shall any single or partial exercise by Turfbay Equipment of any right preclude any other or further exercise thereof.

1. A certificate signed by an officer of Turfbay Equipment indicating the outstanding amount owed by the Buyer shall be prima facie proof of the Buyer’s indebtedness to Turfbay Equipment.

1. Buyer agrees to provide up to three trade references upon request to verify the Buyer’s creditworthiness.

1. The Parties choose domicilium citandi et executandi (“domicilium”) for all purposes of and in connection with this agreement, the physical addresses reflected on the front of the Quote.
2. Any notice referred to in this agreement shall:

• Be in writing;
• Be addressed to the domicilium citandi et executandi of the party to which it is addressed;
• Be delivered by hand at the relevant physical address and an acknowledgment of receipt shall be obtained from a person in attendance upon delivery on a copy of the notice or alternatively be sent by e-mail to the relevant e-mail address;
• Any notice complying with the aforementioned requirements shall be deemed to have been received by the party to which it is addressed:
  – In the event of delivery by hand on the date of acknowledgment of receipt; or alternatively
  – in the event of sending by e-mail, the same date that it was sent.

1. All intellectual property rights in the Equipment, including any improvements or modifications, shall remain the exclusive property of the Seller. The Purchaser is granted a non-exclusive, non-transferable license to use any software contained in the Equipment, only for the purposes and in the manner expressly specified in this Agreement.
2. The Purchaser shall not copy, modify, reverse engineer, or otherwise interfere with the intellectual property of the Seller, without the Seller’s prior written consent.

1. Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable.

1. In no event shall the Seller be liable for any general, consequential, incidental, indirect, special, loss of profit or opportunity, exemplary or punitive, special or other damages whatsoever resulting from the Seller’s performance or failure to perform under this Agreement, or the furnishing, performance or use of any products sold pursuant hereto, whether due to breach of contract, breach of warranty, strict liability, product liability, the negligence of the Seller or otherwise.
2. Except where expressly provided in this Agreement:
   (a) the Seller’s liability shall not exceed the Purchase Price paid by the Purchaser for the Equipment which are the subject of, or the cause of (whether directly or indirectly) any claim by the Purchaser against the Seller;
   (b) damage limitations provided in this Agreement and the remedies stated herein shall be the Purchaser’s sole and exclusive remedy;
   (c) the Seller shall not, by reason of the termination of this Agreement, be liable to the Purchaser for any damages or injunctive relief of any kind, including but not limited to, compensation, reimbursement or damages because of any:
   (i) loss of prospective profits;
   (ii) expenditures, investments, losses or commitments in connection with the establishment, development or maintenance of the business or goodwill; or
   (iii) any other cause by reason of the termination of such relationship; and
   (d) this limitation on liability shall survive failure of any essential purpose.
3. These terms and conditions do not, and no provision of these terms and conditions purports to, restrict or modify or have the effect of excluding, restricting or modifying the application of any conditions and warranties imposed and required to be binding by statute.
4. This clause 19 does not exclude, restrict or modify any condition, warranty, right or liability implied in this Agreement by a statute or by law if to do so would make this clause void. For the avoidance of doubt, nothing in this clause 19 shall limit or exclude the Seller’s liability in respect of any conditions and warranties imposed and required to be binding by statute.

1. Should any dispute, disagreement or claim arise between the parties (“the Dispute”) concerning this agreement then the parties shall, notwithstanding anything to the contrary contained herein, have the right, but not be obliged, to submit the dispute to arbitration for final resolution in accordance with the rules of the Arbitration Foundation of South Africa (“AFSA”) by an Arbitrator or Arbitrators appointed by AFSA.
2. Unless otherwise agreed in writing by all the parties, any such arbitration shall be held in George, South Africa.
3. The decision of the arbitrator shall be final and binding on the parties to the dispute and may be made an order of the court at the instance of any of the parties to the dispute. The parties hereby exclude all rights of appeal, which might otherwise be conferred upon them by law.

1. In the event that the Purchaser is a trust or a company or close corporation formed or to be formed, the person representing such entity (“the Representative”), hereby agrees to bind himself as surety for and on behalf of and co-principal debtor in solidum with the Purchaser for the due and punctual performance of all obligations (including the payment) owed by the Purchaser to the Seller in terms hereof.
2. The Representative understands that he will be bound by the same terms contained herein as the Client and that this suretyship shall be a continuing suretyship, co-principal debtorship and guarantee, and shall remain in full force and effect notwithstanding any fluctuation in or extinction for any period whatsoever of the obligation.
3. For the purpose of this suretyship and any proceedings which may be instituted against the Representative by virtue hereof, the Representative hereby chooses the principal place of business of the Purchaser as his domicilium citandi et executandi where all notices and processes may be effectively served and delivered upon him.

1. According to the Protection of Personal Information Act 4 of 2013 (“POPIA”), the Seller is required to get the Purchaser’s consent to collect, store and manage the data that the Purchaser provide to the Seller. By agreeing to these terms and conditions, the Purchaser voluntarily authorises the Seller to process its personal information. This means to receive, record, organise, update, retrieve, consult and use the Purchaser’s information. Also, it means the dissemination by means of transmission, distribution, to make available in any other form, linking as well as blocking, erasing or destruction. This consent is effective immediately and can be withdrawn in the future or where requested or required. The personal information may only be processed if it is adequate, relevant and not excessive, given the purpose for which it is processed, and if processing occurs in accordance with the relevant provisions of POPIA. The purpose of the processing of information must relate to a function and program activities of the Seller. In addition, the Purchaser acknowledges that the Seller collects and processes personal information pertaining to the proper functioning, management and governance of the organisation as guided by the Nonprofit Sector, industry best practices and relevant laws of the country. The type of information will depend on the purpose for which it is collected, and will be processed for that purpose only.
2. In terms of section 11 of POPIA, personal information may only be processed in the following circumstances:

• If the person/data subject, or a competent person where the data subject is a child, consents to the processing.
• If processing is necessary to carry out actions for the conclusion or performance of a contract to which the person/data subject is party.
• If processing complies with an obligation imposed by law on the organisation.
• If processing protects a legitimate interest of the person/data subject.
• If processing is necessary for the performance of a public law duty.
• If processing is necessary for pursuing the legitimate interests of the organisation.

1. Amendments: No amendment of this Agreement shall be effective unless it is in writing and duly executed by each Party to it or on behalf of each Party by an authorized representative.
2. Counterparts: This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all of the counterparts shall together constitute the one agreement.
3. Entire Agreement: In the absence of a signed “Terms and conditions,” this Agreement stands as the primary reference. If a signed “Terms and conditions” exists in conjunction with this Agreement, both documents are to be read in conjunction and are intended to be complementary. In the event of any inconsistency or conflict between the terms of this Agreement and the signed “Terms and conditions,” the terms of the signed “Terms and conditions” shall take precedence. Any previous agreement, understanding, or arrangement, whether written or oral, relating to the subject matter herein is hereby superseded and cancelled.
4. Further Assurances: Each Party shall make all applications, execute all documents and do or procure all other acts and things reasonably required to implement and to carry out its obligations under, and the intention of, this Agreement.
5. Severability: If any provision of this Agreement is, or becomes unenforceable, illegal or invalid for any reason it shall be deemed to be severed from this Agreement without affecting the validity of the remainder of this Agreement and shall not affect the enforceability, legality, validity or application of any other provision of this Agreement.
6. No Waiver: No failure or forbearance by a Party to exercise, or delay in exercising, (in whole or in part) any right, power or remedy under, or in connection with, this Agreement shall operate as a waiver of that right, power or remedy. A waiver of any breach of any provision of this Agreement shall not be effective unless that waiver is in writing and is signed by the Party against whom that waiver is claimed. A waiver of any breach shall not be, or be deemed to be, a waiver of any other or subsequent breach.
7. Set Off: The Seller may deduct from or set off against any amount that is or may become payable by it in relation to this Agreement to the Purchaser, any amount that is or may become payable to it by the Purchaser in relation to this Agreement or otherwise.
8. Governing Law: This Agreement is governed by the laws of South Africa and the Parties submit to the exclusive jurisdiction of the courts of South Africa in respect of any dispute or proceeding arising out of or in connection with this Agreement.

1. Acceptance of either the quotation, pro-forma invoice and/or tax invoice by the Buyer constitutes acceptance of these Terms and Conditions of Sale. No goods shall be supplied by Turfbay Equipment on any terms or conditions other than those set forth herein.