WHEREAS, the Vendor is the owner of the Plant and/or Equipment as pictured in Schedule 1 hereto;
FURTHER WHEREAS the Vendor has agreed to sell and the Purchaser has agreed to purchase the Plant and/or Equipment pictured in Schedule 1 with purchase price as set out in schedule 2. It is hereby agreed between the Parties as follows:
1.1. In this agreement, unless the context indicates a contrary intention –
1.1.1. the word "agreement" refers to this agreement and the words "clause" or clauses" refer to clauses of this agreement;
1.1.2. clause headings are for convenience and are not to be used in its interpretation;
1.1.3. an expression which denotes –
188.8.131.52. any gender includes the other genders;
184.108.40.206. a natural person includes a juristic person and vice versa;
1.2. the singular includes the plural and vice versa in this agreement, unless the context indicates a contrary intention, the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
1.2.1 “Agreement” means the sales agreement entered into between the Parties to buy and sell equipment which shall be regulated by this document;
1.2.2 “Parties” means AMOREF (PTY) Ltd and ___________________________;
1.2.3 Vendor means AMOREF (PTY) LTD;
1.2.4 Purchaser means __________________________________;
1.2.5 “Equipment” any product produced and sold by AMOREF (PTY) LTD;
1.2.6 “Representatives” means the shareholders, directors, officers, employees, agents, consultants, professional or other advisers of the Parties, as the case may be;
1.2.8 “Signature Date” means the date of signature of this agreement by the Party last signing same;
1.3. Any substantive provision, conferring rights or imposing obligations on a Party and appearing in any of the definitions in this clause or elsewhere in this agreement, shall be given effect to as if it were a substantive provision in the body of the agreement.
1.4. Words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this agreement.
1.5. Where figures in this agreement are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention.
1.6. Reference in this agreement to "days" shall be construed as calendar days unless qualified by the word "business", in which instance a "business day" shall be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time. Reference to "business hours" shall be construed as being the hours between 08h30 (eight hours and thirty minutes) and 16h00 (seventeen hours) on any business day, and time shall be based upon South African Standard Time.
1.7. Unless specifically otherwise provided in this agreement, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day.
1.8. The words "include" and "including" mean "include without limitation" and "including without limitation". The use of the words "include" and "including" followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it. The application of the eiusdem generis rule is therefore excluded.
1.9. Where this agreement requires a Party to use its “best endeavours” or "reasonable endeavours" in relation to an act or omission, that Party shall do all such things as are or may be reasonably necessary or desirable so as to achieve that act or to omit taking an action, unless the Parties agree that it is not reasonable to take the action or to omit taking an action.
No provision herein shall be construed against or interpreted to the disadvantage of a Party due to such Party having or being deemed to have structured, drafted or introduced such provision. The expiration of this agreement shall not affect such of the provisions of this agreement that expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
2.1 THE Vendor hereby sells to the Purchaser and the Purchaser hereby purchases from the Vendor the Equipment pictured in Schedule 1 hereto, (hereinafter referred to as "the Equipment") at a purchase price of R ___________________ set out in Schedule 2.
2.2 In respect of the purchase price:
2.2.1 a deposit of 50% (R ______________) non-refundable shall be paid to Vendor, on
signing of agreement by both parties, by the Purchaser.
2.2.2 a further 25% deposit shall be paid when the Equipment is 50% completed witch
is an amount of R _________________.
220.127.116.11 The Purchaser will be informed by electronic post, at least 7 (SEVEN)
days before the next deposit is due. If deposit is not paid on due, date production will stop until payment is received.
2.2.3 On completion of the plant a further 25%, an amount of R __________ will be paid to the Vendor, prior to dispatch of the plant from the Vendors premises for shipment.
2.3 The title to and risk in the Equipment will only pass to the Purchaser once the purchase price has been paid in full.
2.4 If any order/agreement being subject to the provisions of the Consumer Protection Act, the Purchaser may cancel or withdraw an order in accordance with the mentioned legislation, but in such event Vendor will be entitled to charge a reasonable cancelation fee unless the order placed cannot be honoured.
2.5 Any defect or problems with the supplied products will be reported in accordance with the warranties mentioned in the clauses and paragraphs hereunder, which warranties correspond with the Vendors terms and conditions.
2.6 Repairs and warranty maintenance will be exercised in accordance with all the relevant applicable and valid claims Vendor will entertain submitted and only claims that correspond with the Vendors warranty.
2.7 The Purchaser hereby acknowledges that they accept the periods and warranties as attached hereto, as reasonable and confirm that the periods are only an estimate time of repair and/or replacement.
2.8 The parties further agree that any Purchase Order and acceptance thereof or further/amended Purchase order or acceptance thereof will constitute a further agreement between the parties, which will be read and incorporated in accordance with this agreement and the General Terms of the agreement.
2.9 The Purchaser further agree, that any cancellation of a sale or supply of goods, before delivery and inspection of the product, will not be deemed as proper cancellation by Vendor, and therefore the Purchaser will be liable for the purchase amount as stipulated in the confirmation of the Purchase Order, excluding all other remedies available to the parties in terms of the relevant laws of the Republic of South Africa.
2.10 Both parties acknowledge that no further implied or oral warranties and/or guarantees will be applicable to this agreement except that stated herein including the addendum hereto.
2.11 Any quotation given is not an offer by Vendor to sell or repair, or service the goods but constitutes an invitation by Vendor to the Purchaser to do business with Vendor.
2.11.1 A quotation may be revoked by Vendor at any time.
2.12 Vendor may accept or reject in completely or in part any order placed by the Purchaser pursuant to the quotation. Accordingly, a contract shall only come into force between Vendor and the Purchaser, if after receipt by Vendor of the Custom order or acceptance of the quotation, Vendor and Purchaser signs an addendum to this agreement.
2.13 All telephone orders need to be confirmed in writing and signed by Vendor and Purchaser to be of any enforceable effect.
2.14 The Purchaser agrees to pay Vendor all other costs including, but not limited to, costs imposed by law, regulation or enactment of whatsoever nature which comes into force on the date after the date on which any price charged is determined.
2.15 The risk of damage, loss or destruction of any goods passes to the Purchaser when Equipment leaves Vendors premises alternatively on collection thereof by the Purchaser.
2.16 Partial delivery of any product shall not affect any payment due to Vendor of partially delivered goods.
2.17 Any delivery date indicted by Vendor shall merely be regarded as the estimated date of delivery and shall not bind Vendor to affect delivery on or near such date. Any failure for whatsoever reason on the part of Vendor to deliver the goods in accordance with the dates requested by the Purchaser, shall not constitute a reason to withhold, defer or set off, either in whole or in part the purchase price or give rise to a claim for damages unless caused by gross negligence of Vendor and/or their lawful agent.
2.18 Any alterations or extras ordered by the purchaser after agreement is signed:
2.18.1 Vendor will supply Purchaser with a written quotation for above mentioned, on excepting of quotation and after full payment is made, alterations will begin;
2.18.2 Purchaser also accepts responsibility for the delay in delivery of the equipment as a result of the above.
2.19 If delivery of any particular goods is to be effected in consignments, Vendor shall not be obliged to deliver any part of the order until the purchase price which is due in respect of the part of the order which has already been delivered has been paid.
2.20 SPECIAL CONDITIONS
2.20.1 Plant to be factory tested and inspected by client’s representative prior to shipping.
2.20.2 Price is for a turnkey solution but excludes the design of the tailings dump “dam” and structural concrete and material-handling infrastructure from source to the plant.
3.1 The Vendor undertakes that the Equipment is free of any charge or encumbrance and that a clear title can be transferred to the Purchaser on the settlement date following payment in full.
3.2 The Purchaser is purchasing the Equipment entirely in reliance on its own skill and judgement, and not in reliance on any representations, warranties, statements, agreements or undertakings of any nature made by or on behalf of the Vendor or its employees or agents except to the extent that those representations, warranties, statements, agreements or undertakings (or any of them) are expressly set out in this agreement.
3.3 The Purchaser acknowledges that it has entered into this Agreement entirely on its own judgement, and not based on any descriptions of the Plant Equipment contained herein and/or schedule 1 (ONE) hereto, since same are for reference purposes only.
3.4 The Purchaser acknowledges that he will inspect the Equipment prior to shipping in order to confirm he is satisfied with its condition, quality, that is suitable for the intended use thereof by the Purchaser and that he will not be able to claim any refund of the purchase price and/or damages should it afterwards appear that he is not satisfied with the condition of the Equipment.
3.5 During the inspection the Purchaser will also confirm that the Equipment is the Equipment that he ordered.
3.6 Any alterations after inspection or on the Purchaser site will be for Purchaser account.
3.6.1 Vendor will supply Purchaser with a written quotation for above mentioned on excepting of quotation and after full payment is made alterations will begin.
4. PASSESS AND SHIPMENT:
4.1 THE Purchaser shall not be entitled to take possession of the Plant Equipment until full amount has been paid, prior to shipment.
4.2. When Purchaser hire Vendor to secure shipping of his equipment on Purchasers behalf from Vendors site to Purchasers site.
4.2.1 Vendor will be responsible for:
18.104.22.168 Securing a shipping company and a send a quotation for transport to Purchaser approval. On approval and payment of quoted amount vender will retain the shipping and do the necessary arrangements;
22.214.171.124 securing all the export documentation needed to ship Equipment from South Africa;
126.96.36.199 Vendor will deliver proof of export to Customs and excise. No VAT is then payable on Equipment by Purchaser;
188.8.131.52 Vendor will take all duo care in packing Equipment before loading and shipping, however when Equipment leave Vendors factory all responsibility and liability Vendor has ends and moves to Purchaser;
4.2.2 The Purchaser will be responsible for:
184.108.40.206 Full payment of Equipment including shipping cost:
220.127.116.11.1 No Equipment will leave Vendor site without the full amount owing being paid to Vendor.
18.104.22.168.2 Any delays and cost in shipment due to non-payment of invoice will be for Purchaser account.
22.214.171.124 That all the relevant documentation on the receiving end in order to be able to accept the plant on the other side of the boarder.
126.96.36.199.1 Should there be delays due to lack of paperwork/documentation, the Purchaser will be responsible for all additional costs as a result of such delays.
4.2.3 ALL insurances and indemnities associated with the shipping of the Equipment from the Vendor’s site including public liability shall be for the Vendor’s account.
4.2.4 Vendor does not except any shipping liability.
188.8.131.52 Any damaged incurred during shipping is soly for Purchasers account.
4.2.5 All equipment must be removed from Vendor’s site within 1 month of completion:
4.2.6 If the Purchaser does not comply with 4.2.5 the Vendor will charge the Purchaser rental at a rate R 400.00 per m2 per month.
184.108.40.206 Square meters will be worked out on the volume of the equipment by the Vendor.
220.127.116.11 All outstanding moneys must be paid in full to Vendor before equipment can be removed from Vendor’s premises.
4.3 When Purchaser ship his Equipment from the Vendor’s site to Purchaser own site.
4.3.1 Shipment of the Equipment will be the responsibility of the Purchaser and Vendor will assist the Purchaser in securing a reputable shipping company.
4.3.2 Purchaser will pay shipping cost directly to shipping company.
4.3.3 All documentation for exporting equipment out of South Africa and importing equipment in to another company will be the responsibility of the Purchaser.
4.3.4 VAT will be charged on total amount of sale. It will be the Purchasers responsibility to claim back VAT paid at the border from South Africa’s Customs and excise.
4.3.5 Vendor will take all duo care in packing Equipment before loading and shipping, however when Equipment leave Vendors factory all responsibility and liability ends and moves to Purchaser.
5 INSTALLATION AND COMMISSIONING OF EQUIPMENT:
5.1 The Vendor will send a Technician to assist with installation and commissioning the plant once it has been offloaded on site.
5.2 Site must be cleared and prepared to Vendors specifications before equipment reaches the site.
5.2.1 Vendor has the following assumptions:
18.104.22.168 The site is levelled out and working surface is prepared
22.214.171.124 The water lines are in place
126.96.36.199 There is fuel available on site
5.3.1 Technician send to help with the Installation and commissioning of equipment is:
188.8.131.52 There in an advisory capacity only on how and where the equipment must be placed (it is not the Technician work to do clear the mining area, do earthmoving, physically place equipment etc.).
184.108.40.206 There to calibrate the equipment for Water to material balance and Mass.
220.127.116.11 After calibration, all specifications will be noted in writing by Technician and sighed by Purchaser.
18.104.22.168 Purchaser will under no circumstances, change the settings after notation of calibration has taken place. If the Purchaser does recalibrate equipment on his own, recalibration by Technician and all cost associated to calibration including but is not limited to travel, accommodation and allowance for Technician etc. will be for Purchasers account.
22.214.171.124 Purchaser will provide all equipment on site needed by Technician. If Vendors Technician must use Purchasers equipment, it will be on Purchasers risk.
126.96.36.199 Plant modifications and added equipment manufactured on site by Technician will be noted in the Technician’s daily report book and sent for pricing at Vendor and will be added to the clients account.
188.8.131.52 Vendor shall have fulfilled its obligations when any one of the following first occurs:
184.108.40.206.1 Technician will run 5 (FIVE) tons of materiel to test and make sure the equipment is calibrated if water lines are in place.
220.127.116.11.2 The plant is in place and started dry if water lines is not available and in place.
18.104.22.168.3 The plant in place and handed over if diesel is not available for the generator and/or water pump.
5.2.2 Technician will be available to Purchaser if the Purchaser feels the equipment is not working according to specifications. In these circumstances:
22.214.171.124 The Technician will test the equipment and if according to him the equipment is up to specification then all cost incurred due to call out will be for Purchasers account.
126.96.36.199 If equipment does not catch gold after second calibration Vendor reserves the right to instruct the Purchaser to do the necessary geological test to confirm that there is gold in the ground on site if the Purchaser for whatever reason decline to do the test Vendor reserves the right to do an independent test that will be for Purchaser account.
5.3 Daily Allowance for Technician that will help with the commission of equipment on site will for the first 3 (three) days be paid by the Vendor.
5.4 After this period all cost will be for the Purchaser account:
5.4.1 The Vendor will invoice the Purchaser for three more days, after full payment of the invoice amount to Vendor the Technician will carry on with commissioning of site. This will repeat if more time is required after the three days. Any money over paid by Purchaser will be reimbursed by Vendor;
5.4.2 Purchaser must provide the following accommodation if it’s in possible for Technician to stay in a hotel:
188.8.131.52 Water tight accommodation.
184.108.40.206 Fresh water daily.
220.127.116.11 3 (three) nutritious meals a day.-
5.4.3 Purchaser will pay the Technician an amount of R/$________ daily direct to the Technician. (This amount to be negotiated between the Parties.)
5.5 The Vendor will provide extended medical cover for Technician while he is on site.
5.5.1 The Purchasers will extend the medical cover if the Technician stays more than the allotted 3(three) days on site.
5.5.2 The Purchasers also undertakes to do whatever is necessary to get Vendors Technician to the best medical facility in a medical emergency.
5.6 Technician will not go to a site under following conditions:
5.6.1 War torn areas if it’s a declared war zone or not.
5.6.2 Where there is an outbreak of medical emergencies or epidemics.
5.6.3 Where the Vendor deems it’s unsafe to send Technician to a site for whatever reason. This will be in the sole discretion of the Vendor.
5.6.4 Vendor has the right to with draw G View team whenever and with good reason the Vendor feels it is unsafe for the team to be on site.
18.104.22.168 The Client unconditionally agrees to do whatever is necessary to withdraw the G View team from site and or country if the Vendor request it under clause 5.6.
6. IF THE CONSUMER PROTECTION ACT IS NOT APPLICABLE TO THE SPECIFIC PURCHASER (hereinafter “CPA”);
6.1 No warranties, guarantees or representations, express or implied or tacit whether by law, contract or otherwise and whether the induced the contract or not, which are not specified in this agreement, shall be binding on Vendor, the Purchaser irrevocably waiving any right (common law or otherwise) it may have to rely thereon, and the goods are purchased on the basis that they are taken “voetstoots” and with the exclusion of all common law and other remedies including aedilian remedies, whether as to the suitability of the goods sold for any specific purposes or (without limiting the generality of the foregoing) otherwise.
6.2 To the extent that goods supplied by Vendor are in any way defective, the Purchaser shall be entitled, within 1(one) year or 4,000 (four thousand) hours, whichever comes first, of the delivery of the relevant goods, to claim the replacement of repair of the goods to eliminate any defect in workmanship or materials found to be due exclusively to any acts or omissions on the part of Vendor. The Purchaser shall within 10 (ten) days after the defect arises, notify Vendor and the distributor, if any, which sold equipment of the alleged defect, provided that Vendor shall have been given a reasonable opportunity of inspecting any alleged defect. Vendor shall notify the Purchaser of the decision of Vendor regarding the alleged defect, which decision shall be binding on the Purchaser. Vendor’s liability shall be limited on return to the purchase price of the goods.
6.3. In order to be valid, a claim in terms of the guarantee as set out in clause 6.2 must be in writing, specifying the alleged defect, and supported by the original tax invoice. In addition the goods must be returned by the Purchaser to Vendor at the Purchaser’s expense.
6.4 The parties agree that Vendor shall have no liability in respect of any injury, loss or damage (direct, indirect or consequential) arising out of the use of, or inability to use, the goods and whether or not occasioned by Vendor’s negligence (gross or otherwise) or any act or omission on its part. Without limiting the foregoing Vendor does not warrant that the goods will be fit for the purposes for which they are to be used by the Purchaser (notwithstanding that the use to which the Purchaser intends to put the goods is known to Vendor). For the purposes hereof, any reference to Vendor shall include its workers, agents, contractors or any other person for whose acts or omissions Vendor may be liable in law (the agreement between Vendor and the Purchaser as contemplated in this clause is for the benefit of Vendor’s workers, agents or any other persons for whom Vendor is liable for in law).
6.5 Vendor shall be relieved of all obligations in terms of this clause 2, if:
6.5.1 Repairs or modifications have been made by persons other than Vendor, unless such repairs or modifications are made with the prior written consent of Vendor;
6.5.2 any goods are operated with any accessory, equipment or part not specifically supplied or approved in writing by Vendor;
6.5.3 the goods shall not have been operated or maintained in accordance with Vendor’s instruction, or under normal use, or the goods shall not have been properly installed;
6.5.4 if the Purchaser is not the original Purchaser;
6.5.5 any damages that could have been avoided, using reasonable diligence, by the Purchaser;
6.5.6 the equipment is not moved from the original site of installation for the duration of the warranty period;
6.5.7 the equipment is serviced only by a Vendor Factory Trained Technician, except for normal maintenance procedures;
6.5.8 the equipment must be installed by Vendor trained and certified Technician;
6.5.9 non-Vendor approved consumables, parts or services are utilized in the operation or maintenance of the equipment;
6.5.10 the machine is not returned to Vendor according to the “Packaging & Shipping Instructions”.
6.6 If repairs or replacements are effected by Vendor, only the parts actually worked on and not the complete goods shall be subject to a new guarantee, if any, hereunder;
6.7 The Purchaser who acquires goods for the purpose of on-selling those goods, whether that Purchaser is permitted to do so or not (and nothing herein contained shall be deemed to allow the Purchaser to on-sell goods acquired from Vendor whilst ownership vests in Vendor), shall not advertise or issue or in any other way give or make any warranties, guarantees or representations as to the goods in any form whatsoever or offer to do so, which could result in liability being imposed upon Vendor;
6.8 The above warranties are subject to the following conditions:
6.8.1 Vendor shall be under no liability to the Purchaser until the Purchaser has paid the full amount due to Vendor in respect of the goods concerned;
6.8.2 Vendor shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, and failure to follow Vendor instructions (whether oral or in writing), improper use outside Vendor’s specifications, damage to the goods caused by improper maintenance, service or repair by untrained personnel or technicians, unauthorized alterations or modifications of the goods and that the equipment has not been operated more than 4,000 hours (the equivalent of 2 (two) shifts per day in a normal work week in 1 (one) year);
6.8.3 Vendor shall be under no liability in respect of parts, materials or equipment which are accepted in the industry to have a limited life expectancy or parts, materials or equipment, which need to be replaced at specified and published service intervals (“consumable parts”);
6.8.4 Vendor shall be under no liability in the event that spare parts and consumable parts other than those recommended for use by Vendor are fitted, attached or used on the goods.
6.9 Notwithstanding anything to the contrary in this agreement, Vendor shall not be liable to the Purchaser by reason of any representation or implied warranty, condition or other term or any duty at common law, or under the express terms of this agreement, for any consequential loss or damage (whether for loss or profit or otherwise and whether occasioned by the negligence of Vendor or its employees or agents or otherwise) arising out of or in connection with any act or omission of Vendor relating to the supply of the goods, their resale by the Purchaser or use by any third party.
6.10 If the equipment sold hereunder is being sold to a distributor as a demonstration model or utilized by a distributor at any time as a demonstration model, then for purposes of the Warranty, the distributor shall be considered the "original Purchaser" for the purposes of the Warranty provisions herein. It will be the responsibility of the distributor to obtain its Purchaser’s agreement, acknowledgement to the terms of Vendor's warranty by obtaining the signature of an authorized representative of the Purchaser on the warranty card provided by Vendor, and returning the executed warranty card to Vendor.
6.11 If an on-site warranty repair is requested by the original Purchaser:
6.11.1 The original Purchaser shall issue a valid purchase order to cover all expenses and above replacement parts and labour including, but not limited to: tolls, travel, hotel and other associated living expenses incurred as these expenses are not covered under this warranty.
6.11.2 Warranty determination will be made by the Vendor Service Centre with the onsite assistance of a certified Vendor Factory trained Technician. All determinations are final.
6.11.3 The Technician will also make the determination if the equipment can be fixed on site or if it must be ship back to Vendors factory. This determinations will be final.
6.11.3 If the determination is that the product is faulty and covered under the warranty, actual labour time and parts shall not be charged, but the original Purchaser will be liable for travel expenses as listed above.
6.12 If the equipment is returned to the factory for warranty repair:
6.12.1 Prior to shipping any equipment/items to Vendor or any of its subsidiaries, the original Purchaser must contact your distributor to obtain a Return Authorization Number (R/A#) for each item being returned.
6.12.2 This number is to be clearly printed on the outside of the shipping container.
6.12.3 When corresponding with Vendor regarding any items shipped to Vendor, the R/A number must be referenced.
6.12.4 To obtain detailed instructions regarding Vendor’s R/A procedure, please call the R/A Coordinator at +27 11 813 0094. Machines being returned must be packaged and shipped according to the “Packaging & Shipping Instructions” at the end of this Warranty Statement. If the machine is not packaged and shipped properly and according to the instructions the Purchaser will be responsible for any damage to the machine and all warranties are void.
6.12.5 Equipment must be completely flushed and drained of all liquids and material prior to shipping. There must be no fluid left in the unit.
6.12.6 Unless otherwise instructed, all items being returned must be received at the following address within 14 (fourteen) days of the issuance of an R/A#:
23 4C Platina Crescent,
6.12.7 The original Purchaser will assume all costs associated with freight and shipping to and from Vendor of all items being returned to Vendor.
6.12.8 The original Purchaser assumes all responsibility/liability associated with the proper preparation and packaging of equipment prior to shipping (instructions available up on request).
6.12.9 The Purchaser is to insure the shipment for its replacement value as Vendor does not accept any transit liability.
6.13 For this warranty to be in effect, the Installation Certificate must be completed and signed by a Vendor Factory Trained Technician and returned within 30 (thirty) days of installation to:
23 4C Platina Crescent,
Attention: R/A Department
+27 11 813 0094
6.14 REPAIRED OR RECONDITIONED PARTS WARRANTY
Vendor warrants, to the original Purchaser, repaired or re-conditioned parts for a period of 90 (ninety) days from the date of purchase of a repaired or re-conditioned by Vendor.
7. IF THE CONSUMER PROTECTION ACT IS APPLICABLE TO THE SPECIFIC PURCHASER (hereinafter “CPA”);
7.1 Within 6 months after delivery of the goods to the Purchaser, the Purchaser may return the goods to Vendor, without penalty, if the goods do not satisfy the requirements and standards contemplated in Section 55 of the CPA in which event Vendor may either:
7.1.1 repair or replace the failed, unsafe or defective goods; or
7.1.2 refund the Purchaser for the price paid by the Purchaser for the goods.
7.2 In the event of Vendor repairing any particular goods or component of such goods and within 3 (three) months of that repair, the failure or defect or unsafe features not being remedied or a further failure, defect or unsafe feature is discovered, Vendor shall:
7.2.1 Replace the goods; or
7.2.2 refund the Purchaser the price paid by the Purchaser for the goods.
7.3 The aforesaid warranty exists in addition to an express warranty or condition stipulated by the manufacturer or importer as the case may be.
7.4 In the event of Vendor providing any new or reconditioned parts installed during any repair or maintenance work and the labour required to install it, such work and parts will be warranted for a period of 3 (three) months after date of installation or such longer period as Vendor may specify in writing.
7.5 This warranty is subject to the parts, goods and / or property not being misused or abused and does not apply to any ordinary wear and tear having regard to the circumstances in which it was intended to be ordinarily used.
8.1 Should a Party (the "Defaulting Party") commit a breach of any of the provisions of this agreement, and fail to remedy such breach within 14 (fourteen) days after receiving written notice from the other Party (the "Aggrieved Party") to remedy same, then the Aggrieved Party shall be entitled to cancel this agreement against the Defaulting Party or to claim specific performance by the Defaulting Party of all the Defaulting Party's obligations, in either event without prejudice to the Aggrieved Party's rights to claim damages.
8.2 In the event that either Party commits an act of insolvency or is placed under a provisional or final winding up or judicial management order or if such Party makes an assignment for the benefit of creditors, or fails to satisfy or take steps to set aside a judgment taken against it within 14 (fourteen) days after such judgment has come to its notice, any such actions and/or failures by such Party shall be deemed to be a breach of the terms and conditions of this Agreement and whereby clauses 17.1 shall apply.
8.3 This Agreement shall be governed by, and construed in accordance with, the laws of South Africa.
8.4 In the event that the Purchaser fails or refuses to make payment of the full purchase price on the settlement date, the Vendor may at any time thereafter, and with giving notice as set out in 8.1 to the Purchaser, cancel this agreement and re-sell the Plant Equipment.
8.5 In such event, the cost of such re-sale and any shortfall or other losses sustained by the Vendor, (including actual legal costs) shall be claimable from the Purchaser as damages, while the Purchaser will also forfeit any deposit paid as pre-determined damages sustained by the Vendor.
8.6 The right of re-sale set out above is without prejudice to the Vendor’s right to sue the Purchaser for specific performance or avail itself of any other rights or remedies available to the Vendor at law or in equity.
8.7 In the event of a breach in terms of clause 8.1, the Vendor may re-sell the Plant Equipment and the cost of such re-sale and any shortfall or other losses sustained by the Vendor, (including actual legal costs), as well as a sum equal to 10% of the purchase price by way of liquidated damages, may be deducted from the purchase price and the balance (if any) shall be refunded to the Purchaser.
8.8 The Vendor will also in the event of a termination in terms of clause 8.1, have no liability to the Purchaser for any matter in relation to or arising from such termination and the Vendor’s rights pursuant to this clause are without prejudice to any other rights or remedies it may have at law.
8.9 The Purchaser shall be responsible for and hereby undertakes to pay the Vendor all expenses, costs and charges which the Vendor may incur arising out of the default of the Purchaser, including any costs of tracing the Purchaser collection commission at the ruling rate and all legal costs as between attorney and own client.
9. DOMICILIUM CITANDI ET EXECUTANDI:
9.1 The Parties choose as their domicilium citandi et executandi for all purposes under this agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise or any option), the following addresses:
9.4. Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing.
9.5. Either Party may by notice to the other Party change the physical address chosen as its domicilium citandi et executandi to another physical address where postal delivery occurs in the Republic of South Africa or its postal address or its, provided that the change shall become effective on the 7th (seventh) business day from the deemed receipt of the notice by the other Party.
9.6. Any notice to a Party :
9.6.1. sent prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered shall be deemed to have been received on the 7th (seventh) business day after posting (unless the contrary is proven);
9.6.2. delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the same day of delivery.
10 CONFIDENTIALITY AGREEMENT:
10.1.1 Vendor and Purchaser (collectively "the Parties" and where the context requires, individually a "Party") are in the course of, or are about to enter into, discussions with regard to a potential acquisition of equipment from the Vendor.
10.1.2 Certain confidential and proprietary information relating to or in connection with the Project ("the Confidential Information") may be disclosed by one Party ("the Disclosing Party") to the other Party ("the Receiving Party") for the purposes of enabling the Receiving Party to assess and/or evaluate and/or provide advice and/or perform its obligations with regard to the Project ("the Permitted Purpose").
10.1.3 The Parties acknowledge that any Confidential Information exchanged between them should be kept confidential and have therefore agreed to enter into this confidentiality agreement.
10.1.4 The Confidential Information, without limiting the ordinary meaning thereof, includes all oral, written, printed, photographically and electronically recorded information of all types, documents, data, letters, agreements, undertakings, structures, products, messages, codes, data, formulae, specifications, blueprints, plans, processes, marketing methods, customer lists, supplier lists, projects, projections, cash flow charts, software and copies, notes and extracts, and the strategic plans, direction, manner, timing and implementation of any projects to be undertaken.
The Receiving Party undertakes:
10.2.1 Not to disclose the Confidential Information to any third parties, except where the Confidential Information is disclosed:
10.2.1.1 By the Receiving Party to its Representatives to the extent necessary for the Permitted Purpose. The Receiving Party shall be responsible for any non-compliance by any of its Representatives with the terms and conditions of this Agreement as if such Representative had been a Receiving Party under this Agreement and to the same extent that such Receiving Party would have been responsible under this Agreement for its own breach of the same obligations; or
10.2.1.2 by the Receiving Party with the Disclosing Party’s prior written approval; or
10.2.1.3 to any party to whom the Receiving Party has assigned or transferred (or may potentially assign or transfer) any of its rights and/or obligations under any agreement(s) and provided such party has undertaken to the Receiving Party in writing to adhere to the provisions of this Agreement; or
10.2.1.4 necessarily by the Receiving Party in carrying out any obligations contained in any agreement between, inter alia, the Disclosing Party and the Receiving Party; or
10.2.1.5 by the Receiving Party after being requested or required to disclose such information in terms of any law or regulations or by any judicial, governmental, supervisory or regulatory body, court of law or legal process; or
10.2.1.6 that it will not under any circumstances (other than those referred to in clause 10.2.1.1 to and including clause 10.2.1.5), use the Confidential Information or any part thereof for a purpose other than the Permitted Purpose;
10.3 To act in good faith at all times in performing its obligations under this Agreement, such efforts to be at least equal to the Receiving Party’s effort employed to protect its own confidential, secret and proprietary data and information.
10.4 In the event that Confidential Information received must be disclosed pursuant to the operation of law, governmental regulation or court order, to give, (subject always to the relevant law, governmental regulation or terms of the court order), the Disclosing Party prior written notice and co-operate with the Disclosing Party in any attempt to test the requirement and/or to obtain a protective order.
Confidential Information shall exclude information or any portion of information that:
10.5.1 is or becomes, before or after receipt thereof, published or generally available to the public, other than as a result of any unlawful act or omission on the part of the Receiving Party; or
10.5.2 is or was lawfully acquired from a third party who did not, to the Receiving Party’s knowledge, obtain it in contravention of a confidentiality agreement with the Disclosing Party. The contents of this clause shall not be construed as placing an onus on the Receiving Party to ascertain or attempt to ascertain whether the information received was subject to a confidentiality agreement; or
10.5.3 is known to, or in the possession of, the Receiving Party prior to the disclosure thereof by the Disclosing Party; or
10.5.4 is independently developed by the Receiving Party.
10.5.5 is disclosed to the Receiving Party for a purpose other than the Permitted Purpose.
10.6 RETURN OF MATERIAL CONTAINING OR PERTAINING TO THE CONFIDENTIAL INFORMATION
10.6.1 The Disclosing Party may at any time after a breach of this Agreement by the Receiving Party or the finalisation of, or the termination of, the discussions relating to the Project require that the Receiving Party return any material containing, pertaining to or relating to Confidential Information disclosed pursuant to the terms of this Agreement.
10.6.2 As an alternative to the return of the material as contemplated in clause 10.6.1 above, the Receiving Party may destroy such material and furnish the Disclosing Party with a written warranty to the effect that all such material has been destroyed.
10.6.3 The Receiving Party shall comply with a request in terms of this clause within 14 (fourteen) days of receipt of such request.
10.6.4 This clause shall not apply to the extent that the Receiving Party is obliged to retain any Confidential Information in terms of any applicable law, rule or regulation or by any competent judicial, governmental, supervisory or regulatory body.
This Agreement shall commence on the date that this Agreement is signed by the party signing last in time and the confidentiality clause will outlive the agreement for a period of 2 years.
10.8 JURISDICTION AND APPLICABLE LAW
This Agreement is governed by and shall be construed in accordance with the law of the Republic of South Africa and, to the extent applicable, the Parties submit to the non-exclusive jurisdiction of the High Court of South Africa, (South Gauteng) or any successor division thereto.
10.9 LIABILITY AND CONSEQUENCES OF BREACH
10.9.1 Any liability that arises under this Agreement by any party to the other will be limited to direct damages and no Party will be liable for indirect or consequential losses in any circumstances. Indirect or consequential loss or damage includes, without limitation, loss of profit, revenue, anticipated savings, business transactions or goodwill or other contracts whether arising from negligence or breach of contract.
10.9.2 The Parties agree that monetary compensation as damages may not be a sufficient remedy for any breach of this Agreement, and that in addition to any other remedies (which may be monetary) available either in law or in equity, the remedies of specific performance and injunctive or other equitable relief may be available as a remedy for any breach of this Agreement.
11. GENERAL TERMS:
11.1 The Purchaser hereby indemnifies Vendor against any and all damage of whatsoever nature, howsoever and by whomsoever caused in relation to the removal of goods, excluding any gross negligence by Vendor, and without derogating from the generality of the foregoing, the removal of repossessed goods from the premises of the Purchaser or any other premises where the goods may be found.
11.2 The surety, by his signature hereto, binds himself in favour of Vendor, its successors-in-title and assigns as surety for and co-principal debtor in solidum with the dealer for the due and punctual performance by the Purchaser of all its obligations to Vendor in terms of this agreement. The surety ship obligation is an unlimited obligation with regard to any and all present and future indebtedness already incurred or to be incurred by the Purchaser, notwithstanding any agreed limit from time to time.
11.3 The Purchaser shall have no claim of any nature whatsoever for damages, a remission of the purchase price, cancellation or otherwise, against Vendor, its workers, agents or others on whose behalf Vendor would be liable, in respect of any loss or damage sustained by the Purchaser of any nature whatsoever or any damage caused to the assets of the Purchaser or assets kept on its premises by any third parties or in regards to the Purchaser’s business or sustained by any of its Purchasers, howsoever caused including the negligent (excluding gross negligence) acts or omissions of Vendor, its workers, agents or others for whom it may be liable in law. (The agreement between Vendor and the dealer as contemplated in this clause is for the benefit of Vendor’s workers, agents or any other persons for whom Vendor is liable for in law).
11.4 This agreement constitutes the sole record of the agreement between the Parties as to the subject matter hereof. No Party shall be bound by any express or implied term, representation, warranties, promise or the like not recorded herein. This agreement supersedes and replaces all prior commitments, undertakings or representations, whether oral or written between the Parties in respect of the subject matter hereof.
11.5 No addition to or variation, consensual cancellation or novation of this agreement and no waiver of any right arising from this agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by both Parties or their duly authorized representatives.
11.6 If any clause or term of this agreement should be invalid, unenforceable or illegal, then such clause or term shall be deemed to be severable and shall not affect the validity of the remaining terms and provisions of this agreement which shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of this agreement.
11.7 No latitude, extension of time or other indulgence which may be given or allowed by any one Party to the other Party in respect of the performance of any obligation hereunder or enforcement of any right arising from this agreement and no single or partial exercise of any right by one Party shall under any circumstances be construed to be an implied consent by such Party or operate as a waiver or a novation of, or otherwise affect any of that Party's rights in terms of or arising from this agreement or estop such Party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof or prejudice such Party's rights against the other in terms of or arising from this agreement.
11.8 The Purchaser will under no circumstances solicit Representatives of Vendor to come and work for the Purchaser or any of there entities in any capacity.
12. FORCE MAJEURE:
12.1. Subject to the following provisions of this clause, neither Party shall be responsible to the other Party for its failure to perform or any delay in performing any obligation under this agreement in the event and to the extent that such failure or delay is caused by force majeure.
12.2. For purposes of this agreement force majeure shall mean any circumstance which is beyond the reasonable control of the Party giving notice of force majeure (the ”affected Party”), including but not limited to war (whether declared or not), revolution, invasion, insurrection, riot, civil commotion, mob violence, sabotage, blockade, embargo, boycott, the exercise of military or usurped power, fire explosion, theft, storm, flood, drought, wind, lightening or other adverse weather condition, epidemic, quarantine, accident, breakdown of machinery or facilities, strike, lockout or labour dispute, acts or restraints of government imposition, or restrictions or embargoes on imports or exports.
12.3. Should any event of force majeure arise, the affected Party shall notify the other Party without delay and the Parties shall meet within 7 (seven) calendar days of such notice to negotiate in good faith alternative methods of fulfilling its obligations under an Order, if any. In addition Vendor shall continue to provide and Customer shall continue to pay for those Goods and Services not affected by the event of force majeure.
12.4 Should either Party be unable to fulfil a material part of its obligations under an Order for a period in excess of 60 (sixty) calendar days due to circumstances or force majeure, the other Party may at its sole discretion cancel the relevant Order forthwith by Written notice.
13 WARRANTY OF AUTHORITY:
13.1. Every natural person signing on behalf of any juristic person or trust or local, provincial or government body/organ, personally warrants (and this agreement is accordingly based thereon) that :
13.1.1 the execution of this agreement by juristic person or trust or body/organ concerned is within the scope of its powers, objects and authority and does not contravene (as the case may be) any law of general application including the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law; and
13.1.2 all necessary steps have been taken by the juristic person or trust or body/organ to give the signatory the power to execute this agreement on behalf of the juristic person or trust or body/organ.
The Parties undertake to do all such things, perform all such acts and take all steps to procure the doing of all such things and the performance of all such acts, as may be necessary or incidental to give or conducive to the giving of effect to the terms, conditions and import of this agreement.