TERMS AND CONDITIONS - Amoref (Pty) Ltd

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TERMS AND CONDITIONS

EVERYTHING LEGAL
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.  INTERPRETATION:

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 –  
1.1.3.1. any gender includes the  other genders;
1.1.3.2. 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;
1.2.7 “Technician” Vendor Factory  Trained Technician;
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. SALE:

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  _________________.
2.2.2.1 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.  WARRANTIES:

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:
4.2.1.1 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;
4.2.1.2 securing all the export  documentation needed to ship Equipment from South Africa;
4.2.1.3 Vendor will deliver proof of  export to Customs and excise. No VAT is then payable on Equipment by  Purchaser;
4.2.1.4 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:
4.2.2.1 Full payment of Equipment  including shipping cost:
4.2.2.1.1 No Equipment will leave  Vendor site without the full amount owing being paid to Vendor.
4.2.2.1.2 Any delays and cost in  shipment due to non-payment of invoice will be for Purchaser account.  
4.2.2.2 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.
4.2.2.2.1 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.
4.2.4.1 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.
4.2.6.1 Square meters will be worked  out on the volume of the equipment by the Vendor.
4.2.6.2 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:
5.2.1.1 The site is levelled out and  working surface is prepared
5.2.1.2 The water lines are in  place
5.2.1.3 There is fuel available on  site
5.3.1 Technician send to help with  the Installation and commissioning of equipment is:
5.3.1.1 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.).
5.3.1.2 There to calibrate the  equipment for Water to material balance and Mass.
5.3.1.3 After calibration, all  specifications will be noted in writing by Technician and sighed by  Purchaser.
5.3.1.4 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.
5.3.1.5 Purchaser will provide all  equipment on site needed by Technician. If Vendors Technician must use  Purchasers equipment, it will be on Purchasers risk.
5.3.1.6 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.
5.3.1.7 Vendor shall have fulfilled  its obligations when any one of the following first occurs:
5.3.1.7.1 Technician will run 5  (FIVE) tons of materiel to test and make sure the equipment is calibrated if  water lines are in place.
5.3.1.7.2 The plant is in place and  started dry if water lines is not available and in place.
5.3.1.7.3 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:
5.2.2.1 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.
5.2.2.2 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:
5.4.2.1 Water tight  accommodation.
5.4.2.2 Fresh water  daily.
5.4.2.3 Toilet.
5.4.2.4 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.
5.6.4.1 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,
New Era,
Springs
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,
New Era,
Springs
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.  BREACH:

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:
9.2 AMOREF (PTY) LTD (PTY) Ltd.:  
9.2.1 Physical: 23 4C Platina  Crescent,
New Era,
Springs,
Gauteng,
South Africa
9.3. Purchaser:  ______________________________________________:
9.3.1. Physical:  ___________________________________
___________________________________
___________________________________
___________________________________
________________________________
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 INTRODUCTION
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.

10.2 UNDERTAKING:

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.

10.5 EXCLUSIONS:

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.
10.7 DURATION
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.

14  IMPLEMENTATION:

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.
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