1.1 Any cancellation or variations of this contract, or cession of any rights arising as a result thereof, or any concessions by any party to the other, shall be in force and effect only if it is confirmed in writing by both parties. However, both parties irrevocably agree that recorded telephone conversations shall be binding on the parties.
1.2 Should any such dispute arise out of or in connection with this contract between the parties, such dispute shall be resolved by an independent arbitrator to be appointed by the Arbitration Foundation of South Africa (AFSA) in accordance with the AFSA rules and regulations, which arbitrator’s findings shall be final and binding on the parties and may be made an order of court.
1.3 Any notice that is received after 16:00 on a business day shall be deemed to have been received to have been received on the following business day.
1.4 Any notice served in terms of this contract shall be served by either email, letter of facsimile. The burden of proof of delivery shall rest with the sender thereof.
1.5 Saturdays, Sundays and officially recognized and/or national holidays in the Republic of South Africa shall be referred to as non-business days. Should any time limit for trading or serving of notices fall on a non-business day, such time limit shall be extended to the first business day thereafter.
1.6 Delivery Periods are not affected by this clause.
1.7 The parties agree that the addresses indicated in the preamble to this document are valid as their respective domicilium citandi et executandi.
1.8 The parties acknowledge that the aforementioned terms and conditions constitute the entire contract and the Seller hereby declares that no representations or warranties have been made to him other than those contained in this contract, by virtue of which he is entering into this contract. No terms or conditions, unless applicable or were applicable in another agreement between the parties or not, are incorporated into this contract.
1.9 Each provision in this contract is severable from all others, notwithstanding the manner in which they may be linked together or grouped grammatically, and if in terms of any judgement or order, any provision, phrase, paragraph or clause is found to be defective or unenforceable for any reason, the remaining provisions, phrases, sentences, paragraphs and clauses shall nevertheless continue to be in full force. In particular, and without limiting the generality of the aforegoing, the parties acknowledge their intention to continue to be bound by the remaining provisions of this contract notwithstanding that any provision may be found to be unenforceable or void or voidable, in which event the unenforceable or void or voidable provision concerned shall be severed from the other provisions, each of which shall continue to be of full force.
1.10 This contract will be governed by the laws of the Republic of South Africa.
1.11 The parties specifically agree that the provisions of the Electronic Communications and Transactions Act 25 of 2002 shall apply to this contract. The definitions of “in writing” and “signed” shall have the meaning assigned to it under the Electronic Communications and Transactions Act 25 of 2002.
1.12 Complaints may be submitted in writing to the Seller’s Procurement Director, PO Box 11054, Centurion 0046 and Email: firstname.lastname@example.org.
2. TITLE OF THE COMMODITY
The Seller certifies that the commodity is totally unencumbered and that no third party has any claim to the commodity. Irrespective of the physical and/or geographical location of the commodity, ownership and title will remain with the Seller until such time that payment for the commodity and all associated costs has been made in full by the Purchaser. Risk in and to the commodity will pass to the Purchaser upon delivery.
3. FORCE MAJEURE
The Seller shall be released from all its obligations under this contract in the event that the Seller is unable to comply with its obligations under this contract as a result of a force majeure event.
4. DELIVERY TERMS
The following delivery terms shall apply under this contract:
a) Packing : Bulk
b) Delivery method : Road/Rail
c) Parity : Ex Works
d) Delivery Schedule : Delivery evenly spread
e) Levies and duties : n/a
f) Insurance : As per the INCO (Parity) terms contained herein
g) Transport : The Purchaser shall be responsible for transport of the commodity
h) Storage : Storage is for the Seller’s account until the transfer date
i) Handling : handling in/out costs is for the Seller’s account
It is the Purchaser’s responsibility to provide the Seller with any specific instructions regarding the loading of the transport provided by the Purchaser or his nominated agent as the Purchaser is fully responsible and accountable for any consequences resulting from the loading process.
5.1 Payment will be due within 2 (two) working days from date of invoice.
5.2 Payment requires presentation of an original tax invoice or copy.
5.3 Interest on late payment will be charged in accordance with the Purchaser’s approved credit facility, if applicable, otherwise if no such agreement exists, at the then prevailing prime rate plus 5%, calculated daily and capitalized monthly.
5.4 If the Seller is prevented from fulfilling its contractual obligations in terms of delivery because the Purchaser is unable to collect, receive, intake or discharge the agreed tonnage within the agreed contractual delivery period, then the Seller shall be entitled but not obliged to do so, will roll any or all outstanding tonnages to the next SAFEX traded month and all costs and consequences, including, but not limited to interest and storage, will be for Purchaser’s care and account, and payable immediately upon presentation of invoice.
5.5 For all contracts where the Seller is responsible for arranging transport to the Purchaser (CPT; CIP; DDU; DDP based contracts) note that the Seller is responsible for all costs up to point of first arrival at Purchaser’s premises, therefore the Purchaser is responsible for any demurrage that might accrue as from that point, resultant from slow discharge of either road or rail tracks.
5.6 If the transaction contemplated under this contract is financed by a bank or other financial institution (financial institution), the invoice will be presented to the financial institution for payment within 48 (forty-eight) hours of sending it to the financial institution, the Purchaser will be deemed to have accepted the invoice as true and correct and irrevocably authorizes the financial institution to make payment to the Seller in terms of the invoice on behalf of the Purchaser.
6. BREACH OF THE CONTRACT
6.1 Should the Seller fail to timeously comply with any of the provisions of this contract or should the Seller commit any breach of this contract, and fails to remedy such breach after being requested to do so by the Purchaser in writing, the Purchaser shall be entitled to, without prejudicing any other rights it may have, by providing written notice to the Seller, claim specific performance from the Seller, cancel this contract and in each instance claim compensation, excluding loss of income, loss of profits, from the Seller and recover such direct losses which the Purchaser has suffered as a result of the breach.
6.2 In no event shall the Seller’s aggregate liability under this contract be more than the purchase price of the commodity in question.