- In these STCs, unless the context requires otherwise, the following words and expressions have the following meanings:
- Acceptable Tolerance means the tolerance accepted as per the Contract of Sale.
- Affiliates means with respect to any company or corporation, a Subsidiary of that company or corporation or a Holding Company of that company or corporation or any Subsidiary of that Holding Company.
- Business Day means any day other than a Saturday, Sunday or National Public Holiday, on which business is normally conducted in Republic of South Africa.
- Buyer means the Party which is the buyer specified in the Contract of Sale.
- Buyer’s Quality Results has the meaning given to it in clause 7.3.
- Buyer’s Weight Results has the meaning given to it in clause 6.3.
- Contract means the Contract of Sale between the Parties for the sale and purchase of Materials, which incorporates by reference these STCs.
- Contract of Sale means a communication from one Party to the other confirming the Contract of Sale and setting out terms which amend or supplement these STCs.
- Contract Price means the price payable in respect of the Delivered Material as calculated in accordance with clause 9.
- Contract Quality means the quality, specification and condition of the Material to be delivered by the Seller as specified in the Contract of Sale.
- Contract Termination Date has the meaning given to it in clause 16.3.
- Contract Weight means the weight of the Material to be delivered by the Seller (in a single delivery, where the contract provides for more than one delivery) as specified in the Contract of Sale.
- Credit Instrument means a parent company guarantee, standby letter of credit, bank guarantee or cash deposit which is in a form and substance acceptable to the Seller and issued by a company or first class international bank (as the case may be) acceptable to the Seller.
- Credit Provider means the issuer of any Credit Instrument.
- Day means a calendar day of twenty four (24) hours.
- Breaching Party has the meaning given to it in clause 16.2.
- Delivered Material means the Material Delivered by the Seller to the Buyer pursuant to the Contract of Sale.
- Delivered Quality means the quality, specification and condition of the Delivered Material.
- Delivered Weight means the weight of the Delivered Material, either Gross or Net as prescribed by the Contract of Sale.
- Delivery means the delivery of the Material to the Buyer in accordance with clause 4.1 and Deliver and Delivered shall be construed accordingly.
- Delivery Period means the period or date specified in the Contract of Sale.
- Delivery Point means the point of Delivery of the Material in accordance with the part of Incoterm governing international sales on the term specified in the Contract of Sale at the location specified in the Contract.
- Delivery Termination Date has the meaning given to it in clause 16.3.
- Documents means the documents to be presented by the Seller for payment, as specified in the Contract of Sale.
- Event of Breach has the meaning given to it in clause 16.2.
- Exchange Rate for each applicable Payment means the exchange rate identified in the Contract of Sale, or, if no such rate is identified, on a future date to be determined by Pure Trade Africa in its commercially reasonable discretion.
- STCs means these standard terms and conditions for the sale and purchase of physical Materials.
- Holding Company means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.
- Incoterm means an Incoterm set out in Incoterms 2020 of the International Chamber of Commerce as agreed between the Parties to apply to the Contract.
- Inspection Period has the meaning given to it in clauses 6.2 and 7.2.
- Invoice means the commercial invoice issued by the Seller to the Buyer in respect of the Material.
- LIBOR means the London Inter Bank Offered Rate for one month (for respective currencies USD, EURO, GBP, CHF, JPY) as administered by the ICE Benchmark Administration (IBA) or any other entity which takes over the administration of that rate and published on the relevant date by Thomson Reuters on behalf of IBA.
- Material means the Materials to be delivered by the Seller to the Buyer pursuant to the terms and conditions of the Contract of Sale.
- Named Destination means:
- For the purposes of the CIF/CFR terms and CIP/CPT terms, the destination specified in the Contract of Sale;
- For the purposes of FCA/FOR, the buyer’s nominated loading warehouse as specified in the Contract of Sale;
- For the purposes of the FOB term, the Buyer’s nominated loading port as specified in the Contract of Sale; and
- For the purposes of all other delivery terms, the Delivery Point.
- Non-Breaching Party means the Party other than the Breaching Party.
- Notice means a notice in writing from one Party to the other Party in accordance with the terms of the Contract and Notify shall be construed accordingly.
- Party means the Buyer or the Seller as the parties to the Contract, and collectively referred to as the Parties.
- Payment means payment of the Price in accordance with clause 10.
- Payment Currency means the currency agreed between the Parties as the currency in which payment shall be made pursuant to the Contract; or if no currency is agreed, US dollars.
- Payment Date means the due date for payment for any sums due under the Contract.
- Price means the price in US dollars per tonne of the Material specified in or to be calculated in accordance with the terms of the Contract. If the Payment Currency is not US dollars, the price shall be converted to the Payment Currency using the Exchange Rate. For the avoidance of doubt, the Price includes all costs payable by the Seller pursuant to the Contract.
- Producer means the person that extracted and/or processed the Material.
- Producer’s Certificate of Origin means the certificate issued by the Producer identifying the country in which the Material was produced.
- Producers Certificate of Analysis means the certificate issued by the Producer setting out an analysis of the chemical and physical quality of the Material issued by the Producer or by Pure Trade Africa on its letterhead.
- Quality Discrepancy Notice means the Notice given pursuant to clause 7.3.
- Quotation Period means the quotation period for the calculation of the Price as specified in the Contract.
- Seller means the Party which is the seller specified in the Contract.
- Subsidiary means, in relation to any company or corporation, a company or corporation which is controlled, directly or indirectly, by the first mentioned company or corporation; more than half the issued share capital or which is beneficially owned, directly or indirectly, by the first mentioned company or corporation; or which is a Subsidiary of another Subsidiary of the first mentioned company or corporation; and for this purpose, a company or corporation shall be treated as being
- controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
- Termination Date means, as the context requires, either a Delivery Termination Date or a Contract Termination Date.
- Pure Trade Africa means Pure Trade Africa and/or its Affiliates.
- Transport means the truck, rail wagons or vessels (as the case may be) nominated pursuant to the terms of the Contract for the carriage of the Material from the Delivery Point.
- VAT has the meaning given to it in clause 12.2.
- Weight Discrepancy Notice means the Notice given pursuant to clause 6.3.
- In these STCs, unless the context requires otherwise, the following words and expressions have the following meanings:
- All references in these STCs to a statutory provision shall be construed as including references to:
- Any statutory modification, consolidation or re-enactment (whether before or after the date of the Contract) for the time being in force;
- All statutory instruments or orders made pursuant to a statutory provision; and
- Any statutory provision of which a statutory provision is a consolidation, re-enactment or modification.
- In these STCs, unless the context otherwise requires:
- A word denoting an individual or person includes a corporation, firm, authority, government or governmental authority, and vice versa;
- A word denoting the singular includes the plural, and vice versa;
- A reference to a clause or schedule is to a clause or schedule of or to these STCs;
- A reference to any Party to the Contract or to these STCs or any other document or arrangement includes that Party’s executors, administrators, substitutes, successors and permitted assigns; and
- Clause headings for ease of reference only and shall not affect the construction of any provision herein.
APPLICABILITY OF STCs
- This document contains the standard terms and conditions which apply to and supplement all contracts for the sale of Materials as concluded by Pure Trade Africa (“PTA” or “the Seller”). These STCs are intended to operate with a Contract of Sale which together shall comprise the Agreement. If no Contract of Sale is issued, the Agreement shall comprise these STCs and any other terms agreed, as ascertainable from evidence. In the event of any inconsistency between the provisions of these STCs and the provisions of the Contract of Sale, the provisions of the Contract of Sale shall prevail.
- Incoterms 2020 (“Incoterms”) are applicable to the Agreement. Reference in the Agreement to Incoterm abbreviations or expressions shall have the effect of incorporating the parts of Incoterms governing international sales on such delivery terms. In the event of inconsistency between Incoterms and any other provisions of the Agreement, the Agreement shall prevail.
- Capitalised words and expressions used in this document shall be interpreted in accordance with the defined terms as set out in these STCs.
- If the Contract is agreed and a Contract of Sale is sent by PTA to the other Party to confirm the terms of the Contract, the Contract of Sale shall be deemed to be accepted and signed by both Parties if the other Party:
- signs and returns the Contract of Sale to PTA; or
- has not, within five (5) Business Days of the date on which PTA sent the Contract of Sale,
- Signed and returned the Contract of Sale to PTA; or
- Notified PTA of any inaccuracies as to the terms recorded in the Contract of Sale (setting out in such Notice which terms in the Contract of Sale are inaccurate and how the other Party believes such terms should be amended).
- The Seller shall Deliver the Material in accordance with in accordance with the relevant Incoterm, as referenced in the Contract of Sale.
RISK AND TITLE
- Risk of loss and damage shall pass from the Seller to the Buyer according to the terms of the relevant Incoterm, as specified in the Contract of Sale.
- Title to the Material shall pass from the Seller to the Buyer upon Payment or, if a provisional invoice is presented, payment of the provisional invoice , unless otherwise agreed by the Parties.
- Subject to the provisions of this clause 6, the weight specified in the bill of lading/ manifest documents or warehouse weight, whichever is applicable, shall be final, conclusive and binding on the Parties as to the Delivered Weight.
- The Buyer shall inspect the Material within one calendar (1) Calendar Day following the arrival of the Material at the Named Destination (the “Inspection Period”) to verify that the weight of the Delivered Material is not less than the Delivered Weight by more than the Acceptable Tolerance (Received Weight).
- If the weight of the Delivered Material is less than the Delivered Weight by more than the Acceptable Tolerance (Received Weight), the Buyer may give Notice to the Seller no later than the expiry of the Inspection Period specifying the Buyer’s findings as to the weight of the Delivered Material (the “Buyer’s Weight Results”) and of the discrepancy (a “Weight Discrepancy Notice”) supported by a Calibration Certificate of the scale used.
- If the Seller accepts the Buyer’s Weight Results as being determinative of the Delivered Weight, the Buyer’s Weight Results shall become the Delivered Weight for the purposes of the Agreement.
- If the Seller rejects the Buyer’s Weight Results as being determinative of the Delivered Weight or if the Seller has neither accepted or rejected the Buyer’s Weight Results, a disagreement shall be deemed to have arisen which shall be resolved in accordance with clause 8.
- The tolerance for any weight changes which may occur during transportation shall strictly be as agreed in the Contract of Sale.
- Subject to the provisions of this clause 7, the quality specified in the Producer’s Certificate of Analysis, also referred to as a Quality Certificate shall be final, conclusive and binding on the Parties as to the quality, condition and specification of the Material. The Material shall be of the description specified in the Contract of Sale.
- The Buyer shall (arrange to) inspect the Material within one (1) Day following the arrival of the Material at the Named Destination (the “Inspection Period”) to verify that the Delivered Material is of the Contract Quality.
- If the Delivered Material is not of the Contract Quality, the Buyer may give Notice to the Seller no later than the expiry of the Inspection Period specifying the Buyer’s findings as
- to the quality of the Delivered Material (the “Buyer’s Quality Results”) and of the discrepancy (a “Quality Discrepancy Notice”).
- If the Seller accepts the Buyer’s Quality Results as being determinative of the Delivered Quality, the Buyer’s Quality Results shall become the Delivered Quality for the purposes of the Agreement and the Parties shall endeavour to promptly agree upon the allowance payable to the Buyer representing the difference in the market price of Material of the Agreement Quality and Material of the Delivered Quality. Any such agreed allowance shall constitute the Buyer’s sole remedy in respect of any quality discrepancy in the Delivered Material.
- If the Seller rejects the Buyer’s Quality Results as being determinative of the Delivered Quality, or neither accepts or rejects the Buyer’s Quality Results, a disagreement shall be deemed to have arisen which shall be resolved in accordance with clause 8.
WEIGHT AND QUALITY CLAIMS
- Notwithstanding any provision of the Agreement or applicable legislation or regulation to the contrary, any rights the Buyer may have under the Agreement and/or at law shall be deemed waived by the Buyer and barred unless:
- The Buyer has given a Weight Discrepancy Notice supported by a Certificate of Calibration for the scale used; and/or
- a Quality Discrepancy Notice.
- The provisions of this clause 8 shall not affect the obligation of the Buyer to pay the Agreement Price or any other sums due under the Agreement on the Payment Date.
- Notwithstanding any provision of the Agreement or applicable legislation or regulation to the contrary, any rights the Buyer may have under the Agreement and/or at law shall be deemed waived by the Buyer and barred unless:
CONTRACT OF SALE PRICE
- The Agreement Price shall be calculated by reference to the Price specified in or calculated in accordance with the Contract (including any adjustment for premium or discount, where applicable), multiplied by the Delivered Weight (Gross or Net Weight as per the Contract of Sale), or the total Contract Value as indicated on the Contract of Sale.
- In the case that payment is by Telegraphic Transfer (“TT”), the Buyer shall pay the Contract Price without any deduction, discount, set-off, withholding or counterclaim whatsoever in the Payment Currency into the Seller’s nominated bank account.
- If the Contract Price is not ascertainable on the date of presentation of the Documents, the following provisions shall accordingly:
- The Seller may present a provisional invoice;
- The amount specified in the provisional invoice shall be paid on the Payment Date in accordance with the terms of the Contract of Sale, or, if no such date is specified, within three (3) Business Days of receipt of the invoice;
- Once the Contract Price has been determined, the Seller shall present a commercial invoice reconciling any difference between the Contract Price and the provisional invoice; and
- The sum specified in such final invoice shall be paid within three (3) Business Days of receipt of such invoice/debit note or credit note.
- Without prejudice to any other remedies under the Contract, Credit Agreement with PTA or otherwise:
- If a Party fails to pay in full any invoiced amount on the Payment Date (including but not limited to the price of the cargo and any undisputed money due in relation to the performance of the Contract), the other Party shall have the right to require the payment of interest on any unpaid amount from the due date until the receiving Party receives cleared funds in the full amount outstanding into its account, at 10 percent points above the rate per annum equal to LIBOR (or any successor thereto) for one month (on respective currency USD, EURO, GBP, CHF, JPY) on the due date. If the amount is payable in any other currency, the applicable rate shall be the rate per annum determined by the receiving Party, as offered by leading banks in the banking system of the currency in which the amount is payable, on the due date.
- A Party shall pay, without any discount or deduction for whatsoever reason, any interest accruing pursuant to this late payment interest clause 10.4, within five (5) calendar days after the issuance date of the related invoice;
- Interest shall continue to accrue until payment notwithstanding the termination of the Contract for any cause whatsoever. The amount of interest payable shall be engrossed for withholding tax, if any, such that the net amount received after deduction of any such tax shall be equal to the full amount of interest due.
- The provision of this clause shall not be construed as an indication of any willingness on the part of either Party to provide extended credit as a matter of course, and shall be without prejudice to any rights and remedies which the Parties may have under this Contract or otherwise. Any expenses incurred, including but not limited to reasonable legal fees, court costs and collection agency fees, caused by delayed or non-payment of the amount(s) due shall be for the account of the paying Party and payable upon demand with supporting documentation.
- If payment falls due on a weekend or a public holiday, the Payment Date shall be the preceding Business Day.
TAXES AND TARIFFS
- Any taxes, tariffs and duties whether existing or new on the Material or on commercial documents relating thereto or on the Material itself, imposed in the country of origin shall be borne by the Seller.
- Any taxes, tariffs and duties whether existing or new on the Material or on commercial documents relating thereto or on the Material itself, imposed in the country of discharge and/or the importing country shall be borne by the Buyer.
VAT, GST OR OTHER INDIRECT TAXES
- Unless otherwise expressly provided in the Contract of Sales, the Price specified in the Contract of Sale is exclusive of VAT.
- Each Party recognises that VAT, GST or other indirect taxes (“VAT”) may be due on individual deliveries made under the Contract at different rates in different countries and each Party agrees to supply all necessary information required to:
- Issue invoices compliant with the VAT laws of the country in which Delivery takes place or is treated as taking place for VAT purposes;
- file complete and accurate returns with the appropriate taxing authorities.
- If VAT is not to be assessed on the transaction envisaged under the Contract, the Buyer shall be responsible for supplying all necessary documentation which Seller needs to not assess VAT on the transaction. If the Buyer fails to provide such documentation to the Seller, the Seller may assess VAT on the transaction at the rate applicable in the country in which the transaction is assessed for VAT. If the Seller assesses VAT on the transaction, the Buyer shall pay VAT as specified in the Seller’s invoice. Seller shall have the right to assess, on a commercially reasonable basis, VAT on the transaction in the local currency of the country in which Delivery takes place or is treated as taking place for VAT purposes, if different from the Payment Currency. If the Buyer delays paying any VAT assessed on the transaction, the Buyer shall be responsible for and shall indemnify the Seller in respect of any interest, penalties, or costs (including without limitation any collection fees, attorney fees and foreign exchange rate loss) incurred by the Seller.
- If, at any later date, it is determined that VAT is due on the transaction, the Seller reserves the right to assess VAT on the transaction at such time. If VAT is so assessed, the Seller shall invoice the Buyer specifying the amount and currency in which the VAT is due, any interest or penalties assessed by an authorised taxing agency and any additional costs (including without limitation any collection fees, attorney fees and foreign currency exchange rate loss) incurred by the Seller as a result of the delayed determination of VAT status. The Buyer shall pay to the Seller in full into the Seller’s bank account the amounts specified in the Seller’s invoice within three (3) Business Days of receipt of the Seller’s invoice.
- The Buyer shall indemnify and hold Seller harmless for any VAT charged or not charged on the transaction in reliance upon the Buyer’s presentation, or non-presentation, of documents to determine the VAT status of the transaction.
- Upon the Seller’s request the Buyer shall pay the VAT amount in the local currency of the country in which Delivery takes place or is treated as taking place for VAT purposes, if different from the Payment Currency.
- Each Party undertakes and warrants to the benefit of the other Party that it has obtained and shall maintain all licences, authorisations, consents, permits and other formalities necessary for the performance by it of its obligations under the Contract (including without limitation and where applicable any import or export licences or permits in respect of the Material).
- No failure by a Party to comply with clause 13.1 shall: amount to frustration; constitute a force majeure event; or otherwise constitute justification for the non-performance of any obligation (or part thereof) under the Contract.
- If the relevant Incoterm specified in the Contract requires one Party to insure the Material as part of the Price, such Party shall procure and pay for an insurance policy in respect of the Material.
- If either Party is prevented, hindered or delayed from performing in whole or in part any obligation or condition of the Contract by reason of force majeure (the “Affected Party”), the Affected Party shall give written notice to the other Party promptly after receiving notice of the occurrence of a force majeure event giving, to the extent reasonably practicable, the details and expected duration of the force majeure event and the quantity of Material affected (the “Force Majeure Notice”).
- Provided that a Force Majeure Notice has been given, for so long as the event of force majeure exists and to the extent that performance is prevented, hindered or delayed by the event of force majeure, neither Party shall be liable to the other and the Affected Party may suspend performance of its obligations under the Contract (a “Force Majeure Suspension”). During the period of a Force Majeure Suspension, the other Party may suspend the performance of all or a part of its obligations to the extent that such suspension is commercially reasonable.
- The Affected Party shall use commercially reasonable efforts to avoid or remove the event of force majeure and the impact of such event, and shall promptly notify the other Party when the event of force majeure is terminated.
- If a Force Majeure Suspension occurs, the time for performance of the affected obligations and, if applicable, the term of the Contract shall be extended for a period equal to the period of suspension.
- If the period of the Force Majeure Suspension is equal to or exceeds 90 days from the date of the Force Majeure Notice, and so long as the force majeure event is continuing, either Party may, in its sole discretion and by written notice, terminate the Contract of Sale or, in the case of multiple deliveries under the Contract of Sale, terminate the affected deliveries.
- Upon termination in accordance with this clause 15, neither Party shall have any further liability to the other in respect of the Contract or, as the case may be, the terminated deliveries except for any rights and remedies previously accrued under the Contract, including any payment obligations.
- “Force Majeure” means any cause or event reasonably beyond the control of a Party, including, but not limited to fires, earthquakes, lightning, floods, explosions, storms, adverse weather, landslides and other acts of natural calamity or acts of god; navigational accidents or maritime peril; vessel damage or loss; strikes, actions by or among workers or lock- outs (whether or not such labour difficulty could be settled by acceding to any demands of any such labour group of individuals); accidents at, closing of, or restrictions upon the use of mooring facilities, docks, ports, harbours, railroads or other navigational or transportation mechanisms; breakdown of, storage plants, terminals, machinery or other facilities; acts of war, hostilities (whether declared or undeclared), civil commotion, arrest and/or detention of the Material and/or vessel, embargoes, blockades, terrorism, sabotage or acts of the public enemy; any act or omission of any governmental authority; good faith compliance with any order, request or directive of any governmental authority, save for instances when the governmental authority in question holds a material interest in the Affected Party; curtailment, interference, failure or cessation of supplies of Material reasonably beyond the control of a Party; or any other cause reasonably beyond the control of a Party, whether similar or dissimilar to those above and whether foreseeable or unforeseeable, which, by the exercise of due diligence, such Party could not have been able to avoid or overcome.
- A Party’s failure to perform its obligations under the Contract due to economic or financial considerations shall not constitute an event of force majeure.
- This clause shall not apply to any obligations to pay, indemnify or provide security or any Material for which vessel, truck or rail wagon space has been booked by the Seller, pricing has been established, the Quotational Period has commenced or any payment has been made, unless the Seller has expressly consented in writing.
- Strictly without prejudice to the rights and remedies of the Parties in law, a Party shall have the following additional rights and remedies upon the occurrence of an event of breach.
- For the purposes of this clause, an event of breach (“Event of Breach”) with respect to a Party (the “Breaching Party”) shall mean any of the following:
- The failure of the Buyer to pay when due any amount due under the Contract or any other contract with the Seller or any of its Affiliates within three (3) Business Days following Notice thereof;
- The failure of the Breaching Party to comply with any Agreement terms of the Contract and such failure remains unresolved for five (5) Business Days following Notice thereof;
- The Breaching Party’s inability or admitted inability or declared inability to pay its debts as they fall due, or declaration that under applicable law the value of the Breaching Party’s assets is at any time less than the amount of its liabilities (taking into account contingent and prospective liabilities);
- The institution or commencement or the threat of commencement of any corporate action or legal proceedings in respect of the Breaching Party in relation to the suspension of payments, any moratorium of any indebtedness, dissolution, administration, reorganization, composition, compromise, arrangement with creditors or any class of them, winding up, liquidation, receivership, compulsory management or bankruptcy or any analogous procedure in any jurisdiction;
- The occurrence of an Agreement adverse change in the financial standing or control of the Breaching Party or its Credit Support Provider when compared to the Breaching Party’s or its Credit Support Provider’s financial standing as at the date of the Contract, which change (in the sole opinion of the non- Breaching Party) affects the Breaching Party’s or its Credit Support Provider’s ability to perform its financial obligations in respect of the Contract or the Credit Support Instrument (as applicable);
- The failure by the Breaching Party to provide a written assurance (to the satisfaction of the Non-Breaching Party), within three (3) Business Days after a request by the Non-Breaching Party, that it will comply with any or all of its obligations under the Contract. For the purposes of clauses 16.2.4, 16.2.5 and 16.2.6 only, the terms “Breaching Party” shall include any of the Breaching Party’s Affiliates.
- Upon the occurrence of an Event of Breach and irrespective of whether or not an Event of Breach is continuing, the Non-Breaching Party may in its sole and absolute discretion and notwithstanding any implied terms arising by virtue of prior contrary course of dealing or rule of law:
- If the Contract provides for more than one delivery, Notify the Breaching Party of a delivery termination date (which shall be no earlier than the date of such Notice and no later than twenty (30) Days after the date of such Notice) on which the delivery in respect of which the Event of Breach has occurred shall terminate (the “Delivery Termination Date”); and/or
- Clause 16.3 shall not apply in respect of any Materials in transit as part of the Contract and in such instances, such Materials shall be delivered accordingly.
- Notify the Breaching Party of a contract termination date (which shall be no earlier than the date of such Notice and no later than twenty (30) Days after the date of such Notice) on which the Contract and the transactions contemplated under the Contract shall terminate (the “Contract Termination Date”); and/or
- Withhold any payments due to the Breaching Party until such Event of Breach is resolved; and/or
- Suspend performance of any one or more of its obligations under the Contract until such Event of Breach is cured.
- If Notice of a Termination Date is given under clause 16.3:
- The Termination Date will occur on the designated date whether or not the relevant Event of Breach is then continuing; and
- Any accrued rights or obligations that have arisen prior to the Termination Date shall not be affected.
- If an Event of Breach occurs and/or a Termination Date is established, the Non-Breaching Party may (in its absolute discretion) set-off any or all amounts whether present or future, actual or contingent which the Breaching Party owes to the Non- Breaching Party (whether under this or any other contracts and/or on any other account whatsoever) against any or all amounts which the Non-Breaching Party owes to the Breaching Party (whether under this or any other contracts and/ or on any other account whatsoever). Notwithstanding any rule or provision to the contrary, the Non-Breaching Party shall not be required to pay to the Breaching Party any net amount due to a delivery termination or a contract termination until the Non-Breaching Party receives confirmation satisfactory to it in its reasonable discretion that:
- all amounts due and payable as of the Termination Date by the Breaching Party under the Contract and/or on any account whatsoever with the Non-Breaching Party have been fully and finally paid; and
- all other obligations of any kind whatsoever of the Breaching Party to make any payments to the Non-Breaching Party under the Contract and/or on any account whatsoever which are due and payable as of the Termination Date have been fully and finally performed.
WITHDRAWAL OF CREDIT LINE
- The Buyer is aware that the payment terms in the Contract may be subject to a specific credit line approved for the Buyer and/or the Buyer’s country by a specific organisation, which reserves the right to withdraw or reduce it without notice.
- In the event of such a withdrawal or reduction the Seller may, by Notice to the Buyer:
- suspend performance of any one or more of its obligations under the Contract (including without limitation any obligation to ship or deliver any Material); and
- seek to renegotiate any term(s) of the Contract and/or require that the Buyer provide security for the performance by it of its obligations under the Contract;
- If, within 30 (thirty) Days of the Seller’s Notice pursuant to the above, no agreement has been reached upon the renegotiation of the term(s) of the Contract and/or any security required by the Seller has not been provided, the Seller may, in its sole discretion, terminate the Contract by Notice to the Buyer. Upon termination in accordance with this clause, neither Party shall have any further liability to the other in respect of the Contract except for any rights and remedies previously accrued under the Contract, including any payment obligations.
LIMITATION OF LIABILITY
- Neither Party shall be liable to the other Party in contract or in delict or otherwise for any indirect, consequential or special damages or losses, however caused.
- Notwithstanding clause 18.1 or any other rule of law to the contrary, each Party shall be entitled to recover any losses suffered in connection with any derivative instrument which may relate to the physical sale of the Material and all such losses suffered by a Party shall always be deemed to be foreseeable and recoverable.
- Under no circumstances whatsoever shall a Party’s liability exceed the value of the Material as at the date of Delivery, and where delivery under the Contract is made in instalments, a Party’s liability shall not exceed the value of the Material Delivered or to be Delivered in the month of Delivery in which the liability arises.
- The existence of and terms of the Contract shall be held confidential by the Parties save to the extent that such disclosure is made to a Party’s banks, accountants, auditors, legal or other professional advisers, or as may be required by law, a competent court or a liquidator or administrator of a Party, or the other Party has consented in writing to such disclosure.
- The construction, validity and performance of the Contract and any dispute or claim arising out of or in connection with it (including any non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Republic of South Africa.
- Any dispute, controversy or claim rising out of or relating to the Contract of Sale or the accompanying STCs, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the Arbitration Foundation of South Africa (“AFSA”)
- Each Party to this Agreement:
- expressly consents to any arbitration in terms of the aforesaid rules being conducted as a matter of urgency in accordance with the Expedited Rules; and
- irrevocably authorizes the other Party to apply, on behalf of both Parties, in writing, to the secretary of AFSA in terms of article 23 of the aforesaid rules for any such arbitration to be conducted on an urgent basis.
- Any award or order that may be made by the arbitrator:
- will be final and binding on the Parties in the absence of clerical or manifest error;
- must be carried into effect by the Parties: and
- may be made an order of any competent court by either of the Parties
- This Clause is severable from the rest of this Agreement and will remain in full force and effect notwithstanding any cancellation or termination of this Agreement.
- If the arbitrator’s charges and any other costs have to be paid before the arbitrator has made his award in respect of those charges and costs, the Parties shall bear and pay those charges and costs equally, pending any determination as to liability therefore by the arbitrator.
- The language of the arbitration shall be English.
- Notwithstanding the Parties’ arbitration Agreement or anything else herein to the contrary, PTA shall have the right to commence and pursue proceedings for the interim or conservatory relief against the other Party in any court and jurisdiction and pursuit of such proceedings/relief in any one court shall not preclude PTA from pursuing proceedings/relief in any other court or jurisdiction (whether concurrently or not) if and to the extent permitted by the applicable law.
- PTA shall also have the option to refer any dispute to the jurisdiction of The Kwa-Zulu Natal High Court, Republic of South Africa (“the Court”) or any other court having jurisdiction over the matter.
- If PTA is the defending Party, such option must be declared within fourteen (14) business days of an Arbitration Notice and, upon such declaration, the Parties shall procure that the arbitration be discontinued without an award having been given.
- If PTA exercises its option, the Parties wave any objection now or later to any proceedings relating to the Contract and the Parties hereby irrevocably submit to the exclusive jurisdiction of the Court.
- Promptly upon PTA exercising its option, the other Party shall notify PTA of an address for service of proceedings in the jurisdiction and the contract details legal representatives within the jurisdiction appointed by the other Party.
- A judgement relating to the Contract which is given or would be enforced by a Court shall be conclusive and binding on the Parties and shall be enforced without review in any other jurisdiction.
- Each Party warrants and represents that each authorised person purporting to sign the Contract on behalf of that Party has full power and authority to enter into that Contract on that Party’s behalf and that the Contract will constitute valid and binding obligations of that Party enforceable in accordance with their respective terms.
CHANGE OF CONTROL
- Subject to the Breach provisions in these STCs, no actual or prospective change in the organisation, control or management of either Party (including without limitation, a change to its majority shareholding or privatisation or equivalent process) shall affect or in any way change or modify the terms and conditions of the Contract, which shall continue in full force and effect.
- Without the prior written consent of the other Party, which shall not be unreasonably withheld, neither Party may assign or create a trust or otherwise transfer its rights or obligations under the Contract in full or in part, except that PTA and its assignees may without such consent assign all or a portion of their rights to receive and obtain payment under the Contract in connection with securitisation or bank funding arrangements (including the arbitration and law clauses herein). Any such assignment shall not detract from the PTA obligations under the Contract.
- The invalidity, illegality or unenforceability of any one or more of the provisions of the Contract shall in no way affect or impair the validity and enforceability of the other provisions of the Contract.
- The Contract contains the entire agreement between the parties and supersedes all representations, prior agreements (oral or written) in connection with the matters which are the subject of the Contract. Each Party acknowledges and represents that it has not relied on or been induced to enter into the Contract by any representation, warranty or undertaking other than those expressly set out in the Contract. A Party is not liable to the other Party for a representation, warranty or undertaking of whatsoever nature that is not expressly set out in the Contract.
- Any amendment or waiver of any provision of the Contract shall be effective only if, to the extent and for the purposes that, it is expressly made and reduced to writing provided that the granting of any time or indulgence by the Seller in favour of the Buyer shall not in any circumstances constitute any variation or waiver of any right, power or remedy under or of any provision of the Contract.
- Any waiver of any breach of any provision of the Contract by either Party shall not be considered to be a waiver of any subsequent or continuing breach of that provision. No waiver by either Party of any breach of any provision of the Contract shall release, discharge or prejudice the right of the waiving Party to require strict performance by the other Party of any other of the provisions of the Contract.
- No failure or delay on the part of either Party in exercising any right, power or remedy under the Contract and no course of dealing between the Parties shall operate as a waiver by either Party of any such right, power or remedy. Any single or partial exercise of any such right, power or remedy shall not preclude any other or further exercise thereof or the exercise of any other right, power or remedy under the Contract
THIRD PARTY CONTRACTS
- Any person who is not a Party to the Contract may not enforce any term of it.
TIME OF THE ESSENCE
- Time is in all respects to be and remain of the essence in the Contract.
NOTICES AND COMMUNICATIONS
- No notice or communication with respect to the Contract shall be effective unless it is given in writing and delivered or sent by facsimile or electronic mail to the other Party at the address set out in the Contract (or such other address as each Party otherwise Notifies the other Party). If no such address is set out in the contract, any notice or communication shall be delivered to a Party’s registered address.
- Notices sent by facsimile or electronic mail shall be deemed to have been received upon completion of successful transmission to the recipient except that any facsimile or electronic mail transmitted on a Business Day shall be deemed to have been received at 09:00 that Business Day, if transmitted prior to 09:00 on that Business Day, or otherwise at 09:00 on the next Business Day.
- All notices, requests and other communications addressed to PTA shall be addressed:
- Pure Trade Africa (Pty) Ltd
- 1st Floor, 29 Richefond Circle, Ridgeside Office Park, Umhlanga, Kwa-Zulu Natal, Republic of South Africa, 4319
- Telephone: +27 31 566 0860
- Email: firstname.lastname@example.org / email@example.com
HEALTH AND SAFETY
- The following incidents shall be reported by and to PTA within twenty-four (24) hours of occurrence:
- The vessel nominated in respect of a Delivery is involved in a marine incident that has affected, or is likely to affect the safety, operation or worthiness of the mode of transport (whether it be road/ sea/air or rail), causes the death or a person is incapacitated from performing their duties for a period of one (1) Business Day or more (often referred to a ‘lost time injury’), the loss of a mode of transport, the loss of a person from the mode of transport, significant damage to a mode of transport, and any loss of cargo or damage to cargo.
- The Transport is involved in an incident that has affected, or is likely to affect the safety and / or operation of the cargo, causes significant damage to the Transport, causes the death or a person is incapacitated from performing their duties for a period of one (1) Business Day or more (often referred to a ‘lost time injury’), and/or substantial loss of Material.
- An incident occurs during the performance of the Contract which causes the death of, or any person is incapacitated from performing their duties for a period of one (1) Business Day or more (often referred to a ‘lost time injury’).
- A worker who performs work in connection with the Contract is incapacitated from performing their duties for a period of one (1) Business Day or more, often referred to a ‘lost time injury’.
- A dangerous occurrence (near miss) which could have caused the death of, or serious injury to, any person performing work in connection with the Contract.
- The Parties agree to comply with all applicable regulations related to health, safety, the environment and human rights in force and applicable to the Contract, including (but not exclusively) the International Bill of Human Rights and PTA’s Responsibility Policy and HSEC Business Principles.
- The following incidents shall be reported by and to PTA within twenty-four (24) hours of occurrence:
- It is agreed that all activities contemplated by the Parties pursuant to this Contract will be performed in conformity with and shall not be prohibited by Sanctions and/or laws if and to the extent applicable.
- Notwithstanding any other provision of this clause or any other clause or provision to the contrary in this Contract, neither Party shall be required to do anything under this Contract which constitutes a violation of, or would be in contravention of, or would expose it to the risk of designation pursuant to any Sanction applicable to it.
- If, at any time during the term of this Contract any Sanctions are changed, or new Sanctions are imposed or become effective, or there is a change in the interpretation of Sanctions, which would:
- Expose a Party to the risk of designation or to other punitive measures by a Sanctions authority; or
- Contractually affect a Party’s performance of this contract including but not limited to:
- Its ability to take or make delivery or make or receive any payments as may be required in the performance of this Contract or to insure or transport the goods to be delivered by the seller to the buyer; or
- Importing the goods into the country of destination; or
- Cause either: A curtailment, reduction in, interference with, failure or cessation of supply of goods from any of the Seller’s or Seller’s suppliers’ sources of supply; or A refusal to supply such goods by any such supplier, then notwithstanding any clause or provision to the contrary in this Contract, such Party may, by written notice to the other Party, suspend performance until such time as the notifying Party may lawfully perform this Contract and/or terminate this Contract, in each event, without any further obligation or liability by either Party, save for any accrued rights and remedies.
- Obligations to make or receive payment which arose before, or as a consequence of termination shall remain in effect but shall be subject to suspension to the extent required by part A of this clause.
- “Sanctions” means economic or financial sanctions or trade embargoes or trade restrictions or similar or equivalent restrictive measures imposed, administered, enacted or enforced from time to time by the UN, EU or US or other applicable sanctions authority.