Terms & Conditions

STANDARD TERMS AND CONDITIONS

1. DEFINITIONS

In these Standard Terms and Conditions (“STCs”), the terms defined in the Agreement shall have the meaning as per the Agreement and, unless the context indicates otherwise, the following words and expressions shall have the following meanings:

Agreement means the sales agreement entered into between the Parties.

Allowable Tolerance means the acceptable tolerance for the volume of Product delivered, as detailed in the Agreement covering table. Unless otherwise indicated, the Allowable Tolerance shall be in the Company’s option.

Affiliates means concerning any company or corporation, a Subsidiary of that company or corporation or a Holding 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 typically conducted in the Republic of South Africa.

Confidential Information means  any information (including any and all combinations of individual items of information) that relates to the actual or anticipated business and/or products, research or development of the Buyer and/ or the Company, its affiliates or subsidiaries, or to the Buyer and/or Company’s, its affiliates’ or subsidiaries’ technical data, trade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Buyer and/or Company’s, its affiliates’ or subsidiaries’ products or services and markets therefor, customer lists and customers (including, but not limited to, customers of the Buyer and/or Company with whom the Buyer and/or Company became acquainted during the term of this Agreement), software, developments, inventions, discoveries, ideas, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business information disclosed by the Buyer and/or Company, its affiliates or subsidiaries, either directly or indirectly, in writing, orally or by drawings or inspection of premises, parts, equipment, or other property of the Buyer and/or Company, its affiliates or subsidiaries.

Credit Agreement means any agreement between the Parties whereby the Company has agreed to extend certain credit terms to the Buyer.

Delivered Product means the Product Delivered by the Company to the Buyer, as prescribed by the Agreement.

Delivered Quality means the quality, specification and condition of the Delivered Product.

Delivered Quantity means the quantity of the Delivered Product. For the avoidance of doubt, any references made to Delivered Weight shall have the same meaning.

Delivery Vehicle means any road freight, rail wagon, vessel or other means of transport used to deliver the Product to the Delivery Point.

Force Majeure Event 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; environmental catastrophe, geological implications, epidemics, pandemics, implementation of new economic restrictions/sanctions, economic collapse, collapse of currency, collapse of infrastructure, cyber incidents or attacks, IT systems failure,  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 and war like activities, hostilities (whether declared or undeclared), civil commotion, arrest and/or detention of the Product and/or vessel, embargoes, blockades, terrorism, revolution, 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 Product interest in the Affected Party; curtailment, interference, failure or cessation of supplies of Product reasonably beyond the control of a Party; or any other cause reasonably beyond the power 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.

INCO Terms means the international rules for the interpretation of trade terms of the International Chamber of Commerce (ICC) (known as Incoterms® Rules) as in force at the date when the Agreement is made and any term described in Incoterms® has the same meaning in these STC’s. Incoterms® is a trademark of ICC.  Use of this trademark does not imply association with, approval of or sponsorship by ICC unless specifically stated above.  The Incoterms® Rules are protected by copyright owned by ICC.  Further information on the Incoterm® Rules may be obtained from the ICC website iccwbo.org. .

Product means the Product(s) to be delivered, as described on the cover page of the Agreement.

Parties means the Company and the Buyer, and “Party” shall mean either one of them, depending upon the context;

Quality Discrepancy Notice means a written notice issued following the Inspection Period, detailing quality discrepancies between the agreed quality and the Delivered Quality which exceeds the Allowable Tolerance.

Quantity Discrepancy Notice means a written notice issued following the Inspection Period, detailing quantity discrepancies between the agreed quantity and the Delivered Quantity which exceeds the Allowable Tolerance.

SOFR means a rate per annum equal to the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time).

Transaction Value means the price of the Product/s as contained on the covering page of the Agreement.

2. APPLICABILITY OF THE STCS
   • The contents of the STCs are intended to operate in conjunction with the Agreement and shall be incorporated into all Agreements concluded by the Company. Should there be any inconsistencies between the provisions of the Agreement and these STCs, the requirements of the Agreement shall prevail.
   • If no Agreement is issued, these STCs shall apply in conjunction with the ascertainable evidence of an agreement. Should there be any inconsistencies between the ascertainable evidence and the STCs, the terms of the STCs shall prevail.

3. ORDERS
   • No order shall be binding on the Company until expressly confirmed in writing by the Company.
   • The Buyer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Company any necessary information relating to the Products within a sufficient time to enable the Company to perform its obligations in terms of the Agreement.
   • No order which has been accepted by the Company may be cancelled by the Buyer except with the written agreement of the Company and on terms that the Buyer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.

4. DELIVERY
   • The Company shall deliver the Product to the Buyer according to the terms in the Agreement.
   • Any dates quoted for delivery of the Products are approximate only and the Company shall not be liable for any delay in delivery of the Products however caused. Time for delivery shall not be of the essence of the agreement unless previously agreed by the Company in writing. The Products may be delivered by the Company in advance of the quoted delivery date on giving reasonable notice to the Buyer.

5. PACKAGING
   • Unless otherwise agreed in writing, the Company does not take back packaging. It is therefore the Buyer’s responsibility to deal with the use, recycling, storage and/or destruction of such packaging. No packaging displaying the Company’s trademark and/or logo may be used for anything other than the Company’s Product.

6. RISK AND TITLE
   • Risk of loss and damage shall pass from the Company to the Buyer as per the INCO term specified in the Agreement.
   • Title of the Product shall pass from the Company to the Buyer upon full payment of the Transaction Value.
   • Until title of the Product has passed to the Buyer, the Buyer shall:
     • store the Products separately from all other goods held by the Buyer so that they remain readily identifiable as the Company’s property;
     • not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
     • maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
     • notify the Company in writing immediately if it becomes subject to any of the events listed in clause 13; and
     • give the Company such information relating to the Products as the Company may require from time to time.
   • If before title of the Products passes to the Buyer, the Buyer becomes subject to any of the events listed in clause 13 then, without limiting any other right or remedy the Company may have:
     • at any time require the Buyer to deliver all Products in its possession that have not been resold, or irrevocably incorporated into another product; and
     • if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Products are stored in order to recover them.

7. INSPECTION OF THE PRODUCT, WEIGHT & QUALITY CLAIMS
   • The Buyer shall be permitted 24 hours from the arrival of the Delivery Vehicle at the Delivery Point (“the Inspection Period”), to inspect the Product for any weight/quantity and quality non-conformities.
   • Should the Buyer identify any discrepancies between the agreed quantity or quality, the Buyer shall immediately issue the Company with the relevant discrepancy notice.
   • Concerning quantity:
     • Should no Quantity Discrepancy Notice be issued upon the lapse of the Inspection Period, the loading point Weighbridge Slip, the Goods Dispatch Note, manifest documents or Bill of Lading, as applicable, shall be final and binding as the Delivered Quantity.
     • Should a Quantity Discrepancy Notice be issued, such notice must be supported by relevant evidence of the missing Product. This may include but is not limited to images and/ or statements. The Company reserves the right to have a representative visit the Delivery Point and any other sites to investigate the reported loss.
       • Should the Company accept the Quantity Discrepancy Notice, the Buyer’s Quantity Results shall become the Delivered Quantity for all intensive purposes.
       • Should the Company reject the Quantity Discrepancy Notice, then a dispute shall be deemed to have arisen, which shall be resolved in accordance with clause 6.
     • Concerning quality:
       • Should no Quality Discrepancy Notice be issued upon the lapse of the Inspection Period, the Producer’s Certificate of Analysis shall be final and binding as the Delivered Quality.
       • Should the Buyer issue a Quality Discrepancy Notice, they must provide the contact details of the organisation or individual who performed the necessary tests and concluded that the Delivered Quality is not as per the Agreement.
       • The Company shall review the Quality Discrepancy Notice as well as any supporting documentation submitted by the Buyer and shall provide the Buyer with an acceptance or rejection of the Quality Discrepancy Notice within 48 hours of receiving it. During this period, the Company reserves the right to have a representative conduct an inspection of the Product and/or take retrieve a sample for testing by an independent lab
         • Should the Company accept the Quality Discrepancy Notice, the Buyer’s Quality Results shall become the Delivered Quality for all intensive purposes. In such instances, the Parties shall endeavour to agree on a revised Transaction Value indicative of the difference between the agreed quality and the Delivered Quality.
         • Should the Company reject the Quality Discrepancy Notice, then a dispute shall be deemed to have arisen, which shall be resolved in accordance with clause 6
       • In the event of a dispute:
         • The Buyer’s obligations to effect payment for the Product in dispute shall be unaffected.
         • The Parties shall seek to negotiate and resolve the dispute amicably and without third-party intervention.
       • Should the above prove unsuccessful, the Parties shall refer the dispute for arbitration as per clause 12.

8. PAYMENT
   • Unless otherwise agreed in writing between the parties, payment of the Transaction Value shall be made by way of Telegraphic Transfer without deduction, discount, set–off, withholding or counterclaim whatsoever, into the Company’s nominated bank account.
   • Without prejudice to any other remedies under the Agreement, a Credit Agreement between the Company and the Buyer or any additional Agreement:
     • If the Buyer fails to pay in full any amounts due on the Payment Date, the Company shall have the right to charge interest on such overdue amounts. Such interest shall be calculated from the date upon which the amounts became due until the date upon which payment reflects in the Company’s nominated bank account, at 10 percentage points above the rate per annum equal to SOFR on the respective currency, prior to the due date. If the Transaction Currency is any currency to which SOFR rates do not apply, then the applicable rate shall be determined by the Company, as offered by the banking system of the currency in which the amount is payable, on the due date.
     • The Buyer shall pay any interest accrued in accordance with this clause 2 without deduction or discount within five Business Days of issuing an invoice for such charges.
     • Interest shall continue to accrue until such date that the outstanding amount, and the subsequent interest thereon, have been paid irrespective of whether the Agreement is terminated prior to such payment.
     • This clause 2 shall not be construed as a willingness of the Company to extend credit to the Buyer and shall be without prejudice to any rights or remedies the Company may have under the Agreement or any law. Further, any costs incurred by the Company to collect amounts due to it shall be for the Buyer’s account and shall be payable upon the presentation of an invoice for such with supporting documentation.
   • Unless otherwise agreed, the Transaction Value is exclusive of any VAT, GST or other sales tax, insurance and packaging. Both Parties, however, remain responsible for adhering to any VAT, GST or other sales tax obligations which may be applicable, including but not limited to issuing compliant invoices and documents, ensuring that both Parties maintain valid VAT/ GST/ sales tax good standing with the relevant tax authority
   • If the expected Payment Date does not fall on a Business Day, the amounts appropriate amounts shall become due on the preceding Business Day.
   • The Company reserves the right, at any time before delivery of the Products, to increase the Transaction Value based on any factors beyond the Company’s control (including, without limitation, foreign exchange fluctuations, currency regulations, increases in freight costs or duties, increase in the costs of labour, materials, energy or other costs of manufacture, or changes to delivery dates, quantities or specifications requested by the Buyer and accepted by the Company).
   • On termination of the Agreement for any reason the Buyer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Products supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Buyer immediately on receipt.

9. WARRANTIES AND LICENSES
   • Both Parties warrant that each representative (as indicated on the cover page of the Agreement) has the full power and authority to enter into the Agreement on behalf of the respective Party, and the execution of the Agreement by the said representatives shall render the Agreement valid and binding on both Parties.
   • Both Parties warrant that they hold the necessary licenses, authorisations, permits and other necessary formalities to perform their respective obligations under the Agreement (including but not limited to the applicable import and export licenses and the permits required to handle hazardous material when applicable).
   • Under no circumstances shall the failure of a Party to obtain and maintain the required licenses amount to frustration or force majeure or otherwise be a legal cause for non – performance of any obligation under the Agreement.
   • Save to the minimum extent required by law, any warranty and representation of any performance of the products and of merchantability or fitness for a particular purpose is excluded. All information that has been or may be given to the buyer (e.g. in product information, safety data sheets, other accompanying product documentations, communications and recommendations) shall not be considered as warranty or representation of the company. The express representations the company makes to the buyer above, are the only representations the company makes. Any other warranties and representations, be it by law, explicit or implicit, are to the extent possible under applicable law excluded. The buyer is responsible for carrying out appropriate testing regarding the suitability of the products or works or services for the buyer’s particular purposes and processing conditions.

10. FORCE MAJEURE
    • If a Party is prevented, hindered or delayed from performing their obligations under the Agreement due to a Force Majeure Event, such Party shall notify the other Party in writing of such event within 10 calendar days of becoming aware of the event with such notice providing the other Party with the cause, extent and period for which the effects of the Force Majeure Event are expected to persist.
    • Provided that a force majeure notice has been issued, no liability shall be attached to the affected Party for non – performance to the extent that it is prevented, hindered or delayed.
    • The affected Party must seek commercially reasonable means of mitigating or completely resolving the effects of the Force Majeure Event.
    • Should the period of the Force Majeure Event persist beyond 90 calendar days from the Force Majeure Notice, either Party has the right to terminate the Agreement by way of written notice. In the event of multiple deliveries taking place under an Agreement, such termination can relate only to the affected deliveries.
    • Upon termination due to Force Majeure, neither Party shall have any further obligations or liability under the Agreement, or the terminated deliveries, save for any rights and remedies which accrued previously under the Agreement, including payment obligations.
    • Under no circumstances shall economic, or financial constraints be accepted as a ground for non – performance under force majeure.
    • This clause shall not apply to any obligations to pay, indemnify, or provide security for any Product or vessel, truck or rail wagon space which the Company has booked.

11. BREACH
    • For the purposes of this clause, a Party shall be deemed to have committed a Breach should they:
      • Commit any continuing or Product breach of any of the provisions of the Agreement and, if the such breach can be reasonably remedied, fails to remedy the breach within 14 calendar days of receiving written notice from the Non–Breaching Party to remedy the breach.
      • The Breaching Party commits an act of insolvency, including but not limited to being placed under business rescue, a voluntary arrangement with creditors, becoming the subject of an administration order or threatening to cease operations due to economic reasons.
      • Any of any adverse change in the financial standing or control of a Party from the date of the execution of the Agreement which, in the Non–Breaching Party’s opinion, adversely and significantly affects the Breaching Party’s ability to fulfil its financial obligations.
    • Should a Party commit a Breach as envisaged in clause 1, and without prejudice to any other rights or remedies they may have in law or otherwise, the Non–Breaching Party may:
      • Withhold payments or deliveries due to the Breaching Party until the Breach Event is resolved.
      • Suspend the performance of any of its obligations until such time that the Breach Event is resolved.
      • If the Agreement provides for more than one delivery, they may issue a written partial Agreement termination in respect of the delivery to which the Breach applies. This Agreement termination date shall be reasonable and take cognisance of any Product already in transit to the delivery point.
      • Terminate the Agreement entirely upon written notice to the Breaching Party.
    • Should a termination notice be issued in terms of clause 2:
      • The termination date shall occur on the stipulated date, irrespective of the status of the Event of Breach.
      • Any rights or obligations that may have accrued prior to the termination date shall be unaffected.

12. DISPUTE RESOLUTION
    • Save where otherwise provided in the Agreement, should any dispute or difference arise between the Parties relating to or arising out of the Agreement, including the validity, implementation, execution, interpretation, rectification, termination or cancellation of the Agreement, a representative of each Party shall meet, and in good faith attempt, to resolve such dispute through friendly consultation.
    • Should the Parties be unable to resolve such dispute within 30 days of written notice from the Party requesting that the respective representatives meet, then either Party shall be entitled to refer the matter to arbitration by delivering a notice to that effect to the other Party.
    • The arbitration shall be heard by a single arbitrator who shall be appointed by the Parties. If the Parties fail to reach agreement on the identity of the arbitrator within 10 days after a Party, in writing, calls for agreement, the arbitrator shall be nominated at the request of any Party by the Appointing Authority.
    • The arbitration shall take place in the Arbitration Location, in the English language and in accordance with the Arbitration Rules.
    • The decision of the arbitrator shall, in the absence of manifest error, be final and binding on the Parties.
    • This clause shall not preclude a Party from applying to a court of competent jurisdiction for interim relief on an urgent basis.
    • The Parties shall treat as confidential, and not disclose to any third party, the details of the dispute submitted to arbitration, the conduct of the arbitration proceedings or the outcome of the arbitration.
    • The provisions of this clause will continue to be binding on the Parties notwithstanding the termination or cancellation of the Agreement.
    • In this clause the following words and expressions shall have the following meanings:

 

Applicable Jurisdiction	Laws of South Africa
Arbitration Location	Durban, South Africa
Arbitration Rules	The Rules of the ICC (International Chamber of Commerce)
Appointing Authority	As per the Rules of the ICC

13. CHANGE OF CONTROL
    • No actual or prospective change in the organisational structure, control or management or the shareholding of either Party shall affect the terms of the Agreement or the obligations and rights which arise therefrom.

14. ASSIGNMENT
    • Neither Party, without the other Party’s written consent, shall assign or otherwise transfer the rights and obligations created by the Agreement, in whole or in part, to another Party.
    • The provisions of clause 1 shall not apply in instances where the Company assigns its rights, in part or in full, to receive and obtain payment from the Buyer in connection with third-party funding arrangements. Any such assignment shall not detract from the Company’s obligations under the Agreement.

15. SEVERABILITY
    • The invalidity, illegality or unenforceability of any Agreement provision shall in no way affect or impair the validity and enforceability of any other terms of the Agreement.

16. NOTICES
    • Notices and communications concerning the Agreement shall only be effective if done in writing and to the address and/or contact details provided on the covering page of the Agreement. Should no address or contact details be provided in the Agreement, notices and communications will be delivered to the respective Party’s registered address.
    • Notices sent by electronic mail shall be deemed to have been received at 09.00 on the next Business Day, provided that the mail is successfully transmitted to the recipient.

17. CONFIDENTIAL INFORMATION
    • During the course of this Agreement each Party may receive from the other Party Confidential Information for the purposes of performing the Agreement, as well as other purposes in relation to the transportation, processing and delivery of the Product.
    • Both Parties hereby agree to that they will keep confidential at all times the Confidential Information received from the other Party and will not use or disclose such Confidential Information other than as permitted under this clause 17.
    • The Confidentiality obligations under this clause 17 shall remain in force for a period of three years following the termination of this Agreement.
    • A Party may only disclose Confidential Information:
      • To its employees (and employees of its Affiliates) on a need to know basis, with such persons also being bound by these confidentiality obligations;
      • To a third party if required to do so by any law;
      • To a third party, with the written consent of the other Party.
      • For legal proceedings arising from the Agreement.

18. LIMITATION OF LIABILITY
    • In no event shall the Company, its affiliates, subcontractors, and their employees and directors be liable for any indirect, incidental or consequential damages, any loss of profits, opportunities, revenues, and any reputational damage, whether as a result of breach of contract, breach of representations and warranties, tort or otherwise.
    • The following types of loss are wholly excluded: loss of profits; loss of sales or business; loss of anticipated savings; loss of or damage to goodwill; and indirect or consequential loss.
    • The Company’s total aggregate liability under the agreement shall not exceed the total price of the products in the relevant agreement, save where such liability is covered by any insurance policy held by the Company in which case the Company’s liability shall be limited to the amount successfully recovered by the company under that policy in respect of such liability.
    • The Company shall not be liable to the buyer or be deemed to be in breach of the agreement by reason of any delay in performing, or any failure to perform, any of the company’s obligations in relation to the products, if the delay or failure was due to a force majeure.

19. HONEST AND RESPONSIBLE BUSINESS
    • The Company is committed to providing a supply chain solution that does not adversely impact the global supply chain or the communities in which it operates. Accordingly, the Company expects all business partners to uphold honest and responsible business practices in line with the standards and policies set forth by the Company, which can be provided upon request or retrieved via https://puretradeafrica.com/category/documents/.
    • The Buyer shall notify the Company in writing of any suspected infringements of any of these standards and policies, by any person or entity, in relation to the performance of the Agreement.

20. MODIFICATIONS AND AMENDMENTS.
    • Any modifications and/or amendments of the Agreement, including of this clause, shall be valid only if made in writing and signed by both Parties, whereas the signed documents can be exchanged physically or electronically.

21. COMPLIANCE WITH LAWS AND TRADE CONTROL.
    • The Buyer undertakes that in connection with the use of the Products (including end use thereof) and the performance of the Agreement, the Buyer and those under its control shall comply at all times with all applicable laws, rules and regulations of all relevant jurisdictions, including those relating to product safety laws and to the export or import of goods including economic sanctions or embargos imposed by the United Nations and other international and national bodies (hereafter collectively the “Regulations”). The Company is relieved from its supply/performance obligations in case these would constitute an infringement of such Regulations.

22. THIRD PARTY RIGHTS.
    • Unless it expressly states otherwise, no provision of this Agreement constitutes a stipulation for the benefit of a third person (ie a stipulatio alteri) which, if accepted by the person, would bind any Party in favour of that person.

23. GOVERNING LAW
    • The construction, validity and performance of the Agreement 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 the Republic of South Africa.