Terms and Conditions of Sale

THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL APPLY TO ALL CONTRACTS OF SALE ENTERED INTO BETWEEN THE PARTIES TO THE EXCLUSION OF ANY OTHER CONDITIONS IMPOSED BY THE PURCHASER UNLESS AGREED TO IN WRITING BY THE COMPANY

1. DEFINITIONS

1.1 “The Company” shall mean Mineral-Loy (Proprietary) Limited.

1.2 “The Completion Date” means the date on which the Purchaser’s order is delivered in full by the Company, rendering the Company’s duties in terms of these Terms and Conditions as well as any sale transaction complete.

1.3 “Due Date” shall mean 30 calendar days from the date reflected on the Company’s statement as delivered to the Purchaser, whether the statement is delivered via email, normal post or facsimile.

1.4 “Goods” shall mean the Goods to be supplied by the Company to the Purchaser.

1.5 “Party / Parties” shall mean the Company and / or the Purchaser as provided by context.

1.6 “Purchaser” means the person, persons, people, entity, partnership, close corporation, trust or company placing an order for the purchase and delivery of Goods with the Company, which order is duly accepted by the Company in terms of the conditions set out herein.

1.7 “Terms and Conditions” shall mean the terms and conditions as outlined in these “Terms and Conditions of Sale” of the Company, including any and all consensual amendments and/or variations as provided for in terms hereof.

2. ORDERS

2.1 All orders are accepted subject to the terms and conditions set out herein and all orders remain strictly subject to the availability of the raw materials or the Goods.

2.2 Acceptance of the Purchaser’s order by the Company shall be given in writing in the prescribed form of acceptance from time to time, which acceptance includes both electronic mail (“e-mail”), letter (post) and telefacsimile (“fax”). In the event that an order is received by the Company from the Purchaser telephonically, then the Company will be deemed to have accepted the order upon dispatch of the Company’s sales order to the Purchaser, which order will confirm the price and quantity of the Purchaser’s order, subject to a 24 hour right to amend by the Purchaser.

2.3 No variation, addition to, or cancellation, of any of these Terms and Condition at the instance of the Purchaser shall be of any force and effect unless such action is reduced to writing, signed by the Purchaser and formally accepted in writing by the Company.

2.4 The Company shall have the right at any stage to demand that the Purchaser provides an adequate deposit and/or adequate security, the nature of which security must be acceptable to the Company, for the fulfilment of its obligations in terms of any order by the Purchaser.

2.5 In the event that the deposit or security requested in terms of clause 2.4 above is not furnished within a period of seven (7) calendar days of the Company’s demand for same then the Company shall be entitled to reject the Purchaser’s order and/or cancel any agreement of sale into which the Company may have entered with the Purchaser.

2.6 Goods are separated into two (2) categories, namely “metals and minerals” and “automotive goods”. The Goods will be sold as follows:

2.6.1 Metals and Minerals, unless stipulated to the contrary between the Parties in writing, will be sold in terms of the mass of the alloy and not the element in question; and

2.6.2 Automotive Goods, unless stipulated to the contrary between the Parties in writing, will be sold by unit (or number of unit).

3. PURCHASE PRICE

3.1 The purchase price originally quoted by the Company is the price ruling at the date of issue of the Purchaser’s order, and the Company shall have the right to alter the purchase price. In such an event the Company will notify the Purchaser in writing and such alteration of the price shall become immediately binding on the Purchaser.

3.2 All quotations in US Dollars shall be subject to Rate of Exchange (“ROE”) fluctuations, and any currency price fluctuations between the time of the Purchaser’s order and the Company’s acceptance thereof shall be borne by the Purchaser in accordance with the following currency table located at http://ws9.standardbank.co.za/research/rates_daily.html, which table shall be used for the computation of all cost calculations between the Purchaser and the Company.

3.3 Unless otherwise agreed by the Company in writing the full purchase price shall be paid in cash on the Due Date as agreed between the Parties.

3.4 Any amount not paid on Due Date shall bear interest at a rate equivalent to the maximum permissible finance charge rate allowed from time to time in terms of the National Credit Act, 34 of 2005, and having reference to the prime lending rate of the Company’s official business banking institution.

3.5 The purchase price shall be paid directly to the Company or at such other place or to such other entity as the Company may in writing nominate:

3.5.1 In South African currency, unless otherwise agreed between the Parties;

3.5.2 without any deduction or set off; and

3.5.3 Prices quoted do not include Value Added Tax, or any similar tax that may be subsequently imposed. The Purchaser shall be liable to pay such tax or taxes simultaneously with and in addition to the price at which the Goods are sold.

4. DELIVERY

4.1 The completion date for an order shall constitute an estimated and / or approximate time period for delivery only. The Company shall not be bound by any warranty or indication provided to the Purchaser in any manner relating to the completion date stipulated. The Company undertakes to take all reasonable efforts to ensure that the Goods are delivered to the Purchaser as provided for herebelow within the stipulated period (i.e. completion of the order), but if the Company does not do so the Purchaser shall have no claim against the Company arising therefrom relating to any damages the Purchaser may or may not have incurred, including, but not limited to, consequential or punitive damages resulting from the delayed completion of the order by the Company.

4.2 Unless specified and accepted by both Parties, time shall not be of the essence in respect of any order by the Purchaser or subsequent contract of sale.

4.3 If no delivery date is specified by the Purchaser, the Company undertakes to deliver the Goods as soon as it is possible and practicable to do so.

4.4 The Purchaser shall not be entitled to return any of the Goods without first obtaining the Company’s prior consent to return the Goods.

4.5 Should the Purchaser request the Company to withhold or postpone delivery of the Goods, and in the event of the Company’s agreeing thereto in writing prior to delivery, then the Company shall be entitled to charge the Purchaser, who undertakes to pay, storage costs in respect of the Goods, to the Company at a rate to be mutually agreed in each case per tonne per week (if metals and minerals) or per unit per week (if Goods are automotive in nature) calculated on the chargeable mass of such Goods or the number of units of the Goods, as the case may be.

4.6 Unless otherwise stipulated or agreed between the Parties, the risk in and to the Goods purchased shall pass to the Purchaser upon delivery, which delivery shall be construed to have been properly affected as provided herebelow:

4.6.1 In the case of delivery by rail: Upon delivery to the Spoornet authorities, even in the event that the cost of delivery by rail is paid consequently or prepaid by the Company. It is understood that in all cases Spoornet shall be deemed to be the Purchaser’s agent for the purposes of any order or contract;

4.6.2 In the case of deliveries by ship: Upon delivery to the relevant Portnet authority, it being understood that in all cases the said Portnet authority shall be deemed to be the Purchaser’s agents;

4.6.3 In the case of deliveries by road: Upon delivery either to the Purchaser, the Purchaser’s designated agent or to any “onward transporting authority” in vehicles other than those of the Company. Upon completion of loading of each respective road vehicle. It being understood in all cases that such carrier shall be deemed to be the agent of the Purchaser; and

4.6.4 In the case of deliveries by road where the Company’s vehicles (i.e. where the Company uses its own vehicles or employs the services of a transporter / logistics entity) are utilised: Upon tender of the Goods for acceptance within normal business hours at the Purchaser’s place of business or Purchaser’s other designated address.

4.7 Notwithstanding anything previously contained, no carrier shall be obliged to enter the premises of the Purchaser to enable off-loading to be affected. It is understood that should any such vehicle enter the Purchaser’s premises; then and in that event the Company and / or its employees and/or agents shall accept no liability for any damage or loss occasioned to the Purchaser or any third Party arising in any way from such entry of such vehicle or from the off-loading thereof or from any negligent act or omission of the Company and / or the Company’s employees and/or the Company’s agents during the course of entering, exiting or off-loading. The Purchaser hereby indemnifies and holds the Company harmless against liability for such damage or loss.

5. WARRANTIES / EXCLUSION OF LIABILITY

5.1 The Company does not give any warranty against defects, be they patent or latent, nor does the Company give any warranties or guarantees of any nature or make any representations whatsoever in respect of the Goods or of the Goods’ fitness / suitability for any particular purpose (whether or not that particular purpose is or could be deemed to be known to the Company) other than any warranty or guarantee that may have been expressly given in writing. The Company shall be deemed to be unaware of the particular purpose for which the Goods or any product made therefrom is required.

5.2 Before cutting, treating or in any way processing the Goods supplied against an order, the Purchaser must satisfy itself that the Goods supplied are suitable for the purpose for which they are to be used, and / or are free from any defects of whatsoever nature, and the Purchaser hereby indemnifies the Company against any claim brought against the Company by any third Party arising out of unsuitability of the Goods for any particular purpose whatsoever.

5.3 The Company shall not be liable under any circumstances whatsoever for any loss of any profit or other special damages or any indirect or consequential damages arising out of any breach by it or any of its obligations under this contract or any negligence or omission on the part of the Company or its employees and /or agents for any reason.

6. CLAIMS

6.1 Should the Purchaser allege that the Goods were defective at the date of delivery by reason of any fault or error in the quality, condition or description of the Goods, or were not in accordance with the contract, the Purchaser shall, even if it is able to substantiate such allegations, have no claim whatever against the Company unless a complaint is received in writing by the Company and the alleged defective Goods made available for the Company’s inspection within 48 (forty eight) hours of the date of delivery to the Purchaser. In the event of alleged defective automotive Goods, the Company confirms that any alleged defect must be reported within 60 calendar days of receipt of the Goods. In the event that the Purchaser fails or neglects to inspect the Goods within this period, it shall be deemed that the Goods are not defective, risk relating to the Goods shall pass to the Purchaser, notwithstanding that ownership to the Goods shall only transfer upon payment of the full Purchase Price to the Company.

6.2 Any indulgence provided by the Company in relation to the aforementioned time period shall not be deemed a waiver of the Company’s rights to demand payment for the Goods. No Goods shall be returned or accepted by the Company consequent to the 30 calendar days’ period, and the Purchaser will be remain solely liable for any defect arising consequent to the 60 days’ period of notice.

6.3 The Company accepts no liability in regard to alleged shortage in delivery unless written notice of the claim is received by the Company within 24 (twenty-four) hours after delivery.

6.3 The Company’s liability for any claims made by the Purchaser shall be limited to the value of the Goods.

7. GENERAL

7.1 In the event of any contract being concluded between the Company and a Purchaser providing for the delivery of the Company’s Goods at various stages, then each separate delivery shall be deemed to be a separate and divisible contract and the terms and conditions herein contained shall apply to each such separate delivery as if the same were the subject of any independent contract. No dispute arising from any such one delivery shall affect the balance of the contract between the Company and the Purchaser or the rights and obligations of either the Company or the Purchaser arising from prior deliveries. The Company shall have the right to claim pro rata payment in respect of each consignment delivered to the Purchaser.

7.2 Any delay by the Purchaser in any payment for the Goods delivered shall without limiting the Company’s rights to claim damages, entitle the Company to interrupt deliveries or at its option to cancel this order or any contract stemming herefrom as well as any further order or contract stemming therefrom which may have been entered into with the Purchaser. Any such delay shall furthermore entitle the Company to demand immediate payment for all amounts unpaid in respect of this or any other order or contract. The Purchaser shall not be entitled to delay acceptance of and / or payment of any draft or withhold payment under any open account pending settlement of any claim or dispute nor shall the Purchaser be entitled to claim any set off.

7.3 Notwithstanding anything herein or elsewhere contained, ownership in and to the Goods shall at all times remain vested in the Company until the Purchaser has made payment of the purchase price, VAT (or any similar form of taxation) and all charges attributable to the Goods, in full. No latitude or extension of time shall in any way violate or novate the Company’s rights hereunder. In the event of any default by the Purchaser, the Company shall, without prejudice to any other rights which may have and without notice, be entitled, on demand, to obtain return of the Goods insofar as payment for such Goods has not been made in full.

7.4 In addition, and in the event that the Purchaser is holding consignment stock on behalf of the Company, for the eventual on-sale to a third party purchaser; the ownership of such stock shall continue to vest in the Company until such time as the consignment stock-holder makes payment in full for such stock, irrespective of whether the third party purchaser has paid the Purchaser therefore. In the event that the consignment stock-holder files for insolvency, business rescue, or alternatively has a judgement taken against it for any reason, where the consignment stock may or may not be attached or become party to such legal action, the Company reserves its rights in their entirety to attend at the consignment stock-holder’s premises to uplift and collect all consignment stock owned by the Company, which stock will be credited to the account of the consignment stock-holder. All Goods sold to the consignment stock-holder are hereby expressly excluded as assets of the Purchaser until paid for in full, whereinafter ownership will transfer from the Company to the consignment stock-holder (Purchaser).

7.5 The Company shall be entitled, at its discretion, to appropriate any payment made by the Purchaser to it towards reduction of any indebtedness to it and any interest due to it in respect thereof prior to such appropriation.

7.6 The amount of indebtedness of the Purchaser to the Company at any time (including interest) shall be determined and deemed to be proved by a certificate issued under the signature of any one of the Company’s directors, whose office need not be proved. Such certificate shall be binding upon the Purchaser and shall be prima facie proof of the amount of the Purchaser’s indebtedness to the Company and shall be valid as a liquid document in any competent Court for the purpose of obtaining summary judgement against the Purchaser and such certificate shall be deemed to be sufficient particularity for the purpose of pleading or trial in action instituted against the Purchaser.

7.7 In the event that the Purchaser fails to make payment in accordance with any order and subsequent delivery of Goods by the Company, and the Company is forced to take legal action against the Purchaser to recover the money due in terms of the order or any contract of sale, the Purchaser will be liable for all legal costs incurred in the recovery of such debt on an attorney and own client scale, including all disbursements and the costs of any tracing agent appointed.

7.8 In the event of delivery by the Company or acceptance of delivery by the Purchaser being wholly or partially prevented or interfered with by any act of God, war, riot, strike, lock-out, civil commotion, fire, drought, flood, interruption of transport, act of Government, destruction or damage of premises, plant or machinery, or any other causes, whether of similar character or not, beyond the control of the Party affected, the following provisions shall have effect:

7.8.1 The Party affected shall give to the other Party immediate notice of the cause preventing or interfering with delivery or acceptance and the extent to which delivery or acceptance is prevented or interfered with and (if possible) the probable duration of the cause or prevention or interference;

7.8.2 During the continuance of the cause of prevention or interference, delivery of the unfulfilled portion of the contract shall be suspended or, in the case of partial prevention or interference, prevention or interference, reduced until the cause shall have ceased to operate;

7.8.3 Immediately once the cause of prevention or interference has ceased to operate, the Party concerned shall give notice thereof to the other Party and as soon as practicable thereafter, delivery shall be resumed in accordance with the terms of the contract;

7.8.4 In a cause of prevention or interference shall continue for more than 2 (two) calendar months from the date of commencement of such prevention or interference either Party may be given notice in writing to the other to cancel that portion affected by the delay;
7.8.5 Goods in transit at the time of any notice as aforesaid being given by the Purchaser must be accepted by the Purchaser notwithstanding such notice.

7.9. As far as the conditions contained herein may be to direct conflict with any conditions of purchase of any Purchaser or prospective Purchaser, these conditions shall have overriding preference.
7.10. That at any time before the completion of this contract in its entirely, the Purchaser shall be adjudicated insolvent or file a petition for a receiver or trustee to be appointed, alternatively, in the event that the Purchaser applies for business rescue in terms of the Companies Act (or such similar action, or otherwise be or become disabled from performing this contract, any such event shall be deemed to be a breach of this contract and the Company shall have the right (but shall not be obliged) to terminate this contract and this shall be without prejudice to any claim or claims that the Company may have against the Purchaser for breach of contract or otherwise.

7.11. The Purchaser shall not be entitled to delay acceptance and/or payment of any draft nor withhold payment under open account pending settlement of any dispute nor any insurance claim under or in connection with this contract, nor shall the Purchaser be entitle to claim any set off. All bank charges shall be paid by the Company.

7.12. Any obligation or action stated in these Terms and Conditions to be performed in writing, will be so performed if it is performed by means of any commercially recognized electronic method.

8. APPLICABLE LAW

8.1 The Laws governing the conditions of sale shall be the laws of the Republic of South Africa and to the extent that the Purchaser does not carry on business or have its registered office in South Africa, the Purchaser concedes to the non-exclusive jurisdiction of the relevant and appropriate High Court of South Africa.

8.2 In the event that the Company makes any reference to any “Incoterm” during export / import orders or contracts of sale, the Company specifically confirms that it will be making reference to the latest available Incoterms as produced and promulgated in accordance with the relevant trade laws.

8.3 These Terms and Conditions of Sale shall continue to be of full force and effect in relation to export orders or contracts of sale, notwithstanding that the Goods may be delivered outside the borders of South Africa.