The boring legal stuff
1.1 'The merx' refers to any Product be it machinery or spare parts being sold.
1.2 'The premium' refers to the price to which the product is being sold.
1.3 'The Seller' refers to Equip Afrique Ltd.
1.4 'The Purchaser' refers to the person or company who is purchasing goods from Equip Afrique Ltd.
1.5 'The Parties' refers to the Seller and the Purchaser.
1.6 'Days' will refer to all calendar days excluding public holidays and Sundays.
1.7 'Closed Order' refers to a request, addressed from Purchaser to Seller, for the purchase of a specified quantity of Products.
1.8 'Order' refers to the purchaser's order for the supply of products as set out in the purchase order form or a purchaser's signed acceptance of Equip Afrique Ltd quotation.
1.9 'Comply with Terms' means, with reference to the Products, that:The Products comply with the Regulatory Standards and Operating regulations.The Products comply with:Purchaser's technical requirements, purchaser's communicated specifications.Any other provisions contained in an order form and in any other written agreements for the supply of the Products.The Products are safe, reliable and fit for their purpose once assembled into Units. This clause is applicable to only new equipment.
1.10 'Open Order' or 'Blanket Order' means a request, addressed by Purchaser to Seller, concerning the purchase of the Products, which contemplates the issuance by the purchaser of periodical delivery schedules, without an initial determination of the quantity of the Products to be supplied.
1.11 'Operating Regulations' means standards, specifications, rules, circular letters, procedures and any other similar regulations governing and detailing the performance of the agreements entered into by Purchaser and Seller, as communicated or made available at any time to seller, by means of example and not limitation through email or the Equip Afrique website.
1.12 'Product/s' means the product, including all components and sub-assemblies
1.13 Thereof sold by Seller to Purchaser pursuant to the order, including the ones for the first equipment and spare parts.
1.14 'Regulatory Standards' means any applicable provision of law or regulatory or administrative provision or administrative or jurisdictional order or decree including those currently in force or to be applied in future in the countries where the purchaser is located.
1.15 'Unit' means the machinery/other goods (including but not limited to Engines and Machines) manufactured and/or sold by the purchaser, in which the assembled Products, identified by a unique VIN Code (Identification Number is also known as "Unit Serial Number").
1.16 A reference to writing or written includes fax and email.
2.1 This agreement shall be governed by the laws in which the product is located, as amended from time to time. In the invent of any disputes arising out of or in connection with this Agreement, the Parties submit themselves to the jurisdiction of the high court within.
2.2 Clause headings in this agreement are used as a matter of convenience and will not be taken into account in its interpretation.
2.3 All monetary amounts shall be taken to be in United States Dollars (US$).
3. TERMS AND CONDITIONS
3.1 The parties have agreed to the merx and pretium.
3.2 The parties have also agreed that the seller shall provide the purchaser with the following documentation this includes the Bill of Laden, Operator's Manual, PDL Certification, Product Safety Check List, Service Records if available and Warranty Agreements if applicable regarding the purchased property but shall be conditional upon the fulfilment of the contract that is paying the full amount to the seller.
3.3 The pretium is going to be paid in through bank transfer in its full amount in United States Dollar.
3.4 The pretium will be delivered to the purchaser upon conclusion of this agreement, and a payment of 70% of the purchase price as an initial deposit and 30% shall be paid upon delivery.
3.5 The Order constitutes an offer by the purchaser to purchase Goods with these conditions:The order shall only be deemed to be accepted when Equip Afrique issues a written acceptance of the order at which date and point the contract shall come into existence ("Commencement Date").Any samples, drawings, descriptive matter or advertising issued by Equip Afrique and any description of the Products or illustrations or descriptions of the services contained in the Equip Afrique catalogues, newsletters or brochures are issued or published for the sole purpose of giving an approximate idea of the products and services described in them. They shall not form part of the contract or have any contractual force.These Conditions apply to the exclusion of any other terms that the purchaser seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.Any quotation given by Equip Afrique shall not constitute an offer and is only valid for 30 days from its day of issue.
4.1 The parties have agreed to the condition of all products being sold by the seller are going to be sold voetstoots, implying that the seller shall not be liable for any defects in the property either patent or latent.
4.2 To the extent that the products are going to be supplied in accordance with the specification provided by the Seller the Purchaser shall, however, indemnify Equip Afrique against all liabilities, costs, expenses, damages and penalties and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest penalties (cost calculated on a full indemnity basis) and all reasonable professional costs and expenses) suffered or incurred by Equip Afrique arising out of or in connection with any claim made against Equip Afrique for actual or alleged infringement of a third party.
5.1 Refer to the Equip Afrique warranty agreement.
6.1 The capitalized Headings in the agreement of sale are only for the convenience of reference and do not form part of or affect the interpretation of this document.
6.2 Dates are of the essence of this agreement.
6.3 This agreement binds the parties and their representatives in this contract of sale.
6.4 Neither Party shall be liable for a delay or failure to perform due to an event of force majeure, which shall include the acts of God, governmental action, war, civil disturbance, riot, national strike, sabotage, embargo, natural disaster, or any other unforeseen condition beyond the control of either party, not due to its negligence or wilful misconduct.
6.5 The party suffering an event of force majeure shall provide the other party with prompt written notice and shall be excused from performing its obligations under the Supply agreement for so long as such conditions persist but shall not be excused from tendering partial performance if the same is possible.
6.6 The relationship between the purchaser and the seller is that of Independent Contractors. Nothing contained in this agreement shall be construed to create a principal-agent or employer-employee relationship between the Parties. Neither party shall represent to others that it is an agent of another.
7.1 The risk in the pretium will be passed to the purchaser upon payment of the deposit fee.
7.2 The purchaser reserves the right to demand a 60% refund from the seller before the delivery is effected upon cancellation of this agreement.
8.1 The seller shall take such steps. Sign such forms and deliver to the purchaser such documents as may be necessary to enable the purchaser to register the machinery in his name after the full payment of the purchase price.
9.1 Should the Purchaser:Fail to fulfil on the due date any of the terms of this agreement,Fail to make payment in terms hereof on the due date, the seller, after havinggiven the Purchaser 7 (Seven) days' written notice to remedy such breach and the purchaser has failed to remedy such breach within such time, to either;
9.2 The Seller shall cancel the agreement without further notice to the purchaser, in which event the seller shall be entitled to retain 10% of the money paid in terms hereof, as pre-estimated damages without prejudice to the seller's other legal rights and remedies and the right to claim damages;
9.3 The Seller may claim immediate payment of the whole of the purchase price and the fulfilment of all terms and conditions hereof
9.4 In the event of the seller committing any breach of this agreement, the purchaser shall likewise notify the seller in writing of such breach and require him to remedy same within 7 (seven) days of such notice, failing which the purchaser shall mutatis mutandis have the same remedies as the seller as set out in clauses 9.2 above.
9.5 In the event that the purchaser wishes to cancel the agreement, the purchaser should communicate their intent of cancellation in written form via email.
10.1 The failure of a Party to require strict performance by the other party of any obligation thereunder shall in no way affect its right to require such performance at any time thereafter. In addition, no waiver by either party of the breach of any provision hereof shall constitute a waiver of any subsequent breach of the same provision or any breach of any other provisions.
10.2 This memorandum of agreement set forth the terms and conditions (refer to section 3.0) governing the supply of the Products. Equip Afrique undertakes to Comply with these terms and with the provisions of this agreement and to cause any Seller to agree to and comply with the general terms.
10.3 Any Seller's general conditions of sale as well as any terms and conditions set out in the offer or Order acceptance or other documents issued by the seller shall not apply to the supply of the Products. The seller expressly waives the right to assert such other terms and conditions, unless the purchaser thereof gives written acceptance.
11.1 The Order constitutes purchaser's offer to seller to purchase the Products, and is not, nor shall not be construed to be an acceptance of any offer of seller.
11.2 The Order shall be deemed accepted when received by seller, except that seller notifies purchaser about its intent to not accept the order by means of one of the following modalities and within the relevant term:I. On paper, by letter to be received by purchaser, within 72 hours from the receipt of the Order by Seller;
II. By telematics means, within 48 hours from the receipt of the Order by Seller.
11.3 The commencing of the activities for the performance of the Supply Agreement by Seller, Included but not limited to the full or partial delivery of the products, shall be deemed to constitute acceptance of the Order by Seller, even if no other formalities have taken place including any additional terms stated in the Supply Agreement, which constitute the entire agreement between the Parties for the supply of the Products and supersede any prior agreement related thereto.
12. SCHEDULING METHODOLOGY
12.1 Purchaser shall specify their Product requirements through the Equip Afrique website and email.
12.2 The Seller will commit to delivering the specified product within the agreed (between the Seller and Purchaser) delivery window.
12.3 Purchaser may request Products in excess of the firm Product quantities previously scheduled at release, and seller shall use its best efforts to fill purchaser's request for such excess Products. Within 7 days after receipt of Purchaser's Release, the seller will provide feedback to Purchaser in writing on the request for excess Products. If the request is unfillable, the seller shall inform purchaser in writing in case of no availability to increase quantities as requested.
12.4 In case Purchaser should request to reduce the firm quantities previously scheduled; the seller shall use its best efforts to fulfil the purchaser's request for such reduction. Within 7 days after receipt of the purchaser's request or release, the seller shall inform purchaser in writing in case of no availability to reduce quantities as requested.
13. SHIPPING AND PACKAGING
13.1 Seller shall, in accordance also with the Supply Chain Requirements:Pack and ship the Product, in accordance with the Equip Afrique Logistic processes;Seller shall charge separately for shipping Products to the purchaser. The seller shall ensure that the insurance is included in the provided shipping cost.
13.2 Together with the Products forming part of each order or delivery program, seller shall forward the shipping documents required by purchaser or by the applicable law.
13.3 The Seller shall notify purchaser of the availability of the Products, packaged and ready for shipment to purchaser's shipping destination, as soon as possible and in any case at least 7 days before the agreed (between Seller and Purchaser) delivery date, granting visibility.
14. PRICE AND PAYMENT
14.1 The price specified in the order is fixed. Any modification of the price specified in the order shall be agreed in writing between Purchaser and Seller. Purchaser shall perform payments in the manner and within the payment term indicated in the order. Invoices must be set, issued and managed in compliance with Supply Agreement, applicable laws, as well as with Operating Regulations and rules set forth by seller.
14.2 If seller owes purchaser any sum of money which is past due, purchaser may offset such amount against any sum of money Purchaser owes to seller.
15. DOMICILIA CITANDI ET EXECUTANDI
15.1 The parties hereby nominate their respective addresses herein before setting out as their respective Domicilia citandi et executandi which shall be addressed to which all notices or other documents in relation to this agreement may be sent and at which all processes may be served.
16.1 This Agreement of Sale constitutes the entire agreement between the parties and no modification, sanction or alteration thereto shall be valid unless in writing and signed by both parties hereto.
17. INTELLECTUAL RIGHTS
17.1 All intellectual Property Rights in or arising out of or in connection with the Products and the services (other than any intellectual rights in any materials provided by the purchaser) shall be owned by Equip Afrique.
18.1 The parties hereby consent to the jurisdiction of any competent court of law with territorial jurisdiction in the country or area in which the property will be situated.
19.1 The costs of the registration of transfer and VAT or transfer of duty will be borne by the purchaser. 19.2 The cost of drafting this agreement will be paid by the purchaser.