1.1 All purchases by Neopak Recycling (Pty) Ltd (“NR”) of recyclable material (“Recyclable Material”) from any third party (“Supplier”) shall be subject to these standard terms and conditions of purchase (“T’s & C’s”).
1.2 These T’s & C’s shall take precedence over the Supplier’s standard terms and conditions of sale.
All Recyclable Material purchased by NR from the Supplier shall be sold to NR at the price as agreed by NR and the Supplier, in writing, from time to time.
3.1 NR shall, in accordance with section 20(2) of the Value-Added Tax Act No. 89 of 1991 (“VAT Act”), issue and provide to the Supplier a tax invoice in respect of each supply of Recyclable Material made by the Supplier to NR. The Supplier shall not issue a tax invoice in respect of any such supply.
3.2 Any debit or credit notes required to be issued in respect to any supply of Recyclable Material supplied by the Supplier to NR shall be issued by NR in accordance with section 21(4) of the VAT Act. The Supplier shall not issue any such credit or debit note.
3.3 The timing and content of all invoices, credit notes and debits notes issued by NR shall comply with the provisions of sections 20 and 21 of the VAT Act, as the case may be.
3.4 NR and the Supplier shall notify each other in writing should either of them (a) cease to be a VAT vendor; (b) change its VAT registration number; (c) dispose of its enterprise or a portion thereof; or (d) materially change its enterprise.
3.5 Payment will be made by NR on a Monthly basis (that is, invoices issued during a calendar month will be paid by NR on the first business day of the next calendar month), unless NR and the Supplier agree, in writing, that one of the following alternate payment periods shall apply:
3.5.1 Weekly: this period commences on a Wednesday and ends at close of business on the first Tuesday thereafter, with payment of all invoices issued during that period being made that Thursday;
3.5.2 Bi-weekly: this period commences on a Wednesday and ends at close of business on the second Tuesday thereafter, with payment of all invoices issued during that period being made that Thursday;
3.5.3 Monthly-on-Statement: this period coincides with a calendar month, with payment of all invoices issued during that calendar month being made on the first business day of the second calendar month thereafter; or
3.5.4 Schedule-on-Invoice: this payment period applies only in instances where the parties have specifically agreed in writing that the self-invoicing provisions referred to in clause 3.1 above shall not apply, in which event payment shall be made on the first Thursday after receipt of invoice.
3.6 Payments in terms of clause 3.5 above shall be made by NR into the Supplier’s bank account, the details of which shall be furnished by the Supplier to NR in writing.
3.7 NR shall in respect to each payment made by it provide the Supplier with a remittance advice.
4.1 All Recyclable Material supplied by the Supplier to NR shall be collected by NR (or it’s designated contractor) from the Supplier’s premises, unless otherwise agreed by the parties in writing.
4.2 The Supplier shall notify NR from time to time when Recyclable Material is available at the Supplier’s premises for collection by NR.
4.3 Delivery of Recyclable Material shall be completed once the Recyclable Material has been loaded by the Supplier’s representatives onto NR’s designated vehicle at the Supplier’s premises, at which point in time ownership and risk in the Recyclable Material shall pass to NR.
4.4 Following delivery, the Recyclable Material shall be weighed by NR on NR’s calibrated weighbridge (or on any other calibrated weighbridge designated by NR), and the mass of the Recyclable Material so determined shall, subject to clause 5.3 below, be used for purposes of determining payment.
5.1 The Supplier warrants that all Recyclable Material supplied by it to NR shall conform with the following specifications (“Specifications”):
5.1.1 Paper materials – the specifications set forth in the “South African Standard Grade Definitions for Recovered Paper (June 2015)”, issued by the Paper Recycling Association of South Africa (“PRASA”), as amended by PRASA from time to time; and
5.1.2 Other materials – the specifications published on NR’s website (www.neopakrecycling.co.za) from time to time.
5.2 All Recyclable Material supplied by the Supplier to NR shall be baled in the manner as instructed by NR, in writing, from time to time (“Baling Requirements”).
5.3 The moisture content of each load of Recyclable Material supplied by the Supplier to NR shall be tested by NR in accordance with NR’s standard moisture testing procedure (a copy of which will be made available to the Supplier by NR upon request) in order to determine its final mass for purposes of determining payment.
5.4 Should any load of Recyclable Material supplied to NR by the Supplier be found by NR not to comply with the Specifications and/or Baling Requirements, NR may, at its discretion, reject that load (or any part thereof), and all transport and other costs incurred by NR in respect to the rejected Recyclable Material shall be for the Supplier’s account. Ownership and risk in and to the rejected Recyclable Material shall revert to the Supplier upon rejection thereof by NR.
6.1 The Supplier shall comply with all applicable laws in the performance of its obligations in terms of these T’s & C’s.
6.2 The Supplier shall at its own cost effect and maintain public liability insurance in respect to legal liability for the death of or injury to any person or the loss of or damage to any property arising from or in connection with the Supplier’s performance of its obligations in terms of these T’s & C’s.
7.1 Should either party (“Defaulting Party”) commit a breach of any of its obligations in terms of these T’s & C’s and fail to remedy that breach within 10 (ten) Business Days of receiving written notice from the other party (“Non-Defaulting Party”) requiring it to do so, then the Non-Defaulting Party shall be entitled, without prejudice to any other rights and remedies which the Non-Defaulting Party may have in terms of this Agreement or in law, to either claim specific performance or cancel this Agreement and, in either case, to claim damages.
7.2 Should either party be placed under business rescue or in liquidation (whether provisional or final) or be sequestrated (whether provisional or final) or commit an act which would constitute an act of insolvency by a natural person in terms of section 8 of the Insolvency Act, 8 of 1939, then the other party shall be entitled to cancel this Agreement with immediate effect by written notice to that party.
8.1 Should any dispute arise between the parties (“Dispute”) concerning these T’s & C’s, the Parties shall endeavor to resolve the Dispute by negotiation. This shall entail that the one party invites the other party, in writing, to a meeting and that the parties, acting in good faith, then attempt to resolve the Dispute within 7 (seven) Business Days from date of the written invitation.
8.2 If the Dispute has not been resolved by negotiation as contemplated above, the Dispute shall be finally resolved through arbitration in accordance with the Rules of the Arbitration Foundation of Southern Africa (“AFSA”) by a single arbitrator agreed upon by the parties or, failing such agreement within 7 (seven) Business Days after the Dispute has been referred to arbitration, by an arbitrator appointed by AFSA.
8.3 The arbitration shall be held at Johannesburg and shall be conducted in the English language.
8.4 The decision of the arbitrator shall not be subject to appeal unless expressly agreed by the parties in writing, and if so agreed, the appeal shall be in terms of the appeal procedure and rules of AFSA.
8.5 Either party may have the award of the arbitrator, including an award on appeal, made an order of Court.
8.6 Nothing herein contained shall be deemed to prevent or prohibit a party from applying to a Court of competent jurisdiction for an interdict or urgent relief.
9.1 The parties agree to treat as strictly confidential, all confidential information and trade secrets (including the terms of this Agreement) concerning the business and affairs of each other which they undertake not to disclose or discuss with any other person without the prior written consent of the other party.
9.2 The provisions of this clause shall remain valid and enforceable in perpetuity.
10.1 Each party chooses the address stated below for all purposes under this Agreement (“Chosen Address“), whether for serving court process or documents, giving any notice, or making any other communications of whatsoever nature and for whatsoever purpose in terms of these T’s & C’s:
10.1.1 NR: Block 3, Bryanston Gate, 170 Curzon Road, Bryanston, Johannesburg, Gauteng, 2191; and
10.1.2 Supplier: its principal place of business.
10.2 Any notice required or permitted under these T’s & C’s is valid only if in writing.
10.3 Any party may by notice to the other party change its Chosen Address to another physical address in the Republic of South Africa and that change takes effect on the seventh day after the date of receipt of the notice by the other Party.
10.4 Any notice delivered by hand to the Chosen Address of a Party before 17h00 on a Business Day is deemed to have been received on the date of delivery
10.5 Despite anything to the contrary in this Agreement, a written notice actually received by a party, including a notice sent by telefax, is an adequate notice to it even though not delivered to its Chosen Address.
11.1 Clause and paragraph headings are for purposes of reference only and shall not be used in interpretation.
11.2 Unless the context clearly indicates a contrary intention, any word connoting:
11.2.1 any gender includes the other two genders;
11.2.2 the singular includes the plural and vice versa;
11.2.3 natural persons includes juristic and artificial persons and vice versa; and
11.2.4 insolvency includes provisional or final sequestration, liquidation or business rescue.
11.3 A reference to days (as opposed to Business Days) shall mean calendar days. A reference to Business Day shall mean any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa.
11.4 When any number of days, or Business Days, is prescribed, such number shall exclude the first and include the last, unless, in the case of days, the last day falls on a Saturday, Sunday, or a public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding Business Day.
11.5 A reference to an enactment is a reference to that enactment as amended or re-enacted from time to time.
11.6 The rule of interpretation that a written agreement shall be interpreted against the party responsible for the drafting or preparation of that agreement shall not apply.
11.7 The eiusdem generis rule shall not apply and accordingly, whenever a provision is followed by the word “including” and specific examples, such examples shall not be construed so as to limit the ambit of the provision concerned.
11.8 Where any term is defined within the context of any particular clause in these T’s & C’s, then, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, the term so defined shall bear the meaning ascribed to it for all purposes in terms of these T’s & C’s.
No addition to, variation or agreed cancellation of, or waiver of any right under these T’s & C’s shall be of any force or effect unless recorded in writing and signed in manuscript by or on behalf of the parties, and no form of electronic signature or electronic communication or exchange shall constitute compliance with this requirement. Notwithstanding the aforegoing, the prices payable for Recyclable Material may be revised by mutual agreement of the parties as evidenced by the exchange of electronic communications to that effect.
No relaxation or indulgence which any party may grant to any other shall constitute a waiver of the rights of that party and shall not preclude that party from exercising any rights which may have arisen in the past or which might arise in future.
Any provision of these T’s & C’s which contemplates performance or observance subsequent to any termination or expiration of the agreement between the parties shall survive any termination or expiration of the agreement between the parties and continue in full force and effect.
An approval or consent given by a party under these T’s & C’s shall only be valid if in writing and shall not relieve the other party from responsibility for complying with the requirements of these T’s & C’s nor shall it be construed as a waiver of any rights under these T’s & C’s except as and to the extent otherwise expressly provided in such approval or consent, or elsewhere in these T’s & C’s.
If any provision of these T’s & C’s is held to be void, invalid, illegal and/or unenforceable by a court of competent jurisdiction or an arbitrator or by virtue of an express provision in any legislation it shall be treated pro non scripto and severed from the balance of these T’s & C’s, and the validity, legality and enforceability of the remaining provisions of these T’s & C’s shall in no way whatsoever be affected or impaired thereby, and shall be and remain of full force and effect and binding on the parties.
Each party warrants to the other party that it has the necessary power, authority and legal right to perform all its obligations under these T’s & C’s and that same has been duly authorized by all necessary actions of its directors.
These T’s & C’s shall be construed and interpreted in accordance with the laws of the Republic of South Africa.