General terms and conditions applicable to the supply of Fuelex commercial fuels products and services in South Africa.
In the absence of any Supply Agreement which has been signed on behalf of Fuelex and the Buyer, all Products and Services are supplied subject to Fuelex’s General Terms and Conditions of Supply detailed below and (where relevant) the Delivery Promise (together this ‘Agreement’).
Without limitation, placing an order (which is subsequently accepted by Fuelex) and/or lifting and/or accepting the Product shall signify acceptance of this Agreement and shall override any other terms or conditions put forward by the Buyer. To the extent of any inconsistency between this Agreement and any other agreement signed by duly authorised representatives of Buyer and Fuelex, the terms of the latter agreement shall apply.
This Agreement shall apply only to all orders and supply of Products or services between Fuelex and the Buyer and shall be construed as conferring an ongoing relationship or term contract between the Buyer and Fuelex. Fuelex has no obligation to accept any order from the Buyer and the Buyer has no obligation to place orders with Fuelex. Fuelex reserves the right to recover any loss it suffers as a result of the Buyer cancelling or amending an order after it has been submitted to and accepted by Fuelex.
In this Agreement: –
“Agreement” means the terms and conditions contained here unless formally agreed and confirmed in writing by Fuelex
“Affiliate” means a company which directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement. For this purpose, control means the direct or indirect ownership of in aggregate fifty per cent or more of voting capital;
“Buyer” means the purchaser of the Products and/or Services offered by Fuelex. “Product/s” means fuels sold by Fuelex; “Services” means the services offered by Fuelex from time to time under this Agreement.
“collect”, “deliver” or “’lift” includes procure to be collected, delivered or lifted and the term collection, delivery or lifting shall be construed accordingly;
“Delivery Promise” means Fuelex’s brochure (as may be updated and issued to the Buyer from time to time) relating to supply of the Products and setting out details of such matters as ordering processes, delivery receipt, minimum order size, load premia and charges, and discounts;
“Product” means all present and future oil products and/or compounds manufactured and sold by Fuelex under this Agreement
“Fuelex Group” means Fuelex and its Affiliates;
2.1 Fuelex may change any method of payment agreed by it by:
2.1.1 not less than one month’s notice; or
2.1.2 summary notice which may be given upon any default in prompt payment in accordance with the other provisions of this Agreement.
2.2 If any delivery, collection or lifting of Product is made to or by any Affiliate of the Buyer (whether or not such delivery is made knowingly by Fuelex to one of the Buyer’s Affiliates) or delivery by Fuelex is to any depot or location agreed between Fuelex and Buyer, it shall be deemed to be a supply of Product to the Buyer and the Buyer shall at all times remain liable to Fuelex under the terms of this Agreement in respect of such supply and delivery. Notwithstanding the above, Fuelex may submit the invoice to and accept payment in whole or in part from that Buyer Affiliate and no such submission or acceptance shall extinguish, limit or otherwise affect Fuelex’s right to recover from the Buyer or the Buyer’s liability to pay the price for all Product supplied or to be supplied under this Agreement except to the extent of payments actually received by Fuelex. Every Buyer Affiliate shall be the agent of the Buyer to receive invoices in respect of deliveries made to that Affiliate.
2.3 Fuelex may at any time withhold and set off any sum due from Fuelex to the Buyer against any sum due from the Buyer or any of the Buyers Affiliates to Fuelex under this Agreement or otherwise and for the purpose of this clause the price of all Products supplied under this Agreement is due on delivery.
2.4 If at any time the reliability or the financial responsibility of the Buyer (or of any guarantor or other person furnishing security in support of the Buyer) should, in Fuelex’s opinion, be or become impaired or unsatisfactory or should the Buyer exceed its credit limit, then Fuelex may do any one or a combination of the following:
2.4.1 require advance cash payment for any future deliveries;
2.4.2 require other security satisfactory to Fuelex in respect of each or any delivery, collection or lifting or any proportion thereof;
2.4.3 withhold any delivery or refuse collection or lifting and refuse access to Fuelex’s premises until such payment or security shall have been received by Fuelex or the overdue amount has been received; terminate this Agreement with immediate effect by giving notice in writing if the Buyer refuses to pay in advance or to provide security within a period of 7 days after such demand is made.
2.5 Fuelex will notify the Buyer in writing of the amount of the Buyers credit limit (inclusive of VAT) following a request by the Buyer or if Fuelex deems it necessary. The credit limit may be reduced or withdrawn by Fuelex at its sole discretion at any time and without prior notification to the Buyer. Buyer acknowledges that Fuelex’s withholding or termination of credit privileges does not constitute a constructive termination of this Agreement, nor does it relieve either party of any duties or obligations under this Agreement.
2.6 Time shall be of the essence in relation to all payment or repayment terms in this Agreement and any variations to those terms. If the Buyer fails to make any payment under this Agreement on the date it falls due then, Fuelex may terminate this Agreement with immediate effect at any time by notifying the Buyer in writing.
2.7 Without prejudice to Clause 2.6 above, if any payment for Product is not made by the due date Fuelex shall reserve the right, at its absolute discretion to carry out any one or a combination of the following:
2.7.1 recover Product and its costs in so doing;
2.7.2 require advance cash payment for any future deliveries and/or suspend deliveries;
2.7.3 require other security satisfactory to Fuelex in respect of each or any delivery, collection or lifting or any proportion thereof;
2.7.4 maintain an action for the price and/or damages;
notwithstanding that title in Product has not passed to the Buyer.
2.8 Interest is payable by the Buyer at the rate of 7% in respect of all sums which remain unpaid to Fuelex after the due date for payment.
2.9 If at any time a difference of opinion arises between the Parties as to the amount payable by Buyer to Fuelex for any Product delivered or deliverable or lifted under this Agreement or as to any other charges, Fuelex may suspend all deliveries/ liftings of Product until the difference of opinion is settled to the satisfaction of Fuelex. Fuelex is not obligated to compensate or otherwise make up deliveries/ liftings so suspended
2.10 If at any time, payment of the whole or any part of any amount owed to Fuelex by the Buyer is not made by the due date for payment, all amounts then owing by the Buyer to Fuelex, and any amount that has not yet become due in respect of deliveries made before the relevant due date, shall become immediately payable by the Buyer to Fuelex.
3.1 Subject to Clause 13.4 below, prices notified by Fuelex are inclusive of all taxes, imports and duties leviable by any authority in ___________ in each case prevailing at the date of delivery, collection or ex‑rack lifting.
3.2 The Buyer warrants and undertakes that the Products supplied under this Agreement will not be used in contravention of applicable customs and excise or such other applicable laws
3.3 The Buyer warrants and undertakes that it shall be liable to Fuelex for Buyer’s and Buyer’s customers’ compliance with relevant customs or petrol tax regulations as well as for the procurement of and compliance with the required public permits and that should permits, in particular for a preferential delivery regarding tariffs and/or taxes, be revoked or fail to be issued, then Fuelex shall be authorised to adjust the purchase price accordingly.
4.1 Product shall be delivered to the Buyer or procured to be delivered within 24 hours day of minimum and/or maximum quantity as may from time to time be prescribed reasonably by Fuelex, and the Buyer will request deliveries in accordance with this Agreement and shall allow reasonable time for Fuelex or the contractors engaged by Fuelex to deliver. To the extent that the Buyer requires Fuelex to engage a contractor to effect carriage of the Product upon its uploading on the road tank wagon or the craft, vessel, wagon, or car as stipulated under clause 6.1 to the Buyer’s place of destination, notwithstanding any provision here, Fuelex shall do so, for all purposes, as duly authorised facilitator and representative of the Buyer and on the Buyer’s behalf.. Failure by the Buyer to meet the terms of the Agreement could result in suspension of deliveries by Fuelex.
4.2 The Buyer warrants and undertakes:
4.2.1 that at each bulk delivery point suitable bulk storage installation and safe facilities will be provided (including assistance and suitable hose connections) which comply with all applicable legal and regulatory requirements for Product delivery without risk to property and persons;
4.2.2 that for each delivery there will be sufficient ullage for Product at the delivery point (and, in the case of Petroleum Spirit, that the Buyer will procure certification to this effect) and that any connecting hose will be properly and securely fitted to the filling point for the safe and proper reception of the quantity of Product ordered. The Buyer accepts responsibility for any loss, leakage or contamination of any Product deliverable under this Agreement which may occur at the delivery point as a result of a breach by the Buyer of its obligations under this Agreement; if there is an LOB the buyer will be liable for the costs in the amount of a fair compensation in relation to fixed and variable cost downtime as determined from time to time by Fuelex.
4.2.3 that for each delivery the Buyer will procure that a competent person is present to ensure compliance with Clause 4.2.2 above unless Fuelex has specified that driver controlled deliveries will be carried out at the delivery point concerned;
4.2.3 that in the case of highly inflammable products and where otherwise applicable, it will observe strictly any regulations laid down by the Government or other competent authority in respect of the avoidance of smoking, naked lights, fires, stoves or heating appliances of any description in the vicinity of any Product storage facility and the fill, dip and vent pipes connected thereto; and
4.2.4 that all storage installations will be clearly and correctly labelled with the description of the grade of Product stored and the tank capacity.
4.3 Fuelex reserves the right to effect delivery by means of a contractor and to refuse to deliver using public or private roadways which it considers unsafe.
4.4 Fuelex will provide its road tank vehicles with 9 metres of hose for the purposes of bulk discharge of Product. Additional lengths of hose will be provided by Fuelex only by special arrangement and at an additional charge.
4.5 Ex‑rack sales or other collection of Product by the Buyer shall be subject to Fuelex’s prior agreement. In respect of such sales:
4.5.1 the Buyer shall lift or collect or procure lifting or collection from Fuelex’s premises on such days and between such hours as may from time to time be reasonably prescribed by Fuelex and in either case in accordance with Fuelex’s operating and scheduling procedures;
4.5.2 the road tank wagons used by or on behalf of the Buyer shall meet Fuelex’s safety and operational standards and undergo inspection as required at Fuelex’s premises;
4.5.3 the drivers of such road tank wagons shall undergo training in the systems, operations and procedures of Fuelex’s premises and as required; and
4.5.4 Fuelex shall have the right to reject any such road tank wagon if it does not meet the relevant safety or operational standards of Fuelex’s premises. Fuelex shall not be liable for any costs, losses or expenses the Buyer may incur as a result of such rejection.
4.6 Any delivery, lifting or collection made under this Agreement is subject to such terms and conditions of sale as are specified on the back of the delivery ticket relating to such delivery, lifting or collection. In the event of any conflict between the provisions of this Agreement and the said terms and conditions of sale, the provisions of this Agreement shall prevail.
5.0 Fuelex’s Principles and Policies
5.1 The Fuelex Statement of General Business Principles (“FGBP”) and the fuelex’s Health, Safety and Environment policy (“HSEP”) are displayed on Fuelex’s website www.fuelex.co.za. The Buyer and its officers, employees and agents shall use their best endeavours to ensure that their performance of this Agreement shall not cause Fuelex or its Affiliates to be in breach of the FGBP or HSEP.
5.2 Buyer and Fuelex will base their relationship on mutual respect, honesty, and integrity. Neither party may accept or solicit gifts, entertainment, or other social favours to influence business decisions. Courtesies of nominal value and social invitations customary and proper under the circumstances are not unethical as long as they imply no business obligation whatsoever or do not involve significant or out-of-the-ordinary expense.
6.0 Risk and Title
6.1 The risk in Product delivered under this Agreement shall pass to the Buyer as follows:
6.1.1 In the case of transport of the Buyer’s road tank wagon (or wagon operated by the carrier nominated by the Buyer or on its behalf) when on discharge it passes onto the wagon through the hose connection of the storage tank, container, receptacle or fill line (as the case may be) of Fuelex loading facility;
6.1.2 In the case of barrel, drum or other package deliveries, the risk in any Product contained in any such packages shall pass to the Buyer at the time of loading the package at Fuelex loading facility onto the craft, vessel, wagon, or car operated by the Buyer (or the carrier nominated by the Buyer or on its behalf) for delivery of such package and, in the case of ex‑rack sales of other collection of Product, when the Product passes the hose connection at Fuelex loading facility or is otherwise loaded onto the Buyer’s road tanker at the loading rack located at such facility.
6.2 Title to Product supplied shall pass to the Buyer simultaneously with passing of risk (subject to payment of all debts due and owing by the Buyer in accordance with the payment terms agreed with Seller) as long as the Buyer is not in default of this Agreement.
6.3 The Buyer shall not provide the Product as a security or collateral nor pledge it or use it as a lien.
6.4 Until such time as title in Product passes to the Buyer, the Buyer shall hold Product as Fuelex’s fiduciary agent and bailee and shall keep Product properly protected and insured and identified as Fuelex’s property.
6.5 When any payment is overdue Fuelex will be entitled to enter the Buyer’s premises and secure or uplift and remove Product supplied. All costs and expenses reasonably so incurred by Fuelex shall be paid by the Buyer.
7.0 Product Discrepancy
7.1 In the event of any claim by the Buyer of short delivery or non‑receipt Fuelex will investigate the circumstances if the Buyer notifies Fuelex in writing within 10 days of the delivery date or expected delivery date of the consignment concerned.
7.2 Fuelex will not be liable to rectify damaged Product/short deliveries notified outside the time limits referred to in Clause 7.1 above.
7.3 Bulk fuel returns will only be accepted by Fuelex if there has been a contamination of Product by Fuelex or its agents. All return requests must be submitted in writing and agreed by Fuelex in writing before returning to the authorized depot. The Buyer will incur a return order surcharge where the contamination arose as a result of the Buyer or its agents default. In case of mismatch of specifications or short delivery being established, the sole remedy of the Buyer shall be replaced or supplied by Fuelex for the deficient amount as the case may be.
Fuelex may at any time change the grade, specifications, characteristics, delivery package, brand name, or other distinctive designation of any Product, and such Product as so changed shall remain subject to this Agreement. Fuelex reserves the right at any time to discontinue supplying any such Product covered by this Agreement or to substitute a different Product or grade(s) of Product. In the event any substitution is made, any maximum and minimum quantities applicable to the substituted Product shall apply to such replacement Product or grade(s) of Product and the price shall be Fuelex’s applicable price for such replacement Product. Thereafter, Fuelex shall be relieved of any further liability or obligation to furnish the discontinued Product or grade(s) of Product. For the avoidance of doubt, it is understood between the Parties that Fuelex may, at its sole discretion, change the shape, size or format of any packaging or labels at any time and that such change is not considered to be a change of quality. Fuelex may at its option notify Buyer in advance of such change.
9.0 Measurement and quantity
Fuelex shall be responsible for measurement of the quantity of Product delivered for the purposes of preparing accounts which shall be conclusive and binding in the absence of manifest error on the part of Fuelex. It is the responsibility of the Buyer to check that the Product has been fully discharged from the delivery vehicle by checking the sight glasses on the delivery vehicle or the vehicle delivery meter (as the case may be). Fuelex does not accept any responsibility whatever for discrepancies in the Buyer’s tanks, dip rods or other measuring devices or any discrepancies arising there from. The quantity of bulk Product actually delivered may vary by up to 1% (either way) from the quantity ordered by the Buyer. Fuelex will charge the price for the quantity specified on loading note but any load concessions agreed with the Buyer for which the order might otherwise have qualified will still be applied.
10 Health, Safety and Environment
10.1 Fuelex is committed to the promotion of health and safety and to proper regard for the environment in respect of all its activities.
10.2 The Buyer shall ensure that all installations and equipment used with Product is installed, maintained and operated in such manner to avoid accidents which could have reasonably been anticipated and shall do everything necessary to prevent Product, used or unused, to enter drainage, sewage systems, water courses or soil. The Buyer is required to co‑operate, so far as it can reasonably, with Fuelex in implementing measures designed to improve health, safety and environmental performance.
11 Fuelex Trade Marks, Specifications and Formulations
11.1 In this clause the ‘Fuelex Trade Marks’ shall mean the name ‘Fuelex’, Fuelex (PTY) LTD, and/or any trade mark, trade name, distinctive colour scheme or other marketing indicia or item of intellectual property owned by Fuelex or any of its Affiliates and “Branded Materials” shall include any advertising materials, signs or other items or materials bearing Fuelex Trade Marks.
11.2 The Buyer shall use Fuelex Trade Marks and Branded Materials only in such a manner as Fuelex may direct from time to time and nothing in this Agreement shall give the Buyer any proprietary interest in or title, claim or right whatsoever to any of Fuelex Trade Marks or Branded Materials.
11.3 In the case of supply in bulk nothing in this Agreement, except as may be expressly provided, shall be deemed to confer any right on the Buyer to apply any of Fuelex Trade Marks to any Product or to use Fuelex Trade Marks in relation to the Product. This shall apply accordingly to Products repackaged by Buyer.
11.4 Buyer shall promptly notify Fuelex of any actual, threatened or suspected infringement or wrongful use which comes to its notice, of any of the Fuelex Trade Marks relating to the Products and shall provide Fuelex or the Fuelex Trade Mark owner or other relevant Affiliate with such assistance as Fuelex or any such Affiliate may reasonably require in attempting to put to an end such infringement or wrongful use. Fuelex shall reimburse Buyer for any reasonable out-of-pocket expenses incurred by Buyer in providing such assistance provided that such expenditure has been approved in advance by Fuelex. For the avoidance of doubt, Fuelex or the Fuelex Trademark owner shall, in its absolute discretion, determine what action, if any shall be taken.
11.5 Buyer agrees that any unbranded Product including that purchased in bulk will be sold by Buyer in the form in which it is received and, in particular, without addition, adulteration, alteration or contamination of any kind whatsoever. If the specification or formulation of the Product is changed in any manner after delivery by Fuelex, Fuelex shall not be responsible in any manner whatsoever.
12 Liability and Indemnity
12.1 The Buyer will indemnify, defend, and hold harmless Fuelex, its Affiliates, directors and employees, against any liability (whether strict, absolute or otherwise) for any claim, loss, damage, cost, and expense and other costs of litigation on account of any injury, disease or death of persons (including, but not limited to, the Buyer’s employees) or damage to property (including, but not limited to, Buyer’s property) arising out of or in connection with:
(i) the Buyer’s unloading, storage, handling, sale, use or disposal of the Product except to the extent caused by Shell’s negligence; and/or
(ii) the Buyer’s negligence or any failure by the Buyer to comply with any of its obligations under this Agreement; and/or
(iii) any failure by the Buyer to disseminate safety and health information as provided in Clause 10, Health, Safety and Environment.
12.2 Neither party shall be liable to the other party under or in connection with this Agreement for the other party’s 1) loss of actual or anticipated profit 2) losses caused by business interruption 3) loss of goodwill or reputation 4) or any indirect, special or consequential cost, expense, loss or damage EVEN if such cost, expense, loss or damage was reasonably foreseeable or might reasonably have been contemplated by the parties and whether arising from breach of contract, tort, negligence, breach of statutory duty or otherwise.
12.3 Neither party excludes or limits its liability for fraud or death or for personal injury arising from its negligence or any liability to the extent the same may not be excluded or limited as a matter of law. This clause shall not affect the indemnities given in this Agreement.
12.4 Notwithstanding anything to the contrary in this Agreement, Fuelex’s total liability to the Buyer in respect of losses or claims arising under or in connection with this Agreement in respect of an event or a series of related events, whether as a result of breach of contract, breach of warranty, breach of statutory duty, negligence or other tort, shall not exceed the purchase price of the relevant delivery or lifting of the Product (at the time of the delivery or lifting), or if the above breach of contract consists of a failure to deliver, the price of the Product had it been delivered and invoiced.
12.5 Any indemnity or relief from or limit of liability in favour of Fuelex or Buyer shall extend to and apply for the benefit of their respective Affiliates, directors, and employees.
13 Force Majeure
13.1 Neither Fuelex or the Buyer shall be responsible for any failure to fulfil any term or condition of this Agreement if fulfilment has been delayed, hindered or prevented by a “Force Majeure Event” meaning any circumstances whatsoever whether in existence before, which are not within the reasonable control of Fuelex or the Buyer as the case may be including without limitation any strike, lockout or labour dispute to which Fuelex or the Buyer as the case may be is or may be a party (whether or not the settlement thereof shall be at the discretion of the party in question) or the apprehension of any such strike, lockout or labour dispute or any Government order or restriction or compliance with any order or request of any national, supra‑national, provincial, port or any other public authority or any person purporting to act for such authority or by failure, total or in part, any of Fuelex’s or Fuelex’s suppliers’ existing or contemplated sources of supply of crude petroleum, the Products or any of them, or any other petroleum products or the means of delivery thereof, howsoever such failure is caused. The parties acknowledge that without prejudice to other cases and without limitation the closure or standstill of production facilities, depots or other delivery facilities of Fuelex shall be considered a Force Majeure Event. The parties further acknowledge that an inability to pay any sums due or other economic distress shall not be a force majeure event.
The performance of any obligation arising out of any contract or arrangement by which any authority, body or person as aforesaid is entitled to require crude petroleum or petroleum products shall be deemed to be compliance with an order or request as aforesaid.
13.2 If by reason of any such circumstances or by failure as aforesaid the availability from any of Fuelex’s or Fuelex’s suppliers’ sources or contemplated sources of supply (wherever situated) of crude petroleum, the Products or any of them or other petroleum products is so curtailed or interfered with as either to delay or hinder Fuelex in or to prevent Fuelex from supplying the quantity of the Products and also at the same time maintaining in full its other business in the Products and other petroleum products (whether produced and whether for delivery at the same place or places as is or are specified in this Agreement) then Fuelex shall be at liberty to withhold, reduce or suspend deliveries under this Agreement to such extent as Fuelex may in its absolute discretion think fit and Fuelex shall not be bound to acquire by purchase or otherwise additional quantities from other suppliers.
Any additional quantities which Fuelex does acquire from other suppliers or from alternative sources may be used by Fuelex at its complete discretion and need not be taken into account by Fuelex for the purpose of determining the extent to which it is to withhold, reduce or suspend deliveries under this Agreement.
13.3 The Buyer shall be free to purchase from other suppliers any deficiencies of deliveries caused by the operation of this clause but Fuelex shall not be responsible for any additional cost thereby incurred by the Buyer.
13.4 Fuelex reserves the right to increase the price charged for any Product (whether the price was originally determined by reference to Fuelex’s prices or separately agreed in writing) if there is any increase in the costs incurred or to be incurred by Fuelex in making the relevant supply due to factors which are beyond the control of Fuelex. These factors include without limitation any increased taxes, duties, the making of any law, order bye-law or other regulation or the occurrence of any currency fluctuation affecting the cost of any imported items.
13.5 Fuelex reserves its rights to in times of supply constraints ration deliveries at the sole discretion of Fuelex and in a manner deemed fair by the sole discretion of Fuelex management.
14.1 Without prejudice to any other rights or remedies, either party shall be entitled to terminate this Agreement summarily by written notice to the other if the other has committed a material breach of any of its obligations under this Agreement or any other agreement between the Buyer and Fuelex and the other party has failed to remedy such breach within 14 days of a notice having been served on it by the first party specifying the breach and requiring its rectification.
14.2 Without prejudice to any other rights or remedies Fuelex shall be entitled to terminate this Agreement summarily on written notice if the Buyer:-
14.2.1 is an individual, and he is declared bankrupt, or a receiver or manager is appointed in respect of his assets, or a receiving order is made against him, or he enters into any composition or arrangement with creditors generally, or he is unable to pay his debts as they fall due; or
14.2.2 is a company and it makes a composition or arrangement with its creditors, or a winding‑up order is made or a resolution for voluntary winding‑up is passed in respect of it, or a provisional liquidator, receiver, administrator or manager of its business or undertaking is appointed, or a petition is presented applying for an administration order to be made in respect of it, or it is unable to pay its debts as they fall due or possession is taken of any of its assets on behalf of the holders of any debentures of such company which are secured by a floating charge, of any property comprised in or subject to the floating charge; or
14.2.3 fails to pay any sum due under this Agreement by the date it is due or in the circumstances set out in 2.4.4 above; or
14.2.4 is a company and there is a change of ownership of its shares resulting in 50 per cent or more of the issued share capital of the company becoming legally or beneficially the property of a new owner.
14.3 On termination of this Agreement:-
14.3.1 all sums owed to Fuelex shall become immediately due and payable and Fuelex shall be entitled to recover and resell Product the property in which remains vested in Fuelex and Fuelex may enter upon the Buyer’s premises for that purpose; and
14.3.2 any and all obligations of Fuelex hereunder for the sale of Product to Buyer shall cease; and
14.3.3 orders for Product which have been accepted but have not been fulfilled by Fuelex shall be cancelled at Fuelex’s option without any liability on behalf of Fuelex.
14.4 If written notice of termination has been given by either Fuelex or Buyer, Fuelex may require cash in advance for deliveries of Product during any interim period between the time of such notice and the termination date provided in the notice.
14.5 Where the Buyer is a partnership, reference in this clause to the Buyer shall mean any one or more of the partners.
14.6 Upon termination of this Agreement, the rights and obligations of the parties under this Agreement shall terminate and be of no further effect, Clauses 2, 3, 6, 7, 11-24 here shall survive termination and remain in full force and effect.
15.1 This Agreement shall not be assigned or transferred in whole or in part by the Buyer directly or indirectly and the Buyer shall not subcontract any of its obligations under this Agreement without the prior written consent of Fuelex.
15.2 Fuelex shall be free to assign this Agreement either in whole or in part or to sub-contract any of its obligations under this Agreement to a third party without the consent of the Buyer.
15.3 A Party assigning this Agreement shall notify the other Party in writing as soon as practicably possible thereof.
No delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall affect that right, power or remedy or operate as a waiver of it. The single or partial exercise of any right, power remedy provided by law or under this Agreement shall not preclude any other or further exercise of it or the exercise of any other right, power or remedy.
17 Amendment or Modification
No amendment or modification of any of the provisions of this Agreement or the rights or obligations of the parties shall be valid unless it is agreed in writing by and is signed on behalf of each of the parties, and specifically refers to this Agreement.
If at any time any provision of this Agreement is or becomes illegal, invalid, void or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Agreement in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Agreement in any other jurisdiction shall not be affected.
19 Status of Agreement
19.1 This Agreement shall govern the supply of all Products by Fuelex to the Buyer to the entire exclusion of any other terms and conditions upon which the Buyer purports to acquire them whether contained in the Buyer’s order or otherwise.
19.2 Except to the extent specified herein to the contrary this Agreement contains the entire agreement between the Buyer and Fuelex in relation to the subject matter hereof and supersedes all other agreements, documents or pre-contractual statements oral or written between the Buyer and Fuelex in relation to such subject matter unless a more formal agreement is entered into by the parties.
19.3 Each party agrees that in entering into this Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than in the case of fraud or as expressly set out in this Agreement.
21.1 Any notice under this Agreement shall be in English and in writing delivered personally or by courier, or by pre-paid first class mail or by special delivery, registered post or recorded delivery or by fax (and confirmed by pre-paid first class mail, placed in the post on or on the day after the date of transmission) to the address available on the records of Fuelex
21.2 Any notice given pursuant to this Agreement shall be deemed to have been given or received in the case of despatch by prepaid first class mail on the fourth Working Day from and including the date of posting or in the case of dispatch by pre-paid special delivery, registered or recorded post on the second Working Day from and including the date of dispatch and on the Working Day delivered (or the next following Working Day if delivery is on a non-Working day or after 5pm on a Working Day) in the case of actual delivery to the address available on the records of Fuelex. Any notice sent by fax and confirmed by pre-paid first class mail shall be deemed to have been given the next Working Day following the day of transmission.
21.3 In addition to the methods of delivery referred to above, a notice relating to this Agreement may be sent by e-mail to the e-mail address available on the records of Fuelex and shall be deemed to have been received on the date that receipt is acknowledged by the addressee provided that any notices relating to any breach or termination of this Agreement should be sent by one of the other methods referred to in Clause 21.1 above and shall not be deemed received if only sent by e-mail.
21.4 A party may change its notice details on giving notice to the other party of change in accordance with this clause 21. The notice shall only be effective on the date falling three (3) clear Working Days after the notification has been received or such later date as may be specified in the notice.
21.5 The provisions of this clause 21 shall not apply in relation to the service of any document in connection with litigation proceedings, claims, suits or actions.
22.1 Fuelex and Buyer will not, without the prior written consent of the other, either (a) disclose the other’s proprietary or commercially sensitive information (“Confidential Information”) in furtherance to anyone other than those officers, employees, agents, or subcontractors who need to know it in connection with this Agreement and have agreed to be bound by these obligations of confidentiality or (b) use the other’s Confidential Information for any purpose other than in furtherance of this Agreement.
22.2 For the purposes of this Agreement, all data, maps, reports, drawings, specifications, records, technical information, and computer programs/software concerning Fuelex’s operations, processes or equipment which are provided by Fuelex and/or acquired or handled by Fuelex in connection with this Agreement shall be deemed Confidential Information of Fuelex.
22.3 Neither Party, its employees, Affiliates, agents, and subcontractors shall prepare photographs, articles, press releases, or speeches about the existence of, scope of, or transactions to be performed under this Agreement or any generalities or details about Shell’s facilities or business plans without the other party’s prior written consent. Applications for approval must be submitted to the other Party in writing and outline the intended uses thereof.
22.4 Neither Buyer nor Fuelex will use the name or trademark of the other in any material prepared for public announcement, general publication or distribution to any third party without obtaining prior written permission of the other Party. Notwithstanding the foregoing, either Party may distribute a copy of this Agreement to any subsidiary, Affiliate, agent, or subcontractor for the purpose of performance hereunder.
23 Governing Law and Jurisdiction
This Agreement shall be governed by South African law and the parties submit to the non-exclusive jurisdiction of the South African Courts.
24.1 Fuelex may use the information provided by the Buyer and/or the person who signs this Agreement (hereinafter “Applicant”) (1) to operate the Buyer’s account and any agreement with Fuelex, (2) to confirm, update and enhance Fuelex’s records; (3) to establish the Buyer and/or Applicant’s identity; (4) to make a company search; (5) for general statistical analysis; (6) to consider the Buyer and/or Applicant’s criminal convictions or alleged commission of an offence; and (7) to assess the Buyer’s and/or Applicant’s credit status (for this purpose, credit scoring techniques will be used and checks may be carried out with a credit reference agency and a fraud detection system, which will maintain a record of any such enquiry).
24.2 Fuelex may disclose data relating to the Buyer and/or a Buyer’s account(s) to (a) a credit reference agency where it may be accessed by other financial institutions to assist assessment of any application for credit made to Fuelex and for debt tracing and fraud prevention; (b) to any agent or sub-contractor of Fuelex performing services in connection with the Buyer’s account; (c) to any person to whom Fuelex proposes to transfer any of its rights and/or duties under this Agreement; (d) to any guarantor or person providing security in relation to Buyer’s obligations under this Agreement; (e) as required or permitted by law or any regulatory authority; (f) as otherwise considered necessary or appropriate by Fuelex.
24.3 Without prejudice to any other provisions for termination contained in this Agreement, all monies due and owing by the Buyer to Fuelex shall become due and payable forthwith if Fuelex discovers that any information provided by the Buyer to Fuelex is materially inaccurate or on any short deliveries.