AFGRI Grain’s General Terms and Conditions for the Purchase of Grain

1. GENERAL PROVISIONS
1.1 WEIGHT ADJUSTMENT UNDER THIS CONTRACT SHALL BE MADE IN ACCORDANCE WITH THE SILO OWNER AND STANDARD INDUSTRY PRACTICES.
1.2 THE WEIGHT, MOISTURE, FOREIGN MATTER AND GRADE DETERMINATION OF THE COMMODITY AS INDICATED ON THE SILO RECEIPT AT THE PLACE OF DELIVERY, OR ALTERNATIVELY AS INDICATED ON THE SILO CERTIFICATE IF ONE IS ISSUED, SHALL SERVE AS PRIMA FACIE PROOF OF THE WEIGHT, MOISTURE, FOREIGN MATTER AND QUALITY OF THE COMMODITY FOR THE PURPOSES OF THIS CONTRACT. IN THE CASE OF DELIVERY AT A MILL, IN WHICH CASE THE MOISTURE, FOREIGN MATTER AND QUALITY DETERMINATION ARE NOT REFLECTED ON A WEIGHBRIDGE TICKET BUT ON AN ADDENDUM, THE VALUE ON THE ADDENDUM WILL BE DEDUCTED FROM THE WEIGHT.
1.3 ALL COMMODITY DELIVERED TO THE PURCHASER SHALL MEET THE GRADE SPECIFICATIONS PRESCRIBED IN THE AGRICULTURAL PRODUCTS STANDARDS ACT, ACT 119 OF 1990, AS AMENDED, DETAILS OF WHICH ARE AVAILABLE, ON REQUEST, FROM THE PURCHASER. ANY COMMODITY NOT MEETING THE STANDARDS OF THE SAID ACT SHALL BE DEEMED NOT TO HAVE BEEN DELIVERED IN TERMS OF THIS CONTRACT.
1.4 THE SELLER CONFIRMS THAT THE COMMODITY IS NOT, IN ANY WAY, GENETICALLY MODIFIED AND FURTHER CONFIRMS THAT THE COMMODITY IS FREE FROM ANY GENETICALLY MODIFIED COMPONENTS OR SUBSTANCES, AND THE SELLER FURTHER CONFIRMS THAT HE IS FULLY AWARE OF THE MEANING OF THE TERM “GENETICALLY MODIFIED”. IF DELIVERY IS DIRECT FROM THE FARM, THE TRANSPORT COSTS WILL BE FOR THE CARE AND ACCOUNT OF THE SELLER SHOULD THE COMMODITY TEST POSITIVE FOR GENETICALLY MODIFIED COMPONENTS.
1.5 THE BASIS ADJUSTMENT SHALL BE INCREASED BY THE CORRESPONDING INCREASE IN THE APPLICABLE SAFEX LOCATION DIFFERENTIAL AND IN THE APPLICABLE HANDLING CHARGE AS ANNOUNCED BY SAFEX AND THE RELEVANT SILO OWNER RESPECTIVELY. THE BASIS ADJUSTMENT SHALL BE REDUCED BY THE CORRESPONDING DECREASE IN THE AFOREMENTIONED TARIFFS.
1.6 ANY STATUTORY LEVY APPLICABLE TO THE COMMODITIES IN TERMS OF THIS CONTRACT SHALL BE FOR THE SELLER’S CARE AND ACCOUNT. THE SELLER HEREBY AGREES THAT SUCH LEVIES SHALL BE DEDUCTED FROM THE PURCHASE PRICE BY THE PURCHASER AND PAID OVER TO THE RELEVANT AUTHORITY.
1.7 ALL SILO COSTS, CERTIFICATE COSTS AND ADMINISTRATION FEES SHALL BE FOR THE SELLER’S CARE AND ACCOUNT UNTIL:
a) DATE OF DELIVERY AGAINST THE CONTRACT IF DELIVERED TO AN AFGRI-OWNED SILO; OR
b) RECEIPT OF THE ORIGINAL SILO CERTIFICATE AT THE PURCHASER’S CENTURION OFFICE.
1.8 IF THE PURCHASER GIVES PERMISSION TO THE SELLER OF THE COMMODITY TO DELIVER THE COMMODITY BEFORE THE FIRST DELIVERY DATE OF THE CONTRACT THEN THE FINAL PURCHASE PRICE AS AGREED BETWEEN THE PURCHASER AND SELLER WILL BE ADJUSTED WITH ADDITIONAL STORAGE COSTS AND AN INTEREST ADJUSTMENT.
1.9 THE SELLER ACKNOWLEDGES THAT HE IS AWARE THAT HE BEARS ALL THE RISK IN RESPECT OF THE COMMODITY UNTIL THE COMMODITY HAS BEEN DELIVERED TO THE PURCHASER AT THE PLACE OF DELIVERY OR THE SILO CERTIFICATE IN RESPECT OF THE COMMODITY HAS BEEN DELIVERED TO THE PURCHASERS’ OFFICE IN CENTURION IN TERMS OF THE TERMS AND CONDITIONS OF THIS CONTRACT.
1.10 OWNERSHIP OF THE COMMODITY PASSES TO THE PURCHASER, NOTWITHSTANDING ANY PROVISIONS CONTAINED HEREIN, ONCE THE PHYSICAL COMMODITY OR THE RELEVANT SILO CERTIFICATE FOR THE COMMODITY HAS BEEN DELIVERED TO THE PURCHASER.
1.11 THE SELLER HEREBY GRANTS THE PURCHASER THE RIGHT, AT ANY TIME, AFTER SIGNING OF THIS CONTRACT AND AFTER THE COMMODITY IN TERMS OF THIS CONTRACT HAS BEEN DELIVERED, TO USE THE PURCHASER’S SOLE DISCRETION TO CARRY OUT COMMODITY TRADING TRANSACTIONS. THE PURCHASER GUARANTEES PAYMENT FOR THE COMMODITY TO THE SELLER.
1.12 THE PURCHASER CANNOT GUARANTEE THE STORAGE CAPACITY OR AVAILABILITY AT THE PLACE OF DELIVERY AND SHOULD THERE NOT BE SUFFICIENT STORAGE CAPACITY OR SHOULD THE PURCHASER, FOR WHATEVER REASON, NOT BE ABLE TO ACCEPT THE COMMODITY AT THE PLACE OF DELIVERY THE PURCHASER SHALL HAVE THE RIGHT TO REDIRECT THE COMMODITY TO AN ALTERNATIVE PLACE OF DELIVERY, BEING THE CLOSEST ALTERNATIVE PLACE OF DELIVERY. IN SUCH INSTANCES, THE ALTERNATIVE PLACE OF DELIVERIES BASIS ADJUSTMENT AND PREMIUM WILL BE APPLICABLE (UNLESS THE SELLER AND PURCHASER AGREE ON ANOTHER BASIS ADJUSTMENT). THE NEW BASIS ADJUSTMENT AND PREMIUM WILL BE RELEVANT ONLY IN RESPECT OF THE WEIGHT OF THE COMMODITY DELIVERED TO THE ALTERNATIVE PLACE OF DELIVERY.
1.13 ANY CANCELLATION OR VARIATIONS OF THIS CONTRACT, OR CESSION OF ANY RIGHTS ARISING AS A RESULT THEREOF, OR ANY CONCESSIONS BY ANY PARTY TO THE OTHER, SHALL BE IN FORCE AND EFFECT ONLY IF IT IS CONFIRMED IN WRITING BY BOTH PARTIES. HOWEVER, BOTH PARTIES IRREVOCABLY AGREE THAT RECORDED TELEPHONE CONVERSATIONS SHALL BE BINDING ON THE PARTIES.
1.14 THE PARTIES AGREE THAT THE FINISH DELIVERY DATE, AS SPECIFIED ABOVE, IS REASONABLE TO THE SELLER AND SHOULD THE SELLER FAIL TO COMPLY PROMPTLY, THE PURCHASER SHALL HAVE THE RIGHT TO IMMEDIATELY CANCEL, WITHOUT NOTICE TO THE SELLER, THIS CONTRACT IN RESPECT OF THE COMMODITY NOT DELIVERED. THE SELLER ACKNOWLEDGES THAT HE IS AWARE THAT THE PURCHASER IS A GRAIN AND PRODUCT TRADING INSTITUTION AND THAT ANY FAILURE BY THE SELLER TO DELIVER THE COMMODITY IN FULL IN TERMS OF THIS CONTRACT MAY LEAD TO THE PURCHASER SUFFERING LOSSES AND THE SELLER FURTHER ACKNOWLEDGES THAT SUCH LOSSES MAY BE CLAIMED FROM THE SELLER SHOULD SUCH LOSSES HAVE RESULTED FROM THE SELLER’S FAILURE TO COMPLY WITH THE PROVISIONS OF THIS CONTRACT.
1.15 THE SELLER HEREBY AUTHORIZES THE PURCHASER IRREVOCABLY AND WITHOUT FURTHER CONSENT FOR ANY COMMODITY DELIVERED TO A STORAGE FACILITY OF THE PURCHASER TO BE USED AGAINST THE AGREED PURCHASE CONTRACT. HOWEVER, IF COMMODITY IS DELIVERED TO A STORAGE FACILITY OTHER THAN THE AGREED PLACE OF DELIVERY AN ADJUSTMENT IN RESPECT OF THE FINAL SELLING PRICE IN TERMS OF TRANSPORT DIFFERENTIAL, PREMIUM AND SILO COSTS WILL BE MADE.

2. FORCE MAJEURE
This contract contains no provision for force majeure.

3. DELIVERY TERMS
The following delivery terms shall apply under this contract:
a) Packing : Bulk

b) Delivery method : Road/Rail

c) Parity : Free Carrier

d) Delivery Schedule : Delivery within contract specified period

e) Levies and duties : For the Seller’s accountf

f) Insurance : As per the INCO (Parity) terms contained herein

g) Transport : The Seller shall be responsible for transport of the commodity

h) Storage : Storage is for the Seller’s account until the transfer date

i) Handling : handling in/out costs is for the Seller’s account.

4. PAYMENT
4.1 Payment will be due within 7 (seven) working days from date of invoice.
4.2 Payment requires delivery confirmation including weighbridge certificate numbers.
4.3 Payment in accordance with the payment terms as specified in this contract will only be made after receipt of this signed contract, a valid original tax invoice and/or original silo certificate, if applicable. Valid supporting documentation will include an original tax invoice indicating the VAT number of the Purchaser, the Purchaser’s contract number and a schedule of loads indicating the applicable truck registration number, weighbridge ticket number and receipt document number. If an invoice is sent electronically it must be in an encrypted .pdf format and once-off certification received from the Seller’s auditors to this effect. Accordingly, no late payment interest payment will be made if it is due to payment documentation not received as stipulated in this contract.
4.4 The contract volume shall be determined equally over the contract period if the commodity is delivered directly to an off-taker or mill owner.

5. CAPACITY OF PURCHASER
The Purchaser may act as agent for an undisclosed principal in which case the Purchaser will guarantee the obligations of its principal.

6. TITLE TO THE COMMODITY
The Seller confirms and guarantees that its harvest of the type of commodity sold pursuant to this contract is not subject to any securities, cessions or grievances of any nature and further confirms that no other party has or shall obtain any right or title of any nature in the broadest sense of the word over any portion of its harvest.

7. BREACH OF CONTRACT
7.1 Should the seller fail to timeously comply with any of the provisions of this contract or should the seller commit any breach of this contract, the purchaser shall be entitled to, without prejudicing any other rights it may have, by providing written notice to the seller, claim specific performance from the seller, cancel this contract and in each instance claim compensation, including loss of profits, from the seller and recover losses which the purchaser has suffered as a result of the breach.
7.2 THE PARTIES PLACE ON RECORD THAT THE PURCHASER, ON THE STRENGTH OF THIS CONTRACT, MAY BE BOUND TO THE PURCHASE AND DELIVERY OF COMMODITY TO THE PURCHASER’S CLIENTS, INCLUDING SAFEX TRANSACTIONS AND CLIENTS. SHOULD THE SELLER FAIL TO OR NEGLECTS TO DELIVER THE COMMODITY ON TIME, THE PURCHASER MAY SUFFER LOSSES BECAUSE OF ITS INABILITY TO MEETS ITS OBLIGATIONS TO ITS CLIENTS ACCORDINGLY. THE SELLER SHALL, IN SUCH INSTANCES, BE HELD LIABLE TO THE PURCHASER FOR SUCH LOSSES SUFFERED RESULTING FROM A BREACH OF CONTRACT, INCLUDING, WITHOUT PREJUDICING THE GENERALITY OF THE AFORESAID CLAUSE, LOSS OF PROFITS.
7.3 CANCELLATION COSTS SHALL BE DETERMINED AS FOLLOWS:
a) THE DIFFERENCE BETWEEN THE APPLICABLE SAFEX PRICE AT TIME OF CONCLUDING THE CONTRACT AND THE APPLICABLE SAFEX PRICE AT WHICH THE POSITION WAS CLOSED AT CANCELLATION,
b) PLUS ANY COSTS PAID ON BEHALF OF THE SELLER (E.G. OPTION COSTS, INTEREST ON OPTION COSTS.),
c) PLUS COMMISSION WHICH WOULD HAVE BEEN EARNED BY THE PURCHASER.

NOTWITHSTANDING ANY CLAUSE TO THE CONTRARY CONTAINED IN THIS CONTRACT, THE PURCHASER’S LIABILITY IS LIMITED TO THE LOWER OF THE PHYSICAL MARKET VALUE OF THE PRODUCT IN QUESTION WITH REGARDS TO THE CLAIM/S AT THE TIME OF THE INCIDENT OR AN AMOUNT OF R100 000.00 (ONE HUNDRED THOUSAND RAND).

8. CESSION
8.1 THE SELLER HEREBY CEDES TO THE PURCHASER ALL RIGHTS AND TITLE IN AND TO THE YIELD OF ALL HIS CROPS AND THE YIELD AND TITLE TO THE COMMODITY TYPE HEREBY SOLD TO THE PURCHASER. IN PARTICULAR, THE SELLER TRANSFERS THE ABSOLUTE RIGHT OF POSSESSION OF THE CROP TO THE PURCHASER ONCE IT IS REMOVED FROM THE GROUND.
8.2 THE SELLER UNDERTAKES, ON ACCEPTANCE OF THIS CONTRACT, NOT TO ALIENATE, TRANSFER, CEDE OR TRADE IN ANY OF THE CROP OR YIELD IN ANY WAY WHATSOEVER THAT CONFLICTS WITH THE PROVISIONS OF THIS CONTRACT. ANY SUCH ACTION WILL CONSTITUTE A BREACH OF CONTRACT.

9. SURETYSHIP
9.1 IN SUCH CASES WHERE THE SELLER IS A COMPANY/CLOSE CORPORATION/TRUST/PARTNERSHIP, THE SIGNATORY/SIGNATORIES TO THIS CONTRACT BIND(S) HIMSELF/THEMSELVES AS SURETY AND CO-PRINCIPAL DEBTOR IN SOLIDIUM FOR THE EXECUTION OF DUTIES OF THE SELLER WITH ABDICATION TO THE LEGAL EXCEPTIONS NON NUMERATAE PECUNIAE, NON CAUSA DEBITI, ERRORE CALCULI, NO VALUE RECEIVED, DE DOUBUS, VEL PLURIBUS DEBENDI OR ORDINUS SEU EXCUSSIONIS ET DIVISIONIS.
9.2 THE SIGNATORY OF THIS CONTRACT GUARANTEE BY ITS SIGNATURE THAT HE IS DULY AUTHORIZED TO SIGN THIS CONTRACT ON BEHALF OF THE SELLER AND UNDERTAKE TO PRODUCE PROOF OF SUCH AUTHORITY TO THE PURCHASER IF NEEDED. IF THE SELLER IS NOT BOUND TO THIS CONTRACT DUE TO A LACK OF AUTHORITY OF THE SIGNATORY, THE LATTER AS A PARTY TO THIS CONTRACT BE BOUND, IN FULL AS IF HE ORIGINAL AGREEMENT WITH THE SIGNATORY INCURRED.

10. ARBITRATION
10.1 Should any such dispute arise out of or regarding this contract between the parties, such dispute shall be resolved by an independent arbitrator to be appointed by the Arbitration Foundation of South Africa (AFSA) in accordance with the AFSA rules and regulations, which arbitrator’s findings shall be final and binding on the parties and may be made an order of court.

11. NOTICES
11.1 Any notice that is received after 16:00 on a business day shall be deemed to have been received to have been received on the following business day.
11.2 Any notice served in terms of this contract shall be served by either email, letter of facsimile. The burden of proof of delivery shall rest with the sender thereof.

12. NON-BUSINESS DAYS
12.1 Saturdays, Sundays and officially recognized and/or national holidays in the Republic of South Africa shall be referred to as non-business days. Should any time limit for trading or serving of notices fall on a non-business day, such time limit shall be extended to the first business day thereafter.
12.2 Delivery Periods are not affected by this clause.
12.3 The parties agree that the addresses indicated in the preamble to this document are valid as their respective domicilium citandi et executandi.

13. GENERAL
13.1 The Seller acknowledges that by signing this contract he makes an irrevocable offer to sell the commodity to the Purchaser under the terms and conditions stipulated herein.
13.2 The parties acknowledge that the aforementioned terms and conditions constitute the entire contract and the Seller hereby declares that no representations or warranties have been made to him other than those contained in this contract, by virtue of which he is entering into this contract. No terms or conditions, unless applicable or were applicable in another agreement between the parties or not, are incorporated into this contract.
13.3 THE PURCHASER SHALL BE ENTITLED TO, WITHOUT ANY OBLIGATION TO REFER TO THE SELLER OR WITHOUT RECEIVING AUTHORITY FROM THE SELLER, A RIGHT OF SET-OFF IN RESPECT OF ANY LIQUIDATED CLAIMS THAT THE SELLER OWES TO THE PURCHASER OR ANY OTHER COMPANY THAT IS AFFILIATED TO AFGRI OPERATIONS PROPRIETARY LIMITED FROM TIME TO TIME (AFGRI AFFILIATE), WITH THE EXPRESS UNDERSTANDING THAT SUCH AFGRI AFFILIATE TRANSFERS, BY WAY OF CESSION, ITS RIGHTS IN AND TO SUCH CLAIMS TO THE PURCHASER PRIOR TO THE SET-OFF BECOMES APPLICABLE.
13.4 This contract will be governed by the laws of the Republic of South Africa.