Agreement in respect of the purchase and sale of Gas Hobs and other related items on
Rental Sale between Bell Crescent Properties t/a The Gas Company and Yourself as Customer completed on the application form.

Introduction

A – The Customer wishes to purchase the Equipment from the Supplier on instalment sale.
B – The Supplier hereby agrees to sell the Equipment to the Customer on an instalment sale basis, in accordance with the provisions of this Agreement.

It Is Agreed

1. Definitions and Interpretation

1.1 In this Agreement, unless the context requires otherwise:
(1.1.1) Agreement means this agreement in respect of the purchase and sale of Cook on Gas Hobbs and related items on instalment sale;
(1.1.2) Business Day means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa;
(1.1.3) Confidential Information means non-public information which is either clearly identified at the time of disclosure as “confidential” or is by its nature clearly confidential. Confidential Information will include (but is not limited to):
(1.1.3.a) information concerning the systems, business methods, business plans, the existence and contents of this Agreement; financial or commercial information pertaining to the Parties; and/or
(1.1.3.b) the existence and contents of this Agreement;
(1.1.4) Customer means yourself as completed in the application form. ;
(1.1.5) Delivery Date means the date on which the Customer requires the Supplier to deliver and install the Equipment at the relevant Delivery Location as stated in List of Equipment hereto;
(1.1.6) Delivery Location means the location where the Customer requires the Equipment to be delivered as stated in List of Equipment hereto;
(1.1.7) Delivery Note(s) means a document which:
(1.1.7.a) at a minimum contains all relevant details of the Equipment delivered;
(1.1.7.b) must accompany any Equipment delivered by the Supplier in terms hereof; and
(1.1.7.c) must be signed by the Customer upon delivery of the Equipment;
(1.1.8) Equipment means the hobbs and related equipment listed in List of Equipment hereto which the Supplier will sell to the Customer on instalment sale;
(1.1.9) Instalment Amount means the monthly amount payable by the Customer to the Supplier in respect of the Equipment as stipulated in the applicable Supplier’s invoice in accordance with the provisions of clause ;
(1.1.10) Parties means the Supplier and the Customer and Party means, as the context requires, any one of them;
(1.1.11) Purchase Price means an amount selected by you in the application form, per month for 36 months including VAT;
(1.1.12) Signature Date means the date of the last signature to this Agreement;
(1.1.13) Supplier means Bell Crescent Properties t/a The Gas Company; and
(1.1.14) VAT means Value Added Tax as defined in the Value Added Tax Act, 89 of 1991.

1.2 Any reference in this Agreement to:
(1.2.1) a clause is, subject to any contrary indication, a reference to a clause of this Agreement;
(1.2.2) law means any law including common law, statute, constitution, decree, judgment, treaty, regulation, directive, by-law, order or any other measure of any government, local government, statutory or regulatory body or court having the force of law; and
(1.2.3) person means any natural or juristic person, firm, company, corporation, government, state, agency or organ of a state, association, trust or partnership (whether or not having separate legal personality).

1.3 Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.

1.4 The headings do not govern or affect the interpretation of this Agreement.

1.5 If any provision in a definition confers rights, or imposes obligations on any Party, effect is given to it as a substantive provision of this Agreement.

1.6 Unless the context indicates otherwise an expression which denotes any gender includes both the others; reference to a natural person includes a juristic person; the singular includes the plural, and the plural includes the singular.

1.7 Any number of days prescribed in this Agreement excludes the first day and includes the last day; and any relevant action or notice may be validly done or given on the last day.

1.8 Unless the context indicates otherwise if the day for payment of any amount or performance of any obligation falls on a day which is not a Business Day, that day will be the next Business Day.

1.9 The words “including” and “in particular” are without limitation.

1.10 Any reference to legislation is to that legislation as at the Signature Date, as amended or replaced from time to time.

1.11 Any reference to a document or instrument includes the document or instrument as ceded, delegated, novated, altered, supplemented or replaced from time to time.

1.12 A reference to a Party includes that Party’s successors-in-title and permitted assigns.

1.13 A time of day is a reference to Johannesburg time.

1.14 The rule of interpretation that, in the event of ambiguity, the contract must be interpreted against the party responsible for the drafting of the contract does not apply.

1.15 The termination of this Agreement does not affect those of its provisions which expressly provide that they will operate after termination, or which must continue to have effect after termination, or which must by implication continue to have effect after termination.

2. Suspensive Conditions

2.1 The whole of this Agreement (other than this clause Suspensive Conditions and clauses Definitions and Interpretation, Breach to Counterparts (inclusive) which shall be of full force and effect from the Signature Date) is subject to the fulfilment of the following suspensive conditions by no later than the Signature Date or such other date/s as the Parties may agree in writing:

(2.1.1) delivery by the Customer to the Supplier of a copy of a resolution of the board of directors of the Customer authorising the purchase of the Equipment from the Supplier and the conclusion of this Agreement on the terms and conditions set out herein;

2.2 The suspensive conditions referred to in clause The whole of this Agreement (other than this clause Suspensive Conditions and clauses Definitions and Interpretation, Breach to Counterparts (inclusive) which shall be of full force and effect from the Signature Date) is subject to the fulfilment of the following suspensive conditions by no later than the Signature Date or such other date/s as the Parties may agree in writing: are not capable of waiver.

2.3 If the suspensive conditions are not fulfilled on or before the Signature Date or such other date/s as the Parties may agree in writing, then this Agreement (other than this clause Suspensive Conditions and clauses Definitions and Interpretation, Breach to Counterparts (inclusive) which shall be of full force and effect from the Signature Date) shall be of no force or effect and no Party shall have any claim against any other Party for anything done hereunder or arising out of or in connection with this Agreement and to the extent that this Agreement may have been partially implemented the Parties shall be restored to their status quo ante.

3. Sale Of Equipment On Instalment Sale

The Supplier sells to the Customer, which purchases from the Supplier, the Equipment on instalment sale in accordance with the terms and conditions of this Agreement.

4. Delivery And Installation Of Equipment

4.1 The Supplier shall do all things reasonably necessary to ensure that the Equipment is delivered to the relevant Delivery Locations on or before the relevant Delivery Date. Upon delivery of the Equipment to the Delivery Location, the Parties shall complete and sign a Delivery Note. By signing the Delivery Note the Customer confirms that the Equipment has been delivered to the Delivery Location in the quantity specified in the Delivery Note and in accordance with the specifications stipulated in the Delivery Note.

4.2 Notwithstanding the above, save where the Supplier fails to deliver and install the Equipment before the relevant Delivery Date as a direct result of the willful and/or grossly negligent actions and/or omissions of the Supplier, the Supplier shall in no way be liable for any loss and/or damage which may arise as a result of the failure to deliver and install the Equipment by the relevant Delivery Date.

4.3 The Parties acknowledge that the Supplier does not provide any warranty whatsoever as to the suitability and/or fitness of the Equipment for the purposes for which they are required by the Customer. The above notwithstanding, the Supplier:
(4.3.1) shall, for a period of three years from the Signature Date, indemnify the Customer against any and all direct loss and/or damage suffered by the Customer as a result of any failure, action and/or omission by the Supplier and/or its duly appointed subcontractor in the installation of the Equipment at the Delivery Locations; and
(4.3.2) warrants that all Equipment delivered by the Supplier to the Customer in terms of this Agreement is covered by the original equipment manufacturer’s warranty against manufacturing defects. The Parties acknowledge that the Supplier makes no representations, and gives no warranties, in respect of manufacturing defects in the Equipment save as otherwise stated in the original equipment manufacturer’s warranty. Copies of the original equipment manufacturer’s warranty shall be provided to the Customer upon receipt of a written request for same. The Parties expressly acknowledge that the Supplier shall in no way be responsible for any loss and/or damage suffered by the Customer as a result of its use of the Equipment where such claim arises as a result of a
manufacturing defect in the Equipment. The Supplier shall however do all things reasonably necessary to assist the Customer in making a claim against the original equipment manufacturer where such claim arises under the original equipment manufacturer’s warranty.

5. Ownership And Risk

5.1 The Supplier will remain the owner of the Equipment supplied in terms of this Agreement until the Customer has effected payment of all of the Instalment Amounts whereafter ownership of the Equipment shall automatically transfer to the Customer and the provisions of clause Effects Of Transfer Of Ownership shall apply.

5.2 Notwithstanding clause The Supplier will remain the owner of the Equipment supplied in terms of this Agreement until the Customer has effected payment of all of the Instalment Amounts whereafter ownership of the Equipment shall automatically transfer to the Customer and the provisions of clause Effects Of Transfer Of Ownership shall apply. above, the Parties hereby agree that any gas bottles provided by the Supplier to the Customer during the period of this Agreement shall remain the property of the Supplier and ownership thereof shall not transfer to the Customer.

5.3 As between the Supplier and the Customer, all risk in the Equipment shall pass to the Customer on the Delivery Date.

5.4. The Customer:
(5.4.1) acknowledges that, until such time as it has complied with the provisions of clause The Supplier will remain the owner of the Equipment supplied in terms of this Agreement until the Customer has , it shall not acquire any ownership rights of any nature whatsoever in respect of the Equipment pursuant to this Agreement and that until such time it shall simply be afforded the possession, use and enjoyment of the Equipment; and
(5.4.2) warrants and undertakes that, until such time as it has complied with the provisions of clause The Supplier will remain the owner of the Equipment supplied in terms of this Agreement until the Customer has , it shall not alienate, pledge or encumber the Equipment in any manner whatsoever.

5.5 Should the Customer commit a breach of the warranty contained in clause warrants and undertakes that, until such time as it has complied with the provisions of clause The Supplier will remain the owner of the Equipment supplied in terms of this Agreement until the Customer has , it shall not alienate, pledge or encumber the Equipment in any manner whatsoever., the Customer shall indemnify the Supplier in full against any and all loss and/or damage of any nature whatsoever and howsoever arising related to the aforementioned breach of warranty.

6. Payment

6.1 The Customer shall pay the Supplier the Purchase Price in respect of the Equipment. The Parties agree that the Purchase Price shall be payable by the Customer to the Supplier in either 36, 24, 18, 12 or 6 equal monthly Instalment Amounts with the amount of each Instalment Amount being determined
by the Supplier in accordance with the provisions of clause

6.2. The Customer hereby selects the following number of monthly instalments by circling his/her option and initialing next thereto: 36, 24, 18, 12 or 6

6.3 The Instalment Amount each month shall be determined by the Supplier and reflected on the Supplier’s monthly invoice to the Customer. All amounts payable by the Customer to the Supplier in terms of this Agreement shall be paid within 7 days of receipt by the Customer of the Supplier’s invoice.

6.4 The Customer may not delay or withhold any payment due to the Supplier for any reason whatsoever. Notwithstanding the above, where the Customer fails to make payment timeously as a direct result of the actions of the Supplier, such failure by the Customer shall not be deemed to be a breach of the provisions of this clause.

6.5 The Customer shall, unless directed otherwise in writing by the Supplier, pay all amounts which are payable by the Customer to the Supplier under this Agreement by way of debit order.

6.6 Any amounts not paid by the Customer on the due date there for shall accrue interest at the [Prime Rate plus 5%] per annum, compounded monthly from the due date for such payment until the date on which payment is received.

6.7 The Customer shall not be entitled to defer or withhold any amount payable under this Agreement by reason of set-off or counterclaim.

6.8 In the event that the Customer disputes all or any part of the Supplier’s invoice, it shall notify the Supplier of such fact in writing prior to the due date for such payment. In the event that the Customer notifies the Supplier of a dispute as aforesaid, the Customer will be entitled to withhold payment of the disputed amount only. The Parties will negotiate in good faith to resolve the dispute. Failing resolution within one month after receipt by the Supplier of the Customer’s written notification, the dispute will be dealt with in accordance with the provisions of clause 19. Any adjustment to invoiced amounts arising as a result of such resolution will be reflected, so far as practicable, in the Supplier’s next invoice to the Customer.

6.9 If this Agreement is terminated for any reason whatsoever and the Customer remains in possession of any Equipment in respect of which ownership has not passed in accordance with the provisions of clause 5.1, the Customer must continue making payment of the Instalment Amounts as they fall due, as if the Agreement had not been cancelled. The Supplier’s acceptance of such payments will not in any way affect the cancellation of this Agreement or any other claim which the Supplier may have against the Customer. Any payments made after the cancellation of this Agreement shall be retained by the Supplier as compensation for its losses arising out of the Customer’s failure to return the Equipment after the cancellation of the Agreement.

7. Insurance

7.1 The Parties agree that the Customer shall be responsible for insuring the Equipment in terms of a comprehensive insurance policy against all risks of loss, damage or destruction as the Equipment can be insured (Insurance Policy) from the date on which the Equipment is delivered to the Customer in terms clause The Supplier shall do all things reasonably necessary to ensure that the Equipment is delivered to the relevant Delivery Locations on or before the relevant Delivery Date. Upon delivery of the Equipment to the Delivery Location, the Parties shall complete and sign a Delivery Note. By signing the Delivery Note the Customer confirms that the Equipment has been delivered to the Delivery Location in the quantity specified in the Delivery Note and in accordance
with the specifications stipulated in the Delivery Note.

7.2 In this regard:
(7.2.1) the Insurance Policy shall be taken out with a duly registered insurer approved of by the Supplier in writing;
(7.2.2) the Customer shall ensure that the Equipment is kept insured at all times for its market value from time to time and shall procure that the rights and interests of the Supplier are noted on the policy;
(7.2.3) the Customer shall provide the Supplier with a copy of any Insurance Policy taken out by the Customer in accordance with the provisions of this clause by no later than five Business Days after same has become effective;
(7.2.4) the Customer shall be liable for the payment of all insurance premiums, shall pay all insurance premiums punctually and shall, on request, produce written proof to the Supplier that the Equipment is insured and that all premiums have been paid. The Supplier shall be entitled (but not obliged) to pay any insurance premiums and/or any other monies which may become due on any Insurance Policy effected in terms of this clause and to recover the cost of same from the Customer. In such circumstances any amounts paid by the Supplier in terms of this clause shall accrue interest at the Prime Rate plus 2% per annum,
compounded monthly, from the date on which such amounts are paid by the Supplier to the insurer(s) until the date on which such amounts are recovered from the Customer;
(7.2.5) the Customer shall not be permitted to substitute its selected insurer with an alternative insurance company without the prior written consent of the Supplier, which consent shall not be unreasonably withheld. In the event that the Supplier consents to such substitution, the Customer shall provide the Supplier with a copy of any new terms and conditions imposed by the newly appointed insurer within five days of receipt thereof from the insurer;
(7.2.6) the Customer warrants and undertakes that it will:
(7.2.6.a) familiarise itself with the provisions of the Insurance Policy;
(7.2.6.b) comply with all the terms, conditions and warranties of the Insurance Policy at all times; and
(7.2.6.c) ensure that no claims are rejected by the insurer as a result of non-compliance with such Insurance Policy conditions;

(7.2.7) upon the happening of an insurance event, the Customer shall act in accordance with the terms and conditions of the Insurance Policy in order to ensure that the correct procedure is followed;
(7.2.8) the Customer shall not take any action, fail to take any action and/or permit anything to occur in relation to the Equipment which would entitle any insurer to refuse to pay any claim under the Insurance Policy;
(7.2.9) to the extent that any claims are not paid by the insurer as a result of any acts and/or omissions by the Customer, then the Customer shall indemnify the Supplier in full against any and all loss and/or damage of any nature whatsoever and howsoever arising which the Supplier may incur as a result;
(7.2.10) the Customer shall provide the Supplier with a copy of any amendments to the Insurance Policy imposed by the insurer from time to time within five days of receipt thereof from the insurer. Upon receipt of the amended Insurance Policy, the Customer shall be bound by the terms and conditions thereof and the provisions of clause the Customer warrants and undertakes that it will: shall apply mutatis mutandis to the amended Insurance Policy;
(7.2.11) if the Equipment is damaged:
(7.2.11.a) the Customer shall immediately notify the Supplier of such fact in writing; and
(7.2.11.b) if so required by the Supplier, the Customer shall:
(7.2.11.b.i) repair the Equipment in accordance with the insurer’s requirements and in terms of the Insurance Policy and shall ensure that the Equipment is restored to its manufacturer’s specifications; and
(7.2.11.b.ii) continue to discharge all obligations in respect of the Equipment on the due date therefor;
(7.2.12) if any one and/or more and/or all of the items comprising the Equipment is lost, stolen, destroyed or damaged to such an extent that the Parties and the insurer determine that the Equipment is incapable of economic repair, the Customer shall be obliged to make payment to the Supplier of the full replacement cost of the Equipment as at the date on which the Equipment was lost, stolen, destroyed or damaged. The Parties may furthermore agree to the provision of replacement Equipment;
(7.2.13) if:
(7.2.13.a) any Insurance Policy becomes of no force or effect for any reason whatsoever; and/or
(7.2.13.b) the Customer fails to produce proof of insurance in terms of clause the Customer shall be liable for the payment of all insurance premiums, shall pay all insurance premiums punctually and shall, on request, produce written proof to the Supplier that the Equipment is insured and that all premiums have been paid. The Supplier shall be entitled (but not obliged) to pay any insurance premiums and/or any other monies which may become due on any Insurance Policy effected in terms of this clause and to recover the cost of same from the Customer. In such circumstances any amounts paid by the Supplier in terms of this clause shall accrue interest at the Prime Rate plus 2% per annum, compounded monthly, from the date on which such amounts are paid by the Supplier to the insurer(s) until the date on which such amounts are recovered from the Customer;, the Supplier shall be entitled (but not obliged) to insure and to keep the Equipment insured in accordance with the provisions of this clause and to recover the costs of such insurance from the Customer.

8. Use And Maintenance

8.1 The Customer shall:
(8.1.1) unless otherwise agreed in writing with the Supplier, service and maintain the Equipment in accordance with the original equipment manufacturer’s specifications;
(8.1.2) use the Equipment with due skill and care and in the manner for which they were designed;
(8.1.3) properly house the Equipment and take reasonable precautions to prevent its theft or loss;
(8.1.4) if the Equipment is stored on premises not owned by the Customer, notify the owner of the premises that the Supplier owns the Equipment (unless and until ownership of the Equipment has transferred to the Customer in accordance with the provisions of clause The Supplier will remain the owner of the Equipment supplied in terms of this Agreement until the Customer has effected payment of all of the Instalment Amounts whereafter ownership of the Equipment shall automatically transfer to the Customer and the provisions of clause Effects Of Transfer Of Ownership shall apply.);
(8.1.5) permit the Supplier to inspect the Equipment at all reasonable times on any premises where they are kept; and
(8.1.6) strictly adhere to all instructions given to the Customer by the Supplier for the use of the Equipment.

8.2 The Customer shall not:

(8.2.1) until such time as ownership in respect of the Equipment has transferred to the Customer in accordance with the provisions of clause The Supplier will remain the owner of the Equipment supplied in terms of this Agreement until the Customer has , sell such Equipment nor allow such Equipment to become subject to any lien, hypothec, pledge or other encumbrance or judicial attachment. If any Equipment becomes subject to any lien, hypothec or other encumbrance contrary to the provisions of this clause, the Customer shall immediately procure the release of that Equipment from same;
(8.2.2) abuse or neglect any Equipment;
(8.2.3) alter or modify the Equipment without the prior written consent of the Supplier which consent the Supplier shall be entitled, in its sole and absolute discretion, to withhold; and/or
(8.2.4) without the Supplier’s prior written consent, until such time as ownership in respect of the Equipment has transferred to the Customer in accordance with the provisions of clause The Supplier will remain the owner of the Equipment supplied in terms of this Agreement until the Customer has place, or once there remove from, the Equipment any paint, mark, decal, transfer or other identification.

9. Effects Of Transfer Of Ownership

In the event that ownership of the Equipment is transferred from the Supplier to the Customer in accordance with the provisions of clause The Supplier will remain the owner of the Equipment supplied in terms of this Agreement until the Customer has the Customer acknowledges that such transfer of ownership shall be done voetstoots and the Supplier gives no warranties, whether express or implied, and makes no representations to the Customer with regard to the Equipment or their fitness for any purpose whatsoever.

10. Supplier Indemnities

10.1 The Supplier indemnifies and holds the Customer harmless against all direct losses suffered by, or claims made against the Customer arising out of or in connection with:
(10.1.1) any wilful acts of misconduct and/or grossly negligent actions or omissions by the Supplier;
(10.1.2) a material inaccuracy or untruthfulness in any representations or warranties made by the Supplier in connection with this Agreement and its conclusion; and/or
(10.1.3) claims for taxes, interest or penalties against the Customer that are the obligations of the Supplier.
10.2 An indemnity in terms of clause The Supplier indemnifies and holds the Customer harmless against all direct losses suffered by, or claims made against the Customer arising out of or in connection with: only applies if:
(10.2.1) the Customer notifies the Supplier in writing of the claim as soon as reasonably possible;
(10.2.2) the Customer allows the Supplier to take over the investigation, defence and settlement of the claim at its own expense with full and sole discretion in this regard; and
(10.2.3) the Customer gives reasonable cooperation to the Supplier in the investigation and defence of the claim.

11 Subcontractors

11.1 The Supplier may use subcontractors to perform all or any portion of its obligations in terms of this Agreement without the Customer’s prior consent.
11.2 Subcontracting does not relieve the Supplier from any of its obligations under this Agreement and the Supplier will be liable to the Customer for all losses incurred by the Customer through the acts or omissions of its subcontractors as if the acts and omissions were those of the Supplier itself.

12. Financial Information And Credit Consent

12.1 The Customer acknowledges that the Supplier may, from time to time, require certain financial information from the Customer in order to review the Customer’s financial position. The Customer hereby undertakes to comply with all reasonable requests for such information as soon as possible after receipt of a written notification from the Supplier requesting same. The Customer furthermore undertakes to comply with all reasonable requests for clarification and/or confirmation of any item contained in the financial information provided to the Supplier.

12.2 In addition, the Customer consents to the Supplier making enquiries about the Customer’s credit record with any credit reference agency and any other party to confirm the details in this Agreement. The Supplier may also provide credit reference agencies with regular updates regarding how the Customer manages its account, including the Customer’s failure to meet agreed terms and conditions of this Agreement. The Customer acknowledges that credit reference agencies may, in turn, make the records and details available to other credit grantors and consents to the making of such records and details available.

13 Cession And Assignment

13.1 The Supplier may upon written notice to the Customer cede, delegate, assign and/or transfer all or any part of its rights and/or obligations under this Agreement and/or otherwise in respect of the Equipment to any other party. Unless the context indicates otherwise, any reference to the Supplier in this Agreement shall be deemed to include its cessionary, delegate, assignee and/or transferee.

13.2 The Customer may not cede, assign, delegate or otherwise transfer any of its rights or obligations under this Agreement.

14. VAT

Any costs, expenses, charges or other amounts payable under this Agreement shall be paid together with any VAT applicable to such amount subject to prior delivery to the payee of an appropriate VAT invoice.

15 Limitation Of Liability

15.1 Neither Party is liable for any consequential or indirect damages or losses suffered by the other Party arising from or related to this Agreement unless stated otherwise.

15.2 The limitation of liability in clause Neither Party is liable for any consequential or indirect damages or losses suffered by the other Party arising from or related to this Agreement unless stated otherwise. does not apply to losses arising from fraud or wilful misconduct.

16 Confidentiality

16.1 The Parties undertake that they will not, for the duration of this Agreement or thereafter, disclose any Confidential Information relating to this Agreement or provided under the terms hereof to any third party for any reason or purpose whatsoever without the express prior written consent of the other Party. Notwithstanding anything to the contrary contained in this Agreement, the Parties agree that such Confidential Information may be disclosed by any Party:
(16.1.1) to its employees, professional advisors, agents and consultants on a need-to-know basis, provided such Party takes all necessary steps to procure that such employees, professional advisors, agents and consultants agree to prevent the unauthorised disclosure of such information to third parties; or
(16.1.2) to satisfy an order of a court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time, provided that in these circumstances such Party shall advise the other Party of such occurrence. In addition, the disclosing Party shall only be permitted to disclose that portion of the Confidential Information which it is legally required to disclose and such Party will use its best endeavours to protect the confidentiality of such Confidential Information to the widest extent possible in the circumstances.

16.2 All Confidential Information disclosed by one Party to the other Party is acknowledged by the other Party to be proprietary to the disclosing Party and not to confer any rights of whatsoever nature in such Confidential Information to the other Party.

16.3 The Parties undertake not to use any Confidential Information provided in terms of this Agreement for any purposes other than that for which it is disclosed and in accordance with the provisions of this Agreement.

17. Force Majeure

17.1 To the extent that it becomes impossible for a Party to perform any obligation (other than a payment obligation) in terms of this Agreement because of an event or circumstance that was neither foreseen nor reasonably foreseeable when the Agreement was entered into or which, if the event could have been foreseen at that time, cannot be guarded against or avoided by reasonable care or the reasonable acts of that Party, that Party may:
(17.1.1) notify the other Party within five Business Days of the nature, extent, effect and likely duration of the event or circumstance; and keep the other Party updated as may be reasonably required by the other Party;
(17.1.2) take all commercially reasonable action to remedy or minimise the consequences (and report to the other Party); and
(17.1.3) immediately resume performance of its obligations under this Agreement and notify the other Party when performance of the obligation again becomes possible.

17.2 Performance of any such obligation is suspended for as long as the event or circumstance continues to make the performance impossible.

17.3 If the event or circumstance continues for a period exceeding 30 Business Days either Party may cancel this Agreement on written notice to the other Party provided that the obligation which the affected Party is unable to perform is a material obligation under this Agreement.

18. Breach

18.1 Should any Party (Defaulting Party) breach any of the provisions of this Agreement, then the other Party (Aggrieved Party) may give the Defaulting Party 14 days’ written notice or such longer period of time as the Aggrieved Party may specify in the notice, to remedy the breach. If the Defaulting Party fails to comply with the notice, the Aggrieved Party may:
(18.1.1) claim immediate payment and/or performance by the Defaulting Party of all of the Defaulting Party’s obligations that are due for performance; or
(18.1.2) subject to clause the Defaulting Party commits a material breach of this Agreement which cannot be remedied, cancel this Agreement upon written notice to the Defaulting Party where the breach constitutes a material breach, in either event without prejudice to the Aggrieved Party’s right to claim damages or to exercise any other rights that the Aggrieved Party may have under this Agreement or in law.

18.2 Without detracting from the provisions of clause Should any Party (Defaulting Party) breach any of the provisions of this Agreement, then the other Party (Aggrieved Party) may give the Defaulting Party 14 days’ written notice or such longer period of time as the Aggrieved Party may specify in the notice, to remedy the breach. If the Defaulting Party fails to comply with the notice, the Aggrieved Party may:, the Aggrieved Party may summarily cancel this Agreement at any time by giving to the Defaulting Party notice of the cancellation if:
(18.2.1) the Defaulting Party commits a material breach of this Agreement which cannot be remedied;
(18.2.2) the Defaulting Party is, other than for the purposes of reconstruction or amalgamation, placed under voluntary or compulsory sequestration, winding-up, judicial management, business rescue or the equivalent of any of these in any jurisdiction;
(18.2.3) a judgment against the Defaulting Party in respect of which no appeal lies or in respect of which the period for lodging an appeal (excluding any period to seek condonation) has expired and remains unsatisfied for a period of at least 60 Business Days; or
(18.2.4) the Defaulting Party makes or offers to make a general assignment or any arrangement or composition with or for the benefit of its creditors generally (or any class of its creditors) for releasing it wholly or partially from its debts.
18.3 Any cancellation of this Agreement by the Aggrieved Party is effective on receipt of a notice of cancellation by the Defaulting Party (in the case of an irreversible material breach) or the date of the breach (in circumstances mentioned in clauses the Defaulting Party is, other than for the purposes of reconstruction or amalgamation, placed under voluntary or compulsory sequestration, winding-up, judicial management, business rescue or the equivalent of any of these in any jurisdiction;, a judgment against the Defaulting Party in respect of which no appeal lies or in respect of which the period for lodging an appeal (excluding any period to seek condonation) has expired and remains unsatisfied for a period of at least 60 Business Days; or or the Defaulting Party makes or offers to make a general assignment or any arrangement or composition with or for the benefit of its creditors generally (or any class of its creditors) for releasing it wholly or partially from its debts.).
18.4 Any cancellation is without prejudice to any claim that either Party may have in respect of any breach of the terms and conditions of this Agreement by the other Party arising prior to the date of cancellation.

19. Dispute Resolution

19.1 Any dispute arising out of or in connection with this Agreement must be resolved in terms of this clause Dispute Resolution.

19.2 Disputes must be referred to the senior executives of each Party as soon as possible for attempted resolution. The Parties’ senior executives must attempt to resolve the dispute as speedily as possible and will meet as often as necessary to do so.

19.3 Any settlement must be recorded in writing and signed by the senior executives on behalf of each Party.

19.4 The senior executives will have failed to resolve the dispute when either Party declares this to be the case.

19.5 If the dispute is not resolved by the senior executives, the dispute will be resolved by way of arbitration at the instance of either Party.

19.6 The arbitration will be held subject to the provisions of this Agreement:
(19.6.1) at Johannesburg;
(19.6.2) with only the Parties, their legal representatives, arbitrator/s and any witnesses who may be called to give evidence present; and
(19.6.3) otherwise in accordance with the provisions of the Arbitration Act, 1965.

19.7 The arbitrator will be a practicing Senior Counsel with no less than ten years standing agreed upon between the Parties in writing. If the Parties cannot agree upon a particular arbitrator within ten Business Days after the arbitration has been demanded, the nomination will be made by the Arbitration Foundation of Southern Africa at the request of either Party.

19.8 The arbitration will be conducted in the English language.

19.9 Subject to clause Nothing contained in this Agreement will prevent either Party from applying to court for urgent or interdictory relief., all information concerning the arbitration proceedings, all evidence led or presented and the arbitrator’s award will be confidential.

19.10 The arbitrator will be obliged to give written reasons for the award.

19.11 Either Party may have the award of an arbitrator, including an award on appeal made an order of court.

19.12 Nothing contained in this Agreement will prevent either Party from applying to court for urgent or interdictory relief.

19.13 This clause Dispute Resolution constitutes each Party’s irrevocable consent to arbitration proceedings, and no Party may withdraw from such proceedings or claim that it is not bound by this clause.

19.14 The Parties will continue to perform their respective obligations under this Agreement pending the resolution of a dispute, it being agreed that neither Party may, without the agreement of the other, terminate this Agreement based on the issues under dispute until the dispute is finally resolved.

19.15 A demand by a Party to submit a dispute to arbitration in terms of this clause Dispute Resolution is adequate legal process to interrupt any time bar laws in respect of legal claims.

19.16 This clause Dispute Resolution is a separate, divisible clause from the rest of this Agreement and will remain valid and enforceable in perpetuity notwithstanding the expiry or termination of this Agreement.

20. General

20.1 This Agreement is the whole agreement between the Parties in regard to its subject matter. There are no implied or tacit terms and conditions to be read into this Agreement.

20.2 No addition to or variation or consensual cancellation of this Agreement, including this clause, has effect unless in writing and signed by the Parties.

20.3 No indulgence by a Party to another Party, or failure strictly to enforce the terms of this Agreement, will be interpreted as a waiver or be capable of founding an estoppel.

20.4 A certificate signed by any manager of the Supplier (whose authority need not be proved) as to any amount due and/or owing by the Customer in terms of or arising out of this Agreement shall be prima facie proof of such amounts for all purposes including pleadings, any judgment and provisional sentence.

20.5 The Parties undertake to do everything reasonable in their power necessary for or incidental to the effectiveness and performance of this Agreement.

20.6 Any illegal or unenforceable provision of this Agreement may be severed and the remaining provisions of this Agreement continue in force.

21. Notices And Addresses

21.1 Notices
Any notice, consent, approval or other communication in connection with this Agreement (Notice) will be in writing in English.

21.2 Addresses
(21.2.1) Each Party chooses the physical address and/or email address corresponding to its name
below as the address to which any Notice must be sent.

(21.2.1.a) Supplier: Bell Crescent Properties t/a The Gas Company
Physical address: 25 Jakaranda Street, Hennopspark, Centurion, 0157
sales@Email address: thegascompany.co.za
Marked for the attention of: Brett Cohen

21.3 Effective on receipt
(21.3.1) Any Notice takes effect when received by the recipient (or on any later date specified in the Notice) and, unless the contrary is proved, is deemed to be received:
(21.3.1.a) on the day of delivery, if delivered by hand to a responsible person at the recipient’s physical address in clause Addresses. If delivery is not on a Business Day, or is after ordinary business hours on a Business Day, the Notice is deemed to be received on the Business Day after the date of delivery; and
(21.3.1.b) on the first Business Day after the date of transmission, if sent by email to the recipient’s email address in clause Addresses.
(21.3.2) Despite anything to the contrary in this Agreement, a Notice actually received by a Party is effective even though it was not sent, or delivered, or sent and delivered to its address in clause Addresses.

21.4 Service of legal process 
(21.4.1) Each Party chooses its physical address referred to in clause Each Party chooses the physical address and/or email address corresponding to its name below as the address to which any Notice must be sent. as its address at which legal process and other documents in legal proceedings in connection with this Agreement may be served (domicilium citandi et executandi).
(21.4.2) Any Party may by Notice to the other Party change its address at which legal process and other documents in legal proceedings in connection with this Agreement may be served to another physical address within the Republic of South Africa.

22. Applicable Law

This Agreement is governed by, interpreted and construed under, the laws of the Republic of South Africa.

23. Jurisdiction

The Parties unconditionally consent and submit to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg in regard to all matters arising from this Agreement.

24. Costs

Each Party shall pay its own costs, fees and expenses incurred relating to the negotiation, preparation, execution and completion of this Agreement.

25. Counterparts

This Agreement may be executed in counterparts, each of which will be an original and which together constitute the same agreement.