VAT # 427 028 1290
Import/Export Lic No. 218 325 57
(Registration number: 2015/008835/07)
Contact: +27 (0) 83 459 9043
Moto Village Co PTY Ltd
Moto Village Co (Pty) Ltd
Registered Office: 185 – 191 Main Road, Constantiaberg, Cape Town, 7945
GENERAL TERMS AND CONDITIONS
Incorporated into any Agreement of Sale
in respect of a
Entered into by and between
Moto Village Co (Pty) Ltd
(Registration number: 2015/008835/07)
on behalf of the Owner
and a Purchaser
1.1 “Agreement/ Sale Agreement” shall mean the Agreement of Sale entered into by the seller and the Purchaser for the sale of a Vehicle, any Annexures thereto, these general terms incorporated herein is written document incorporating the attached Information Sheet together with all written appendices, annexures, exhibits or amendments attached to it from time to time.
1.2 “Business Day” means a day during the week other than an official public holiday, Saturday or Sunday.
1.3 “CPA” means the Consumer Protection Act 68 of 2008 as amended with all the regulations thereto.
1.4 “Fair Wear and Tear” means any damage to the vehicle which is caused by the usually to be expected reasonable driving of vehicle in terms of the proper intended use, including damage or breakages due to the age or deteriorated condition;
1.5 “Reasonable driving” of the vehicle by the Purchaser does not entitle intentional reckless, negligent and/ or grossly negligent driving and does not include accidental breakages or misuse caused to the vehicle by the Purchaser, or other third parties who drive or are transported in the vehicle;
1.6 “Material Breach” means any breach of this Sale Agreement which relates to the essential terms and performances required and due by this Agreement and as a result has or potentially has a significant monetary or lawful effect on the Parties to this Sale Agreement. Said Material Breach is also one that has not been addressed by the breaching Party within 7 (Seven) where the CPA does not apply, which is submitted it does not alternatively, 20 (Twenty) Business Days after request to remedy same alternatively occurs more than once in any 3 (Three) Month period. Includes but is not limited to Purchaser failing to make payment of any amount in terms of the Sale Agreement when same falls due and/ or perpetrating conduct which constitutes any breach of the terms of this Sale Agreement;
1.7 “Month” is calculated using a calendar starting from the specific date referred to;
1.8 “Deposit” means the amount/s payable by Purchaser to Seller as an initial amount and after the final signatures of this agreement by the parties hereto shall confirm conclusion of the Agreement herein prior to delivery of the vehicle and the amount is as per 1.5 of the Information Sheet;
1.9 “Seller” means Road and Race Automotive (Pty) Ltd on behalf of the private owner as aforesaid in paragraph 5 herein, with its information as set out in 1.1 of the Information Sheet, its employees, agent, authorised representative and/ or nominated appointee unless the context indicates otherwise;
1.10 “Purchaser” means the Party referred to in item 1.2 of the Information Sheet its employees, agent, authorised representative and/ or nominated appointee unless the context indicates otherwise;
1.11 “Parties” means Purchaser and Seller and “Party” means either of them, as intended and illustrated contextually;
1.12 “Sold vehicle/ vehicle” means the motor vehicle referred to above and in item 1.3 of the Information Sheet;
1.13 “Purchase price” means the aforementioned amount to be paid by Purchaser over to Seller for the transfer of the vehicle and said amount is as per 1.4 of the Information Sheet;
1.14 “Sign” means any signature whether handwritten, electronic or advanced electronic signature, failing which as set out by the Electronic Communications and Transactions Act 25 of 2002 and the words “Sign”, “Signing” and “Signature” shall possess the identical meaning;
1.15 “Signature Date” means the date of signature of this Sale by the last Party signing;
1.16 “Specific Performance” means the proper performance of Purchaser’s obligations in terms of this Sale;
1.17 “Termination Date” means the date this Sale ceases to exist by operation of the law and/ or cancellation and/ or any lawful reason whatsoever;
1.18 “Writing” means the manner of illustrating information in physical representation and shall include amongst other things email together with information and figures in electronic form, hardcopy printouts, handwritten documents but not facsimile transmissions. “Written” and “Write” shall have corresponding meaning; and
1.19 “NCA” means the National Credit Act 34 of 2005 (as amended), which the parties warrant is not applicable to the Agreement herein. Initials
2. PURCHASER’S OBLIGATIONS:
2.1 Purchaser shall be responsible for the maintenance and upkeep of Vehicle after delivery of the Vehicle over to the Purchaser and/ or the Purchaser’s nominee.
2.2 Purchaser is responsible for ensuring that Purchaser alternatively Purchaser’s own appointed independent assessor whether expert or otherwise inspects and/ or test drives the vehicle at the Purchasers own expense and failure of Purchaser to properly inspect and/ or test drive the vehicle as aforesaid is done at Purchaser’s sole individual risk. Initials
2.3 Purchaser will respect the privacy of Seller and make all appointments for access to the vehicle– or any reason at least 48 hours’ notice to Seller in advance. Purchaser agrees to ensure that all items regarding the Vehicle are in good working order prior to taking delivery thereof. Initials
2.4 Purchaser undertakes to maintain the Vehicle in good order and condition after delivery to the Purchaser. Initials
2.5 Purchaser shall pay all amounts due in terms of this Agreement of Sale le free of exchange.
3. SELLER’S OBLIGATIONS:
3.1 Seller shall allow Purchaser reasonable access to the vehicle for the purposes of general inspection, such access to be by prior appointment as aforesaid.
3.2 Seller shall not make structural changes or any other alterations, additions to or improvements to the Vehicle without written consent of the Purchaser.
3.3 Seller hereby agrees and undertakes to keep and maintain the Vehicle in good order and condition and in a clean, condition during the currency of the Sale, prior to delivery to Purchaser as set out herein, with the exception of fair wear and tear and vis major.
4. LIABILITY OF THE PARTIES
4.1 Unless set out otherwise below, Seller limits its liability for any breach of this Agreement (and for any other liability arising out of or connected to this Agreement) to the amount of the Purchase Price. Seller is expressly excluded from any and all liability whatsoever, amongst other things but not limited to for loss of profit, goodwill or contracts and for any indirect, consequential or economic loss. Initials
4.2 In the event of the total or partial destruction of the Vehicle or any portion by any cause, Purchaser shall be entitled to terminate the Sale, failing which it shall continue. Purchaser shall have no claim for compensation against Seller, but should the destruction be due to the fault or negligence of Purchaser, his family, employees or agent, Seller shall under these circumstances be entitled to claim payment of such damages from Purchaser. Initials
4.3 Possession of the Vehicle, wherein the Vehicle shall be considered delivered, shall be given to Purchaser on date of transfer from which date the risk of ownership shall pass to Purchaser and Purchaser shall receive all benefits from and be responsible for the vehicle and the adequate insurance thereof from this date. Initials
5. BREACH OF THIS SALE AGREEMENT BY PURCHASER
5.1 Where the CPA is not applicable to this Sale Agreement then the Seller shall, should Purchaser breach the terms of this Sale Agreement, be entitled to cancel this Sale Agreement after written notification providing 7 (seven) Business Days’ notice to the Purchaser requiring the Purchaser to remedy the breach.
5.2 Should the CPA apply to the Sale Agreement and provided this Sale Agreement is not entered into between two Parties who are both juristic persons, then:
5.2.1 Should Purchaser remain in breach of any of the terms of the Sale Agreement for a period of 20 (twenty) Business Days after dispatch of a written notification calling upon Purchaser to remedy such breach; or
5.2.2 Seller may cancel the Sale Agreement on 7 (seven) Business Days’ notice to Purchaser in the event that Purchaser remains in continuous breach for a period of 3 (three) Months and fails to remedy such breach, after written notification of such breach on 3 (three) or more occasions by Seller.
5.3 Should Purchaser remain in breach of the Sale Agreement then Seller may:
5.3.1 claim specific performance of the Sale Agreement;
5.3.2 immediately cancel the Sale Agreement;
5.3.3 without further notice claim all and any amount due and owing in terms of the Sale Agreement including damages from Purchaser. Initials
6. BREACH OF THIS SALE AGREEMENT BY SELLER
6.1 Only where the CPA applies and provided the Sale Agreement is not between juristic persons, regardless of their annual turnover or asset value, shall the following paragraphs and sub–paragraphs apply:
6.1.1 Should the Purchaser cancel the Sale Agreement, by giving Seller 20 (twenty) Business Days’ notice in writing or other recorded manner and form:
184.108.40.206 Upon cancellation of this Sale Agreement as contemplated Purchaser remains liable to Seller for any amounts owed to Seller in terms of this Sale Agreement up to the date of cancellation; and
220.127.116.11 Seller may impose a reasonable cancellation penalty with respect to this Sale Agreement upon Purchaser in contemplation of this Sale Agreement being properly carried out and must credit Purchaser the amount, if any, that remains,
7. ALTERNATIVE DISPUTE RESOLUTION, MEDIATION & ARBITRATION
7.1 Should the CPA apply then in terms of section 70 of the CPA the Purchaser may seek to resolve any dispute in respect of a transaction or agreement with a Seller by referring the matter to an alternative dispute resolution agent and for these purposes the Purchaser nominates the industry ombud accredited in terms of section 82 (6) of the CPA should the Seller be subject thereto, the Motor Industry Ombudsman of South Africa (“the MIOSA”).
7.2 The MIOSA provides for alternative dispute resolution within the automotive industry;
7.3 Purchaser is directed to the South African Automotive Industry Code of Conduct and its complaints procedure at www.miosa.co.za/doc/code-of-conduct.pdf and www.miosa.co.za/ARF/assistance-request-form.php, respectively and Purchaser warrants herein that Purchaser has read the aforementioned Code of Conduct and is fully acquainted with the terms thereof and understands same; Initials
7.4 Any provision of the Code of Conduct inconsistent with the CPA will be invalid;
7.5 The Seller shall make every reasonable effort to resolve complaints within 30 (thirty) Business Days and if unable to do so, for reasons such as on-going technical testing or the like, then to inform the Purchaser thereof before the expiry of 30 (thirty) days.
7.6 If a dispute is not resolved within 30 Business Days only then shall the Purchaser approach the MIOSA.
7.7 The parties acknowledge that the MIOSA is a voluntary, non-statutory body that has been afforded recognition under section 82(6) of the CPA and the authority of the MIOSA to resolve disputes is acquired from the Code of Conduct and the CPA.
7.8 The MIOSA does not have jurisdiction in respect of any dispute which requires the determination of merits and the quantum of damages.
7.9 The Purchaser may not institute legal action without first referring a dispute to the MIOSA for mediation and/ or arbitration.
7.10 The MIOSA may not consider a complaint or dispute that relates to a juristic person as a Purchaser whose asset value or annual turnover equals or exceeds the threshold (limit) being the amount as determined by the Minister by regulation issued in terms of section 5(2) of the CPA, from time to time.
7.11 For the purposes of the procedures and powers of the MIOSA to mediate and arbitrate the matter and the terms thereof the Purchaser is referred to the contents of the aforementioned Code of Conduct.
7.12 Purchaser warrants that prior to lodging any complaint that the following shall be prepared and accompany said complaint, namely the vehicles service plan, if any, the current service record and that the service schedule has been stamped by the servicing dealer.
8. ENTIRE SALE AGREEMENT
8.1 This Sale Agreement constitutes the entire agreement between the Parties and no amendment or variation hereof shall be binding on Seller unless reduced to writing and signed by the Parties’ authorised representative.
8.2 Any relaxation, indulgence or waiver which Seller or his agent may grant Purchaser or any condonation by Seller of any breach of the terms of this Sale shall not become binding on Seller who at all times shall be entitled to claim due and prompt performance by Purchaser. Initials
9. TERMS AND CONDITIONS OF THE SALE AGREEMENT
9.1 It is specifically recorded that the terms of the Sale Agreement including the Annexures directly incorporated herein are of the utmost importance to a fruitful working relationship between the Parties and the Purchaser must provide the Seller with all documentation mentioned in the Checklist annexed hereto within a reasonable time. Initials
9.2 As a result Seller and Purchaser each undertake to read and familiarise itself with the terms and conditions hereof and as a result of said undertaking any penalties and/ or losses which Seller may be liable for as a result of Purchaser breaching the Sale Agreement may be directly claimed by Seller from Purchaser. Initials
10. PERFORMANCE OF THE SALE AGREEMENT
10.1 Purchaser shall co-operate with Seller in respect of any requirements in relation to the Sale Agreement and Purchaser shall not interfere with or obstruct the proper performance of Seller obligations herein.
10.2 The failure of a Party to fulfil any of its obligations under this Sale Agreement shall not be considered to be a breach of, or default, under this Sale Agreement provided such inability arises from an event of Force Majeure, (a superior or overpowering force) and that the Party affected by such an event has taken all reasonable precautions, due care and reasonable alternative measures in order to meet the terms and conditions of the Sale Agreement, and furthermore has informed the other Party as soon as possible about the occurrence of such an event.
10.3 Notwithstanding any other term contained in this Sale Agreement in the event that the performance of an obligation in terms of the Sale Agreement is suspended on the grounds of Force Majeure, the time for complying with any obligation herein shall be extended by the extent of the delay plus a reasonable period for the resumption of the performance or, if the speed of performing an obligation has to be reduced, the time for the completion of the performance shall be extended as may be necessary in the circumstances.
10.4 Notwithstanding the other terms contained in this Sale Agreement, during the period of a Seller’s inability to perform any obligation imposed herein, as a result of an event of Force Majeure, Purchaser shall not be entitled to enforce the terms of the Sale Agreement.
10.5 In the event that a dispute arises between the Parties in respect any rights and obligations herein, the Parties shall negotiate in good faith with a view to settling any dispute or claim arising out of or relating to the Sale Agreement. In the event said dispute cannot be settled between the Parties, the aggrieved Party shall in the first instance refer such dispute to qualified and certified single mediator situated within 20km (kilometres) of the Sellers premises, at Purchasers own cost within 10 (ten) days after having advised the Seller in writing, that the good faith negotiations in regard to a dispute have failed. Initials
10.6 Alternatively the mediator shall be selected by written agreement between the Parties; the costs of the mediation shall then be borne equally by the Parties.
10.7 If either Party is dissatisfied with the mediator’s opinion or should the mediation fail, then such Party in its sole discretion may institute legal proceedings against the other Party and paragraph 19 and its sub-paragraphs herein bear reference.
11. JURISDICTION OF THE MAGISTRATES COURT
Other than the mediation referred to on 10.6 and 10.7 above the Parties consent to the jurisdiction of the Magistrates Court where the vehicle is situated, in respect of any legal proceedings arising out of this Sale, in terms of Section 45 of the Magistrates’ Court Act 32 of 1944, as amended, or any similar section of an legislation replacing said Act, as the case may be, to the jurisdiction of the Magistrates Court for the purpose of any proceedings in terms of or incidental to the Sale Agreement, notwithstanding that the amount claimed or the value of the matter in dispute may exceed such jurisdiction.
12.1 The Parties hereby agree that should the Purchaser default in terms of this Sales Agreement then the Purchaser shall be liable for and pay on demand all legal costs on the scale as between attorney and client incurred by the Seller in enforcing this Sale Agreement, whether any action has been instituted or not, said legal costs incurred in respect of any legal steps taken in terms of the Sale Agreement whatsoever, including collection commission. Initials
12.2 Purchaser must also pay any reasonable charges that the Seller has incurred due to late payments of any amount due and owing in terms of the Sale Agreement, by the Purchaser.
13. LETTERS, NOTICES & LEGAL PROCESS
13.1 The requisite contact details for Seller and Purchaser are the following:
13.1.1 Seller as referred to in item 1.8 of the Information Sheet; and
13.1.2 Purchaser, as referred to in item 1.9 of the Information Sheet;
and these contact details shall remain the chosen address of the Parties unless either Party notifies the other in writing of any change of such address. Initials
13.2 The addresses given by the Parties in the Information Sheet shall constitute the Parties domicilium citandi et executandi (“the domicilium address”) for any and all purposes stipulated under the Sale Agreement and the receipt of any documentation:
13.2.1 Delivered by hand shall be deemed to have been duly received on the date of delivery and shall be deemed to be delivered where delivered by hand to a responsible person present at the aforementioned chosen address; or
13.2.2 Sent by prepaid registered mail shall be deemed to have been duly received on the 5th (fifth) business day following such date of posting; or
13.2.3 Transmitted by email shall deemed to have been duly received 1 (one) calendar day after dispatch;
13.3 Purchaser and any Surety of Purchaser, as the case may be, hereby nominate Purchaser’s physical address and e–mail address as each’s domicilium citandi et executandi and the Parties confirm that the delivery of letter, notices and legal documents may be carried out via e–mail. The aforementioned domicilium citandi et executandi is the address at which all letters, notices and legal process required to be given to Purchaser in terms of the Sale
Agreement shall be deemed to have been duly given to Purchaser, the institution of any legal proceedings if delivered thereto in terms of paragraph 31 and the subparagraphs therein.
14. DAMAGE TO OR DESTRUCTION OF VEHICLE:
If the Vehicle is destroyed prior to delivery to this Sale shall terminate when that happens unless the parties agree in writing otherwise.
15. INVALIDITY OF SALE AGREEMENT TERMS
The Parties hereby record that should any paragraph or term of the Sale Agreement be declared or found to be invalid, unenforceable or unlawful, in any way then the remainder of the Sale Agreement shall not be affected thereby and furthermore the paragraph of term in question shall be severable from the Sale Agreement to the extent that it is invalid, unenforceable or unlawful and the remainder of the Sale Agreement shall remain in full force and effect.
16.1 Any reference to the singular includes the plural and vice versa;
16.2 Any reference to one gender includes the other gender;
16.3 Any reference to a natural person includes an artificial or juristic person/ entity; and
16.4 No section of this Sale Agreement is intended to contravene or limit any applicable provisions CPA and where this Sale contravenes said legislation that legislation is directly incorporated herein in place and to the extent of said contravention.
17.1 This Sale Agreement shall be signed in writing.
17.2 If this Sale Agreement, or any Part of it, is signed by Seller and Purchaser on different copies, it shall be valid despite the fact that the signatures of the Parties do not appear on a single document and even though they appear in counterparts and shall include the electronic transmission of same.
17.3 In the event of Purchaser or Seller acting on behalf of a Company, Close Corporation, or Trust, the signatories hereto warrant that they are duly authorized thereto and that they shall be personally bound in the even to noncompliance with any of the Company’s, Close Corporation’s or Trust’s obligations under this contact.
Notwithstanding the terms of this Agreement, until delivery of the Vehicle, the Seller shall be responsible for and ensure the insurance of the Vehicle whereas the Purchaser shall ensure the insurance of the Vehicle upon delivery of the Vehicle.
19. NO WARRANTIES, REPRESENTATIONS
The Purchaser agrees that no warranties or representations have been given or made by or on behalf of the Seller to the Purchaser as to the state, condition or fitness of the Vehicle. Initials
20.1 The Purchaser is regarded to have accepted delivery of the Vehicle satisfactorily on the earliest of the following circumstances:
20.1.1 when the Purchaser expressly or implicitly communicates to the Seller that the Purchaser has accepted delivery of such goods; or
20.1.2 when the Vehicle has been delivered to the Purchaser on the delivery date, and
20.1.3 The Purchaser does anything in relation to the Vehicle that would be consistent with acceptance that the works have been properly completed; or
20.1.4 After the lapse of a reasonable time after the delivery date, the Purchaser retains the goods and the Vehicle without intimating to the Seller that the Purchaser has rejected delivery of the Vehicle to sub-paragraph 10.4.5 and the sub-paragraphs contained therein.
20.1.5 When the Seller tenders delivery to the Purchaser of any goods and the Vehicle on the delivery date, the Seller must, allow the Purchaser and/ or the Purchaser’s agent and/ or duly authorised representative a reasonable opportunity to examine those goods, works and Vehicle for the purpose of ascertaining whether the Purchaser is satisfied that the works have been properly completed in accordance with the Agreement including that the works:
18.104.22.168 are of a type and quality reasonably contemplated in the Agreement; and
22.214.171.124 reasonably conform to the material specifications of the special order herein.
21. PERFORMANCE OF THE AGREEMENT
21.1 The Purchaser shall co-operate with Seller in respect of any requirements in relation to the Agreement and Purchaser shall not interfere with or obstruct the proper performance of the Seller obligations herein.
21.2 The failure of a Party to fulfil any obligations under this Agreement shall not be considered to be a breach of, or default, under this Agreement provided such inability arises from an event of Force Majeure, (a superior or overpowering force/ event) and that the Party affected by such an event has taken all reasonable precautions, due care and reasonable alternative measures in order to meet the terms and conditions of the Agreement, and furthermore has informed the other Party as soon as possible about the occurrence of such an event.
21.3 Notwithstanding any other term contained in this Agreement in the event that the performance of an obligation in terms of the Agreement is suspended on the grounds of Force Majeure, the time for complying with any obligation herein shall be extended by the extent of the delay plus a reasonable period for the resumption of the performance or, if the speed of performing an obligation has to be reduced, the time for the completion of the performance shall be extended as may be necessary in the circumstances.
21.4 Notwithstanding the other terms contained in this Agreement, during the period of a Seller’s inability to perform any obligation imposed herein, because of an event of Force Majeure, the Purchaser shall not be entitled to enforce the terms of the Agreement.
21.5 If a dispute arises between the Parties in respect any rights and obligations herein, the Parties shall negotiate in good faith with a view to settling any dispute or claim arising out of or relating to the Agreement. In the event said dispute cannot be settled between the Parties, the aggrieved Party shall in the first instance refer such dispute to qualified and certified single mediator situated within 20km (kilometres) of the Purchaser’s address within 10 (ten) days after having advised the Purchaser in writing, that the good faith negotiations regarding a dispute have failed.
21.6 The Parties undertake to one other to:
21.6.1 use their reasonable commercial endeavours to procure the fulfilment of each of the conditions set out above as soon as possible after the conclusion of this Agreement; and
21.6.2 disclose in writing to each other anything which will or is likely to prevent any of the conditions set out above from being satisfied, immediately it becomes aware of such matter.
22. NO WAIVER
No relaxation, indulgence or extension the Seller grants to the Purchaser will constitute a waiver of any right which the Purchaser has in terms of this Agreement or in law.
23. ROADWORTHY CERTIFICATE & REGISTRATION
The Seller must take the necessary steps to make the Vehicle fit for the grant of a certificate of roadworthiness and must deliver a certificate of roadworthiness to the Purchaser before the Purchaser accepts delivery of the Vehicle on the delivery date.
24. WHOLE AGREEMENT, NO AMENDMENT
24.1 This Agreement, the Annexures thereto as well as the terms and conditions herein constitute the whole agreement between the Parties relating to the subject matter hereof and supersedes any other discussions, agreements and/or understandings regarding the subject matter hereof. Initials
24.2 No amendment, variation, deletion or consensual cancellation of this Agreement or any provision or term hereof or of any agreement or other document issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of this Agreement or of any agreement or other document issued pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Party granting such extension, waiver or relaxation). Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given. Initials
24.3 No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any agreement or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against any Party in respect of its rights under this Agreement, nor shall it operate so as to preclude such Party thereafter from exercising its rights strictly in accordance with this Agreement. Initials
24.4 To the extent permissible by law no Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not. Initials
Any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated as if it had never been written (pro non scripto) and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
26. EXECUTION IN COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same agreement as at the date of signature of the Party that signs its counterpart last in time.
27. GOOD FAITH
27.1 The parties undertake, during the continuance of this Agreement, to observe principals of good faith towards one another in the performance of their obligations, and that they will at all times act reasonably, honestly, and perform their respective obligations arising for this Agreement diligently and with reasonable care.
27.2 The terms of this Agreement have been negotiated and shall not be interpreted or construed to the disadvantage of a Party because that Party was responsible for or participated in the preparation of this Agreement (or any part of it), and the contra proferentem rule shall not be applied in the interpretation of this Agreement.
28.1 Should any dispute arise regarding the Agreement or the performances required in terms hereof the Purchaser and Purchaser agree that the dispute shall be decided in accordance with the laws of the Republic of South Africa and the dispute shall be decided within the jurisdiction of the District or Regional Magistrates Court in Cape Town, Western Cape, South Africa which Court’s decision shall be binding on the Purchaser provided the necessary mediation and arbitration as set out in the Agreement have been exhausted.
28.2 The parties consent to the jurisdiction of the District or Regional Magistrates Court in terms of section 45 of the Magistrate’s Court Act 32 of 1944 (“the MCA”) for all purposes in terms of this Agreement but confirm that this shall not preclude the Purchaser from instituting proceedings against the Purchaser out of any other Court having competent jurisdiction.
28.3 In terms of section 45 of the MCA, the Purchaser consents to the jurisdiction of the District and/ or Regional Magistrates’ Courts having jurisdiction in terms of clause 28.1 herein for the purposes of a claim for the payment of any amount due to the Purchaser in terms of this Agreement, notwithstanding that the amount, or the total of the amounts, claimed by the Purchaser may exceed the normal monetary jurisdictional limit of the relevant District and/ or Regional Magistrates Court.