BREACH AND TERMINATION. (a) Without affecting any other rights or remedies that Afrox may have, Afrox may cancel any order the Customer has placed and/or terminate this Agreement immediately at any time by written notice to the Customer if the Customer: (1) has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three working days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business; or (2) fails to make any payment due to Afrox; or (3) there is a material change in the ownership of the shares in the Customer, or any parent company. (b) Without prejudice to either party’s other rights and remedies either party may terminate this Agreement by written notice at any time if the other party is in material breach of any of its terms and (in the case of a remediable breach) the breach is not remedied within 28 (twenty- eight) days of receipt of a notice specifying the breach and requiring it to be remedied. (c) Without prejudice to its other rights or remedies (including its rights of termination) Afrox may elect to suspend performance of all or any of its obligations under this Agreement by written notice to the Customer upon the occurrence of any of the events specified in Clauses 10 (a)(1), (a)(2) or (b). In the case of a remediable breach referred to in Clause 10(b) Afrox may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 (twenty-eight) day period referred to in Clause 10(b) has expired. (d) Termination shall be without prejudice to any accrued rights of either party. (e) If this Agreement is terminated and any charges which are payable in instalments are still outstanding, an amount representing the outstanding instalments shall become due and payable by the Customer on termination of this Agreement, this shall include agreed minimum volume undertakings and / or facility fees for any agreed contract period, as may be applicable. The Customer shall immediately pay to Afrox all of the Afrox's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Afrox shall submit an invoice, which shall be payable by the Customer immediately on receipt; (f) The Customer shall be liable to Afrox for all legal expenses on the attorney-and-own-client scale incurred by Afrox in the event of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Afrox may demand. Afrox shall be entitled to use any and all means including utilization of a debt collection agency or credit bureau to assist in the collection of monies owed by the Customer to Afrox and in addition Afrox shall have the right to list the Customer with the credit bureau if the Customer’s account is in arrears. (g) Upon termination of this Agreement for any reason Afrox will at the Customer’s cost remove all the Afrox Equipment from the Customer’s premises, or where the Customer opposes such removal Afrox shall render the Afrox Equipment unusable. Should the Customer oppose such removal and return of the Afrox Equipment, the Customer shall pay Afrox a sum equal to the replacement cost of new Afrox Equipment. The Failure by Afrox to remove any Afrox Equipment within any set period shall not preclude Afrox from removing the Afrox Equipment at a later date, nor shall it allow or infer that the Customer may take ownership of the Afrox Equipment. Customer agrees that no storage charges will be levied against Afrox if the Afrox Equipment are not removed by Afrox within any set period.
Appears in 2 contracts
Sources: Supply Agreement, Supply Agreement
BREACH AND TERMINATION.
13.1 Each of the following is an “Event of Default”:
(a) Without affecting if any other rights or remedies that Afrox may have, Afrox may cancel any order of the Customer has placed and/or terminate Shareholders is in material breach of the terms of this Agreement immediately at any time by written notice to the Customer if the Customer:Agreement;
(1b) has if any corporate action, application, order, proceeding of the Shareholders (or appointment or other step taken or made by or in respect any of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwiseits direct and/or indirect holding company(ies)) or bankruptcyany part of its assets or undertaking, is involved in or if it is subject to any Insolvency Proceedings, has stopped or suspended payment of its debts by reason of insolvency, becomes unable to pay its debts as they fall dueor otherwise becomes insolvent in any relevant jurisdiction or there are circumstances which require or would enable any Insolvency Proceedings to be commenced in respect of such Party or any part of its assets or undertaking. For the avoidance of doubt, this provision shall not apply to a bona fide re-organisation or if it ceases to trade re-construction of a Shareholder (or if a distress, execution or other legal process is levied against any of its assets direct and/or indirect holding company(ies)) whilst solvent on terms approved by the other Shareholder (such approval not to be unreasonably withheld or delayed);
(c) if there is a Change of Control of any Shareholder which is change has not discharged or paid out been otherwise approved in full within three working days or if any event analogous to any of writing by the foregoing shall occur in any jurisdiction in which other Shareholder;
(d) the Customer is incorporated, resident or carries on businessCause Event (as defined under this Agreement) has occurred; or
(e) if Shareholder A1 or Shareholder B1 (as the case may be) is in breach of any Business Undertaking (to be defined and agreed in the Asset Management Agreement among the relevant parties thereto). A “material breach” for the purpose of this Clause means a breach of any material obligation which is incapable of remedy, or a breach of any material obligation that is capable of remedy but which has not been remedied within thirty (30) calendar days of service of a written notice from the Shareholder who is not in breach requiring that such breach be remedied; provided that, where a Shareholder defaults in paying its portion of Shareholder Loans due to be advanced under this Agreement and such Shareholder has subsequently made good its payment for all such Shareholder Loans due to be advanced (for the avoidance of doubt, including by virtue of the payment by the Complying Shareholder pursuant to Clause 3.12(a) or 3.12(c) or by such Shareholder under Clause 3.15), such Shareholder shall no longer be deemed to be in “material breach” in respect of such Shareholder Loans after such payment. For the purpose of this Clause, if an Event of Default has arisen in respect of a Shareholder, such Shareholder shall be the “Shareholder in Breach” and the other Shareholder of the relevant JV Company shall be the “Non-Defaulting Shareholder”. For the avoidance of doubt and by way of example only, “material obligations” shall include (i) Shareholders’ obligation to provide Shareholder Loans in accordance with Clauses 3.5 and 3.9 and (ii) Shareholder’s obligations in connection with transfers set out under Clauses 7 and 11.
13.2 In addition to any other rights the Non-Defaulting Shareholder may have under this Agreement, if an Event of Default has occurred with respect to the Shareholder in Breach, (a) the Non-Defaulting Shareholder may, at its option (but without prejudice to any other right or remedy it may have), by notice to the Shareholder in Breach, terminate this Agreement with immediate effect (in which event Clause 19.2 shall apply); or (b) the Non-Defaulting Shareholder shall, by serving a notice to the Shareholder in Breach stating that there has been an Event of Default (“Default Transfer Notice”), have the option to require the Shareholder in Breach, at the Non- Defaulting Shareholder’s sole discretion, to either (i) sell all of its Shareholder’s Interests to the Non-Defaulting Shareholder or its designee at a discount of 20% to the Fair Market Value of such Shareholder’s Interests; or (ii) buy all of the Shareholder’s Interests of the Non-Defaulting Shareholder at a premium of 20% to the Fair Market Value of such Shareholder’s Interests. Upon service of the Default Transfer Notice, the Shareholder in Breach shall be deemed to have made an irrevocable offer to the Non- Defaulting Shareholder to either sell all of its Shareholder’s Interests or buy all of the Shareholder’s Interests of the Non-Defaulting Shareholder (as specified by the Default Transfer Notice).
13.3 The offer as provided in Clause 13.2 may be accepted by the Non-Defaulting Shareholder within fourteen (14) days after the agreement or determination of the Fair Market Value of the Shareholder’s Interests of the Shareholder in Breach or the Non- Defaulting Shareholder (as the case may be). If the offer as provided in Clause 13.2 is not accepted by the Non-Defaulting Shareholder within the foregoing prescribed period, such offer shall lapse and the Non-Defaulting Shareholder shall be deemed to have accepted the Event of Default.
13.4 For the purpose of this Clause 13, “Fair Market Value” shall be determined based on the consolidated net asset value of the Property Holding Group or the Operator Group (as the case may be) where the value of the Property or the Operator Group (as the case may be) shall be the arithmetic average of the then market value of the Property or the Operator Group (as the case may be) as appraised within sixty (60) days of the Default Transfer Notice by any two (2) fails of the Agreed Professional Agents as may be appointed by the Non-Defaulting Shareholder at its sole discretion. The cost of obtaining such appraisals and/or valuations of the Property or the Operator Group (as the case may be) shall be borne by the Shareholder in Breach.
13.5 In the event that the Shareholder in Breach and the Non-Defaulting Shareholder are unable to make any payment due agree the Fair Market Value within a period of fourteen (14) days after the appraisal of the then market value of the Property or the Operator Group (as the case may be) in accordance with Clause 13.4 (the “FMV Period”), the following provisions shall apply to Afrox; orthe determination of Fair Market Value for the purpose of this Clause 13:
(3a) there is the Non-Defaulting Shareholder shall, within a material change in period of seven (7) days after the ownership expiry of the shares FMV Period, instruct the Adjudicator to determine the Fair Market Value based on the assumptions set out in the Customer, or any parent company.sub-clause (c) below;
(b) Without prejudice the Shareholder in Breach and the Non-Defaulting Shareholder shall be entitled to either party’s other rights and remedies either party may terminate this Agreement by make written notice at any time if submissions to the other party is in material breach of any of its terms and Adjudicator within fifteen (in the case of a remediable breach) the breach is not remedied within 28 (twenty- eight15) days of receipt the date of a notice specifying its appointment and the breach Parties shall provide the Adjudicator with such assistance and requiring it documents as the Adjudicator may reasonably require for the purpose of making its determination, subject to be remedied.the Adjudicator giving such confidentiality undertakings as the Shareholder in Breach and the Non- Defaulting Shareholder may reasonably require;
(c) Without the Adjudicator shall be instructed by the Non-Defaulting Shareholder to deliver their determination of the Fair Market Value within thirty (30) days of the date of its appointment pursuant to Clause 13.5(a), such determination to be made on the basis of IFRS and taking into account the following assumptions:
(i) the value of the Property or the Operator Group (as the case may be) is the value as determined by the Agreed Professional Agents as aforesaid; and
(ii) the relevant Shareholder’s Interests are free of encumbrances, provided always that the fair value of a Shareholder Loan shall not, in any event, exceed its face value and if the Adjudicator shall certify that the fair value of the Shareholder’s Interests of the Shareholder in Breach is nil, then the total fair value of such Shareholder’s Interests shall be deemed to be HK$1.00.
13.6 The Adjudicator shall act as an expert and not as an arbitrator and its certification shall, in the absence of fraud and manifest error, be final, conclusive and binding on the Shareholders and each JV Group Company. The cost of obtaining such certificate shall be borne by the Shareholder in Breach.
13.7 Subject to Clauses 13.8 and 13.9 below, completion of sale and purchase of any Shareholder’s Interest under this Clause 13 shall be held at such place as the Non- Defaulting Shareholder may determine at noon (Hong Kong time) on the day falling on the twenty-first (21st) Business Day after the Fair Market Value of the relevant Shareholder’s Interests is agreed or certified by the Adjudicator, or at such other time as the Parties may agree, provided always that the Non-Defaulting Shareholder shall have the right, within fourteen (14) Business Days after the Fair Market Value of the relevant Shareholder’s Interests is agreed or certified by the Adjudicator, to withdraw the Default Transfer Notice by giving a notice in writing to the Shareholder in Breach, in which event the Default Transfer Notice shall be deemed to be irrevocably withdrawn and the Non-Defaulting Shareholder shall be deemed to have accepted the Event of Default.
13.8 At the completion of sale and purchase of any Shareholder’s Interest pursuant to this Clause 13, the Shareholder in Breach shall, upon receipt or deemed receipt of the purchase price (subject to Clause 13.10) by cashier’s order(s) or wire transfer, deliver to the Non-Defaulting Shareholder (or its nominee(s) as the Non-Defaulting Shareholder may direct) the share certificate(s) of its Shares, an executed instrument of transfer of such Shares and an executed assignment of any Shareholder Loans owing by the Company to the Shareholder in Breach. The Shareholder in Breach shall represent and warrant to the relevant transferee that such Shareholder’s Interests shall be free and clear of any encumbrances and that it is the legal and beneficial owner of the Shareholder’s Interests or otherwise has full authority to sell, transfer and assign such Shareholder’s Interests as provided herein.
13.9 Each Shareholder hereby agrees to sign, seal, deliver, execute, perfect and do all deeds, instruments, documents, acts and things as may be required or considered expedient by the other Shareholder to give effect to Clauses 11 and 13. If the Shareholder in Breach shall fail to do so then it shall be deemed to have irrevocably appointed any person nominated by the Non-defaulting Shareholder to be its agent and attorney to execute all necessary transfer(s) and documents on its behalf, against receipt by the Company (on trust for the Shareholder in Breach) of the consideration payable for its Shareholder’s Interest, and to effect and complete such transfer(s) and deliver such documents to the Non-Defaulting Shareholder (or its nominee(s) as the Non-Defaulting Shareholder may direct) on behalf of the Shareholder in Breach. After the Non-Defaulting Shareholder (or its nominee(s)) has been registered as the holder of the relevant Shares, the validity of the arrangement contained in this Clause 13.9 shall not be disputed. For the avoidance of doubt, failure to produce a share certificate shall not impede the registration of Shares under this Clause 13.
13.10 The Non-Defaulting Shareholder may deduct or set off from the purchase price payable to the Shareholder in Breach for its Shareholder’s Interests any amounts owing by the Shareholder in Breach to:
(a) the relevant JV Group Company, provided that the Non-Defaulting Shareholder shall pay any such amount being deducted or set-off to the relevant JV Group Company; and
(b) the Non-Defaulting Shareholder.
13.11 In the event that the Shareholder in Breach does not proceed with completion of the sale or purchase of the relevant Shareholder’s Interests, the Non-Defaulting Shareholder shall (without prejudice to its any other rights or remedies (including its rights of termination) Afrox it may elect to suspend performance of all or any of its obligations have under this Agreement or otherwise) be entitled to seek specific performance and/or damages of the relevant offer contained in the Default Transfer Notice duly or deemed accepted by the Non-Defaulting Shareholder in accordance with Clause 13.3 above.
13.12 Notwithstanding any provisions to the contrary in this Agreement, in the event that Shareholder B1 or Shareholder B2 shall become a Shareholder in Breach, each of Shareholder B1 and Shareholder B2 hereby acknowledges and agrees that, upon the written notice to of Shareholder A1 or Shareholder A2 (as the Customer upon the occurrence of any of the events specified in Clauses 10 (a)(1case may be), it shall procure the Asset Manager to agree in writing to (a)(2) or (b). In the case of a remediable breach referred to in Clause 10(b) Afrox may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 (twenty-eight) day period referred to in Clause 10(b) has expired.
(d) Termination shall be without prejudice to any accrued rights rights) the termination of either partythe Asset Management Agreement with immediate effect and each of Shareholder A1 and Shareholder B1 shall procure that the Project Company agree to such termination accordingly.
(e) If 13.13 Notwithstanding anything to the contrary herein, completion of any acquisition or disposal of Shareholder’s Interest by Shareholder B1 and Shareholder B2 under this Agreement is terminated and any charges which Clause 13 are payable in instalments are still outstandingsubject to compliance with the applicable Listing Rules, an amount representing the outstanding instalments shall become due and payable by the Customer on termination of this Agreement, this shall include agreed minimum volume undertakings and / or facility fees for any agreed contract period, as may be applicable. The Customer shall immediately pay to Afrox all of the Afrox's outstanding unpaid invoices and interest and, in respect of Services if required, will be conditional on obtaining approval(s) required by WOP and Goods supplied but for which no invoice has been submitted, Afrox shall submit an invoice, which shall be payable by its controlling shareholder(s) under the Customer immediately on receipt;
(f) The Customer shall be liable to Afrox for all legal expenses on the attorney-and-own-client scale incurred by Afrox in the event of
(a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this AgreementListing Rules. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Afrox may demand. Afrox shall be entitled to use any and all means including utilization of a debt collection agency or credit bureau to assist in the collection of monies owed by the Customer to Afrox and in addition Afrox shall have the right to list the Customer with the credit bureau if the Customer’s account is in arrears.
(g) Upon termination of this Agreement for any reason Afrox will at the Customer’s cost remove all the Afrox Equipment from the Customer’s premises, or where the Customer opposes such removal Afrox shall render the Afrox Equipment unusable. Should the Customer oppose such removal and return of the Afrox EquipmentWhen required, the Customer other Shareholders shall pay Afrox a sum equal use reasonable efforts to extend the replacement cost of new Afrox Equipmentperiod for WOP to complete the acquisition or disposal (as the case may be) to provide reasonable time for WOP and its controlling shareholder(s) to obtain such approvals as required under the Listing Rules. The Failure by Afrox In all cases, Shareholder B1 and Shareholder B2 shall use their best endeavors to remove any Afrox Equipment do such acts within any set period shall not preclude Afrox from removing the Afrox Equipment at a later date, nor shall it allow or infer that the Customer may take ownership of the Afrox Equipment. Customer agrees that no storage charges will be levied against Afrox if the Afrox Equipment are not removed by Afrox within any set periodtheir control and power to obtain such approval(s).
Appears in 1 contract
Sources: Shareholders’ Agreement
BREACH AND TERMINATION. (a) Without affecting any other rights or remedies that Afrox AWC may have, Afrox AWC may cancel any order the Customer has placed and/or terminate this Agreement immediately at any time by written notice to the Customer if the Customer:
(1) has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three working days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business; or
(2) fails to make any payment due to AfroxAWC; or
(3) there is a material change in the ownership of the shares in the Customer, or any parent company.
(b) Without prejudice to either party’s other rights and remedies either party may terminate this Agreement by written notice at any time if the other party is in material breach of any of its terms and (in the case of a remediable breach) the breach is not remedied within 28 (twenty- eight) days of receipt of a notice specifying the breach and requiring it to be remedied.
(c) Without prejudice to its other rights or remedies (including its rights of termination) Afrox AWC may elect to suspend performance of all or any of its obligations under this Agreement by written notice to the Customer upon the occurrence of any of the events specified in Clauses 10 (a)(19(a)(1), (a)(2) or (b). In the case of a remediable breach referred to in Clause 10(b9(b) Afrox AWC may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 (twenty-eight) day period referred to in Clause 10(b9(b) has expired.
(d) Termination shall be without prejudice to any accrued rights of either party.
(e) If this Agreement is terminated and any charges which are payable in instalments are still outstanding, an amount representing the outstanding instalments shall become due and payable by the Customer on termination of this Agreement, this shall include agreed minimum volume undertakings and / or facility fees for any agreed contract period, as may be applicable. The Customer shall immediately pay to Afrox AWC all of the AfroxAWC's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Afrox AWC shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(f) The Customer shall be liable to Afrox AWC for all legal expenses on the attorney-and-own-client scale incurred by Afrox AWC in the event of
of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Afrox AWC may demand. Afrox AWC shall be entitled to use any and all means including utilization of a debt collection agency or credit bureau to assist in the collection of monies owed by the Customer to Afrox AWC and in addition Afrox AWC shall have the right to list the Customer with the credit bureau if the Customer’s account is in arrears.
(g) Upon termination of this Agreement for any reason Afrox will at the Customer’s cost remove all the Afrox Equipment from the Customer’s premises, or where the Customer opposes such removal Afrox shall render the Afrox Equipment unusable. Should the Customer oppose such removal and return of the Afrox Equipment, the Customer shall pay Afrox a sum equal to the replacement cost of new Afrox Equipment. The Failure by Afrox to remove any Afrox Equipment within any set period shall not preclude Afrox from removing the Afrox Equipment at a later date, nor shall it allow or infer that the Customer may take ownership of the Afrox Equipment. Customer agrees that no storage charges will be levied against Afrox if the Afrox Equipment are not removed by Afrox within any set period.
Appears in 1 contract
Sources: Supply Agreement
BREACH AND TERMINATION. (a) Without affecting any other rights or remedies that Afrox may have, Afrox may cancel any order the Customer has placed and/or terminate this Agreement immediately at any time by written notice to the Customer if the Customer:
(1) has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three working days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business; or
(2) fails to make any payment due to Afrox; or
(3) there is a material change in the ownership of the shares in the Customer, or any parent company.
(b) Without prejudice to either party’s other rights and remedies either party may terminate this Agreement by written notice at any time if the other party is in material breach of any of its terms and (in the case of a remediable breach) the breach is not remedied within 28 (twenty- eight) days of receipt of a notice specifying the breach and requiring it to be remedied.
(c) Without prejudice to its other rights or remedies (including its rights of termination) Afrox may elect to suspend performance of all or any of its obligations under this Agreement by written notice to the Customer upon the occurrence of any of the events specified in Clauses 10 (a)(1), (a)(2) or (b). In the case of a remediable breach referred to in Clause 10(b) Afrox may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 (twenty-eight) day period referred to in Clause 10(b) has expired.
(d) Termination shall be without prejudice to any accrued rights of either party.
(e) If this Agreement is terminated and any charges which are payable in instalments are still outstanding, an amount representing the outstanding instalments shall become due and payable by the Customer on termination of this Agreement, this shall include agreed minimum volume undertakings and / or facility fees for any agreed contract period, as may be applicable. The Customer shall immediately pay to Afrox all of the Afrox's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Afrox shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(f) The Customer shall be liable to Afrox for all legal expenses on the attorney-and-own-client scale incurred by Afrox in the event of
of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Afrox may demand. Afrox shall be entitled to use any and all means including utilization of a debt collection agency or credit bureau to assist in the collection of monies owed by the Customer to Afrox and in addition Afrox shall have the right to list the Customer with the credit bureau if the Customer’s account is in arrears.
(g) Upon termination of this Agreement agreement for any reason reason, Afrox will at the Customer’s cost remove all the Afrox Equipment from the Customercustomer’s premisespremises within 21 days, or where unless otherwise agree to in writing, by the Customer opposes such removal Afrox shall render parties in the Afrox Equipment unusablemanner as set out in paragraph (h) herein infra. Should the Customer oppose such removal and return Failure of the Afrox Equipment, the Customer shall pay Afrox a sum equal to the replacement cost of new Afrox Equipment. The Failure by Afrox to remove any Afrox Equipment within any set the aforementioned period shall not preclude Afrox from removing the Afrox Equipment at a later date, nor shall it allow or infer that the Customer may take ownership of the Afrox Equipment. Equipment and the Customer agrees that no storage charges will be levied against Afrox if the Afrox Equipment are equipment is not removed by Afrox within any set with the aforementioned period. The Customer will be held liable for the removal cost in the following circumstances:
i) where there is additional equipment;
ii) requirements of labour that needs to be utilised as the cylinders are located in an unusual location (which locations shall include, but not be limited, dangerous areas and areas difficult to come by).
(h) Afrox will, in its attempts to remove the Afrox Equipment, contact the Customer telephonically before / on the estimated collection date to coordinate removal of the Afrox Equipment. If the Customer does not respond by Afrox’s third request to arrange the removal, then Afrox will visit the registered business address of the Customer to confirm and / or obtain the nominated site address and arrange the removal accordingly. If Afrox is unsuccessful to confirm or obtain the nominated site address due to no avail from the customer for whatever reason, Afrox will visit the originally nominated delivery address. If the Afrox Equipment cannot be located at either the registered address or the nominated delivery address of the Customer, the Afrox Equipment shall be deemed unusable and the Customer will forthwith be liable for the replacement costs of new Afrox Equipment which will be debited onto the customer’s account with immediate effect.
Appears in 1 contract
Sources: Supply Agreement
BREACH AND TERMINATION. (a) Without affecting any other rights or remedies that Afrox may have, Afrox may cancel any order the Customer has placed and/or terminate this Agreement immediately at any time by written notice to the Customer if the Customer:
(1) has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three working days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business; or
(2) fails to make any payment due to Afrox; or
(3) there is a material change in the ownership of the shares in the Customer, or any parent company.
(b) Without prejudice to either party’s other rights and remedies either party may terminate this Agreement by written notice at any time if the other party is in material breach of any of its terms and (in the case of a remediable breach) the breach is not remedied within 28 (twenty- eight) days of receipt of a notice specifying the breach and requiring it to be remedied.
(c) Without prejudice to its other rights or remedies (including its rights of termination) Afrox may elect to suspend performance of all or any of its obligations under this Agreement by written notice to the Customer upon the occurrence of any of the events specified in Clauses 10 (a)(1), (a)(2) or (b). In the case of a remediable breach referred to in Clause 10(b) Afrox may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 (twenty-eight) day period referred to in Clause 10(b) has expired.
(d) Termination shall be without prejudice to any accrued rights of either party.
(e) If this Agreement is terminated and any charges which are payable in instalments are still outstanding, an amount representing the outstanding instalments shall become due and payable by the Customer on termination of this Agreement, this shall include agreed minimum volume undertakings and / or facility fees for any agreed contract period, as may be applicable. The Customer shall immediately pay to Afrox all of the Afrox's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Afrox shall submit an invoice, which shall be payable by the Customer immediately on receipt;.
(f) The Customer shall be liable to Afrox for all legal expenses on the attorney-and-own-client scale incurred by Afrox in the event of
(a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Afrox may demand. Afrox shall be entitled to use any and all means including utilization of a debt collection agency or credit bureau to assist in the collection of monies owed by the Customer to Afrox and in addition Afrox shall have the right to list the Customer with the credit bureau if the Customer’s account is in arrears.
(g) Upon termination of this Agreement for any reason Afrox will at the Customer’s cost remove all the Afrox Equipment from the Customer’s premises, or where the Customer opposes such removal Afrox shall render the Afrox Equipment unusable. Should the Customer oppose such removal and return of the Afrox Equipment, the Customer shall pay Afrox a sum equal to the replacement cost of new Afrox Equipment. The Failure by Afrox to remove any Afrox Equipment within any set period shall not preclude Afrox from removing the Afrox Equipment at a later date, nor shall it allow or infer that the Customer may take ownership of the Afrox Equipment. The Customer agrees that no storage charges will be levied against Afrox if the Afrox Equipment are not removed by Afrox within any set period.
Appears in 1 contract
Sources: Supply Agreement
BREACH AND TERMINATION. (a) 8.1. Without affecting any other rights or remedies that Afrox vaBWAfrica may have, Afrox vaBWAfrica may cancel any order the Customer has placed and/or terminate this Agreement immediately at any time by written notice to the Customer if the Customer:
(1) 8.1.1. has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three working days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business; or
(2) 8.1.2. fails to make any payment due to AfroxvaBWAfrica; or
(3) 8.1.3. there is a material change in the ownership of the shares in the Customer, or any parent company.
(b) 8.2. Without prejudice to either party’s other rights and remedies either party may terminate this Agreement by written notice at any time if the other party is in material breach of any of its terms and (in the case of a remediable breach) the breach is not remedied within 28 (twenty- eight) days of receipt of a notice specifying the breach and requiring it to be remedied.
(c) 8.3. Without prejudice to its other rights or remedies (including its rights of termination) Afrox set out herein vaBWAfrica may elect to suspend performance of all or any of its obligations under this Agreement by written notice to the Customer upon the occurrence of any of the events specified in Clauses 10 (a)(1)8.1.1, (a)(2) or (b). In the case of a remediable breach referred to in Clause 10(b) Afrox may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 (twenty-eight) day period referred to in Clause 10(b) has expired8.1.2or 8.1.
(d) Termination shall be without prejudice to any accrued rights of either party.
(e) If this Agreement is terminated and any charges which are payable in instalments are still outstanding, an amount representing the outstanding instalments shall become due and payable by the Customer on termination of this Agreement, this shall include agreed minimum volume undertakings and / or facility fees for any agreed contract period, as may be applicable. The Customer shall immediately pay to Afrox all of the Afrox's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Afrox shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(f) The Customer shall be liable to Afrox for all legal expenses on the attorney-and-own-client scale incurred by Afrox in the event of
(a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Afrox may demand. Afrox shall be entitled to use any and all means including utilization of a debt collection agency or credit bureau to assist in the collection of monies owed by the Customer to Afrox and in addition Afrox shall have the right to list the Customer with the credit bureau if the Customer’s account is in arrears.
(g) Upon termination of this Agreement for any reason Afrox will at the Customer’s cost remove all the Afrox Equipment from the Customer’s premises, or where the Customer opposes such removal Afrox shall render the Afrox Equipment unusable. Should the Customer oppose such removal and return of the Afrox Equipment, the Customer shall pay Afrox a sum equal to the replacement cost of new Afrox Equipment. The Failure by Afrox to remove any Afrox Equipment within any set period shall not preclude Afrox from removing the Afrox Equipment at a later date, nor shall it allow or infer that the Customer may take ownership of the Afrox Equipment. Customer agrees that no storage charges will be levied against Afrox if the Afrox Equipment are not removed by Afrox within any set period.
Appears in 1 contract
Sources: Supply Agreement
BREACH AND TERMINATION. (a) a. Without affecting any other rights or remedies that Afrox may have, Afrox may cancel any order the Customer has placed and/or terminate this Agreement immediately at any time by written notice to the Customer if the Customer:
(1) has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three working days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business; or
(2) fails to make any payment due to Afrox; or
(3) there is a material change in the ownership of the shares in the Customer, or any parent company.
(b) b. Without prejudice to either party’s other rights and remedies either party may terminate this Agreement by written notice at any time if the other party is in material breach of any of its terms and (in the case of a remediable breach) the breach is not remedied within 28 (twenty- eight) days of receipt of a notice specifying the breach and requiring it to be remedied.
(c) c. Without prejudice to its other rights or remedies (including its rights of termination) Afrox may elect to suspend performance of all or any of its obligations under this Agreement by written notice to the Customer upon the occurrence of any of the events specified in Clauses 10 (a)(1), (a)(2) or (b). In the case of a remediable breach referred to in Clause 10(b) Afrox may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 (twenty-eight) day period referred to in Clause 10(b) has expired.
(d) . d. Termination shall be without prejudice to any accrued rights of either party.
(e) If this Agreement is terminated and any charges which are payable in instalments are still outstanding, an amount representing the outstanding instalments shall become due and payable by the Customer on termination of this Agreement, this shall include agreed minimum volume undertakings and / or facility fees for any agreed contract period, as may be applicable. The Customer shall immediately pay to Afrox all of the Afrox's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Afrox shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(f) The Customer shall be liable to Afrox for all legal expenses on the attorney-and-own-client scale incurred by Afrox in the event of
(a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Afrox may demand. Afrox shall be entitled to use any and all means including utilization of a debt collection agency or credit bureau to assist in the collection of monies owed by the Customer to Afrox and in addition Afrox shall have the right to list the Customer with the credit bureau if the Customer’s account is in arrears.
(g) Upon termination of this Agreement for any reason Afrox will at the Customer’s cost remove all the Afrox Equipment from the Customer’s premises, or where the Customer opposes such removal Afrox shall render the Afrox Equipment unusable. Should the Customer oppose such removal and return of the Afrox Equipment, the Customer shall pay Afrox a sum equal to the replacement cost of new Afrox Equipment. The Failure by Afrox to remove any Afrox Equipment within any set period shall not preclude Afrox from removing the Afrox Equipment at a later date, nor shall it allow or infer that the Customer may take ownership of the Afrox Equipment. Customer agrees that no storage charges will be levied against Afrox if the Afrox Equipment are not removed by Afrox within any set period.
Appears in 1 contract
BREACH AND TERMINATION. (a) Without affecting any other rights or remedies that Afrox may have, Afrox may cancel any order the Customer has placed and/or terminate this Agreement immediately at any time by written notice to the Customer if the Customer:
(1) has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three working days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business; or
(2) fails to make any payment due to Afrox; or
(3) there is a material change in the ownership of the shares in the Customer, or any parent company.
(b) Without prejudice to either party’s other rights and remedies either party may terminate this Agreement by written notice at any time if the other party is in material breach of any of its terms and (in the case of a remediable breach) the breach is not remedied within 28 (twenty- eight) days of receipt of a notice specifying the breach and requiring it to be remedied.
(c) Without prejudice to its other rights or remedies (including its rights of termination) Afrox may elect to suspend performance of all or any of its obligations under this Agreement by written notice to the Customer upon the occurrence of any of the events specified in Clauses 10 (a)(1), (a)(2) or (b). In the case of a remediable breach referred to in Clause 10(b) Afrox may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 (twenty-eight) day period referred to in Clause 10(b) has expired.
(d) Termination shall be without prejudice to any accrued rights of either party.
(e) If this Agreement is terminated and any charges which are payable in instalments are still outstanding, an amount representing the outstanding instalments shall become due and payable by the Customer on termination of this Agreement, this shall include agreed minimum volume undertakings and / or facility fees for any agreed contract period, as may be applicable. The Customer shall immediately pay to Afrox all of the Afrox's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Afrox shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(f) The Customer shall be liable to Afrox for all legal expenses on the attorney-and-own-client scale incurred by Afrox in the event of
of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Afrox may demand. Afrox shall be entitled to use any and all means including utilization of a debt collection agency or credit bureau to assist in the collection of monies owed by the Customer to Afrox and in addition Afrox shall have the right to list the Customer with the credit bureau if the Customer’s account is in arrears.
(g) Upon termination of this Agreement agreement for any reason reason, Afrox will at the Customer’s cost remove all the Afrox Equipment from the Customercustomer’s premisespremises within 21 days, or where unless otherwise agreed to in writing, by the Customer opposes such removal Afrox shall render parties in the Afrox Equipment unusablemanner as set out in paragraph (h) herein infra. Should the Customer oppose such removal and return Failure of the Afrox Equipment, the Customer shall pay Afrox a sum equal to the replacement cost of new Afrox Equipment. The Failure by Afrox to remove any Afrox Equipment within any set the aforementioned period shall not preclude Afrox from removing the Afrox Equipment at a later date, nor shall it allow or infer that the Customer may take ownership of the Afrox Equipment. Equipment and the Customer agrees that no storage charges will be levied against Afrox if the Afrox Equipment are equipment is not removed by Afrox within any set with the aforementioned period. The Customer will be held liable for the removal cost in the following circumstances:
i) where there is additional equipment;
ii) requirements of labour that needs to be utilised as the cylinders are located in an unusual location (which locations shall include, but not be limited, dangerous areas and areas difficult to come by).
(h) Afrox will, in its attempts to remove the Afrox Equipment, contact the Customer telephonically before / on the estimated collection date to coordinate removal of the Afrox Equipment. If the Customer does not respond by Afrox’s third request to arrange the removal, then Afrox will visit the registered business address of the Customer to confirm and / or obtain the nominated site address and arrange the removal accordingly. If Afrox is unsuccessful to confirm or obtain the nominated site address due to no avail from the customer for whatever reason, Afrox will visit the originally nominated delivery address. If the Afrox Equipment cannot be located at either the registered address or the nominated delivery address of the Customer, the Afrox Equipment shall be deemed unusable and the Customer will forthwith be liable for the replacement costs of new Afrox Equipment which will be debited onto the customer’s account with immediate effect.
Appears in 1 contract
Sources: Supply Agreement
BREACH AND TERMINATION. (a) Without affecting any other rights or remedies that Afrox may have, Afrox may cancel any order the Customer has placed and/or terminate this Agreement immediately at any time by written notice to the Customer if the Customer:
(1) has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three working days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business; or
(2) fails to make any payment due to Afrox; or
(3) there is a material change in the ownership of the shares in the Customer, or any parent company.
(b) Without prejudice to either party’s other rights and remedies either party may terminate this Agreement by written notice at any time if the other party is in material breach of any of its terms and (in the case of a remediable breach) the breach is not remedied within 28 (twenty- eight) days of receipt of a notice specifying the breach and requiring it to be remedied.
(c) Without prejudice to its other rights or remedies (including its rights of termination) Afrox may elect to suspend performance of all or any of its obligations under this Agreement by written notice to the Customer upon the occurrence of any of the events specified in Clauses 10 (a)(1), (a)(2) or (b). In the case of a remediable breach referred to in Clause 10(b) Afrox may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 (twenty-eight) day period referred to in Clause 10(b) has expired.
(d) Termination shall be without prejudice to any accrued rights of either party.
(e) If this Agreement is terminated and any charges which are payable in instalments are still outstanding, an amount representing the outstanding instalments shall become due and payable by the Customer on termination of this Agreement, this shall include agreed minimum volume undertakings and / or facility fees for any agreed contract period, as may be applicable. The Customer shall immediately pay to Afrox all of the Afrox's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Afrox shall submit an invoice, which shall be payable by the Customer immediately on receipt;.
(f) The Customer shall be liable to Afrox for all legal expenses on the attorney-and-own-client scale incurred by Afrox in the event of
of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Afrox may demand. Afrox shall be entitled to use any and all means including utilization of a debt collection agency or credit bureau to assist in the collection of monies owed by the Customer to Afrox and in addition Afrox shall have the right to list the Customer with the credit bureau if the Customer’s account is in arrears.
(g) Upon termination of this Agreement for any reason Afrox will at the Customer’s cost remove all the Afrox Equipment from the Customer’s premises, or where the Customer opposes such removal Afrox shall render the Afrox Equipment unusable. Should the Customer oppose such removal and return of the Afrox Equipment, the Customer shall pay Afrox a sum equal to the replacement cost of new Afrox Equipment. The Failure by Afrox to remove any Afrox Equipment within any set period shall not preclude Afrox from removing the Afrox Equipment at a later date, nor shall it allow or infer that the Customer may take ownership of the Afrox Equipment. The Customer agrees that no storage charges will be levied against Afrox if the Afrox Equipment are not removed by Afrox within any set period.
Appears in 1 contract
Sources: Supply Agreement
BREACH AND TERMINATION. (a) Without affecting any other rights or remedies that Afrox AWC may have, Afrox AWC may cancel any order the Customer has placed and/or terminate this Agreement immediately at any time by written notice to the Customer if the Customer:
(1) has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three working days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business; or
(2) fails to make any payment due to AfroxAWC; or
(3) there is a material change in the ownership of the shares in the Customer, or any parent company.
(b) Without prejudice to either party’s other rights and remedies either party may terminate this Agreement by written notice at any time if the other party is in material breach of any of its terms and (in the case of a remediable breach) the breach is not remedied within 28 (twenty- eight) days of receipt of a notice specifying the breach and requiring it to be remedied.
(c) Without prejudice to its other rights or remedies (including its rights of termination) Afrox AWC may elect to suspend performance of all or any of its obligations under this Agreement by written notice to the Customer upon the occurrence of any of the events specified in Clauses 10 (a)(1), (a)(2) or (b). In the case of a remediable breach referred to in Clause 10(b) Afrox AWC may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 (twenty-eight) day period referred to in Clause 10(b) has expired.
(d) Termination shall be without prejudice to any accrued rights of either party.
(e) If this Agreement is terminated and any charges which are payable in instalments are still outstanding, an amount representing the outstanding instalments shall become due and payable by the Customer on termination of this Agreement, this shall include agreed minimum volume undertakings and / or facility fees for any agreed contract period, as may be applicable. The Customer shall immediately pay to Afrox AWC all of the AfroxAWC's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Afrox AWC shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(f) The Customer shall be liable to Afrox AWC for all legal expenses on the attorney-and-own-client scale incurred by Afrox AWC in the event of
of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Afrox AWC may demand. Afrox AWC shall be entitled to use any and all means including utilization of a debt collection agency or credit bureau to assist in the collection of monies owed by the Customer to Afrox AWC and in addition Afrox AWC shall have the right to list the Customer with the credit bureau if the Customer’s account is in arrears.
(g) Upon termination of this Agreement for any reason Afrox will at the Customer’s cost remove all the Afrox Equipment from the Customer’s premises, or where the Customer opposes such removal Afrox shall render the Afrox Equipment unusable. Should the Customer oppose such removal and return of the Afrox Equipment, the Customer shall pay Afrox a sum equal to the replacement cost of new Afrox Equipment. The Failure by Afrox to remove any Afrox Equipment within any set period shall not preclude Afrox from removing the Afrox Equipment at a later date, nor shall it allow or infer that the Customer may take ownership of the Afrox Equipment. Customer agrees that no storage charges will be levied against Afrox if the Afrox Equipment are not removed by Afrox within any set period.
Appears in 1 contract
Sources: Supply Agreement
BREACH AND TERMINATION. (a) Without affecting any other rights or remedies that Afrox may have, Afrox may cancel any order the Customer has placed and/or terminate this Agreement immediately at any time by written notice to the Customer if the Customer:
(1) has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three working days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business; or
(2) fails to make any payment due to Afrox; or
(3) there is a material change in the ownership of the shares in the Customer, or any parent company.
(b) Without prejudice to either party’s other rights and remedies either party may terminate this Agreement by written notice at any time if the other party is in material breach of any of its terms and (in the case of a remediable breach) the breach is not remedied within 28 (twenty- eight) days of receipt of a notice specifying the breach and requiring it to be remedied.
(c) Without prejudice to its other rights or remedies (including its rights of termination) Afrox may elect to suspend performance of all or any of its obligations under this Agreement by written notice to the Customer upon the occurrence of any of the events specified in Clauses 10 (a)(1), (a)(2) or (b). In the case of a remediable breach referred to in Clause 10(b) Afrox may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 (twenty-eight) day period referred to in Clause 10(b) has expired.
(d) Termination shall be without prejudice to any accrued rights of either party.
(e) If this Agreement is terminated and any charges which are payable in instalments are still outstanding, an amount representing the outstanding instalments shall become due and payable by the Customer on termination of this Agreement, this shall include agreed minimum volume undertakings and / or facility fees for any agreed contract period, as may be applicable. The Customer shall immediately pay to Afrox all of the Afrox's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Afrox shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(f) The Customer shall be liable to Afrox for all legal expenses on the attorney-and-own-client scale incurred by Afrox in the event of
of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Afrox may demand. Afrox shall be entitled to use any and all means including utilization of a debt collection agency or credit bureau to assist in the collection of monies owed by the Customer to Afrox and in addition Afrox shall have the right to list the Customer with the credit bureau if the Customer’s account is in arrears.
(g) Upon termination of this Agreement agreement for any reason reason, Afrox will at the Customer’s cost remove all the Afrox Equipment from the Customercustomer’s premisespremises within 21 days, or where unless otherwise agreed to in writing, by the Customer opposes such removal Afrox shall render parties in the Afrox Equipment unusablemanner as set out in paragraph (h) herein infra. Should the Customer oppose such removal and return Failure of the Afrox Equipment, the Customer shall pay Afrox a sum equal to the replacement cost of new Afrox Equipment. The Failure by Afrox to remove any Afrox Equipment within any set the aforementioned period shall not preclude Afrox from removing the Afrox Equipment at a later date, nor shall it allow or infer that the Customer may take ownership of the Afrox Equipment. Equipment and the Customer agrees that no storage charges will be levied against Afrox if the Afrox Equipment are equipment is not removed by Afrox within any set with the aforementioned period. The Customer will be held liable for the removal cost in the following circumstances:
i) where there is additional equipment;
ii) requirements of labour that needs to be utilised as the cylinders are located in an unusual location (which locations shall include, but not be limited, dangerous areas and areas difficult to come by).
(h) Afrox will, in its attempts to remove the Afrox Equipment, contact the Customer telephonically before / on the estimated collection date to coordinate removal of the Afrox Equipment. If the Customer does not respond by ▇▇▇▇▇’s third request to arrange the removal, then ▇▇▇▇▇ will visit the registered business address of the Customer to confirm and / or obtain the nominated site address and arrange the removal accordingly. If ▇▇▇▇▇ is unsuccessful to confirm or obtain the nominated site address due to no avail from the customer for whatever reason, ▇▇▇▇▇ will visit the originally nominated delivery address. If the Afrox Equipment cannot be located at either the registered address or the nominated delivery address of the Customer, the Afrox Equipment shall be deemed unusable and the Customer will forthwith be liable for the replacement costs of new Afrox Equipment which will be debited onto the customer’s account with immediate effect.
Appears in 1 contract
Sources: Supply Agreement
BREACH AND TERMINATION. (a) a. Without affecting any other rights or remedies that Afrox may have, Afrox may cancel any order the Customer has placed and/or terminate this Agreement immediately at any time by written notice to the Customer if the Customer:
(1) i. has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three working days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business; or
(2) ii. fails to make any payment due to Afrox; or
(3) iii. there is a material change in the ownership of the shares in the Customer, or any parent company.
(b) b. Without prejudice to either party’s other rights and remedies either party may terminate this Agreement by written notice at any time if the other party is in material breach of any of its terms and (in the case of a remediable breach) the breach is not remedied within 28 (twenty- eight) days of receipt of a notice specifying the breach and requiring it to be remedied.
(c) c. Without prejudice to its other rights or remedies (including its rights of termination) Afrox may elect to suspend performance of all or any of its obligations under this Agreement by written notice to the Customer upon the occurrence of any of the events specified in Clauses 10 2.11 (a)(1), (a)(2) or (b). In the case of a remediable breach referred to in Clause 10(b2.11(b) Afrox may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 (twenty-eight) day period referred to in Clause 10(b2.11(b) has expired.
(d) d. Termination shall be without prejudice to any accrued rights of either party.
(e) e. If this Agreement is terminated and any charges which are payable in instalments are still outstanding, an amount representing the full outstanding instalments balance owing by the Customer to Afrox at such time, shall become immediately due and payable by the Customer on termination of this Agreement, this shall include agreed minimum volume undertakings and / or undertaking and/or facility fees for any agreed contract period, as may be applicable. The Customer customer shall immediately pay to Afrox all of the Afrox's ’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice invoices has been submitted, Afrox shall submit an invoice, which shall be payable by the Customer immediately on receipt;.
(f) f. The Customer shall be liable to Afrox for all legal expenses on the attorney-and-own-client scale incurred by Afrox in the event of
of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Afrox may demand. Afrox shall be entitled to use any and all means including utilization of a debt collection agency or credit bureau to assist in the collection of monies owed by the Customer to Afrox and in addition Afrox shall have the right to list the Customer with the credit bureau if the Customer’s account is in arrears.
(g) g. Upon termination of this Agreement for any reason reason, Afrox will at the Customer’s cost remove all the Afrox Equipment from the Customer’s premisespremises within 21 days, or where unless otherwise agreed to in writing, by the Customer opposes such removal Afrox shall render Parties in the Afrox Equipment unusablemanner as set out in paragraph (h) herein infra. Should the Customer oppose such removal and return Failure of the Afrox Equipment, the Customer shall pay Afrox a sum equal to the replacement cost of new Afrox Equipment. The Failure by Afrox to remove any Afrox Equipment within any set the aforementioned period shall not preclude Afrox from removing the Afrox Equipment at a later date, nor shall it allow or infer that the Customer may take ownership of the Afrox Equipment. Equipment and the Customer agrees that no storage charges will be levied against Afrox if the Afrox Equipment are equipment is not removed by Afrox with the aforementioned period. The Customer will be held liable for the removal cost in the following circumstances:
i. where there is additional equipment;
ii. requirements of labour that needs to be utilised as the cylinders are located in an unusual location (which locations shall include, but not be limited to, dangerous areas and areas difficult to come by).
h. Afrox will, in its attempts to remove the Afrox Equipment, contact the Customer telephonically before / on the estimated collection date to coordinate removal of the Afrox Equipment. If the Customer does not respond by Afrox’s third request to arrange the removal, then Afrox will visit the registered business address of the Customer to confirm and / or obtain the nominated site address and arrange the removal accordingly. If Afrox is unsuccessful to confirm or obtain the nominated site address due to no avail from the customer for whatever reason, Afrox will visit the originally nominated delivery address. If the Afrox Equipment cannot be located at either the registered address or the nominated delivery address of the Customer, the Afrox Equipment shall be deemed to be lost and the Customer will forthwith be liable for the replacement costs of new Afrox Equipment which will be debited onto the Customer’s account with immediate effect, which will be immediately payable.
i. Where it is the Customer’s responsibility to return the assets on termination, and the Customer fails to do so within any set periodthe agreed timelines, Afrox will be entitled to charge and claim for replacement value for the assets.
Appears in 1 contract
BREACH AND TERMINATION. (a) a. Without affecting any other rights or remedies that Afrox may have, Afrox may cancel any order the Customer has placed and/or terminate this Agreement immediately at any time by written notice to the Customer if the Customer:
(1) i. has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three working days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business; or
(2) ii. fails to make any payment due to Afrox; or
(3) iii. there is a material change in the ownership of the shares in the Customer, or any parent company.
(b) b. Without prejudice to either party’s other rights and remedies either party may terminate this Agreement by written notice at any time if the other party is in material breach of any of its terms and (in the case of a remediable breach) the breach is not remedied within 28 (twenty- eight) days of receipt of a notice specifying the breach and requiring it to be remedied.
(c) c. Without prejudice to its other rights or remedies (including its rights of termination) Afrox may elect to suspend performance of all or any of its obligations under this Agreement by written notice to the Customer upon the occurrence of any of the events specified in Clauses 10 12 (a)(1a)(i), (a)(2a)(ii) or (b). In the case of a remediable breach referred to in Clause 10(b12(b) Afrox may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 (twenty-eight) day period referred to in Clause 10(b12(b) has expired.
(d) d. Termination shall be without prejudice to any accrued rights of either party.
(e) e. If this Agreement is terminated and any charges which are payable in instalments are still outstanding, an amount representing the full outstanding instalments balance owing by the Customer to Afrox at such time, shall become immediately due and payable by the Customer on termination of this Agreement, this shall include agreed minimum volume undertakings and / or and/or facility fees for any agreed contract period, as may be applicable. The Customer customer shall immediately pay to Afrox all of the Afrox's ’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice invoices has been submitted, Afrox shall submit an invoice, which shall be payable by the Customer immediately on receipt;.
(f) f. The Customer shall be liable to Afrox for all legal expenses on the attorney-and-own-client scale incurred by Afrox in the event of
of (a1) any default by the Customer or (b2) any litigation in regard to the validity and enforceability of this Agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that Afrox may demand. Afrox shall be entitled to use any and all means including utilization of a debt collection agency or credit bureau to assist in the collection of monies owed by the Customer to Afrox and in addition Afrox shall have the right to list the Customer with the credit bureau if the Customer’s account is in arrears.
(g) g. Upon termination of this Agreement for any reason reason, Afrox will at the Customer’s cost remove all the Afrox Equipment from the Customer’s premisespremises within 21 days, or where unless otherwise agreed to in writing, by the Customer opposes such removal Afrox shall render Parties in the Afrox Equipment unusablemanner as set out in paragraph (h) herein infra. Should the Customer oppose such removal and return Failure of the Afrox Equipment, the Customer shall pay Afrox a sum equal to the replacement cost of new Afrox Equipment. The Failure by Afrox to remove any Afrox Equipment within any set the aforementioned period shall not preclude Afrox from removing the Afrox Equipment at a later date, nor shall it allow or infer that the Customer may take ownership of the Afrox Equipment. Equipment and the Customer agrees that no storage charges will be levied against Afrox if the Afrox Equipment are equipment is not removed by Afrox with the aforementioned period. The Customer will be held liable for the removal cost in the following circumstances:
i. where there is additional equipment;
ii. requirements of labour that needs to be utilised as the cylinders are located in an unusual location (which locations shall include, but not be limited to, dangerous areas and areas difficult to come by).
h. Afrox will, in its attempts to remove the Afrox Equipment, contact the Customer telephonically before / on the estimated collection date to coordinate removal of the Afrox Equipment. If the Customer does not respond by ▇▇▇▇▇’s third request to arrange the removal, then ▇▇▇▇▇ will visit the registered business address of the Customer to confirm and / or obtain the nominated site address and arrange the removal accordingly. If ▇▇▇▇▇ is unsuccessful to confirm or obtain the nominated site address due to no avail from the customer for whatever reason, ▇▇▇▇▇ will visit the originally nominated delivery address. If the Afrox Equipment cannot be located at either the registered address or the nominated delivery address of the Customer, the Afrox Equipment shall be deemed to be lost and the Customer will forthwith be liable for the replacement costs of new Afrox Equipment which will be debited onto the Customer’s account with immediate effect, which will be immediately payable.
i. Where it is the Customer’s responsibility to return the assets on termination, and the Customer fails to do so within any set periodthe agreed timelines, ▇▇▇▇▇ will be entitled to charge and claim for a replacement value for the assets.
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Sources: Standard Conditions of Agreement