STANDARD CONDITIONS OF AGREEMENT

1. The Customer agrees that (a) this Agreement represents the entire Agreement between the Customer and Cemcrete (Pty) Ltd (hereinafter called Cemcrete) and that no alterations or additions to this Agreement may be effected unless agreed to by both parties, reduced to writing and signed by the Customer and a duly authorised representative of Cemcrete; (b) this Agreement will govern all future contractual relationships between the parties; (c) this Agreement is applicable to all existing debts and future debts between the parties; (d) this Agreement is final and binding and is not subject to any suspensive or resolutive terms or conditions; (e) any conflicting conditions stipulated by the Customer are expressly excluded; (f) these terms supersede all previous conditions of Agreement without prejudice to any securities or guarantees held by Cemcrete and (g) these terms apply to all servants and subcontractors of Cemcrete.
2.1 This Agreement only becomes final and binding on receipt and acceptance of this offer by Cemcrete at its business address in Industria.
2.2 Any order only becomes final and binding on receipt and acceptance of such order by Cemcrete at its business address per clause 2.1.
3. The signatory hereby binds himself / herself in his / her personal capacity as Shareholder (in the case of a company), Member (in the case of a close corporation) or Owner or Partner as co-debtor jointly and severally for the full amount due to Cemcrete and agrees that these Standard Conditions will apply in the exact same way to him / her.
4. The Customer acknowledges that it does not rely on any representations made by Cemcrete in regard to the goods and services or any of its qualities leading up to this Agreement other than those contained in this Agreement. All specifications, price lists, performance figures, advertisements, brochures and other technical data furnished by Cemcrete in respect of the goods or services orally or in writing will not form part of the Agreement in any way unless agreed to in writing by Cemcrete.
5.1 The Customer agrees that neither Cemcrete nor any of its employees will be liable for any negligent or innocent misrepresentations made to the Customer.
5.2 It is the sole responsibility of the Customer to determine that the goods or services ordered are suitable for the purposes of intended use.
5.3 The Customer agrees to pay all additional costs resulting from any acts or omissions by the Customer including suspension of work, modification of requirements, failure or delay in giving particulars required to enable work to proceed on schedule or requirements that work be completed earlier than agreed.
5.4 Cemcrete reserves the right at its sole discretion to provide alternative goods of the same quality and quantity at the prevailing prices to those ordered by the Customer should such goods be superseded, replaced or their manufacture terminated.
6.1 All quotations will remain valid for a period of 30 days from the date of the quotation or until the date of issue of a new Price List, whichever occurs first.
6.2 All quotations are subject to the availability of the goods or services and subject to correction of good faith errors by Cemcrete and the prices quoted are subject to any increases in the cost price, including currency fluctuations, of Cemcrete before acceptance of the order.
6.3 If the Customer disputes the amount of increase, the amount of the increase may be certified by any independent auditor and such certificate shall be final and binding on the Customer.
6.4 The Customer hereby confirms that the goods or services on any Tax Invoice issued duly represent the goods or services ordered by the Customer at the prices agreed to by the Customer and, where delivery / performance has already taken place, that the goods or services were inspected and that the Customer is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects.
6.5 Notwithstanding the provisions of clause 1 above, all orders or agreed variations to orders, whether orally or in writing, shall be binding and subject to these Standard Conditions of Agreement and may not be revoked by the Customer.
6.6 Cemcrete shall be entitled in its sole discretion to split the delivery / performance of the goods or services ordered in the quantities and on the dates it decides.
6.7 Cemcrete shall be entitled to invoice each delivery / performance actually made separately.
6.8 Any delivery note or waybill (copy or original) signed by the Customer or a third party engaged to transport the goods and held by Cemcrete shall be prima facie proof that delivery was made to the Customer.
6.9 The risk of damage to, destruction or theft of goods shall pass to the Customer on acceptance of any order placed in terms of this Agreement and the Customer undertakes to comprehensively insure the goods until paid for in full. Cemcrete may recover insurance premiums from the Customer for such ordered and uninsured goods.
6.10 Delivery and performance times quoted are merely estimates and are not binding on Cemcrete.
6.11 If Cemcrete agrees to engage a third party to transport the goods, Cemcrete is hereby authorised to engage a third party on the Customer's behalf and on the terms deemed fit by Cemcrete.
6.12 The Customer indemnifies Cemcrete against any claims against Cemcrete that may arise from such agreement in clause 6.11.
7.1 New goods are guaranteed according to the Manufacturer's product specific warranties only, but not for application failure and all other guarantees including common law guarantees are hereby specifically excluded. Services carry no guarantee.
7.2 Liability under clause 7.1 is restricted to replacement of faulty goods or services or granting of a credit at the sole discretion of Cemcrete.
7.3 No claim under this Agreement shall arise unless the Customer has, within 3 days of an alleged breach of contract and/or defect occurring, given Cemcrete written notice by prepaid registered post of such breach or defect, and has afforded Cemcrete at least 30 days to rectify such defect or breach.
7.4 To be valid, claims must be supported by the original Tax Invoice.
7.5 The Customer shall return any defective moveable goods to the premises of Cemcrete at the Customer's own cost and packed in the original or suitable packaging.
7.6 All guarantees are immediately null and void should any goods be tampered with or should the goods be used or stored outside the Manufacturer's specifications.
8.1 Under no circumstances shall Cemcrete be liable for any consequential damages including loss of profits or for any delictual liability of any nature whatsoever whether caused negligently or innocently.
8.2 Under no circumstances shall Cemcrete be liable for any damage arising from any misuse, abuse or neglect of the goods or services.
9. Delivery of the goods or services to the Customer shall take place at the place of business of Cemcrete.
10.1 The Customer agrees that the amount contained in a Tax Invoice issued by Cemcrete shall be due and payable unconditionally (a) cash on order; or (b) if the Customer is a Credit Approved Customer, within 25 days from the end of the month in which a Tax Invoice has been issued by Cemcrete.
10.2 The Customer agrees to pay the amount on the Tax Invoice at the offices of Cemcrete.
10.3 The risk of payment by cheque through the post rests with the Customer.
11.1 The Customer has no right to withhold payment for any reason whatsoever and agrees that no extension of payment of any nature shall be extended to the Customer and any such extension will not be applicable or enforceable unless agreed to by Cemcrete, reduced to writing and signed by the Customer and a duly authorised representative of Cemcrete.
11.2 The Customer is not entitled to set off any amount due to the Customer by Cemcrete against this debt.
11.3 All discounts shall be forfeited if payment in full is not made on the due date.
12.1 The Customer agrees that the amount due and payable to Cemcrete may be determined and proven by a certificate issued and signed by any director or manager of Cemcrete, whose authority need not be proven or by any independent auditor. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer.
12.2 Any printout of computer evidence tendered by any party shall be admissible evidence and no party shall object to the admissibility of such evidence purely on grounds that such evidence is computer evidence or that the requirements of the Electronic Communications and Transactions Act 25 of 2002 have not been met.
13.1 The Customer agrees that interest shall be payable at the maximum legal interest rate prescribed by the National Credit Act 34 of 2005 if that Act is applicable, or at double the repo-rate as declared by the Reserve Bank from time to time if that Act is not applicable, on any moneys past due date to Cemcrete and that interest shall be calculated daily and compounded monthly from the date of acceptance of the order.
13.2 The Customer expressly agrees that no debt owed to Cemcrete by the Customer shall become prescribed before the passing of a period of six years from the date the debt falls due.
14.1 The Customer agrees that if an account is not settled in full (a) against order; or (b) within the period agreed in clause 10.1 above in the case of a Credit Approved Customer; Cemcrete is: (i) entitled to immediately institute action against the Customer at the sole expense of the Customer; or (ii) to cancel the Agreement and take possession of any goods delivered to the Customer and claim damages. These remedies are without prejudice to any other right Cemcrete may be entitled to in terms of this Agreement or in law. Cemcrete reserves its right to stop supply immediately on cancellation or on non-payment.
14.2 A Credit Approved Customer will forthwith lose this approval when payment is not made according to the conditions of clause 10.1(b) and all amounts then outstanding shall immediately become due and payable.
14.3 Cemcrete shall be entitled to withdraw credit facilities at any time within its sole discretion.
15.1 In the event of cancellation, the Customer shall be liable to pay (a) the difference between the selling price and the value of the goods at the time of repossession and (b) all other costs incurred in the repossession of the goods. The value of repossessed or retained pledged goods shall be deemed to be the value placed on them by any sworn valuator after such repossession, and such valuation shall be conclusive proof of the value. If the goods are not recovered for any reason whatsoever, the value shall be deemed to be nil.
15.2 In the event of cancellation of the Agreement by Cemcrete, it shall be entitled to repossess any goods that have been delivered to the Customer and remains unpaid by the due date.
15.3 In the event of cancellation of the Agreement by Cemcrete, it is entitled not to produce any unmade balance of a contract and to recover any loss sustained thereby from the Customer.
16.1 All goods supplied by Cemcrete remain the property of Cemcrete until such goods have been fully paid for whether such goods are attached to other property or not.
16.2 The Customer is not entitled to sell or dispose of any goods unpaid for without the prior written consent of Cemcrete. The Customer shall not allow the goods to become encumbered in any manner prior to the full payment thereof and shall advise third parties of the rights of Cemcrete in the goods.
16.3 If any goods supplied to the Customer are of a generic nature and have become the property of the Customer by operation of law (confusio or commixtio) the Customer shall be obliged on notice of cancellation of the Agreement to retransfer the same quantity of goods in ownership to Cemcrete.
16.4 The Customer agrees to accept any quantity that does not exceed or fall short of the quantity ordered by no more than 5% as good and complete performance and may request to pay Cemcrete only the proportionate contract price for the actual quantity dispatched which request will not be unreasonably refused.
17.1 The Customer shall be liable to Cemcrete for all legal expenses on the attorney-and-own-client scale incurred by Cemcrete 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 Cemcrete may demand.
17.2 The Customer agrees that Cemcrete will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate's Courts or in terms of Rule 47 of the Law of the Supreme Court 59 of 1959.
18. The Customer agrees that no indulgence whatsoever by Cemcrete will affect the terms of this Agreement or any of the rights of Cemcrete and such indulgence shall not constitute a waiver by Cemcrete in respect of any of its rights herein. Under no circumstances will Cemcrete be estopped from exercising any of its rights in terms of this Agreement.
19. The Customer hereby consents that Cemcrete shall have the right to institute any legal action in either the Magistrate's Court or the Witwatersrand Local Division of the High Court at its sole discretion. These South African courts shall have exclusive jurisdiction in any litigation between the parties arising from whatsoever source.
20.1 Any document shall be deemed duly presented to and accepted by the Customer (i) within 5 days of prepaid registered mail to any of the Customer's business or postal addresses or to the personal address of any director, member or owner of the Customer; or (ii) within 24 hours of being faxed to any of the Customer's fax numbers or any director, member's or owner's fax numbers; or (iii) on being delivered by hand to the Customer or any director, member or owner of the Customer; or (iv) within 48 hours if sent by overnight courier or (v) within 7 days of being sent by surface mail; or (vi) within 24 hours of being e-mailed to any e-mail address provided by the Customer.
20.2 The Customer chooses its address for any notification or service of legal documents or processes as the business address or the physical addresses (domicilium citandi et executandi) of any Director (in the case of a company), Member (in the case of a close corporation) or of the Owner(s) or Partner(s).
20.3 The Customer undertakes to inform Cemcrete in writing within 7 days of any change of Director, Member, Shareholder, Owner or Partner or address or 14 days prior to selling or alienating the Customer's business and failure to do so will constitute a material breach of this Agreement. Upon receipt of such written notification, Cemcrete reserves the right, at its sole discretion, to withdraw any credit facility advanced to the Customer.
20.4 The Customer hereby consents to the storage and use by Cemcrete of the personal information that it has provided to Cemcrete for establishing its credit rating and to Cemcrete disclosing such information to credit control companies, banks and other institutions involved in rating credit. The Customer agrees that Cemcrete will not be held liable for the good faith disclosure of any of this information to such third parties and that no further specific consent needs to be obtained for the transfer
of such information to a specific third party. 21. The Customer agrees to the Standard Rates of Cemcrete for any goods or services rendered, which rates may be obtained on request.
22. Each provision of this Agreement is severable from the other provisions. Should any provision be found to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall nevertheless remain binding and continue with full force and effect.
23. Any order is subject to cancellation by Cemcrete due to acts of God or any circumstance beyond the control of Cemcrete, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
24. Any order is subject to cancellation by Cemcrete if the Customer breaches any term of this Agreement or makes any attempt of compromise, liquidation, sequestration, termination or judgement is recorded against the Customer or any of its principals.
25. The Customer agrees that Cemcrete will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in clause 23 or 24 occur.
26. The Customer hereby agrees and consents to Cemcrete (Pty) Ltd:
26.1 Making any reasonable enquiries to any party to verify and research any details provided by the Customer on this application form or any other details in relation thereto.
26.2 Accessiung the files of any Credit Bureau or its agents or its clients to ascertain the Customers's and its Director's and/or Member's and/or Principal's total available credit profiles when assessing this application and at any time during the currency of the Customer's account with Cemcrete (Pty) Ltd.
26.3 Disclosing the existence and conduct of the Customer's account, whether still current or not, to any Credit Bureau or any other credit grantor for publication.
27. This Agreement and its interpretation is subject to South African law.