TRADING TERMS AND CONDITIONS OF SALE

These Trading Terms and Conditions of Sale supersede all previous terms, understandings and agreements governing the sale of the Company’s product with effect from 8 January 2024.

1. DEFINITIONS

CPA means the Consumer Protection Act 68 of 2008, as amended, and any applicable regulations; the company means AfriSam (South Africa) (Proprietary) Limited, registration number 2006/005910/07 (“AfriSam South Africa”), its holding company and its subsidiaries, and includes any business unit of AfriSam South Africa, or where AfriSam South Africa acts as the agent of any of its associated companies in any jurisdiction or a joint venture/consortium in which AfriSam South Africa has an interest; such associated company or joint venture/consortium; the customer means anyone who buys the product from, or places orders for the product from the company, and the product will mean any one or more of aggregates, cementitious product, ready mix concrete, mortar, plaster or any other product produced by the company.

2. CONTRACT

2.1 These Trading Terms and Conditions of Sale (trading terms) will apply to all verbal, written, electronic or online orders placed with the company for the product, the delivery of the product and credit applications.

2.2 All sales between the company and the customer will be regulated by these trading terms, and no other terms are applicable unless agreed between the parties in writing and signed by authorised representatives of the parties.

2.3 If the customer is a consumer as defined in the CPA, the provisions of the CPA will prevail where specified in these trading terms. Any customer who is a consumer can request an explanation of any of these trading terms from the company to the extent necessary.

3. QUOTATIONS

3.1 The company will, unless otherwise requested by the customer, provide a written quotation to the customer, which will be valid for a period of 30 (thirty) days from the quotation date only, unless the company agrees to an extended period.

3.2 Verbal quotations are not binding and if a customer has obtained more than one quotation from the company for a particular enquiry, the latest quotation will apply.

4. RECORDING OF TELEPHONE CALLS

4.1 The company may record all telephone conversations with the customer for record keeping and for the purposes of verifying conversations relating to orders and as evidence in the event of a dispute between the company and the customer. The customer agrees that recordings may be used for these purposes.

4.2 When placing an order, the customer must provide detailed instructions regarding when supply is required and the timing of deliveries of all materials for the duration of the contract. This is required to allow the company to ensure sufficient availability of the product as far as reasonably possible.

5. PRICE

5.1 The price to be paid by the customer for the product will be the price reflected on the company’s quotation.

5.2 The customer will be provided with 30 (thirty) days’ notice prior to any price increase. Prices may vary as a result of:

• an increase in transport costs (including all disbursements);
• an increase in levies or taxation rates applicable to the manufacture and sale of the product; and
• any change in the order which occurs after the quotation is issued.

6. OWNERSHIP AND RISK

6.1 Ownership of the product will not pass to the customer until the company has received full payment for the product.

6.2 If payment is not made in terms of the payment terms, as reflected in the credit application or on the company’s written quotation and/or order confirmation in relation to cash sales (as applicable), the company may recover possession of the product immediately without notice or cancellation of the contract of sale in respect of such product.

6.3 The customer assumes the risk in the product on delivery to the customer and the customer, its employee or agent has signed the delivery note. If the customer arranges its own transport, the risk will transfer to the customer once the product is loaded onto the customer’s vehicle and the delivery note is signed.

6.4 When delivery is made to unattended rail sidings, the customer will be liable for all risk in the product once it is delivered at the siding as reflected by Transnet’s delivery records.

6.5 Subject to the CPA, and in circumstances where the company has, in error, supplied the customer with product in excess of the amount stipulated in the written quotation (“the excess product”), the risk in and to the excess product shall nevertheless transfer to the customer as set out in clause 6.3 above, and the company shall be entitled to, in its sole and absolute discretion:

a) Recover possession of the excess product from the customer immediately without notice; or

b) Require the customer to make immediate payment of the balance owing to the company in relation to the excess product.

6.6 Should the customer fail to allow the company to exercise its rights in terms of clause 6.5 above, the Company shall be entitled to suspend any delivery to the customer in accordance with clause 10 below or cancel the contract of sale in respect of product ordered by the customer.

7. DELIVERY

7.1 The company will deliver the product to the customer at the address specified by the customer (the delivery site) within the timeframe agreed between the customer and the company, provided that the delivery site offers adequate and safe access to and from the points of delivery onsite. Deliveries will be made between 07h00 to 18h00 from Monday to Friday, unless the parties have agreed otherwise.

7.2 The customer will obtain the prior consent of the company to deliver the product to another delivery site.

7.3 The customer will be responsible for off-loading of the products from the delivery vehicle at the delivery site, placing the product at the desired location and following the correct procedures in respect of the handling, storage and consolidation of the product.

7.4 The customer will be responsible for:

7.4.1 any deterioration or damage to the product after delivery due to improper handling, storage or consolidation;

7.4.2 any cost related to its failure to accept delivery or to accept full delivery of the product ordered, unless such failure is due to an error on the part of the company; and

7.4.3 all costs relating to the product being diverted to another delivery site.

7.5 The company may charge:

7.5.1 a demurrage fee, if the off-loading time exceeds the agreed discharge time in the quote for off-loading which may vary depending on the product supplied;

7.5.2 cancellation fee for orders cancelled within 24 (twenty-four) hours of the scheduled delivery time;

7.5.3 a surcharge for any additional cost incurred if an alternative plant to that specified in the quotation must be used in order to meet orders placed less than 24 (twenty-four) hours prior to delivery.

7.6 The customer will be liable for any loss or damage, direct or consequential to the company’s or the company’s contractor’s vehicles and or machinery and equipment or the death of or injury to the company’s or the contractor’s, employees or agents at the delivery site, unless such loss or damage is due the negligence of the company or its contractors. The customer will in this regard insure that it has sufficient insurance in place.

7.7 The company or its contractor may refuse to enter or may leave a delivery site if the conditions on the delivery site can reasonably be considered to be or may become unsafe for any reason.

7.8 Delivery by customer’s own transport

7.8.1 If the customer provides its own transport:

7.8.1.1 the load on a customer’s vehicle will not exceed the maximum load capacity of the vehicle; and

7.8.1.2 the customer, its employees or agents will enter the premises of the company at their own risk and must comply with the company’s safety and security procedures.

7.9 Delivery by rail

7.9.1 At the customer’s election, the product will be delivered by rail at the sidings selected by the customer.

7.9.2 The transport prices quoted by the company cover rail cost only. The customer will be responsible for any additional cost (including demurrage charged by Transnet) as well as the cost of transport from the siding.

7.9.3 All queries in respect of deliveries made by rail must be addressed to the company within 30 (thirty) days in writing of delivery of the product.

7.9.4 If queries or claims are addressed to the company within 30 (thirty) days from delivery, the company will if applicable, lodge such queries or claims with Transnet and/or its agents or partners on behalf of the company.

7.9.5 If Transnet and/or its agents or partners rejects any claim, the customer will be liable to pay the full amount owed to the company in respect of such delivery.

7.9.6 Any terms and conditions of sale applicable to specific products will apply to delivery of the product by rail where applicable.

8. ADDITIONAL TERMS AND CONDITIONS OF SALE APPLICABLE TO DELIVERY OF SPECIFIC PRODUCTS

The following conditions will apply to the delivery of specific products:

8.1 Cementitious products:

8.1.1 for the delivery of bulk cementitious product by road:

8.1.1.1 the quantities delivered will be closest to the delivery capacity of the vehicle on which the customer was quoted;

8.1.1.2 the customer will be obliged to accept and pay for the actual quantity specified on the delivery note of the goods despatched, subject to the CPA where applicable;

8.1.1.3 the customer should understand the requirements as set out in the company’s procedures, which will be provided on request, for damaged, short and broken bag claims and pallets;

8.1.1.4 the customer is responsible for ensuring that:

8.1.1.4.1 tanker seals are intact on arrival;

8.1.1.4.2 the seal numbers of the tanker correspond with those reflected on the delivery note;

8.1.1.4.3 the product delivered is that ordered;

8.1.1.4.4 the weight of the load as determined by the company’s assigned weighbridge is that recorded on the delivery note or on the attached weighbridge ticket;

8.1.1.4.5 the product is off-loaded into the correct silo or cembin; and

8.1.1.4.6 the tanker is resealed prior to leaving the site and the correct seal number is recorded on the delivery note.

8.2 In the case of spreading of cementitious products:

8.2.1 spreading will be under the direct control of the customer and/or its representatives and no guarantee is given as to the tolerance of the spread;

8.2.2 the customer or its representative will break the tanker seal and will ensure that the tanker is fully discharged;

8.2.3 the customer may use the company’s procedure relating to spreading of cementitious product at the customer’s own risk and to the extent permitted by law, the company will not be responsible for any damage or loss of any nature which arises from the customer’s use of such procedure.

8.3 If the customer uses the company’s cement silos:

8.3.1 the silo(s) will at all times remain the property of the company;

8.3.2 the silo(s) are to be used for the company’s products only;

8.3.3 the customer must provide a suitable base for placement of the silo;

8.3.4 the customer will ensure that the company’s vehicles have access within 3 (three) metres of the silo(s); and

8.3.5 the customer will be liable for the safe keeping of the silo(s) and all attachments. The customer will ensure that the silo(s) have been placed correctly and will be responsible for any loss or damage to the silo(s) whilst in their possession irrespective of how the loss or damage was caused, unless such loss or damage is caused by an inherent defect in the silo, in which case, subject to the CPA, the company will not be liable for any loss or damage to any contents in the silo.

8.4 Pallets used in the transportation of the products will remain the property of the company at all times.

8.5 Aggregates:

8.5.1 In the event that the customer uses its own transport, there may be a loading fee charged if aggregates are loaded at the company’s premises. The despatching plant or quarry will inform the customer of the applicable loading fee;

8.5.2 If the company chooses to sell and / or deliver by volume, the quantity of each load will be measured in its disturbed state immediately after loading. There will be a certain amount of settling during transport to the point of discharge;

8.5.3 The transport cost of any load under 10 (ten) tons will be calculated on the basis of 10 (ten) tons;

8.5.4 Conversion factors are given as a guideline only and the company does not warrant the accuracy of these factors;

8.5.5 Building sand will be supplied when available and only in accordance with the specifications of the company.

8.6 Readymix concrete:

8.6.1 The price quoted includes transport cost.

8.6.2 The customer will ensure, before accepting delivery, that:

8.6.2.1 The drum seal is intact;

8.6.2.2 The seal number of the drum corresponds with that reflected on the delivery note;

8.6.2.3 The delivery note signed indicates the addition of any substance including water, to the product before or during discharge.

8.6.3 The transport cost of any load under 5 (five) m³ will be calculated on the basis of 5 (five) m³.

8.6.4 Orders for less than 50 (fifty) m³ for delivery not on working days or after 19:00 on working days may incur a plant opening fee.

8.6.5 Mix designs are subject to the customer’s consulting engineer’s approval and, should any modification be required, prices will be adjusted accordingly.

8.6.6 The company will not test any concrete on behalf of the customer, but may elect to do so for its own purposes.

8.6.7 The company reserves the right to charge:

8.6.7.1 A demurrage fee, if the off-loading time exceeds 8 (eight) minutes per m³ in the case of Readymix concrete, unless any extension in discharge time is the fault of the company;

8.6.7.2 In the case of concrete for columns less than 4 (four) meters a maximum time of 60 (sixty) minutes will be allowed;

8.6.7.3 A cancellation fee for orders cancelled within 24 (twenty-four) hours of the scheduled delivery time;

8.6.7.4 If a pour is delayed by the customer and cannot be poured on the agreed time, the order will be cancelled and the customer will have to place a new order;

8.6.7.5 A surcharge should an alternative plant to that specified in the quotation be used in order to meet same day orders.

8.6.8 The customer is entirely responsible for the handling, placing, curing and consolidation of any concrete discharged from the delivery vehicle or pump. Accordingly, the customer must be aware that the manner in which concrete is handled, placed and consolidated; and the addition of water, aggregate, and additives can and does affect the quality and strength of concrete, mortars and plasters.

8.7 Pumping of Readymix concrete:

8.7.1 The lengths of pipes required will be determined at a site inspection before to the pour and will be agreed with the customer.

8.7.2 The company may charge:

8.7.2.1 a concrete dumping charge if the customer does not have the facility to dump any concrete exceeding their requirement on site;

8.7.2.2 an hourly pumping charge if the rate of concrete pumped per hour is less than that quoted where the delay is caused by the customer, or if a same day increase in quantity ordered is required which may impact on service levels to other customers;

8.7.2.3 a pump cancellation charge if the customer has not given the company at least 72 (seventy-two) hours’ notice of the postponement/cancellation of the order;

8.7.2.4 overtime charges for time worked outside of normal working hours, namely 07h00 and 17h00;

8.7.2.5 a pipe laying labour charge where more than 15m of pipe is to be used and the customer is unable to provide the labour.

8.7.3 Cement and sand for priming must be supplied by the customer, or can be supplied by the company at an additional cost.

8.7.4 Quotations are subject to the following conditions being met:

8.7.4.1 access to and exit from the working area has been provided by the customer; and

8.7.4.2 a stable platform has been supplied to set the pump on.

8.7.5 The customer must confirm that the pump is required 3 (three) working days prior to the pour.

9. DELAY

The company aims to deliver all products without unreasonable delay. However, subject to the CPA where applicable, the company accepts no responsibility for any delay in respect of delivery of the product. Except where the CPA applies, the customer is not entitled to claim damages or set-off payment from the company as a result of such delay or non-delivery.

10. SUSPENSION OF DELIVERIES

The company has the right to suspend any delivery if the customer has not paid any amount it owes to the company in respect of any contract between the parties.

11. DELIVERY NOTES

11.1 On delivery of the product to the delivery site the customer, its employee or agent will sign the delivery note.

11.2 Unless the contrary is proven, the delivery note is proof of:

11.2.1 the type of product delivered;

11.2.2 the quantity / volume / mass of the product delivered;

11.2.3 any variation to the SABS or prescribed specifications of the product (on the customer’s oral or written request which variation will then specifically be recorded on the delivery note) delivered to the customer;

11.2.4 that the tanker or drum seal, as the case may be, is intact;

11.2.5 whether water or any other foreign material has been added to the product; and

11.2.6 arrival and discharge times.

11.3 Unless the contrary is proven, the consignment note of Transnet or its agents or partners in respect of delivery of the product to a rail siding, is proof of such delivery.

11.4 In the event of a dispute arising in respect of any statement recorded on the delivery note or the consignment note signed by the customer or its agent, the customer is responsible for disproving any of the statements recorded on such note.

12. WARRANTY/LIABILITY

12.1 The company warrants that the product delivered complies with the following requirements:

12.1.1 the details shown on the delivery note;

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12.1.2 the South African National Standards SANS 50197 (“SABS specifications”), as amended from time to time in the case of cement and/or the applicable specifications as set out below for the relevant products;

12.1.3 the applicable specifications for the products as follows:

GGBFS SANS 55167

Ready Mix Concrete* SANS 878

Aggregates for Concrete SANS 1083

Aggregates for Base and Sub

Base*

COLTO :1998

Road Stone* COLTO :1998

Ballast Transnet S406

Sand and others AfriSam Specifications

Others Details available on request

*Subject to the conditions as displayed on the company’s website.

12.1.4 the appropriate SABS specifications and/or Codes of Practice for aggregate and concrete, or the specifications as prescribed by the customer in writing and agreed on between the parties.

12.2 Subject to the CPA, liability for breach of the warranty set out in clause 12.1.3 will only arise where the customer has established, in addition to any other proof required by law, that:

12.2.1 the customer has inspected the product before use in accordance with the trading terms;

12.2.2 inspection, sampling methods and interpretation of test results have been carried out in strict compliance with applicable specifications, these being no less stringent than those prescribed by the SABS (and in the case of Road Base materials, samples are taken prior to compaction);

12.2.3 the customer has notified the company verbally within 48 (forty-eight) hours of its tests revealing an alleged non-conformity with specification, provided that written notification was given within a maximum of 7 (seven) days after the tests revealing an alleged non-conformity;

12.2.4 the company was afforded every reasonable opportunity to inspect the product or any sample taken and to submit the product or sample to an independent accredited laboratory for testing;

12.2.5 all records relating to the handling, sampling, curing and testing of the product and the interpretation of any tests in respect were made available to the company for inspection; and

12.2.6 the product was not stored, misused, neglected, contaminated, improperly handled or altered in any way and that no foreign material was added to the product; and

12.2.7 in the case of cementitious product, the customer must notify the company of any damaged, short or broken bags in accordance with the company’s procedure for damaged, short and broken bag claims, failing which claims will be invalid.

12.3 Under no circumstances will the company be liable for direct, consequential, general or special damages arising out of:

12.3.1 the use by the customer of the product in any manner that is contrary to the instructions, company procedures or warnings provided by the company;

12.3.2 any circumstances beyond the reasonable control of the company; or

12.3.3 subject to the CPA, any harm caused by the company’s negligence (unless the customer can prove that the company’s conduct was grossly negligent);

12.3.4 and the customer hereby indemnifies the company against all such claims which may be made against the company arising from the use by any person of the product under these circumstances.

12.4 Despite the provisions of clause 12.2, and to the extent permitted by the CPA, the company’s only liability in respect of the supply of defective products will, in any event and in its absolute discretion, be strictly limited to:

12.4.1 the repair or removal and replacement of such defective product; or

12.4.2 the refund to the customer of the cost at which the customer purchased such defective product.

12.5 Subject to the CPA, the company offers no warranty, express or implied in respect of the product, its colour, consistency or its suitability for a particular purpose even if such purpose is communicated to the company, save that it will be manufactured in accordance with its specification.

13. EXCLUSION OF LIABILITY

13.1 Subject to the CPA, the warranty given by the company in clause 12.1.3 is given in place of any common law warranty.

13.2 In addition to the exclusions set out in clause 12, and subject to the CPA, all and any liability in respect of the following is excluded:

13.2.1 warranties implied in law in respect of latent defects;

13.2.2 warranties in respect of suitability of the product for the purpose;

13.2.3 any loss including consequential loss and loss of profits, whether in contract or in delict, including any loss or damage arising from any negligent act and omission of the company, its servants, agents or contractors;

13.2.4 any injury or death arising from any negligent act or omission of the company, its servants, agents, or contractors.

14. FORCE MAJEURE

14.1 If a party is prevented or restricted directly or indirectly from carrying out its obligations in the trading terms by reason of strike, lock-out, fire, explosion, storm, flood, drought, wind, lightning or other adverse weather condition or act of God, floods, riot, war, accident, blockade, embargo, boycott, the exercise of military or usurped power, epidemic, pandemic, quarantine, state of disaster, state of emergency, embargo, legislation, shortage of or a breakdown in transportation facilities, breakdown of machinery or facilities, revolution, invasion, insurrection, mob violence, sabotage, civil commotion, unrest or disturbances, cessation of labour, government interference or control, acts or restraints of government imposition, including (but not limited to) lockdowns, or restrictions of or embargoes on imports or exports or any other reason beyond the reasonable control of that party, the affected party will be relieved of its obligations during the period that such event and its consequences continue to the extent that it is prevented from fulfilling its obligations.

14.2 Neither party will be liable for any delay or failure in the performance of any obligations or loss or damages either general, special or consequential which the other party may suffer due such delay or failure, provided that written notice was given to the affected party of any inability to perform.

14.3 The party invoking force majeure must give written notice to the other party when the event giving rise to its inability to perform has ceased.

14.4 Should such force majeure continue for a period of more than 90 (ninety) days then either party will be entitled to cancel this contract in respect of any obligations still to be performed by that party under the contract.

15. GOVERNING LAW AND JURISDICTION

15.1 These trading terms will be interpreted and governed in all respects by the laws of the Republic of South Africa.

15.2 The customer unconditionally consents and submits to the non-exclusive jurisdiction of the Magistrate’s Court in regard to all matters arising from these trading terms, but the company will not be obliged to institute action in the Magistrate’s Court.

16. COSTS

16.1 All costs, expenses and charges, including legal costs and collection commission incurred by the company in enforcing its rights against the customer will paid by the customer even if legal proceedings are not commenced.

16.2 Legal costs will be as agreed between the company or the customer and its attorneys. If there is no agreement or any agreement is not enforceable, legal costs will be calculated on attorney and own client scale.

17. ARBITRATION

Unless otherwise set out in the trading terms, all disputes regarding the trading terms including disputes as to the meaning or interpretation of any provision or the effect of any such provision or the quantification or determination of any amount or thing required to be determined or quantified in terms of or pursuant of these trading terms, will be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa Limited (or its successors) (“the Foundation”), as amended from time to time, by an arbitrator or arbitrators appointed by the Foundation.

18. PROTECTION OF PERSONAL INFORMATION ACT, 2013

18.1 The customer acknowledges that, when requesting a quotation or completing a credit application, the company will require certain Personal Information as defined in the Protection of Personal Information Act, 2013 (“POPI”) from the customer.

18.2 The customer agrees that the company requires such Personal Information for purposes of:

18.2.1 processing the customer’s credit application, if applicable;

18.2.2 verifying the customer’s credit record, with a view to possibly supplying product to the Customer on credit;

18.2.3 monitoring the customer’s adherence with the terms of the customer’s credit application, if applicable, or with the trading terms;

18.2.4 providing a written quotation to the customer;

18.2.5 processing the customer’s order;

18.2.6 confirming the customer’s order; and

18.2.7 effecting delivery of the product to the customer.

18.3 By placing an order, and by completing the credit application (if applicable) the customer consents to:

18.3.1 The company processing the customer’s Personal Information for the purposes set out above, as applicable;

18.3.2 The company’s use of third party credit bureaus or any other Operator, as defined in POPI, to process the customer’s Personal Information, which processing will be in line with the purpose for which it was collected, as set out above; and

18.3.3 The company processing its Personal Information for direct marketing and promotional purposes.

18.4 The customer’s failure to supply the Personal Information requested by the company will result in the relevant credit application being denied or the company being unable to process the customer’s order.

18.5 The customer will have the right to:

18.5.1 access any Personal Information pertaining to it that the Company has in its possession;

18.5.2 rectify or correct any such Personal Information in the event that it, at any stage, becomes outdated or incorrect for whatever reason;

18.5.3 request the destruction or deletion of its Personal Information by the company;

18.5.4 be informed by the company in the event that its Personal Information has been accessed or acquired by an unauthorised person;

18.5.5 object to the processing of its Personal Information by the company on any reasonable grounds. On receipt of such objection, the company will no longer process the customer’s Personal Information, which will unfortunately result in your credit application being denied, if applicable, and the company being unable to process the customer’s orders;

18.5.6 object to the processing of its Personal Information at any time for purposes of direct marketing;

18.5.7 to submit a complaint to the Regulator regarding an alleged interference with the protection of the customer’s Personal Information or to submit a complaint to the Regulator in respect of a determination of an adjudicator as provided for in POPI; and

18.5.8 to institute civil proceedings regarding the alleged interference with the protection of its Personal Information as provided for in POPI.