Trading Terms and Conditions of Sale of Cem Brick Manufacturers (Pty)

Ltd Reg no 2018/008836/07 and or Market Demand Trading 564 (Pty) Ltd Reg no 2008/015819/07 and or Market Demand Trading 662 (Pty) Ltd Reg no 2010/001238/07

These trading terms and conditions of sale supersede all previous terms, understandings and agreements governing the sale of the company’s products with effect from November 2011.

  1. Definitions

1.1 In this document “the Company” will mean Cem Brick manufacturers (Pty) Ltd., registration number 2018/008835/07 and or any of its subsidiaries: “the customer” will mean anyone who buys the Product from, or places orders for “the Product” from the Company, and “the Product” will mean any item including paving bricks, building bricks, etc. that the Company may know or in the further sell to its Customer

  1. Contract

2.1 These Trading Terms and Conditions of Sale will apply to verbal or written orders (which will include orders placed by way of electronic format) placed on the Company for the product; and/or on acceptance of delivery of the Product; and/or upon signature of the Application for Account.

2.2 Unless the contrary is recorded in writing and signed by an authorized representative of the Company every contract of sale between the Company and the Customer will be governed by the Terms and Conditions contained herein and these terms will override any terms or conditions purported to be imposed by the Customer.

2.3 No variation, alteration, cancellation of or addition to these terms will bind the Company unless reduced to writing and signed by an authorized representative of the Company or contained in an invoice or other document issued by the Company.

  1. Quotation

3.1 The Company will, on the Customers request, deliver a written quotation (“the Quotation”) to the Customer, which official Company quotation will be binding on the Company for a period of 30 (thirty) days from the date thereof, or for such other period as advised by the Company where after it will lapse and be of no further force or effect.

3.2 A verbal quotation will not be binding on the Company.

3.3 The quotation bearing the latest date specific to the Customer’s enquiry will supersede all previous quotations issued by the Company.

  1. Recording of telephone calls

4.1    The Company may record all telephone conversations between itself and the Customer. The Customer hereby acknowledges that it is aware of such practice and agrees that such recording may be used to verify conversations pertaining to the execution of orders and as evidence in the event of a dispute between the Company and the Customer. The Customer will be required to provide detailed instructions regarding the commencement of supply and rate of delivery of all materials for the duration of the contract at the time of placing an order to allow the Company to facilitate availability and continuity as far as reasonably possible.

  1. Price

5.1 The price of goods sold shall be the Company’s price as at date of dispatch of the goods.

5.2 Should this price be different from the price ruling as at the date at which any quotation may have been given to the customer. The Company shall advise the Customer of the said increase and the Customer shall be entitled to cancel his order provided that he does so as soon as possible after being advised of the said increase. If, however, at the time of placing the order and the issuing of a written acceptance of such order by the Company both a date for delivery has been agreed to by The Company and the purchase price of the goods has been paid in full, then that price will be the price at which the goods will be sold.

5.3 Where the price of goods is the delivered price, any increase in the transport rate prior to the date of dispatch shall be for the account of the Customer. Any additional charges raised by carriers in connection with the delivery of goods to the Customer, including demurrage or a change in rail tariff, shall be for the account of the Customer.

  1. Ownership and risk

6.1 Notwithstanding the delivery of the Product to the Customer, ownership will not pass to the Customer until the Company has received payment in full in respect of the Product.

6.2  In the event of payment not being made timeously, the Company reserves the right to recover possession of the Product immediately without notice and without the necessity to first cancel the contract of sale in respect of such Product.

6.3 Risk in and to the Product will pass to the Customer upon delivery of the Product.  Should the Customer provide its own transport, delivery is deemed to take place once the Product is loaded onto the Customer’s vehicle and the delivery note is signed as contemplated in 7.9 and/or 7.11

  1. Delivery

7.1 In the case of goods sold for delivery at the Company’s factories, the Customer shall provide transport and labour and take delivery of the goods at a rate and at such time or times as agreed to by the Customer and the Company.

7.1.1 Delivery by Customers own transport

Should the Customer provide its own transport:

7.1.2 It is specifically recorded that the Company will strictly adhere to all statutory and regulatory legislation in respect of road transport (and will accept no liability for non-compliance by the Customer, its employees or agents with such legislation)

27.2  The carrier taking such delivery on behalf of the Customer, whether shipper, haulage contractor or rail carrier, shall be deemed to be the Customer’s carrier and agent and delivery shall be deemed to be effected upon possession of the goods sold being taken by the carrier.  A consignment note issued by the carrier shall constitute prima facie proof of delivery of the goods expressed to be covered there by.

7.3  In the case of goods sold for Delivery by the Company, the Customer may request the delivery of goods in accordance with a delivery schedule and depending on the efficient use of its delivery fleet and subject to  7.5, the Company will attempt, but shall not be bound, to meet such delivery schedule, in the absence of a delivery schedule agreed in terms of  7.5, the Company  shall, when it delivers products, deliver at such time and date and offload in such a manner as it determines at or as near as possible to the Customer’s building site provided that if a point of delivery has been indicated by the Customer, it will attempted to deliver at such point subjected to delivery site offering adequate and safe access and route’s to and from the points of delivery on site. In order to comply with Local Authority Bylaws, the Customer undertakes to remove the goods from the place where they are delivered to within the boundaries of the building site.

 

The Customer shall ensure that the Company has access to the building site and the point of delivery at all times.  Failure on the part of the Customer in each or any regard shall entitle the Company to divert the goods, or return them to its premises.  In either event the Customer shall, upon demand, pay the Company’s expenses incurred in tendering delivery of the goods.

7.4 Upon delivery or deemed delivery of goods to the Customer all risk in and to the goods, including packaging materials thereof, shall pass to the Customer.

7.5 The Company may agree, in writing, to a delivery schedule, then the Company shall attempt to deliver products in accordance with such delivery schedule, but is not bound to do so. Should the Customer wish to change an agreed delivery schedule then it shall give a minimum of 48 hours’ notice to the Company.  Acceptance shall be subject to availability of goods.

7.6  The Customer will be responsible for facilitating offloading of the Company’s or its contractor’s vehicles at the delivery site, offloading at the desired location at the delivery site and following the correct procedures in respect of the handling, storage and consolidation of the Product.

7.7 The Customer will be liable for:

7.7.1 The deterioration of or damage to the Product after delivery due to improper handling, storage or consolidation;

7.7.2 Any cost related to its failure to accept delivery or to accept full delivery of the Product ordered;

7.7.3 All costs relating to the consignment of the Product being diverted to another delivery site.

7.7.4 The Customer will obtain the prior consent of the Company to divert a consignment of the Product to another delivery site.

7.8 The Customer will bear the risk for any loss or damage, direct or consequential to the Company’s or the Company’s contractor’s vehicles and or machinery and equipment at the delivery site and will be liable to repair or replace any equipment damaged immediately upon demand.

27.9 Delivery will be deemed to have taken place upon signature of the delivery note by the Customer, its employee or agent.

7.10 Deliveries will be effected during normal business hours but the Company reserves the right to deliver the products after hours and on public holidays by making prior arrangements with the Customer. In the case where the Company is attempting to meet a delivery schedule the Customer shall be obliged to take delivery of the goods after hours or on public holidays prior to the delivery date.

7.11 Upon delivery been made out of ordinary hours or during normal business hours and the Customer, its employees or his agent not being available to sign the delivery note. Then the delivery note shall be faxed or emailed to the Customers office and the proof of fax or email shall be prima facie proof of delivery

7.12 The Company goods correctly dispatched per orders are not returnable.  Where the Company agrees to goods being returned the cost of returning the goods will be for the account of the Purchaser where the reason for returning goods is attributable to the Customer.  The Company reserves the right to levy a 10 % (ten percent) handling charge on all goods returned.  Only goods returned which the Company approves as fit for the purpose manufactured in every respect will be credited to the Customer’s account.

  1. Impossibility of performance and injury or breakages.

8.1 In the event of the Company being prevented, by any cause beyond its control from supplying goods ordered, which shall be deemed to include shortage of stocks of the goods, then it shall be excused performance during the period for which it is so prevented.

8.2 The Customer indemnifies and holds harmless the Company against all claims of any nature whatsoever in respect of loss or damage to persons or goods or property suffered by the Customer and the Customer’s employees, agents and invitees while on the premises of the Company and/or alliance factories or depots or while and during the period that the Company’s or its agent’s, carrier is delivering any product to the Customer delivery site and/or delivery address or any Customer address.

  1. Delay

The Company accepts no responsibility for any delay in respect of delivery of the Product.  It is specifically recorded that the Customer will not be entitled, as a consequence of any delay or of a non-delivery to claim damages and/or setoff payment from the Company due to such delay or non-delivery.

  1. Suspension of deliveries

If any amount due and payable by the Customer to the Company is in arrears, the Company will have the right, until such amount has been paid, to suspend any delivery under any contract then in force between the Company and the Customer and the Customer will not be entitled to cancel his order due to suspension.

  1. Delivery Notes

11.1   Upon delivery of the Product to the delivery site or at the factory, depot, plant or quarry, as the case may be, the Customer, its employee or agent will sign the delivery note subjected to 7.11.

11.2   Such delivery note will constitute prima facie proof:

11.2.1   of the type of Product; 25.2.2   of the quantity/volume/mass of the Product delivered; 11.2.3   of any variation to the SANS 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   Arrival and offloading times.

11.3   The consignment note of the Company’s carriers, contractors, external carrier and/or its agents or partners in respect of delivery of the Product to a site, will constitute prima facie 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 as the case may be, the onus of disproving any of the statements so recorded on such note will be on the Customer.

  1. Warranty/Liability

12.1   The Company warrants that the Product delivered complies with the details shown on the delivery note, or the specifications as prescribed by the Customer in writing and agreed upon between the Customer and the Company in writing (prescribed specifications).

12.2  Liability for breach of the warranty set out in 12.1 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;

12.2.2 Inspection, sampling methods and interpretation of test results have been carried out in strict compliance with the specifications therefore, these being no less stringent than  those prescribed by the SANS.

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 there from 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 thereof were made  available to the Company for inspection;

12.2.6 The Product was not stored, misused, neglected, contaminated, improperly handled or altered in anyway and that no foreign material was added to the Product;

12.2.7 And in the case of any Product the Customer must notify the Company in writing of any damaged, shortages, excessive breakages within 24 hours after the product is delivered to the Customer, failure to notify the Company within this timeframe will render the claim 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;

12.3.2   The supply of defective Product by the Company; or

12.3.3 Any other cause whatsoever;

And the Customer hereby indemnifies the Company against all claims of whatsoever nature which may be made against the Company arising from the use by any person of the Product supplied in terms hereof.

12.4   Notwithstanding the provisions supra the Company’s only liability in the respect of the supply of defective Product will, in any event, and in its absolute discretion be strictly limited to:

12.4.1   To replacing the goods giving rise to such loss or damage with similar goods; or

12.4.2   The refund to the Customer of the cost at which the Customer purchased such defective Product.

12.5   The Company offers no warranty, express or implied in respect of the Product, its color, 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.

12.6  The Company’s liability in relation to this warranty shall not in any circumstances whatsoever exceed the cost to the Company of replacing the goods giving rise to such loss or damage with  similar goods to which goods the provisions of these Conditions shall apply.
12.7 Save with regards to the foregoing, no warranty is given, expressed or implied that goods will be suitable for use for any specific purpose or under any specific conditions may it be known or not known to the Company.

12.8   The Company shall not be liable to the Customer nor to any third person for any loss or damage arising directly or indirectly from any defect whatsoever other than in respect of the matters warranted above.

12.9   Notwithstanding anything to the contrary contained in any statute or other law, any claim which the Customer may have pursuant to a breach of any of the above warranties shall be deemed to prescribe six months after the delivery to him of the goods.

  1. Exclusion of Liability

13.1   The warranty given by the Company in 26.1 is given in lieu of any common law warranty.

13.2   In addition to the exclusions set out in clause 26, 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 of profits, whether in contract or in direct, 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 the supply of the Product or from any negligent act or omission of the company, its servants, agents, or contractors.

  1. Force Majeure

14.1  If the Company is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of   strike, lock-out, fire, explosion, floods, riot, war, accident, act of God, embargo, legislation, shortage of or a breakdown in transportation facilities, plant breakdown, civil commotion, unrest or  disturbances, cessation of labor, government interference or control, or any other cause or contingency beyond the control of the Company, the Company will be relieved of its obligations hereunder during the period that such event and its consequences continue but only to the extent so prevented and will not be liable for any delay or failure in the performance of any obligations hereunder or loss or damages either general, special or consequential which the other party may suffer due to or resulting from such delay or failure, provided always that written notice will forthwith be given of any such inability to perform by the Company.

14.2 Upon termination the force majeure the Company will give written notice thereof to the Customer.

14.3 Should such force majeure continue for a period of more than 90 (ninety) days then either party will be entitled forthwith to cancel this Agreement in respect of any obligations still to be performed hereunder.

  1. Governing Law and Jurisdiction

15.1The Contract of sale will be interpreted and governed in all respects of the Republic of South Africa.

15.2 The Customer being resident in the Republic of South Africa Herby consents to the jurisdiction of the Magistrate’s Court in the respect of all proceedings connected with this Contract of Sales, notwithstanding that the amount claimed may exceed the jurisdiction of the Magistrate’s Court, provided that the Company will not be obliged to institute action in the Magistrate’s Court.

15.3 If the Customer is not resident in the Republic of South Africa, but carries on business in the Republic of South Africa, it herby consents to the jurisdiction of the High Court of South Africa and all courts of appeal thereof.

15.4 If the Customer is a resident of or carries on business in any country other than South Africa, the Company will be entitled to institute legal proceedings against the Customer arising out of this Contract of Sale in any court of Competent jurisdiction in such country, even if the cause of action in question, exceeds the jurisdiction of such court.

15.5 The Customer choose his domicilium citandi et exectandi (“domicilium”) for the purpose of giving of any notice, the serving of any process and for any other purpose arising at the address/es set out in this document or in the Customer credit application. If any notice is delivered by hand at the Customer’s comicilium it shall be deemed to have been received by the Customer at the time of delivery. If posted by prepaid registered post will be deemed received on the 7th day after the date of posting. If e-mailed or faxed the notice shall be deemed received on the 2nd day after transmission.

  1. Cost

16.1 All costs, expenses and charges, including legal costs and collection commission (“the costs”) incurred by the Company in enforcing its rights against the Customer will be borne and paid by the Customer whether or not legal proceedings are commenced.

16.2 In sofar as legal costs are concerned, they will be such as may be agreed between the Company and its attorneys or if there is no Agreement or any Agreement therefore is not enforced, will be calculated on the sale as between Attorney and own Client.

  1. Arbitration

31.1 Save as otherwise set out in these Trading Terms and Conditions of Sale,

31.2 all disputes arising out of or relating to these Trading Terms and Conditions of Sale including disputes as to the meaning interpretation of any provision of these Trading Terms and Conditions of Sale or as to the carrying into effect of any such provision or as to the quantification or determination of any amount or thing required to be determined or quantified in terms of or pursuant of these Trading Terms and Conditions of Sale,

  1. Claims

18.1   The Company will attempt to deliver products in accordance with a delivery schedule agreed to in terms of 21.5, but the Customer shall have no claim of any nature whatsoever against the Company by reason of any delay by the Company in giving delivery of goods on any date or dates that may be specified in the Customer’s order or a delivery schedule agreed in terms of 21.5 or within a reasonable time in those cases in which no such date is specified or agreed.

18.2   The Customer acknowledges that during the normal transportation of goods from factory to site, damages and breakages are likely to occur.  In the case of goods packaged and transported by the Company itself, breakage could be as high a  5 % (five percent) in the case of Paving bricks, Building bricks and Roof tiles or fittings or such percentage as quoted at the time of sale in writing.  It is agreed that the Customer shall have no claim whatsoever against the Company, whether by way of reduction of the purchase price or otherwise, in respect of losses of up to the aforesaid percentages unless the Company has specifically in writing, agreed to some lesser percentage of breakages.

18.3   Products delivered by rail are dispatched at the Customer’s risk.  Any claim for damage in transit should be directed to the carrier.

18.4   In the case of products delivered by road by the Company’s carrier claims will, as between the Customer and the Company, only be valid if such claims are endorsed on the waybill at the time of delivery or are brought to the Company’s attention in writing within 24 hours of receipt of the goods by the Customer its employees or his agent.

18.5   Should the Customer wish to query any item on the Company’s invoice or should he wish to request proof of delivery pursuant to a query as to the quantity of product delivered to him, he shall be obliged to make relevant query, claim or request (as the case may be) in writing within a period of 30 days from the date of the Company’s invoice, failing which his right to do so shall be deemed to be waived and he shall have no further claim against the Company arising pursuant thereto.

  1. Payment of purchase price

19.1   Ownership of all goods sold and delivered by the Company to Customer, shall, to the extent that they have been built into a permanent structure, remain with the Company until the purchase price thereof have been paid in full.  A certificate issued by the Company’s auditors or manager shall constitute prima facie proof of the goods for which payment has not been made to the Company.

  1. Non-Waiver

20.1   The failure by the Company to strictly enforce any provision of these Conditions shall not be constituted as a waiver by the Company of any of its rights in terms hereof nor shall it prejudice the Company’s right to strictly enforce such conditions.

  1. Consent to access information

21.1 The Customer agrees that The Company may use the service and records of a registered credit bureau and other suppliers from information requires in the original and future assessment of facilities. The Customer agrees that The Company may disclose information regarding the Customer’s credit worthiness and conduct of the Customer’s account with it to any registered credit bureau, credit insurers and the suppliers.

21.2   If the Customer is a private or unlisted public company, close corporation or other artificial person then it undertakes to advise the Company forthwith in writing of any agreement concluded for the change of its shareholding, membership or ownership.  In such event (or if the Customer fails to advise the Company  as required in terms hereof), the Company reserves the right to suspend its facility on written notice to the Customer until all requirements of the Company as a consequence of such change have been met in full.

21.3   The Company reserves the right to suspend the Customer’s facility terms at any time on written notice to the Customer without giving any specific reason whatsoever.

  1. Right to update

22.1   The Company reserves the right to update these conditions of sale from time to time on written notice to the Customer which shall, on receipt of the updated conditions of sale from time to time, be bound to the same as if they were the original conditions of sale.

  1. Clause sever able and devisable

23.1 Each and every clause contained in these conditions of sale is sever able and divisible from the others and separately enforceable as such.  Should any provision be found not to be binding then this shall not effect the enforceability of the remaining provisions.

23.2 The Guarantee, Surety ship and Co-principal Debtor ship overleaf shall not, whether properly completed, incorrectly completed, or not completed, in any way whatsoever affect the validity and enforceability of these conditions of sale at the instance of the Company.

  1. Arbitration and constitutional issues

24.1.1 At the election of the Company (made by written notice to the Purchaser/ Customer

24.1.2 Any disputes, differences, impasses of deadlocks between the Company and the Customer shall be referred to arbitration at the sole discretion and election of the Company.  All references in this agreement to “arbitration” shall be deemed to be a reference to arbitration in terms of the Arbitration Act No. 42/1965, as amended, or if this Statute is repealed, in terms of the statute which replaces it.  The arbitrator shall be a person agreed upon between the Company and the Customer and failing agreement, a person nominated by the President of the Free State Law Society (or if that Body changes its name the President or head of the body that succeeds it) and such person shall not necessarily be a lawyer.  The arbitration shall be held in Bloemfontein.  No party shall, except jointly with all the other parties, invoke the provisions of Section 23(a) of the Arbitration Act or any other similar provision which may hereafter exist.  The decision of such Arbitrator shall be final and binding upon the Company and the Customer and the Arbitrator shall also be entitled to stipulate who shall pay his costs of resolving such dispute, difference, impasse or deadlock.

  1. Guarantee, Surety ship and co-principal debtor ship

25.1 The Company reserves the right to require –

(a) Surety ships, co-principal debtor ships and guarantees from all members, shareholders, beneficiary’s, trustees and other persons associated with the Customer before or after accepting to open an account and/or

(b) Holding company guarantees, cessions of book debtors and bank guarantees from the customer,

(c) At any time on written notice the customer. The Company shall be entitled to suspend the facilities until its requirements are met in full.

25.2 In respects of cash sales; COD; transport cash sales and the incorporation of the provisions pf these conditions of sales onto waybills and invoices in respect of such sales the provision of clause 25.1 shall not apply and shall be regarded pro-non scrip to.

25.3These conditions of sale apply to all transactions between The Company and the Customer notwithstanding the fact that the surety ship, co-principal debtor ship and guarantee contained in The Application form is not completed and/or signed by certain persons.

DISCLAIMER

CEM BRICK has endeavoured to ensure the accuracy of information in this guide, but makes no warranties or in any way guarantees the accuracy or completeness of any process or project mentioned. It includes, but is not limited to: quantities, specifications or dimensions provided in this guide. The customer accordingly indemnifies CEM BRICK against any loss (direct, indirect or consequential), liability, actions, suits, proceedings, costs, demands and damages of any nature, directly or indirectly arising from any failure, delay, loss, damage or incorrect information arising from this website and guides.