National Asphalt (Pty) Ltd
Reg. No. 1997/014970/07


GENERAL TRADING TERMS AND CONDITIONS

1. APPLICABILITY OF THE STANDARD CONDITIONS
All and any business undertaken by National Asphalt (Pty) Ltd (NA), including without limitation the supply of Products, Services and advice, is and shall be subject to the terms and conditions hereunder (“these conditions”), unless otherwise agreed in writing and signed by NA.  Any conditions or terms imposed by the Customer that are contrary to these conditions shall be null and void and of no force and effect.

2. DEFINITIONS
`Customer` means any person or persons at whose request or on whose behalf or in respect of whom NA undertakes any business;
`NA` means NATIONAL ASPHALT (PTY) LTD, registration number 1997/014970/07;
`Product` means the asphalt supplied by NA to the Customer;
`Services` means the laying and paving of roads, including incidental services offered by NA as set out in the quotation to the Customer;
`Site` means the premises to which NA delivers the Products to the Customer and/or on which the Services are provided.

3. QUOTATIONS AND ORDERS
3.1 A quote given by NA to the Customer shall only be binding on NA if it is in writing, signed by a duly authorised representative of NA and accepted by the Customer, in writing, within 30 days the of date of issue. A quotation shall be binding only if accepted in its entirety.
3.2 NA shall not be obliged to deliver the Services unless an order is placed by the Customer on NA.
3.3 An order placed on NA by the Customer shall only be binding on NA if it is in writing and accepted in writing by a duly authorised representative of NA.
3.4 NA shall be entitled to insist on a guarantee for the payment of the quoted price prior to commencing any work, the acceptance of a quotation and/or an order by the Customer and/or NA does not constitute waiver of this entitlement.

4. PRICES
4.1 Subject to the other provisions of these conditions, the prices at which the Products shall be sold and the Services provided, will be at NA’s ruling price (based on NA’s suppliers ruling ex works price) at the date on which the Products are delivered to the Customer.  The Customer agrees and acknowledges that the price of the Products shall vary as fluctuations in the variables taken into account by NA in determining its price, may occur from time to time.
4.2 In the event of NA being a sub-contractor, all rates quoted will be varied as set out in clause 4.1, in terms of the applicable main contract, unless otherwise agreed in writing.
4.3 Where a pre-mix is quoted per square metre, the quoted price will be based on a spread rate of:
20 mm thick: 18 square meters per ton;
25 mm thick: 15 square meters per ton;
30 mm thick: 12 square meters pert ton;
35 mm thick: 11 square meters pert ton
40 mm thick: 10 square meters pert ton
All additional premix used as a result of base conditions will be invoiced separately.
4.2 Unless otherwise stipulated, all prices are exclusive of VAT.
4.3 If the Customer varies its order or if there are delays or changes which are not as a result of any act or omission of NA, NA shall be entitled to revise its prices by notice in writing.

5. DISCOUNTS
5.1 The purchase price of the Products is strictly net and not subject to any discounts unless otherwise agreed to in writing by NA and signed by an authorized manager of NA.

6. VALUE ADDED TAX
The Customer shall be responsible for and undertakes to pay to NA, at the same time as it is obliged to pay any sum in respect of Products supplied or to be supplied and/or Services rendered or to be rendered, any tax payable thereon by NA in terms of the Value Add Tax Act 1991 or any replacement Act.

7. PAYMENT
7.1 Unless otherwise specifically agreed to by NA in writing, all amounts shall be paid by the Customer to NA, without deduction, demand or set-off, within 30 days of the date of NA’s statement of account.
7.4 If any amount owing by the Customer to NA is not paid on the due date then all amounts owing by the Customer to NA from any cause whatsoever shall become immediately due and payable.
7.5 Complaints, claims or disputes, of whatsoever nature and cause, raised by the Customer shall not entitle the Customer to defer or suspend payment of any amounts owed.
7.6 No retention monies may be withheld by the Customer unless specifically agreed in writing by NA, and in the event that NA agrees to such retention, this shall be limited to a maximum of 5% of the value of the quotation for a maximum period of 3 months.

8. TIME NOT OF THE ESSENCE
8.1 The time stated for delivery of the Products or the rendering of any Service by NA, shall be mutually agreed between the parties and is approximate only and shall not be a material term to the contract between NA and the Customer.
8.2 Subject to 8.1, NA will make reasonable efforts to deliver Products and render Services within the times agreed and late delivery shall not render the contract invalid nor render NA liable for any claim or damages.
8.3 Delivery of the Products and provision of the Services is dependant on stock availability and shall be made, subject to 8.1 and 8.2, when stocks are available.

9. DELIVERY AND RISK
9.1 Unless otherwise agreed in writing, the Customer shall take delivery of the Products at NA's premises, the Site or at such other premises as NA may specify.  All risk of loss or damage in and to the Products supplied by NA to the Customer shall pass to the Customer when the Customer takes delivery of the Products at such premises or Site.  All and any costs of delivery shall be factored into and comprise part of NA’s price, which shall be paid to NA by the Customer in terms of clause 7.
9.2 Where delivery is effected by NA’s transport, or by NA’s transport contractor:-
9.2.1 all risks in the Products shall remain with NA until and shall pass to the Customer on the transporting vehicle coming to a stop at the point where the Products are to be unloaded;
9.2.2 the responsibility for unloading rests with the Customer, unless otherwise agreed in writing between the parties;
9.2.3 NA reserves the right to pass on to the Customer any additional charges or any other costs whatsoever, including but not limited to insurance premiums, which may be incurred by NA as a result of delayed or protracted unloading of the Products by or on behalf of the Customer.
9.3 All premix shall confirm to TRHB at delivery in terms of clause 9.1, NA shall not be liable for damage to or deterioration in such Products after delivery. 
9.4 Where a delivery is affected by NA to the Customer through the medium of a transport carrier engaged by or on behalf of the Customer, then all risks in and to the Products in question shall pass to the Customer on delivery of the Products by NA to the carrier.
9.5 Unless the Customer reports in writing an incomplete or short delivery to NA within 7 (seven) days of the consignment in question having been delivered, the Customer shall be precluded from making any claim against NA in connection with such short or incomplete delivery.
9.6 Where the Customer requests that delivery be suspended or delayed to a date later than that originally requested, NA shall be entitled to charge the Customer a reasonable fee for the storage of such Products or for costs incurred in suspension of the Services.
9.7 NA is entitled to withhold delivery of Products or Services if the Customer has not made payment of amounts due in respect of previous orders.

10. OWNERSHIP
10.1 Ownership of all Products delivered shall remain in NA until NA has received payment of the full purchase price notwithstanding that the Products may have been purchased for resale.
10.2 Prior to effecting payment in full, the Customer shall :-
10.2.1 keep the Products fully insured, and if any of the Products are lost, destroyed or damaged, shall hold the proceeds of insurance for and to the order of NA;
10.2.2 keep, so far as is practicable, the Products separate and clearly identified as the property of NA; and
10.2.3 if the Customer sells the Products to a third party, sell the Products as between the Customer and such third party as principal, but as between the Customer and NA the Customer shall sell as the fiduciary agent of NA.  The Customer shall hold the proceeds of any such sale separate and for NA’s account pending payment, or shall, if NA requires, authorize and direct such third party to pay NA all sums due to the Customer in respect of the Products sold and assign to NA the debt owed by the third party to the Customer.
10.3 The Customer acknowledges NA’s rights to enter upon the Customer’s premises, without notice and repossess the Products, if the Customer defaults with any payment and/or if the Customer is placed under provisional or final liquidation or sequestration, judicial management or if any other process is levied or enforced upon any of the assets of the Customer or if the Customer ceases or threatens to cease to carry on business or makes any arrangement or composition with its creditors or any equivalent or similar event, then the Customer shall bear the onus of proving that it has not defaulted with any payment and that payment has been made in full to NA, and/or that it is not under liquidation, sequestration, judicial management or any of the other circumstances aforementioned.
10.4 All machinery, equipment or any other property of NA, other than the Products, bought onto the site by NA, shall remain the property of NA and shall not be subject to any applicable vesting provision. The Customer is obliged to notify its Landlord of any property belonging to NA.

11. NOTIFICATION OF DEFECTS
11.1 Within 21 days after receipt of the Products or the completion of any of the Services, whichever is the later, the Customer shall be required to advise NA of any defects, supported by test results, failing which the Products and Services shall be deemed to be complete in all respects and without defects.
11.2 If NA agrees that the Products and/or Services are defective NA’s liability shall be limited to replacing such Products or Services as against return to it of the defective Products.
11.3 NA will not accept any defect in the Products or Services in the event that:
11.3.1 the Customer provided  any of its own materials;
11.3.2 the Customer supplied the incorrect specifications for the application of an overlay (all specifications provided by NA serve as an indication only and the Customer shall be responsible for final and accurate specifications prior to the commencement of application); or
11.3.3 any seals are damaged as a result of inferior sub-grade layers and/or prime coats, which are the responsibility of the Customer.

13. NO WARRANTIES
13.1 NA gives no warranties and makes no representations in respect of the Products or the Services whatsoever.

14. LIMITATION OF LIABILITY AND INDEMNITY
14.1 Neither NA nor any of its directors, employees or agents shall be liable for any loss or damage, whether direct, indirect, consequential or otherwise, including any loss of profit, suffered by the Customer or the Customer's officers, employees or agents (if applicable), arising from any cause in connection with the Products or Services, whether such loss or damage results from any breach of contract, delict, negligence of any degree or any other cause without limitation.
14.2 The Customer hereby agrees and undertakes to indemnify and keep NA indemnified against all and any loss, injury, damage, fine, liability, tax or other physical charges, penalties and claims (including loss of profit) made by any person of any nature whatsoever and howsoever arising from or in connection with the Products delivered or Services provided and including but not limited to the transport, storage, use and/or sale thereof and including, in particular, any failure whatsoever on the part of the Customer to comply with its obligations set out in clauses 15. It is specifically recorded that the customer acknowledges that it shall be held liable for all and any injury to persons or damage to property or environment caused by or arising from the Products or Services.
14.3 If a Customer sells or disposes of any Products supplied to it by NA to a third party or otherwise permits a third party to use such Products, the Customer shall include in the Customer's agreement with the third party a provision in terms of which NA is afforded a similar limitation of liability to that contemplated in 14.1.
14.4 Notwithstanding any other provisions to the contrary, any claim which a Customer has against NA in connection with or arising out of any business shall lapse and become extinguished unless within:-
14.4.190 days of such claim arising, the Customer gives written notice thereof to NA and at the same time discloses to NA in writing the material facts on which the claim is based; and
14.4.212 months of such claim arising, the Customer institutes legal proceedings against NA in respect of the claim by issuing summons out of a court of competent jurisdiction and having such summons served on NA.
14.5 Subject to and without in any way limiting the provisions of clause 14.1, 14.2 and 14.3, NA’s liability to the Customer for any damages sustained by the Customer from any cause whatsoever, including any damages arising out of NA’s negligence or that of its agents, servants, employees or sub-contractors, shall in any event and under all circumstances be strictly limited to the replacement of the defective Products, provided that in all circumstances NA agrees that the Products are defective, as set out in clause 11.

15. CUSTOMERS OBLIGATIONS
15.1 The Customer shall ensure that NA has, at all times, access to the Site and shall establish or make available road access to the Site suitable for the machinery required by NA in order to deliver the Products and or provide the Services.
15.2 The Customer shall provide, for the duration of the provision of the Services, at its own cost, to the satisfaction of NA:
15.2.1 security services;
15.2.2 lighting;
15.2.3 traffic control;
15.2.4 maintenance and protection of the work site, and
15.2.5 the removal of any temporary ramps erected.
15.3 The Customer shall be responsible for all preparatory work necessary for the carrying out of the Services, including but not limited to, washing and preparation of the surfaces to be overlaid.
15.4 The Customer shall protect and maintain any existing structures, including but not limited to, manholes and kerbs.

16. FORCE MAJEURE
16.1 If any performance by NA is prevented or delayed by strikes, lock-outs, shortened working hours, shortage of labour or materials, delays in transport, accidents of any kind, machine breakdowns, any default or delay by any sub-contractor or suppliers of the company, war, political or civil disturbances, the elements or any other cause whatever beyond the company's control, then NA shall have the election either –
16.1.1 to cancel the contract in question; or
16.1.2 to extend the time for performance until the cause preventing or delaying performance ceases to apply,
       provided that NA shall give written notice to that effect to the Customer.

17. CANCELLATION
Notwithstanding the acceptance of the cancellation of a contract by NA, NA shall be entitled to recover all damages incurred by it arising from or in connection with such cancellation, including but not being limited to all costs, expenses and loss of profit arising out of or in connection with such cancellation.

18. NOTICES AND DOMICILIA
18.1 All notices to be given in terms of the contract shall be in writing and shall be delivered by hand or sent by prepaid registered post to NA Lot AE 6616 of Cliffdale, Hillcrest, and to the Customer at any one of the physical business addresses set out in the credit application, or the invoice in respect of the Products, which physical addresses the parties select as their domicilium citandi et executandi.
18.2 Each party shall be entitled at any time to change its domicilium to any other physical address within the Republic of South Africa, provided that such change shall take effect only upon delivery or deemed delivery of notice thereof to the other party.

19. GENERAL
19.1 No agent or employee of NA, other than the general manager of NA, has NA's authority to alter or vary these conditions.
19.2 The Customer may not rely on a representation which it claims persuaded it to enter the contract.
19.3 No agreement varying, adding to, deleting from or cancelling any of the conditions, and no waiver of any of the conditions, shall be effective unless reduced to writing and, signed by  a manager of NA.
19.4 No indulgence granted by NA shall constitute a waiver of any of NA's rights.
20.5 If NA refers any claim or dispute against the Customer to its attorneys, and whether or not NA institutes or defends any legal or arbitration proceedings to enforce or protect its rights, NA shall be entitled to recover from the Customer all legal costs (on an attorney and own client basis), tracing charges and collection commission incurred by NA in that regard.
20.6 In the event of NA deciding to institute legal proceedings for the enforcement of any of its rights against the Customer, NA shall be entitled to do so in the Magistrate's Court which would, but for the amount involved, have jurisdiction.
20.7 A certificate signed by the general manager of NA reflecting particulars of the amount owing by the Customer together with details of all deliveries made to the Customer and the invoices pertaining to such deliveries shall be prima facie proof thereof and of the Customer’s indebtedness to NA.
20.8 The Customer may not cede any of its rights or delegate any of its obligations in terms of the contract unless a director of NA gives prior written consent to the Customer to do so.
20.9 Credit facilities allowed by NA are in NA’s discretion and NA is entitled, at any time, without notice to the Customer to, vary, curtail or terminate such facilities.
20.10 Unless it conflicts with the context of these conditions, words signifying one gender will include the other genders, words signifying the singular will include the plural and vice versa, and words signifying natural persons will include artificial persons and vice versa.
20.11 Headings of clauses are inserted for the purpose of convenience only and shall be ignored in the interpretation of these conditions.
20.12 If any part of these conditions is or becomes unenforceable, it will be severable from the rest of these conditions which will continue to be binding.
20.13 This agreement shall be interpreted and implemented in accordance with the law of the Republic of South Africa.