TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES

1. INTERPRETATION

1.1 These terms and conditions for the supply of goods and/or services (the “T&Cs”), together with such other documents as may be referred to herein, shall together constitute the terms and conditions under which the Supplier will supply the Goods and or render the Services, as the case may be, to the Customer.

1.2 These T&Cs shall apply to the exclusion of any other terms or conditions which the Customer seeks or may in the future seek to impose or incorporate, or which may be or are implied by trade, custom, practice and/or course of dealing (including any terms and conditions which the Customer purports to apply under any purchase order, request for quotation, confirmation, order, specification and/or other document).

1.3 Definitions. In these T&Cs, the following definitions shall apply:

“Business Day” shall mean a day (other than a Saturday, Sunday or official public holiday) on which banks in South Africa are open for business;

“Claim Period” shall have the meaning set out in clause 8.1 below;

“Contract” shall mean the contract between the Supplier and the Customer for the sourcing and supply of certain Goods and/or the rendering of certain Services, in each case, by the Supplier to the Customer, the details of which are set out in the Quotation, which Contract is comprised of and includes the Quotation, the Inspection Report (if relevant) and these T&Cs;

“CPI” shall mean the consumer price index of inflation in South Africa (metropolitan/urban areas only), such CPI figure being calculated as the average of the CPI figures for the immediately preceding 6 month period, as published by Statistics South Africa or any successor thereof;

“Customer” shall mean the person to or for whom the Goods are being provided and/or for whose benefit the Services are being rendered, in either case, by the Supplier, whose name, registration number (if applicable), registered address, postal address, email address, contact person and other relevant details are set out in the Quotation. Notwithstanding the previous provisions of this definition, in circumstances where the Project involves a “developer” (or the equivalent) and a “main contractor” (or the equivalent), the main contractor (and not the developer) will for the purposes of these T&Cs be deemed to be the Customer;

“Deposit” shall have the meaning set out in clause 4.1 below;

“DWASA” shall have the meaning set out in clause 14.2(a)(i) below;

“Force Majeure Event” shall mean any Act of God, strike, war, warlike operation, rebellion, riot, civil war, act of terrorism, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, lockout, interference of trade unions or other industrial disputes (whether involving either Party’s own workforce or a third party’s), suspension of labour, failure of energy sources or transport network, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fire, floods, storms, earthquakes, loss at sea or in the air, the occurrence of a pandemic, epidemic or similar events, natural disasters or extreme adverse weather conditions, accident or (without regard to the aforegoing enumeration) of any circumstances arising or action taken beyond or outside the reasonable control of the Parties hereto preventing them or either of them from the performance of any obligation hereunder;

“Goods” shall mean the goods (or any part of them) set out in the Quotation;

“Guarantee” shall have the meaning set out in clause 11.1 below;

“Inspection Report” shall mean the detailed inspection report which contains an overview of and the Supplier’s findings and recommendations, following an on-site inspection conducted by the Supplier and/or its Personnel at the Site;

“Laws” shall mean all relevant legislation, regulations, guidelines, directives, compliance notices, abatement notices, agreements with, requirements of and/or instructions from any governmental or quasi-governmental body or regulator having jurisdiction over the Customer and/or Supplier, and the common law, and “law” shall have a similar meaning;

“Manufacturer” shall mean the manufacturer of the Goods concerned or, if applicable, the third party which supplied such Goods to the Supplier;

“Party” shall, as the context requires, be a reference to the Customer or the Supplier and “Parties” shall mean the Customer and the Supplier;

“Personnel” shall mean the Supplier’s directors, officers, employees, agents and/or sub-contractors, as the case may be;

“POPI Act” shall mean the Protection of Personal Information Act 2013, as amended;

“Project” shall mean the project and/or works to be undertaken by the Supplier at the Site, as detailed in the Quotation;

“Quotation” shall mean the detailed description, overview, scope of works and/or quotation for the provision of goods or services which shall, if relevant, incorporate the recommendations set out in the Inspection Report, provided by the Supplier to the Customer in relation to the work to be undertaken at the Site;

“Responsible Party” shall have the meaning set out in clause 16.3 below;

“Services” shall mean any and all services to be rendered by the Supplier to the Customer from time to time, an overview of which services will be set out in the Supplier’s Inspection Report and/or Quotation from time to time;

“Site” shall mean the site address at which the Supplier will be rendering the Services and/or providing the Goods, as the case may be, which address will be clearly specified in the Quotation;

“Specification” shall mean any specification for the Goods and/or Services, including any related instructions and/or drawings prepared by or on behalf of the Customer or, where relevant, by the Supplier, which are accepted by the Customer;

“Staff” shall mean the Customer’s directors, officers, employees, agents and/or sub-contractors, as the case may be;

“Supplier” shall mean the person, whose name, registration number (if applicable), registered address, postal address, email address, contact person and other relevant details are set out in the Quotation and/or any invoices issued from time to time;

“T&Cs” shall have the meaning set out in clause 1.1 above, as amended and/or updated from time to time in accordance with clause 17.6 below;

“VAT” shall have the meaning set out in clause 10.5 below; and

“Warranty Period” shall have the meaning set out in clause 7.1 below.

1.4 Construction. In these T&Cs, the following rules shall apply:

(a) The headings are included for convenience only and shall not affect the interpretation of, nor modify nor amplify, these T&Cs.

(b) Unless a contrary intention clearly appears:

(i) words importing any one gender shall include the other genders, words importing the singular shall include the plural and vice versa; and

(ii) the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply.

(c) Any reference to a “person” shall include a natural person, incorporated or unincorporated bodies (whether or not having separate legal personality) and the State and vice versa.

(d) A reference to a Party shall include his personal representatives, successors and/or permitted assigns.

(e) Any reference to a statute or statutory provision shall be a reference to such statute or provision as amended or reenacted from time to time. A reference to a statute or statutory provision shall include any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(f) Any phrase introduced by the terms “including”, “include, in particular” or any similar expression shall be construed as illustrative only and shall not limit the sense of the words preceding such terms.

(g) Any reference to “writing” or “written” shall include faxes and emails.

(h) When any number of days is prescribed in these T&Cs, same shall be reckoned exclusively of the first day and inclusively of the last day, unless the last day should fall on a day which is not a Business Day, in which case the last day shall be the immediately following Business Day.

(i) In the event that the day for payment of any amount due in terms of these T&Cs should fall on a day which is not a Business Day, then the relevant day for payment shall be the following Business Day.

(j) Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.

(k) The expiration or termination of these T&Cs shall not affect such of the provisions of these T&Cs as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

2. STATUS OF CUSTOMER

2.1 When the Customer approves the Quotation and/or confirms the “go ahead” of the Project with the Supplier, he represents and warrants that:

(a) he is at least 18 (eighteen) years of age;

(b) he is a duly appointed and authorised representative of the Customer;

(c) the Customer is legally capable of entering into binding legal agreements (including, for the avoidance of doubt, these T&Cs and the Contract);

(d) any information he provides is true, current, complete and accurate in all material respects; and

(e) to the best of his knowledge and belief, there are no restrictions and/or other reasons why the Customer may not enter into these T&Cs and the Contract for the sourcing and supply of the Goods and/or the rendering of the Services, in each case, as set out in the Quotation.

3. BASIS OF CONTRACT

3.1 The Customer shall be responsible for ensuring that the content of the Quotation and any applicable requirements and/or Specifications requested by him are correctly reflected in such Quotation.

3.2 The Customer’s written confirmation and/or “go ahead” provided to the Supplier shall constitute an acceptance by the Customer of the offer made by the Supplier for the purchase and supply of the Goods and/or the rendering of the Services, in each case, as set out in the Quotation, such acceptance being made on and subject to the provisions of these T&Cs and any specific terms set out in the Quotation. Upon the Customer’s written confirmation and/or “go ahead”, the content of the Quotation shall be deemed to be complete and accurate in all material respects and the Contract shall come into existence.

3.3 The Contract (which shall be comprised of and include the Quotation, the Inspection Report (if relevant) and these T&Cs) constitutes the entire agreement between the Parties in relation to the subject matter set out therein. The Customer acknowledges and confirms that he has not relied on any statement, promise, undertaking and/or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

3.4 Any assurances, confirmations, descriptions, samples or other items provided by or on behalf of the Supplier and any descriptions or photographs set out on the Supplier’s website have been produced for the sole purpose of giving an approximate idea of the Goods and/or Services described therein. Accordingly, any such assurances, confirmations, descriptions and/or photographs shall not form part of or have any contractual force unless included in the Contract.

4. DEPOSIT

4.1 If relevant and where this is set out in the Quotation, the Supplier may from time to time require the Customer to pay a deposit into the Supplier’s bank account, the details of which are set out in such Quotation (the “Deposit”), which amount will be based upon certain anticipated fees, costs and/or charges which have or are reasonably expected to be incurred by the Supplier in relation to the Project.

4.2 Such Deposit will be held as security for and applied against the outstanding balance of the Supplier’s final invoice which is to be rendered to the Customer and the Customer shall be expected to settle any and all interim invoices and/or outstanding balances due under any invoice, as they fall due for payment.

4.3 Notwithstanding the previous provisions of this clause 4, any Deposit held by the Supplier may, in the Supplier’s sole and absolute discretion, be applied against the outstanding balance of any of the Supplier’s invoices relating to the Project. In addition, the Supplier shall not be required to account to the Customer for any interest which may accrue in respect of such Deposit, which interest may similarly be applied against the outstanding balance of any of the Supplier’s invoices from time to time.

5. GOODS AND DELIVERY

5.1 The Goods ordered by and/or on the Customer’s behalf for the Project shall be as described and/or set out in the Quotation, as modified by any applicable Specification and/or as otherwise agreed to in advance and in writing by and between the Parties.

5.2 To the extent that any Goods are to be delivered to the Customer at the Site, the Supplier shall ensure that each such delivery is accompanied by a delivery note (and, if relevant, an invoice) which shows the date of the order for such Goods, the type and quantity of the Goods and special maintenance instructions (if any).

5.3 Where certain Goods are needed for the Project and/or the rendering by the Supplier of the Services, the Supplier shall arrange for the Goods to be delivered to the Supplier’s premises (such Goods then being brought to the Site by the Supplier’s Personnel), to the Site or to such other location as the Parties may agree to in advance and in writing.

5.4 The Goods shall be deemed to have been delivered upon the Goods’ arrival at the Site or delivery location described in clause 5.3 above, provided that the Supplier, the Customer or a duly authorised agent of either of them has signed to accept delivery thereof.

5.5 Any dates quoted for delivery of the Goods shall be approximate only, and time shall not be of the essence for any such delivery.

5.6 To the extent that any Goods are to be manufactured and/or custom-made for the Project or in accordance with a Specification required by the Customer, the Customer shall indemnify the Supplier against any and all liabilities, costs and/or expenses incurred by the Supplier in relation thereto. This clause 5.6 shall survive termination of the Contract.

5.7 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.

5.8 Notwithstanding the previous provisions of this clause 5, the Supplier shall not be liable for any delays with the delivery of the Goods which are caused by a Force Majeure Event, the Customer’s failure to provide the Supplier with adequate information necessary for the Specifications, where the Customer provides inadequate or incorrect delivery instructions and/or where the Customer or its duly authorised Staff fails and/or omits to sign the relevant documents necessary to accept delivery thereof.

6. SERVICES

6.1 When rendering the Services, the Supplier confirms that it:

(a) has the skill, experience and expertise and is competent to undertake and perform the Services and/or, where relevant, to supply, apply and/or install the Goods;

(b) will render the Services with due care, skill, diligence and supervision and in accordance with the best practice in the Supplier’s industry, profession or trade;

(d) will use reasonable efforts to start the Project on the envisaged commencement date or, where necessary, will provide the Customer with as much advanced notice as possible should the envisaged commencement date need to be moved;

(e) will ensure that any Personnel deployed or utilised by the Supplier in the performance of the Services have the skills, experience and expertise required to properly perform the Services; and

(f) will comply with the reasonable instructions, requests and directions of the Customer.

6.2 In circumstances where the Supplier is required to interact with third party service providers who are also rendering services to the Customer which are, directly or indirectly, related to the Services, the Supplier shall use its reasonable endeavours to co-operate with all such third party service providers to the extent reasonably required for the relevant third party service providers to properly and effectively provide their services and/or goods to the Customer. Such co-operation shall include the provision of the following by the Supplier, when applicable:

(a) relevant assistance and/or information, as may be agreed between the Parties; and

(b) access to premises and facilities being used in relation to the provision by the Supplier of the Services at the Site, subject to the conclusion of the appropriate security and

safety checks being carried out between the Supplier and the relevant third party service providers.

6.4 The Supplier also agrees to observe and to procure that its Personnel observe all applicable Laws when rendering the Services and/or supplying the Goods; and to put such systems and procedures in place as may be reasonably necessary in order to verify compliance by its Personnel with the aforementioned.

7. QUALITY

7.1 The Supplier confirms that from the date of delivery, application and/or installation of the Goods, as the case may be, and for the further period specified by the Supplier, in writing, in its invoice, guarantee or equivalent document (the “Warranty Period”), the Goods shall:

(a) conform in all material respects with their description and, where relevant, any applicable Specification;

(b) accord with the Manufacturer’s description and specifications and be free from material defects in design, materials and/or workmanship;

(d) be fit for any purpose held out by the Supplier or the Manufacturer of such Goods, as the case may be.

7.2 Subject to clause 7.3 below, if:

(a) the Customer gives notice in writing to the Supplier during the Warranty Period that some or all of the Goods do not comply with the warranty set out in clause 7.1 above;

(b) such notification is made by the Customer in accordance with the provisions of clause 17.2 below; and

(c) the Supplier is provided with and offered a reasonable opportunity to consider all relevant facts and circumstances relating to such claim by the Customer and, if necessary, to conduct an on-site inspection at the Site (together, if necessary, with an appointed representative of the Manufacturer of the Goods), in each case, in accordance with the provisions of clause 8 below mutatis mutandis, then in the circumstances set out in clause 8.2(a) below (and in those circumstances only) the Supplier may, in its sole and absolute discretion and at its sole cost and expense, elect to repair or replace the defective Goods or, if applicable, apply replacement Goods, in either case, which are the same as or substantially similar to the defective Goods.

7.3 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 7.1 above, in any of the following events:

(a) the defect arises because the Customer or one of his third party service providers failed to follow the Supplier’s or Manufacturer’s oral or written instructions as to the use, application and/or maintenance of the Goods;

(b) the defect arises as a result of the Supplier following the Specification or other requirements specified by the Customer;

(c) the Customer alters or repairs such Goods without the prior written consent of the Supplier and/or the Manufacturer; or

(d) the defect arises as a result of fair wear and tear, wilful damage, negligence and/or abnormal use, maintenance and/or storage conditions, whether by the Customer, any of his third party service providers and/or any other party.

7.4 Except as provided for in this clause 7, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 7.1(a) above.

7.5 These T&Cs shall also apply to any repaired or replacement Goods supplied by the Supplier under or pursuant to these T&Cs.

8. CLAIMS AND REPLACEMENTS

8.1 Notwithstanding the provisions of clause 7 above, the Customer shall be required to notify the Supplier of any material defects, issues and/or other problems experienced with the Project, within 30 days from the date of completion thereof (the “Claim Period”), so that the Supplier can arrange for the necessary on-site inspection to determine the possible causes thereof.

8.2 If, following the inspection described under clause 8.1 above, the Supplier is of the opinion that the material defects, issues and/or problems experienced by the Customer have arisen:

(a) due to no fault on the part of the Customer, his Staff, any of the Customer’s third party service providers and/or any third party, then the Supplier shall repair or replace any defective Goods or, if applicable, shall re-apply or re-instal replacement Goods, within a reasonable period of time, which replacement or re-applied Goods shall be the same as or substantially similar to the original Goods, so as to resolve such material defects, issues and/or problems; or

(b) due to any act and/or omission on the part of the Customer, his Staff, any of the Customer’s third party service providers and/or any third party, then the Supplier shall not be required to repair or replace the Goods or, if applicable, to re-apply or re-instal replacement Goods so as to resolve the material defects, issues and/or problems, any such determination being made by the Supplier in its sole and absolute discretion, at all times acting reasonably and in good faith and the Customer shall have no right to challenge or appeal any such decision.

8.3 In the circumstances described under:

(a) clause 8.2(a) above, the Supplier shall advise the Customer of its findings in writing, and shall discuss and agree with the Customer when the necessary remedial action will be undertaken at the Site, any such steps being taken at the Supplier’s or the Manufacturer’s, as the case may be, sole cost and expense; or

(b) clause 8.2(b) above, the Supplier shall advise the Customer of its findings in writing, and shall provide the Customer with full reasons why the alleged material defects, issues and/or other problems which the Customer has experienced with the Goods and/or the Project, as the case may be, were not caused by defective Goods, the Supplier’s supply of the Goods and/or its provision of the Services, in either case, at the Site. In any dispute between the Customer and the Supplier which cannot be immediately resolved to the acceptance of both parties, the matter may be referred to The Damp-proofing & Waterproofing Association of Southern Africa (DWASA) for mediation.

9. TITLE AND RISK

9.1 The risk in and to the Goods shall pass to the Customer upon the completion of delivery of the Goods by or on the Supplier’s behalf to the Site or other delivery location (in circumstances where no installation or application of the Goods is required for the Project) or upon the completion of the Project, as the case may be, as set out in the Quotation and/or as otherwise agreed by and between the Parties in writing.

9.2 Title in and to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:

(a) the Goods;

(b) if applicable, the costs of any and all packaging, insurance, handling, shipping costs and/or any other costs and/or fees relating to the Goods;

(d) any other Goods and/or Services which the Supplier has supplied to the Customer, and in respect of which payment has become due.

9.3 Until title in and to the Goods has passed to the Customer, the Customer shall:

(a) hold the Goods on a fiduciary basis as the Supplier’s agent;

(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

(c) not remove, deface or obscure any identifying mark, label or packaging which has been placed on, supplied with and/or which relates to the Goods;

(d) maintain the Goods in a satisfactory condition and keep them insured against any and all risks, for their full replacement value, from the date of delivery thereof; and

(e) give the Supplier such information relating to the Goods as the Supplier may reasonably require from time to time.

9.4 If,

(a) before title in and to the Goods passes to the Customer;

(b) the Customer becomes subject to any of the events listed in clauses 12.2(a) to 12.2(i) (inclusive) below; and/or

(c) the Supplier reasonably believes that any of the events listed in clauses 12.2(a) to 12.2(i) (inclusive) below is about to happen, and, in each case, the Supplier notifies the Customer accordingly then, provided that the Goods have not been resold, or irrevocably incorporated into the premises at the Site, and without limiting any other right or remedy which the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, may enter any premises of the Customer or of any third party where the Goods are stored in order to recover and/or re-possess such Goods.

10. QUOTATIONS, PRICE CHANGES AND PAYMENT

10.1 A Quotation prepared by the Supplier for the supply of Goods and/or the rendering of Services, as the case may be, in relation to the Project shall constitute an offer by the Supplier to the Customer. Such Quotation may be subject to change until such time as the Customer accepts the Quotation by providing his written confirmation and/or “go ahead” to the Supplier in respect of the Project concerned.

10.2 The prices for the Goods and/or the costs for the Services, as the case may be, shall be the prices and/or costs set out in the Quotation, which prices and/or costs:

(a) shall only be valid for the validity period set out in such Quotation; or

(b) in circumstances where the Quotation does not include a validity period, shall only be valid for a period of 14 days from the date thereof; or

(c) in circumstances where the Project is reasonably anticipated by the Supplier to have a duration of more than 60 days from its commencement date until it is completed (and where the Quotation specifies this), shall only be valid for the period set out in this clause 10.2(c) above, after which period the prices and/or costs may, in the Supplier’s sole discretion, be subject to price increases based upon the CPI.

10.3 The prices for the Goods and/or the costs for the Services shall only be valid for those periods described in clause 10.2 above and shall only form part of the Contract, where the Customer accepts the Quotation within such stated period(s) by providing his written confirmation and/or “go ahead” to the Supplier in relation to such Project. In all other circumstances the Supplier may increase:

(a) the prices for the Goods, to reflect any increases in the cost of the Goods which are due to any factor beyond the Supplier’s control (including, but not limited to, foreign exchange fluctuations, increases in labour, materials, and/or manufacturing costs, increases in supply and/or shipping costs and/or increases in taxes and/or duties, in each case, relating thereto); and/or

(b) the costs of the Services, to reflect any increases in the cost of rendering such Services (including, but not limited to, increases in labour costs and/or increases in taxes and/or charges, in each case, relating thereto).

10.4 Any price specified for the Goods shall be exclusive of the costs and charges of or relating to packaging, insurance, handling, shipping and/or any other costs and/or fees relating to the Goods, which additional costs and charges shall be set out in the Quotation and/or in the Supplier’s invoice prepared for the Customer.

10.5 The price for the supply of the Goods and/or the rendering of the Services, in either case, by the Supplier, shall also be exclusive of amounts due in respect of value added tax and/or any other equivalent tax (“VAT”). The Customer shall be responsible for paying such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or the rendering of the Services, such amounts being set out in the Supplier’s invoice prepared for the Customer.

10.6 If the Customer, for any reason, fails and/or omits to make any payment due to the Supplier under the Contract by the due date for payment thereof, as set out in the Quotation and/or in the Contract (the “Due Date”) and/or in circumstances where the Customer’s funds for any reason fail to clear in the Supplier’s bank account, then the Customer shall be required to pay interest on any such overdue amount at a rate of 2% (two percent) per annum above the prime overdraft lending rate charged by First National Bank, a division of FirstRand Bank Limited to its customers from time to time, as certified by any manager of such bank, whose appointment and authority it shall not be necessary to prove. Such interest shall accrue on a daily basis from the Due Date up to and including the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount upon written demand by the Supplier.

10.7 The provisions of clause 10.6 above shall be without prejudice to any of the Supplier’s rights that it may have in law, including its rights in relation to breach of contract and its rights for the recovery of any and all fees, costs and/or expenses incurred by the Supplier in bringing any action for the payment of any outstanding amounts plus interest (including, for the avoidance of doubt, any sheriff’s and court fees, collection agent’s fees, attorneys’ fees calculated on an attorney and own client basis and any and all other fees, costs and/or charges relating to such recovery), which may arise from the failure by the Customer to make payment of any amount due pursuant to this clause 10.

10.8 The Customer shall pay any and all amounts due under the Contract in full without any deduction, exchange and/or withholding and the Customer shall not be entitled to assert any set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount, whether in whole or in part.

11. GUARANTEE

11.1 If relevant and where this was set out in the Quotation which was accepted by the Customer, the Supplier shall issue the Customer with a guarantee for the Goods supplied, Services rendered and/or the Project completed, in each case, at the Site (the “Guarantee”), which Guarantee shall clearly specify the Goods and/or Services to which it relates, as well as the duration of and any specific conditions and/or requirements for the continued validity thereof.

11.2 The Guarantee set out in clause 11.1 above shall be subject to and conditional upon the Customer satisfying his payment obligations in relation to the Supplier’s supply of the Goods, rendering of the Services and/or completion of the Project, as the case may be, as set out in clause 10 above, in full and without any deduction, exchange, withholding, set-off and/or counterclaim. In addition and if relevant, the Customer shall also be required to abide by the ongoing maintenance and other requirements in order to ensure the continued validity of the Guarantee, as set out in such Guarantee.

11.3 Should the Customer, for any reason whatsoever, fail and/or omit to strictly comply with the requirements for the issuance of the Guarantee, as set out in this clause 11 then, without prejudice to any of the Supplier’s rights that it may have in law as set out in clause 10.7 above, the Guarantee shall immediately become null and void and neither the Customer nor any third party shall be entitled to rely thereon and/or to require the Supplier to comply with any of its obligations set out therein. In addition, the Supplier shall not under any circumstances be liable for any loss or damage arising as a result of such invalidity, nor shall the Customer and/or any third party be entitled to hold the Supplier liable for the invalidity of the Guarantee and the Supplier shall be entitled to rely on the provisions of clause 13.2(a) below mutatis mutandis.

12. CUSTOMER’S INSOLVENCY OR INCAPACITY

12.1 If the Customer becomes subject to any of the events listed in clause 12.2 below, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries of Goods and/or the rendering of any further Services, in each case, under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered and/or Services rendered to the Customer shall become immediately due and payable.

12.2 For the purposes of clause 12.1 above, in the event that the Customer:

(a) commits a breach of any of the provisions of these T&Cs which can be remedied and fails to remedy such breach within 10 (ten) Business Days (or such longer period as may be reasonably necessary in the circumstances) after delivery by the Supplier of a written notice requiring the Customer to do so;

(b) suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits an inability to pay its debts, or commits an act which would be an act of insolvency as defined in the Insolvency Act 1936, as amended or replaced from time to time, if committed by a natural person;

(c) suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially all of its business (or takes any steps which are similar to any of the above);

(d) allows any judgement against it for an amount in excess of R50,000 (fifty thousand Rand) to remain unsatisfied for a continuous period of 10 (ten) Business Days from the date upon which such judgement came to the attention of the Customer (where the Customer is a natural person) or to the attention of the board of directors (or the equivalent management body) of the Customer (where the Customer is a juristic entity), without instituting and proceeding expeditiously with rescission, appeal or review proceedings;

(e) effects or attempts to effect any arrangement, compromise or composition with its creditors generally (but, for the avoidance of doubt, excluding a solvent re-structuring, organisation and/or amalgamation) and/or where it ceases to carry on business;

(f) takes steps to place itself or is placed in liquidation or sequestration, whether provisionally or finally, or under judicial management or under receivership or under business rescue, whether provisionally or finally, or under the equivalent of any of the foregoing;

(g) the Customer’s financial position deteriorates to such an extent that in the Supplier’s reasonable opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;

(h) (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation; or

(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which he is subject which has an effect equivalent or similar to any of the events mentioned in clauses 12.2(a) to 12.2(h) (inclusive) above.

12.3 Termination of the Contract, however arising, shall not affect either Party’s rights and remedies that have accrued prior to or as at the date of termination. For the avoidance of doubt, clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

13. LIMITATION OF LIABILITY

13.1 Nothing in these T&Cs shall limit or exclude the Supplier’s liability for:

(a) death or personal injury caused by its gross negligence, or the gross negligence of its Personnel (as applicable);

(b) fraud or fraudulent misrepresentation;

(d) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

13.2 Subject to clause 13.1 above:

(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for any loss of contract or profits or for any loss of anticipated contract or profits or for any indirect, special or consequential damages of any nature whatsoever, arising out of these T&Cs, the Contract or anything done pursuant hereto; and

(b) the Supplier’s total liability to the Customer in respect of any and all other losses arising under or in connection with the Contract, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% (one hundred percent) of the price paid by the Customer to the Supplier for the Goods, Services and/or Project, as the case may be.

14. DISPUTE RESOLUTION

14.1 If a dispute between the Parties arises out of or is related to these T&Cs, including any matter relating to the breach of any of the provisions of these T&Cs, the Parties shall meet and negotiate in good faith to attempt to resolve the dispute. If, after 10 (ten) Business Days from the date upon which the dispute was declared by a Party by written notice, the dispute is not resolved, the matter shall be determined in accordance with the provisions set out below.

14.2 Save in respect of those provisions of these T&Cs which provide for their own remedies which would be incompatible with arbitration, or in the event of any Party instituting urgent action against the other Party in any court of competent jurisdiction, any dispute arising from or in connection with these T&Cs will be finally resolved by arbitration as follows:

(a) in circumstances where the primary reason for the dispute is:

(i) a technical damp- or water-proofing and/or related matter, the arbitrator shall be a duly-appointed representative of the Damp- and Waterproofing Association of Southern Africa (“DWASA”) with not less than 15 (fifteen) years’ experience in the industry; or

(ii) a commercial, contractual, interpretational and/or other matter, the arbitrator shall be a practising attorney or practising advocate of not less than 15 (fifteen) years standing, who is appropriately qualified and experienced and registered with one of the law societies in South Africa;

(b) the Party calling the dispute (the “referring Party”) shall nominate in writing, 2 (two) arbitrators of its choice to determine the dispute and shall furnish such nomination to the other Party. The other Party shall, within 5 (five) Business Days after receipt of the nomination, accept 1 (one) out of the 2 (two) arbitrators nominated to act as an arbitrator as contemplated in this clause 14. In the event that the other Party fails to accept and/or agree on the arbitrator to be appointed as contemplated herein, the referring Party shall, in its sole discretion, be entitled to appoint 1 (one) out of the 2 (two) arbitrators nominated to act as an arbitrator as contemplated herein;

(d) the arbitration shall otherwise be held in accordance with the rules of the Arbitration Foundation of South Africa (“AFSA”), or if AFSA is not in existence, in accordance with the formalities and procedures settled by the arbitrator, which shall be in an informal and summary manner, that is, it shall not be necessary to observe or carry out either the usual formalities or procedure or the strict rules of evidence, and the provisions of the Arbitration Act 1965.

14.3 The arbitrator shall be entitled to:

(a) investigate or cause to be investigated any matter, fact or thing which he considers necessary or desirable in connection with any matter referred to him for decision; and

(b) make such award, including an award for specific performance, an interdict, damages or a penalty or the costs of arbitration or otherwise as he in his discretion may deem fit and appropriate.

14.4 The arbitration shall be held as quickly as possible after it is demanded, with a view to it being completed within 30 (thirty) days after it has been so demanded.

14.5 This clause 14 will be severable from the rest of these T&Cs so that it will operate and continue to operate notwithstanding any actual or alleged voidness, voidability, unenforceability, termination, cancellation, expiry, or accepted repudiation of these T&Cs.

14.6 Neither of the Parties shall be entitled to withhold performance of any of its obligations in terms of these T&Cs pending the settlement of, or decision in, any dispute arising between the Parties and each Party shall in such circumstances continue to comply with its obligations in terms of these T&Cs.

15. FORCE MAJEURE

15.1 Any delays in performance by either Party under these T&Cs shall not be considered a breach of these T&Cs or the Contract, as the case may be, if and to the extent caused by a Force Majeure Event. The Party suffering the occurrence of a Force Majeure Event shall immediately notify the other Party as soon as practicable of such inability and any time for performance hereunder shall be extended by the actual time of delay caused by such Force Majeure Event, provided that the Party suffering such Force Majeure Event uses reasonable efforts to mitigate any such delay. The Party giving such notice shall thereupon be excused from such of its obligations under this Contract as it is thereby disabled from performing, and shall have no liability for such non-performance, for so long as it is so disabled.

15.2 Notwithstanding the provisions of clause 15.1 above, either Party shall have the right to terminate this Contract where the Force Majeure Event continues for an uninterrupted period of 90 (ninety) days. In such circumstances, the Party seeking to terminate this Contract shall deliver a written notification to the other Party of the termination of this Contract, such termination being effective only after the expiry of the said 90 (ninety) day period. The Party terminating this Contract shall not incur any liability to the other Party, except for those obligations incurred prior to the effective date of termination.

15.3 Where a Force Majeure Event is reasonably foreseeable, the Party affected by the event shall use reasonable efforts to mitigate or prevent the effects of such foreseeable Force Majeure Event in light of the nature of the Force Majeure Event and the amount of time reasonably available to it to prepare for such event.

16. PROTECTION OF PERSONAL INFORMATION

16.1 By requesting the Supplier to conduct an inspection and prepare an Inspection Report and/or to prepare a Quotation for the Goods to be supplied and/or the Services to be rendered, in each case, in relation to the Project, the Customer acknowledges and provides his consent to the Supplier collecting, storing and/or processing certain personal and other information, which information was provided by the Customer to the Supplier in relation thereto.

16.2 The Customer furthermore acknowledges and provides his consent to the Supplier collecting, storing and/or processing certain personal and other information which was or may in the future be provided to the Supplier, which information may include, but is not limited to, his names, contact details, address information, the address of the Site, certain billing and related information and other relevant information provided from time to time, all such information having been provided for the purposes of the Contract and/or the Project.

16.3 Notwithstanding the previous provisions of this clause 16, the Supplier shall and shall use reasonable efforts to procure that each of its Personnel (each of the Supplier and the Personnel, a “Responsible Party”) take reasonable steps to:

(a) comply with the provisions and requirements of the POPI Act, as amended;

(b) secure and safeguard the personal and other information provided by the Customer, and shall only:

(i) process such personal or other information for the purposes of supplying the Goods, rendering the Services and/or completing the Project, as the case may be, and any and all actions and/or activities reasonably related thereto;

(ii) process such personal or other information for the purposes of invoicing and accounting to the Customer for those actions and attendances set out in the Contract; and

(iii) store such information for only so long as is considered reasonably necessary by the Supplier or its senior Personnel for the purposes outlined in this clause 16.3(b).

16.4 The Supplier and each Responsible Party furthermore confirms that it shall, within 30 (thirty) days of the date of receipt of a written request sent by the Customer to the Managing Director (or the equivalent) of the Supplier, permanently delete and/or destroy any and all personal and other information provided by the Customer to the Supplier and shall provide the Customer with a written confirmation from the Managing Director (or the equivalent) of the Supplier that such request has been actioned.

17. GENERAL

17.1 Assignment and Subcontracting.

(a) The Supplier shall be entitled, in its sole and absolute discretion, to cede, assign and/or delegate any of its rights and/or obligations arising under or in terms of the Contract to a third party.

(b) Notwithstanding the provisions of clause 17.1(a) above, the Customer shall not be entitled to cede, assign and/or delegate any of its rights and/or obligations arising under or in terms of the Contract to a third party, without the prior written consent of the Supplier, which consent may be granted or refused in the Supplier’s sole and absolute discretion.

17.2 Notices.

(a) Any notice or other communication given to a Party under or in connection with the Contract shall be in writing, addressed to that Party at his residential address (if a natural person), its registered office (if a juristic entity) or its principal place of business (in any other case) or to such other address as that Party may have specified to the other Party in writing in accordance with this clause 17.2. Any such notice or other communication shall be delivered personally, sent by pre-paid [registered post], recorded delivery, commercial courier and/or email.

(b) A notice or other communication shall be deemed to have been received:

(i) if delivered personally, when left at the address referred to in clause 17.2(a) above;

(ii) if sent by registered post or recorded delivery to the address referred to in clause 17.2(a) above, at 09h00 on the seventh (7th) Business Day after posting;

(iii) if delivered by commercial courier to the address referred to in clause 17.2(a) above, on the actual date and at the time upon which the courier’s delivery receipt is signed for by the recipient thereof; or

(iv) if sent by email to the address referred to in clause 17.2(a) above, 1 (one) Business Day after the date of transmission, provided that no transmission error report is received from the sender’s or recipient’s email system.

(c) Notwithstanding anything to the contrary contained in this clause 17.2, any written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen address or email address referred to in clause 17.2(a) above.

(d) The provisions of this clause 17.2 shall not apply to the service of any proceedings or other documents in any legal action and/or legal proceedings between the Parties.

17.3 Severance. If any clause or term of the Contract is found to be invalid, unenforceable, defective or illegal for any reason whatsoever, then the Parties shall negotiate in good faith to replace such clause with a clause which is valid, enforceable and legal but maintaining the essential provisions of that clause to the extent possible, provided that if the Parties should fail to reach agreement on such replacement clause, then the remaining terms and provisions of the Contract shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability, defect or illegality goes to the root of the Contract.

17.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a Party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

17.5 Third Party Rights. Nothing in the Contract, express or implied, is intended to confer upon any person not a party to the Contract any rights or remedies under or by reason of this Contract.

17.6 Variation. Except as set out in the Contract, any variation of and/or amendment to the Contract, including the introduction of any additional terms and/or conditions, shall only be binding upon the Parties when agreed to by the Parties in advance and in writing, such variation having been signed by a duly authorised representative of each of the Parties.

17.7 Further Actions. The Parties undertake at all times to do all such things, to perform all such acts and to take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and/or necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of this Contract.

17.8 Governing Law and Jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, South African law, and the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the Local Division of the High Court,

INDUSTRY WIDE STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES

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