General Terms & Conditions

1. REQUEST FOR LABORATORY SERVICES

Investment Facility Company 842 (Pty) Limited (Registration No 98/19071/07) trading as Civilab, its executives, staff members and, where applicable, its contractors, subcontractors and agents (“the company”) will employ all reasonable care to ensure that the required services and testing comply with reasonable standards. Despite these endeavours, the provisions of paragraph 9 will prevail and the purchaser of the company’s services, its employees, contractors, sub-contractors and agents (“the purchaser”) shall in all circumstances accept responsibility for:

• 1.1

  the relevance of requested services and testing;

• 1.2

  any activities or operations directly or indirectly relating to the services of the company within or outside of the company’s premises, which the purchaser may have requested orally or in writing or the company may consider in its discretion necessary or desirable in the rendering of these services;

• 1.3

  the accuracy of all information supplied to the company by the purchaser, which information the company is entitled to rely on in effecting all tests and results requested by the purchaser;

• 1.4

  obtaining in advance the right of access to the testing site in accordance with the company’s programme;

• 1.5

  the setting out of individual test positions;

• 1.6

  the safety of the company and its equipment on the testing site and in test holes, as well as any like or similar matters concerning the services rendered;

• 1.7

  the reinstatement of pathways, pavements and gardens, damaged as a result of testing operations, unless otherwise agreed to by the company;

• 1.8

  any test hole left open at the request of others;

• 1.9

  the disposal of excavated material if test holes are to be left open;

• 1.10

  the subsidence of backfilled material in test holes. Note: Test holes are loosely backfilled without compaction with the material as excavated, unless otherwise instructed and agreed to by the company. In the event that it is requested to compact the backfill material of a test hole, reasonable care will be taken, but the company shall not be liable for any subsidence.

2. SUBSURFACE SERVICES

The company shall not be liable for any damages to underground services and installations, and the purchaser indemnifies the company against all claims, losses or proceedings arising therefrom, unless the services and installations are accurately recorded in site meetings or on formal drawings (as may be varied from time to time) signed by the company and then only to the extent that the company was grossly negligent. In the event of such gross negligence, the purchaser’s rights shall be limited as in paragraph 9.

3. PROGRAMME

• 3.1

  Any programme provided by the company is indicative only and the company will accept no penalties, unless the amount of penalties and final programme have been agreed upon.

• 3.2

  The company shall be granted extra time to complete and/or correct the testing requested, should the company be delayed by causes beyond its direct control, including strikes, civil unrest, delays in obtaining requisite labour, material or equipment to render the services, transportation delays, storms, inundation of the site, unexpected soil conditions, legal proceedings instituted by third persons, interdiction, restraining or delaying the commencement or continuation of the assignment or an act of God.

• 3.3

  The purchaser will be charged at the laboratory’s standard listed tariffs for any delays, caused by difficult access to the test site, obtaining security clearance to the site, installation of special equipment, obstructions and actions of all other parties or any default or failure of the purchaser, unless otherwise specified in writing and accepted by the company.

4. TEST RESULTS AND REPORTS

• 4.1

  All tests are carried out in accordance with reasonable standards. The company shall, however, not be liable in any way whatsoever for any error made in the execution or reporting of the tests or any erroneous conclusions drawn therefrom or from any consequences thereof.

• 4.2

  The company has the right, but not the obligation, to provide the purchaser with the factual results of any test undertaken without any obligation to interpret or report the possible implication arising out of such result.

5. RETENTION OF RESULTS AND MATERIALS

• 5.1

  The company will be entitled, at it’s sole discretion, to discard a test specimen or any part thereof, during or after the execution of a test, provided that the test specimen will not be required in the finalisation of the test results.

• 5.2

  The company will endeavour, but will not be obligated to:

  • 5.2.1

    retain any unused or surplus material, obtained or presented for testing, for 2 (two) months after receipt of such test sample/specimen;

  • and

  • 5.2.2

    retain test results for 5 (five) years from the commencement of the test programme, thereafter the company will be entitled at its sole discretion, to dispose of such results and/or materials, as it deems fit.

6. TERMS OF PAYMENT

• 6.1

  All payments to the company by the purchaser must be in cash upon presentation of the test results to the purchaser (COD), unless the purchaser has made prior written arrangements with the company for a credit facility in which case payments must be made within 30 (thirty) days from the date of an invoice.

• 6.2

  All payments have to be made free of exchange and without any deductions whatsoever to the company at its head office or any other address, which it may direct from time to time in writing.

• 6.3

  Should the purchaser dispute the whole or any part of the amount owing in terms of the invoice, whatever the cause of such dispute (including, without limitation, deduction and retention monies, discounts, errors in amounts charged or the like), the purchaser shall be obliged to notify the company in writing thereof within 15 (fifteen) days of the date of the invoice, failing which the invoice shall be binding on the purchaser, who shall be deemed to have acknowledged his indebtedness to the company as recorded in the invoice.

• 6.4

  If, within such 15 (fifteen) day period the purchaser gives the company a letter objecting to the whole or any part of the amount of the invoice, the purchaser shall remain liable to make immediate payment of the invoice. However, in the absence of an amicable arrangement with the company being concluded in writing, the dispute resolution provisions as set out in paragraph 8 will be invoked. The purchaser shall only be entitled to a refund of such amounts (if any) as may be awarded in his favour in accordance with the opinion of the umpire settling the dispute raised by the purchaser.

• 6.5

  Should the company, on the purchaser’s instruction, render its invoice to a third party, whether or not a copy of such invoice was submitted to the purchaser, the purchaser shall remain fully liable and obligated to pay the amount of such invoice on or before the due date, should such third party fail to make such payment by the due date.

• 6.6

  All amounts that remain unpaid on the due date shall bear interest at the prime overdraft rate (percentage per annum compounded monthly in advance) as charged from time to time by the company’s bankers, which interest rate shall be prima facie established by a certificate signed by any manager of such bank whose signature, capacity and authority it shall not be necessary to prove.

7. THE COMPANY’S QUOTATIONS AND ACCEPTANCE

• 7.1

  All quotations for the rendering of services by the company furnished to the purchaser are open for acceptance by the purchaser in writing for a period of 60 (sixty) days from the date of the company’s quotation, which may not be accepted in part only, without the company’s prior written consent.

• 7.2

  The company shall at all times have the right on written notice to the purchaser to withdraw, at its discretion, any quotation made by the company at any time prior to receipt by the company of the written acceptance of such quotation by the purchaser.

• 7.3

  In addition, should the company fail to obtain any security for payment, which it may require the purchaser to establish in favour of the company prior to the company commencing with laboratory services rendered to in the quotation, and whether or not such quotation was accepted by the purchaser, the company shall be entitled by notice to the purchaser to cancel such quotation without penalties.

8. DISPUTE RESOLUTION

Should any dispute arise between the company and the purchaser with regard to any matter arising from any quotation or the written acceptance thereof and the resultant contract, including any payments to be made thereunder, then:

• 8.1

  the parties shall endeavour to resolve such dispute amicably within 7 (seven) days after the dispute has arisen;

• 8.2

  if the parties are unable within 7 (seven) days (which may be extended by agreement between the parties in writing) to resolve such dispute, then the company (but not the purchaser) shall have the right to require that such dispute be referred for determination by an umpire in terms of this paragraph 8;

• 8.3

  the person to be appointed as the umpire shall be a person nominated by the chairman for the time being of the South African Institute of Civil Engineers;

• 8.4

  all disputes that require to be resolved by the umpire shall be held in Johannesburg in a summary manner, namely on the basis that it shall not be necessary to observe or carry out either the strict rules of evidence or the usual formalities or procedures, that is to say, in absence of an agreement between the parties, the procedure to be followed shall be laid down by the umpire;

• 8.5

  the parties shall use their best endeavours to ensure that proceedings shall be held and concluded within 21 (twentyone) days after it is demanded;

• 8.6

  the umpire shall be entitled to consult such persons as he may deem necessary to reach a just and equitable conclusion and the parties to the dispute shall have no right to be present during such consultation or to be made aware thereof. The umpire shall be entitled to investigate or cause to be investigated any matter referred to him for decision for that purpose and shall have the widest possible powers of investigating all the books and records of the parties affected by the dispute, including the right to the fullest inspection of the same by him or by his duly authorised representative(s) and the right to make copies or make extracts therefrom and to have the same produced and/or delivered to any reasonable place required by him for the aforesaid purpose and shall have the right to interview and question under oath any affected party or its directors, officers, employees or agents and/or to call for written submissions by an affected party and/or its directors, officers, employees or agents;

• 8.7

  the umpire shall not be bound to follow strict principles of law, but may decide the matters submitted to him according to what he considers just and equitable under the circumstances, and therefore, the strict rules of law need not be observed or taken into account by him in arriving at his decision;

• 8.8

  subject only to the limitation referred to in paragraph 9 below, the umpire shall be entitled to make such award, including an award for specific damages or to grant such interdict, damages or penalties or otherwise as he may, in his discretion, deem fit and appropriate;

• 8.9

  the umpire’s decision shall be final and binding on all parties affected thereby, and shall be carried into effect and may be made an order of any competent court under whose jurisdiction any of the parties to the dispute are subject;

• 8.10

  the umpire shall act as an expert and not as an arbitrator and shall not, therefore, be bound by the provisions of any arbitration laws in force at the time;

• 8.11

  the provisions of these general terms, accepted by the purchaser, constitute an irrevocable consent to the award of the umpire and the purchaser and the company consents to such award being made an order of any competent court.

9. LIMITATION OF LIABILITY

Under no circumstances shall the company be liable or responsible to the purchaser for any damages (direct, indirect or prospective) which the purchaser may sustain or become liable for arising out of the failure on the part of the company to comply with its undertakings relating to the services to be rendered and any matters ancillary thereto and whether or not arising out of any decision by any competent court of law, tribunal, umpire or other authority.