TERMS & CONDITIONS

RESCUE ROD (PROPRIETARY) LIMITED

STANDARD TERMS AND CONDITIONS APPLICABLE TO WORKS

(AS AMENDED ON 15 MAY 2019)

  1. INTERPRETATION
    • The clause headings herein are for reference purposes only and shall not be used in the interpretation thereof.
    • Unless the context clearly indicates a contrary intention:-
      • expressions which denote any one gender, shall include the other genders;
      • a person shall include a natural person, company, partnership, firm, close corporation, company or any other legal personae;
      • the singular shall include the plural and vice versa.
    • When any particular number of days is provided for the doing of any act or for any other purposes, the reckoning shall exclude the first day and shall include the last day and shall include all Saturdays, Sundays and public holidays which occur during the period.
    • Any other counterpart, whether documented or in electronic format, referenced in these terms and conditions shall be deemed to be incorporated herein and shall form an integral part of this agreement.
    • If any provision in a definition is a substantive provision conferring any right or imposing any obligation on any party, then notwithstanding that it is only in the interpretation clause, effect shall be given to it as if it were a substantive provision in these terms and conditions.
    • In these terms and conditions, unless inconsistent with or otherwise indicated by the context, the following expressions shall bear the meanings assigned to them hereunder and cognate expressions shall bear corresponding meanings:-
      • Agreement” means any Agreement entered into between the Supplier and the Client;
      • Business Day” means any day of the week excluding Saturdays and Sundays and Public Holidays;
      • the Client” means any person or entity who contracts with the Supplier to execute Works;
      • Equipment” means all and any plant, vehicles, equipment, machinery and tools, including materials and consumables;
      • Normal Shift” in relation to an Operator, means 9 (nine) hours between 06:30 to 15:30 on a Business Day unless agreed otherwise by the parties in writing;
      • Operator” means any employee, contractor, agent, or representative of the Supplier deployed to assist in the execution of Works;
      • Order” means any order or instruction, written or oral given by the Client to the Supplier for Works, and shall include an amendment and/or variation to any Order;
      • Overtime” in relation to an Operator, means any time worked which does not fall within a Normal Shift;
      • Prevailing Rate” means the Supplier’s prevailing rate whether hourly or daily as the case may be, determined by a certificate issued by the Supplier’s operations manager, whose designation it shall not be necessary to prove, and whose determination shall constitute prima facie proof of such rate, binding upon the Client;
      • Public Holiday” means any South African public holiday as published in the Government Gazette from time to time.
      • The Supplier” means any of Rescue Rod (Pty) Ltd, Khuduyane Quigley (Pty) Ltd, and Octopus Electronics (Pty) Ltd, upon whom the Client places and Order and/or who performs Works and is named on invoices addressed to the Client whose chosen domicilium citandi et executandi for purposes of this Agreement is 6 Ingwe Road, Sebenza, Edenvale;
      • Terms and Conditions” means these Terms and Conditions as amended from time to time hereafter;
      • Unrest” means civil disturbance and disobedience, strike, labour unrest, riot, disruptions, protest action, demonstrations, commotions, go slows, lock outs, threats of terrorism, violence and which includes but is not limited to war hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilisation, requisition, embargo, rebellion, revolution, insurrection, military or usurped power, civil war;
      • Works” means services rendered, goods sold and delivered, Equipment and/or Operators hired and/or supplied by the Supplier to the Client.

 

  1. THE AGREEMENT AND ACCEPTANCE

The Client agrees that:

  • these Terms and Conditions shall apply to every Order and Agreement entered into by and between the Supplier and the Client and shall regulate the parties’ relationship and responsibilities to each other in respect of all Works;
  • these Terms and Conditions are and will be final and binding upon the Client and is not subject to any suspensive or resolutive terms or conditions;
  • these Terms and Conditions supersede, and replace all prior agreements, understandings and representations save for securities and guarantees held by the Supplier which shall continue to remain of force and effect, and remain binding on the Client;
  • these Terms and Conditions supersede the Client’s own terms and conditions;
  • the Terms and Conditions attached to, contained in or referenced on any Order are expressly excluded from and are superseded by these Terms and Conditions.

 

  1. QUOTATIONS
    • Quotations shall be valid for a period of 14 (fourteen) days only.
    • Quotations are given in good faith upon information provided by the Client and do not take account of unforeseen or extraordinary conditions that may be encountered in and during the course of executing Works, and may be varied, substituted or withdrawn in the sole and absolute discretion of the Supplier. The Client acknowledges that factors and circumstances including but not limited to breakages and Equipment failures, site conditions, weather, site availability, Unrest, and the presence of other contractors on site, may delay or prolong the execution of the Works. As such, any estimated duration for execution of the Works is a guideline only and shall not be binding upon the Supplier.
    • In the event that the execution of the works is to extend beyond any estimated duration for any reason whatsoever, a certificate issued under the hand of the Operations Manager shall be prima facie proof of duration of the Works, binding upon the Client. The Client shall be liable for payment for the full duration of the Works, notwithstanding any quotation/estimate, at the Supplier’s Prevailing Rate.
    • The Client shall be liable to the Supplier and shall indemnify and reimburse the Supplier for all costs and expenses incurred by the Supplier in the course of preparing a quotation on a time and attendance basis at the Prevailing Rate, including where applicable site assessment, evaluation and analysis costs and laboratory costs, notwithstanding that the Client may not accept Supplier’s quotation.
    • The Client agrees to be liable for and to arrange Material Safety Data Sheets (“MSDS”) where applicable.
    • The Client shall, where applicable, provide the Supplier with Transport Emergency Cards (“TREM Cards”) for the specialised disposal of waste prior to the commencement of any Works.

 

  1. ORAL ORDERS AND SITE INSTRUCTIONS
    • The Supplier, at its sole and absolute discretion may accept oral Orders and site instructions from the Client and/or the Client’s principal, however, the Client acknowledges the preference of the Supplier for written Orders and thus acknowledges and agrees that it shall be liable to the Supplier for any Works performed by the Supplier consequent upon an oral Order and/or site instruction, at the Supplier’s Prevailing Rate.
    • The Supplier reserves the right to decline any Order, without providing reasons therefor.

 

  1. SHIFTS AND HOURLY RATES
    • Hourly rates in respect of a Normal Shift charged by the Supplier shall vary from depot to depot and may be set out in the Supplier’s quotation, and failing that shall be the Prevailing Rate.
    • All travel time incurred by the Supplier in travelling to and from site shall be included in the calculation of the total number of hours worked in any day and shall be charged at the Prevailing Rate.
    • The Client shall be liable to pay an Overtime surcharge for every Operator deployed on Works:-
      • on Saturdays from 5:30 am to 21:00 pm at a rate of 25% (twenty-five percent) and from 21:00 pm to 5:30 am at a rate of 50% (fifty percent) above the hourly rate charged for Normal Shifts;
      • on Sundays and Public Holidays at a rate of 50% above the hourly rate charged for a Normal Shift;
      • on week days (Monday to Fridays other than Public Holidays), at a rate of 25% between the hours 15:30 pm to 21:00 pm and from 21:00 pm to 5:30 am at a rate of 50% (fifty percent) above Normal Shift.
    • Standing time shall be charged at the Prevailing Rate in the event that the Supplier, for whatsoever cause or reason arising, is unable to commence or continue Works when ready and equipped to do so.
    • Rates unless otherwise specifically stated in writing shall exclude plugging and over-pumping.

 

  1. PAYMENT
    • All payments shall fall due immediately upon receipt of the Supplier’s tax invoice.
    • All payments must be paid by the Client directly to the Supplier’s banking account held at First National Bank, branch code 257705, by way of electronic funds transfer into account number 55271220820 or 62062549244 and bear reference to the account number allocated to the Client. Under no circumstances is payment to be made into any banking account other than that of the accounts aforementioned.
    • Under no circumstance may the Client withhold payment, apply set-off or otherwise deduct any amounts from the invoice price.
    • Payment will only be deemed to have been made once received by the Supplier and the proceeds of such payment is credited and cleared by the Supplier’s bankers, in its banking account.
    • All risk of whatsoever nature attaching to payment shall vest with the Client.
    • Subject to the discretion of the Supplier, payments received from the Client will firstly be allocated to legal costs where applicable, thereafter to interest and finally only to the capital amount owing.
    • The Supplier reserves its right to demand that the Client make payment of a deposit in an amount determined by the Supplier in its sole discretion prior to commencement of and/or completion of any Works.
    • Interest will be charged on all overdue amounts at the rate determined by the Minister of Finance in terms of the Prevailing Rate of Interest Act, compounded monthly in arrears from the date upon which payment fell due, to the date of full and final payment.

 

  1. EQUIPMENT HIRE
    • The hire period shall commence the moment the Equipment and/or Operator is deployed from the Supplier’s premises and shall terminate only upon the Equipment and/or Operator returning to the Supplier’s premises.
    • For the duration of the hire period, the Equipment and the Operator shall be deemed to be under the control and supervision of the Client.
    • The Client will remain liable for payment of the hire fees for the full duration of the hire period. In the event that the Equipment is damaged, the hire period shall terminate only once the Equipment is repaired and delivered to the Supplier and where destroyed, where the Equipment is replaced and delivered to the Supplier or full replacement value is paid to the Supplier.
    • In the event that the Equipment and/or Operator is hired for a fixed period, notwithstanding any fixed hire period, either party may give notice of early termination by giving 24 (twenty-four) hours written notice of termination to the other of them, without incurring any liability to the other party whatsoever, consequent upon early termination.
    • The Client shall ensure that the Equipment is only used and operated by Operators, and then only in accordance with the manufacturer’s prescribed warranty standards as intended.
    • The Client accepts custody and responsibility for the safety and security of the Equipment, materials and of the Operator for the duration of the hire period. The Client shall ensure that the Equipment and the Operator in the execution of the Works comply with all laws, ordinances, and regulations relating to and maintain the Equipment in accordance with the manufacture’s recommendations and standards, including registration, roadworthy and/or licensing requirements, if any.
    • The Client shall be liable for costs and expenses in maintaining the Equipment in the same condition as received and in good, proper operating condition to the standards and specifications prevailing and recommended by and for the use and for the purpose intended by the manufacturer.
    • In the event that a breakdown occurs due to normal wear and tear of the Equipment, the Client msut immediately notify the Supplier thereof and shall not attempt to repair the Equipment or replace any part thereof without the prior written consent of the Supplier.

 

  1. DUTY OF THE CLIENT DURING UNREST
    • The Client undertakes not to deploy the Equipment and/or Operators in any area where there is the reasonable apprehension of Unrest or in areas where Unrest has been prevalent in the preceding 7 (seven) days, without first obtaining the Supplier’s prior written consent and satisfying the Supplier that suitable and adequate protection and security measures have been/will be deployed to protect and secure the Equipment and the Operators. The Supplier’s consent to deployment in the aforementioned circumstances shall in no way detract from the Client’s obligations to the Supplier in terms of, inter alia, clause 7 and above.
    • The Client shall immediately, upon becoming aware of Unrest or upon reasonable apprehension of Unrest, extract the Equipment and/or Operators to a place of safety.
    • In the event that Works are suspended as a result of Unrest, the Client shall be liable to pay the Supplier for standing time pending the resumption of Works.

 

  1. RISK
    • The Client shall inspect each item of Equipment and materials delivered by the Supplier and shall immediately notify the Supplier of any defects, damages or breakages. If the Client fails to provide such notice in writing within 2 (two) hours after the collection or delivery of the Equipment, the Client will be deemed to have accepted the Equipment as free of defects, damages and/or breakages.
    • The Client accepts the risk of loss and/or damage/destruction to the Equipment and injury to and/or death of the Operator for the duration that the Equipment and/or Operators are on hire.
    • The Client gives an unconditional guarantee that the Equipment shall be returned to the Supplier in the same standard and condition as when the Equipment was deployed by the Supplier, which guarantee is absolute, and is not subject to any external factors or circumstances causing any damage or harm whatsoever including, but not limited to, vis major instances, Unrest, fire and /or theft, or Operator negligence.
    • The Client shall be entitled to procure and maintain insurance over the Equipment and shall note the interest of the Supplier on any such policy.
    • In the event that the Equipment is lost, damaged or destroyed during the hire period or whilst under the care and/or custody of the Client, the Client shall be liable for all costs associated with the repair, alternatively replacement of the Equipment including all and any hire fees until such Equipment is so repaired or replaced as the case might be.
    • Without, in any way, detracting from the obligations of the Client, the Client shall ensure that for the duration of the hire period:-
      • access to the site where the Works are to be performed is made and kept safe and secure;
      • access to the site is restricted to persons who are authorised to be on site;
      • where the Equipment is to be stored on the site, the Client shall ensure that suitable and adequate security is made available to guard against loss, damage, theft, tampering and/or destruction of the Equipment.
    • Where the Supplier in its discretion deems the site to be unsafe or unsecure the Supplier may take such measures as it deems necessary to secure the site and its Equipment, the costs of which shall be for the account of the Client, alternatively the Supplier may suspend execution of the Works, and withdraw its Equipment and Operators from site until such time that the Client has secured and made the site safe to the Supplier’s satisfaction. Any resultant standing time shall be charged for at the Prevailing Rate.
    • The Supplier shall at all reasonable times be entitled to access of the site of Works where the Equipment is deployed for the purposes of inspection, and/or repairing, and/or repossession of the Equipment, and/or the cleaning, and/or servicing thereof;
    • The Client shall at all times be fully responsible for the safety and wellbeing of the Operators.

 

  1. INDEMNITY
    • Where the Supplier is contracted to remove and/or to dispose of waste, the Client acknowledges that it remains responsible for the safe disposal of the waste in accordance with the cradle-to-grave principle, and shall inform the Supplier of the nature and constitution thereof and whether the Client requires a certificate of disposal. Save where so instructed in writing, the Supplier shall be entitled to assume that the waste is safe and shall dispose of it accordingly.
    • The Client agrees to be liable for, and to pay the Supplier upon demand, such additional costs and expenses as may be incurred by the Supplier in the safe disposal of waste and execution of the Works as may be appropriate and/or lawfully required, notwithstanding that such costs and expenses may not have been included in any quotation, Order or any Agreement.
    • The Supplier shall under no circumstances whatsoever be liable for any losses, expenses, penalties, fines, damages (consequential or otherwise) or costs (including costs on the scale as between attorney and one’s own client) suffered or sustained by the Client, howsoever caused or arising, directly or indirectly consequent upon the execution of Works.
    • The Client hereby indemnifies and holds the Supplier and its directors, staff, successors, and assigns (in whose favour this constitutes a stipulatio alteri, which benefit may be accepted in writing at any time) harmless against any and all losses, liabilities, damage, damages claims, and all related costs and expenses (including legal fees on the scale as between attorney and client, tracing and collection charges, costs of investigation and interest) arising directly or indirectly out of or in connection with any claim, demand, charge, action, cause of action or other proceedings brought by any third party or affected persons, following upon any act or omission, whether reckless or negligent, carried out in execution of the Works in respect of each of the following:-
      • the death or bodily injury of such person caused by the Supplier, its Operators or the Client;
      • the damage, loss or destruction of any real or tangible personal property of such person caused by the Supplier, its Operators or the Client; and
      • any claim, demand, charge, action, cause of action, or other proceedings asserted by such person against the Supplier and/or its Operators.
    • The Client and its personnel shall not permit anything to be done in relation to executing the Works which ought reasonably to have been foreseen might result in damage to or destruction of the Equipment or injury to an Operator or any other person or damage to property of any other person.
    • The Client to take full responsibility for any spillages caused by plugging of lines and reinstating of areas, soil, etc.

 

  1. LIMITED WARRANTY
    • The Supplier warrants that the Works will be rendered in accordance with industry standards.
    • Without derogating from the obligations assumed by the Client, only suitably qualified Operators will be deployed to operate the Equipment.
    • The Equipment will, save where a Client provisionally notifies the Supplier of any defects, as above, will be, to the best of the knowledge and belief of the Supplier at commencement of the hire period, operational and suitable for the purpose of performing the Works.
    • Save as aforesaid, no other guarantees, warranties or representations of whatsoever nature have been made by the Supplier to the Client in respect of the Works or Equipment to be supplied.

 

  1. RESERVATION OF OWNERSHIP
    • Ownership in and to any Equipment shall remain vested in the Supplier and where sold to the Client, ownership shall only pass upon payment of the full purchase price.

 

  1. TIME FOR PERFORMANCE
    • Time shall not be of the essence in the performance of any Works and the Supplier does not guarantee execution and/or commencement or completion of the Works on any specific date.
    • If the Client defers and/or postpones performance of the Works when the Supplier is ready to or tenders to perform, the Client shall be liable for payment of the Supplier’s fees and charges for the period of postponement/deferment at the Prevailing Rate, in addition to and any resultant expenses and/or disbursements incurred by the Supplier.

 

  1. SUSPENSION AND/OR CANCELLATION
    • Notwithstanding anything herein contained to the contrary, the Supplier shall be entitled to suspend, delay and/or cancel performance of the Works and/or any Order and/or vary the terms and conditions of payment by insisting upon advanced payments in the event that the Client falls into arrears with its account with the Supplier, or breaches any term or condition herein contained, or commits any act of insolvency or is declared by any competent Court to be insolvent, or is placed under an order of sequestration, debt review and/or liquidation (whether provisional or final) and/or is subject to any resolution passed to enable the Client to be wound up and/or dissolved.
    • No suspension, delay and/or cancellation as a result of any of the aforegoing events shall novate or waive any of the other rights which the Supplier may be entitled to in law in terms of the Agreement or otherwise, including without limitation, the right of the Supplier to withdraw the credit facilities hereby extended to the Client.
    • The Supplier reserves the right to terminate, alternatively suspend, any Agreement without cause upon written notice to the Client without liability to the Client whatsoever.

 

  1. USE OF CONTRACT DOCUMENTS AND INFORMATION INSPECTION
    • The Client shall not, without the Supplier’s prior written consent, disclose any specification, plan, drawing, pattern, sample, or information furnished by and on behalf of the Supplier in connection with the Works, to any person other than a person employed by the Client in the performance of the Agreement. Disclosure to any such employed person shall be made in confidence and shall extend only as far as may be necessary for the purposes of executing the Works.
    • The Client shall not, without the Supplier’s prior written consent, make use of any document or information mentioned in clause 15.1 above except for the purposes of executing the Works.
    • Any document, other than the Agreement itself shall remain the property of the Supplier and shall be returned (all copies) to the Supplier upon completion of the Works or Termination of the Agreement.

 

  1. GOOD FAITH
    • In the execution of the Agreement, the Client undertakes to observe the utmost good faith and warrants in its dealings with the Supplier that it shall not do anything nor refrain from doing anything which might prejudice or detract from the rights, assets or interests of the Supplier.

 

  1. EXCLUSIVITY AND NON-VARIATION
    • These terms and conditions constitute the entire agreement between the Supplier and the Client and no variation, amendment, consensual cancellation or otherwise shall be of any force or effect unless agreed to in writing and signed by both the Client and the Supplier.

 

  1. NO NOVATION
    • No indulgences, latitude, extension of time or the like granted by the Supplier to the Client shall in any way whatsoever constitute a novation or waiver of any rights which the Supplier may have against the Client nor may it operate as an estoppel against the Supplier.

 

  1. SOUTH AFRICAN LAWS APPLICABLE
    • These Terms and conditions shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.

 

  1. CERTIFICATE OF INDEBTEDNESS
    • The Client confirms that a certificate signed by the credit manager or any director of the Supplier, whose designation it shall not be necessary to prove, showing the amount owing by the Client to the Supplier shall be sufficient proof that the said amount is due, owing and unpaid and shall be satisfactory proof of what is contained therein for the purpose of any action (whether by way of provisional sentence, summary judgment or otherwise) proof of the debt on insolvency or for any purpose whatsoever. Where the quantum of the Supplier’s claim is thereafter disputed by the Client, the Client shall bear the onus of proving that such amount is not owing and/or due and/or payable.

 

  1. EXTENDED CREDIT FACILITIES FOR CLIENT
    • Should the Client request extended credit facilities, it undertakes to make such application in proper form to the Supplier including to provide all such information as the Supplier may request to enable it to consider and decide upon such request.

 

  1. NOTICE OF CHANGE OF CIRCUMSTANCES OF CLIENT
    • The Client agrees to notify the Supplier in writing within 7 (seven) days of any event occurring, or information becoming known or available to it, which reasonably considered, would materially affect a creditor in assessing the risk relative to granting credit facilities to the Client.
    • The Client shall inform the Supplier of any change in ownership of the Client’s business or any transaction where shares or members’ interest in excess of 25% (twenty-five percent) of the issued share capital of the Company or members interest, changes hands.

 

  1. COSTS
    • In the event that the Supplier should institute legal action against the Client, the Client shall be liable for all costs and expenses incurred on the scale as between attorney and client, including collection commission.

 

  1. ADDRESS
    • The Client undertakes to notify the Supplier in writing of any change of address of its principal place of business and/or registered office, where applicable. The Client chooses as its address for the purposes of the service of all letters, notices, accounts, summonses and the like at its registered address as reflected at the Companies and Intellectual Property Commission.

 

  1. CESSION, ASSIGNMENT
    • The Client shall not be entitled in any manner whatsoever to cede its rights, delegate its obligations and/or assign its rights and obligations, under these terms and conditions without the prior written consent of the Supplier.

 

  1. SEVERABILITY
    • The provisions contained in these terms and conditions are severable, the one from the other. In the event that any one or more of the terms contained herein should be found to be invalid or unenforceable, to the extent of the invalidity or unenforceability that term shall be severed from the rest of these terms and conditions which shall continue to be of full force and effect.
    • If a court finds that any provision of these terms and conditions are invalid or unenforceable, but that by limiting such provision, it would become valid and enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.

 

  1. ARBITRATION
    • Save as otherwise provided in these terms and conditions and, in the event that a dispute should arise between the parties, the Supplier shall be entitled to require, by written notice to the Client, that the dispute be submitted to arbitration in terms of this clause.
    • Subject to the provisions of this clause, arbitration shall be held under the provisions of the arbitration laws of the time in force in the Republic of South Africa, provided that the arbitrator shall be a practising attorney of not less than 10 (ten) years standing, agreed upon by the parties, or failing agreement within five days after the date on which the arbitration is demanded, appointed by the Chairperson of the Legal Practice Council.
    • The arbitration shall be held at Sandton, at a venue and in accordance with formalities and/or procedures determined by the arbitrator, and may be held in an informal and summary manner, on the basis that it shall not be necessary to observe or carry out the usual formalities and/or procedures, pleadings and/or discovery, or strict rules of evidence.
    • The arbitrator shall be entitled:-
      • to investigate or cause to be investigated any matter, fact or thing which he/she considers necessary or desirable in connection with the dispute and for that purpose shall have the widest powers of investigating all the books and records of either part to the dispute, and the right to take copies or make extracts therefrom and the right to have them produced and/or delivered at any reasonable place required by him/her for the aforesaid purpose;
      • to interview and question under oath, any representative of either of the parties;
      • to decide the dispute according to what he/she considers just and equitable in the circumstances;
      • to make such award, including an award for costs, specific performance, an interdict, damages or a penalty or otherwise as he/she in his/her discretion deems fit and appropriate, provided that should the arbitrator fail to make an award with regards to costs, the costs shall be borne equally by the parties.
    • The arbitration shall be held as quickly as possible after it is demanded with a view to its being completed within thirty days after it has been so demanded.
    • Immediately after the arbitrator has been agreed upon or nominated in terms of this clause either party shall be entitled to call upon the arbitrator to fix a date and place when and where the arbitration proceedings shall be held and to settle the procedure and manner in which the arbitration proceedings will be held.
    • Any award made by the arbitrator:-
      • shall be in writing and shall include reasons therefore;
      • shall be final and binding;
      • will be carried into effect; and
      • may be made an order of any Court to whose jurisdiction the parties to the dispute are subject.
    • This clause constitutes an irrevocable consent by the parties to any proceedings in terms hereof and no party shall be entitled to withdraw therefrom or to claim in any such proceedings that it is not bound by this clause.
    • This clause shall not preclude any party from obtaining relief by way of motion proceedings on an urgent basis from a Court of competent jurisdiction pending the decision of the arbitrator.
    • This clause shall be severable from the rest of these terms and conditions and shall remain effective notwithstanding that these terms and conditions shall for any reason whatsoever, be terminated.

 

  1. CESSION OF BOOK DEBT
    • Simultaneously with entering into any Agreement with the Supplier, the Client is deemed to have ceded as security for its indebtedness to the Supplier, its successors in title and assigns, arising out of the credit facilities advanced/to be advanced to it and/or outstanding funds in respect of the execution of the Works, all right, title and interest in and to its debtors (accounts receivable), past, present and future, to the Supplier.
    • The Client hereby warrants that it has:-
      • not entered into any agreement restricting or excluding the transferability of the claims that form the object of this cession;
      • has no knowledge of any counterclaims that may extinguish the claims that form the object of this cession;
      • not, prior to this cession, ceded the claims that form the object of this cession to any other person or concern, but if it should so happen that the cedent is in breach of this, then this cession shall operate as a cession of the Client’s reversionary rights, including all rights of action against the prior cessionary.
    • During such time as the cession which is the subject matter of these terms and conditions remains of force and effect, the Client agrees that it will:-
      • upon demand deliver, cede, transfer or negotiate to the Supplier all or such of the bills of exchange, promissory notes, cheques, documents of title or other securities referred to in terms hereof as may be demanded, duly endorsed, ceded, transferred or negotiated in such form as shall render the Creditor the absolute owner thereof entitled in the Supplier’s own name to enforce payment thereof;
      • make available for inspection by the Supplier or the Supplier’s authorised agent at any time during normal business hours all books of account, receipts and other books, papers and correspondence relating to the said book debts and the Client’s dealings with the debtors in respect of the indebtedness of each of them to the Client in the said business and to take possession of such books and records (of whatsoever nature) to give effect to the terms of this cession;
      • give the Supplier all such information concerning the said debtors as may be reasonably required by the Supplier to enable the Supplier to recover the amount owing by each of them.
    • The Supplier authorises the Client to collect the said claims in the Client’s own name provided the said claims are collected on behalf of the Supplier and provided further that the Supplier shall at any time be entitled to terminate the Client’s right to collect such claims as at any time.

 

  1. SOCIAL MEDIA
    • The Supplier reserves the right to use all recorded materials on site(s) for advertising/social media purposes unless otherwise agreed in writing.

 

ANNEXURE “A”

TERMS AND CONDITIONS APPLICABLE TO CCTV INSPECTIONS AND REPORTS

  1. Deliverables shall consist of WinCan reports, photographs and video footage to WRC Manual of Sewer Condition Classification 4th Edition (2004) standards.
  2. The Client shall provide vehicle access to all manholes or pipe access points.
  3. Prior to the commencement of the Works, the Client shall provide the Supplier with layout drawings and plans which clearly indicate inter alia manhole identified by numbers, failing which the Supplier shall be under no obligation to deploy Equipment but shall be entitled to charge standing time at its Prevailing Rate until such time that drawing and plans are provided, the Client indemnifies and holds the Supplier harmless against all loss, damage and/or destruction of Equipment, and for all and any damages that any other person may suffer or sustain consequent thereupon.
  4. The Supplier shall only provide the Client with reports and DVDs upon receipt of payment by the Client.
  5. In the event that the Client identifies any discrepancies or faults (“complaints”) in the Works the Client shall notify the Supplier in writing within 7 (seven) days of delivery of the CCTV report, with sufficient detail to enable the Supplier to understand the cause of the complaint and to correct any errors thereon. Pending rectification of the complaint, the Client shall be entitled to withhold payment for the report only but not for any other sums due to the Supplier for Works.
  6. Where no drawings or plans are issued to the Supplier, node references will be issued at the discretion of the CCTV operator. Any requested reference changes after project completion will be charged for separately.
  7. The Client shall be liable for the costs of retrieving, or replacing Equipment which becomes lodged in and during the execution of any Works.
  8. The Supplier reserves the right to vary/amend the terms of the Agreement in the event that it encounters circumstances on site which were unforeseen and in respect of which were not taken into consideration.

 

ANNEXURE “B”

TERMS AND CONDITIONS APPLICABLE TO JETS, SUPER SUCKERS, WATER TANKERS AND COMBINATION UNITS

  1. The Client shall provide the Supplier with clean water for jetting.
  2. The Supplier shall not be responsible for the removal or clearing from site any waste or debris removed from any pipes, sewers, vessels, pumps and/or tanks unless contracted to do so.
  3. The standard length of jetting hose is 120 m (one hundred and twenty metres) and in the event that additional hose lengths are required the Client shall be liable for the cost thereof.
  4. Prior to deployment of Equipment, the Client shall provide the Supplier with drawings and plans of the sewer or pipeline infrastructure required to be cleaned and cleared, failing which the Supplier shall be under no obligation to deploy Equipment, but shall be entitled to charge for its standing time at the Prevailing Rate until such time that drawings and plans are provided. Notwithstanding the aforegoing, should the Supplier deploy its Equipment without plans and drawings having been provided, the Client indemnifies and holds the Supplier harmless against the loss, damage and/or destruction of such Equipment and for all and any damages that any other person may suffer or sustain consequent thereupon.
  5. If confined space entry is required, the Client shall provide airline masks to the Supplier’s staff prior to their deployment, failing which the Supplier shall be under no obligation to commence Work, but shall be entitled to charge for its standing time at the Prevailing Rate until masks are provided.
  6. The Client shall be liable for the costs of retrieving, or replacing Equipment which becomes lodged in and during the execution of any Works.
  7. The Supplier shall be entitled to charge a 100% (one hundred percent) cancellation fee in the event that the Client should cancel any Order for the delivery of water after Equipment and Operators have been deployed from the Supplier’s site.

 

ANNEXURE “C”

TERMS AND CONDITIONS APPLICABLE TO DRILLING

  1. Drill distances are estimates only and client will be charged according to the actual distance drilled, which will be certified by the Supplier’s technician on site. Such certificate will constitute prima facie proof of its content, binding upon the Client.
  2. The Supplier does not accept responsibility for any damage to infrastructure, property of third parties, injury or death and the Client indemnifies the Supplier against any claims by any persons for any damage or loss.
  3. The Client shall be responsible for excavating pits, and shall provide the Supplier with wayleaves prior to commencement of Works failing which the Supplier shall be under no obligation to deploy Equipment, but entitled to charge its standing time at the Prevailing Rate until wayleaves are provided.
  4. The Client shall provide the Supplier with accurate and current service plans indicating the presence of all underground services at the site and shall make the site available to the Supplier for inspection prior to commencement of the Works. The Supplier shall be under no obligation to commence the Works until such time that it has completed an inspection of the site. Standing time whilst the Supplier conducts an inspection shall be charged out at the Prevailing Rate.
  5. The Client indemnifies and holds the Supplier harmless against all and any claims, demands, actions, suits, proceedings for losses, damages, costs and expenses, including legal fees on the scale as between attorney and client, suffered or sustained by the Supplier or any third party as a result of:-
    • the wilful, reckless, negligent act or omission of the Operator in the execution of the Works;
    • the failure of the Client notwithstanding the reason therefore, to provide plans, drawings and wayleaves as provided for in the terms of this annexure.
  6. Drilling rates shall be calculated on medium/consistent displaceable soil which is free from obstacles. In the event of the Supplier encountering drillable rock a surcharge shall be added to the rates as specified at the Prevailing Rate.
  7. In the event that the Supplier is unable to complete drilling as a result of rocky and unstable conditions, including but not limited to undrillable rock and/or concrete slabs, the Client will remain liable for payment for the actual meterage drilled, plus the cost of site establishment and materials/pipes on site. Pickable and diggable conditions will apply in this respect.
  8. Any excavations, associated preparations, traffic signage and accommodation of traffic not included on any quotation shall be charged in addition at the Prevailing Rate.
  9. In the event of unfavourable drilling conditions the Supplier reserves its right to abort any boring operations which have already commenced. In such circumstances, the provisions of clause 7 of Annexure C above shall apply.
  10. In the event that it is required the Client shall provide the Supplier with clean water on site for the operation of the Supplier’s mud mixer.
  11. The Client shall be liable for the costs of retrieving, or replacing Equipment which becomes lodged in and during the execution of any Works.

 

ANNEXURE “D”

TERMS AND CONDITIONS APPLICABLE TO SEPTIC TANK SERVICES

  1. The Client shall be liable for the costs of retrieving, or replacing Equipment which becomes lodged in and during the execution of any Works.
  2. The Client shall ensure that the Supplier, its Operators and Equipment are afforded safe access to and egress from the Works site. Without derogating from the provisions of clause 10.2 above, the Supplier shall ensure that all access-controlled gates are placed on manual and the entry to an exit from the Works site is supervised by suitably qualified personnel of the Client.
  3. The Client shall provide the Supplier with suitable and adequate access to the septic tank and drainage point. Any standing time will be charged for at the Prevailing Rate.
  4. The standard length of honey sucker hose is 30m (thirty metres) and in the event that additional hose lengths are required the Client shall be liable for the cost thereof.
  5. No additional labour is included in the drainage rate. Additional labour will be charged for according to site conditions at the Prevailing Rate.

 

ANNEXURE “E”

TERMS AND CONDITIONS APPLICABLE TO PRIMUS LINER SERVICES:

The Client acknowledges that the application conditions for installation of Primus Line© are the following:

  1. the maximum bend for Primus Line© must not exceed 45 degrees;
  2. the pipe to be renovated must be out-of-order and free from fluids when handed over to the Supplier;
  3. there must be no vertical and/or horizontal bends within the pipeline except for those as stated in the provided plans;
  4. the pipe must be free of all and any extending obstacles, branch conduits, level slices, sharp welding seams, pipe step joints.
  5. the inner surface of the pipeline must be free from bitumen;
  6. the diameter of the entire section of the host pipe must be receptive to the installation of the Primus Line©;
  7. Primus Line© must remain a flexible pipe in all operational conditions;
  8. the pipeline to receive application of the Primus Line© must not have a free inflow or discharge;
  9. the Primus Line© pipe must, after application be filled with water in all operating conditions and a constant pressure level along the entire section of the pipeline should be available;
  10. the pH value of the transported water must be a minimum of 5 and a maximum of 9;
  11. in all operating conditions, the maximum flow rate in the Primus Line© system is 3 m/s;
  12. the system Primus Line© is able to work with a permanent operating temperature of up to 50°C;
  13. a minimum distance of 1.00 m between the end of one bend and the beginning of the next bend must be present.

The Supplier, without assuming any obligation to verify the veracity of the aforementioned acknowledgements, shall be entitled but not obliged to conduct a CCTV inspection of the host pipe at the cost and expense of the Client, prior to installation of Primus Line©.

 

The Client shall ensure that:

  1. the excavation pits are free from water and need to have at least the following dimensions: length greater than 3.5m, depth beyond the existing pipe greater than 0,40m, but smaller than 0,80m and free working area to the left and right from the pipe of at least 0,60m;
  2. the pre-folded Primus Line hose is inserted into the host pipe with an insertion angle of a maximum of 10 degrees. The Supplier has to secure any branch and supply lines, to the extent depicted in the plans, in particular glass fibre cables;
  3. the Client is further responsible for all traffic protection works; and
  4. the Supplier is responsible to disinfect and flush the fixed/repaired pipeline upon completion;
  5. the Client shall be liable for the costs of retrieving, or replacing Equipment which becomes lodged in and during the execution of any Works.