Terms and Conditions
Amended on 1st June 2018
1.1 The clause headings in the Agreement are for reference purposes only and shall not be used in the interpretation thereof.
1.2 Unless the context clearly indicates a contrary intention:-
1.2.1 expressions which denote any one gender, shall include the other genders;
1.2.2 a person shall include a natural person, company, partnership, close corporation or other legal personae;
1.2.3 the singular shall include the plural and vice versa.
1.3 When any particular number of days is provided for the doing of any act or for any other purpose, 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.
1.4 Any schedule or annexure to this agreement shall be deemed to be incorporated herein and shall form an integral part of this agreement.
1.5 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 this agreement.
1.6 In this agreement, 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 :-
1.6.1 “Agreement” means these Standard Terms and Conditions of Works duly supplemented and amended from time to time hereafter, and shall include a Works Contract;
1.6.2 “Business Day” means any day of the week excluding Saturdays and Sundays and Public holidays;
1.6.3 “the Client” means any person or entity who contracts with the Supplier to execute Works;
1.6.4 “Equipment” means all and any plant, vehicles, equipment, machinery and tools, including materials and consumables used in relation thereto used or applied by the Supplier in the execution of the Works;
1.6.5 “Normal Shift” in relation to an Operator, means 9 (nine) hours and shall be between 06:30 to 15:30 on a Business day unless agreed otherwise by the parties in writing;
1.6.6 “Operator” means any employee, contractor, agent, or representative of the Supplier deployed to assist in the execution of the Works;
1.6.7 “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;
1.6.8 “Overtime” in relation to the Supplier’s Operator, means any time worked which does not fall within a Normal Shift;
1.6.9 “Prevailing Rate” means the Supplier’s daily/hourly prevailing hourly or daily charge out rate 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.
1.6.10 “Public Holiday” means South African public holidays as published in the
Government Gazette from time to time
1.6.11 “The Supplier” means the entity performing the Works and named on the invoices addressed to the Client whose chosen domicilium citandi et executandi for purposes of this Agreement is 6 Ingwe Road, Sebenza, Johannesburg;
1.6.12“Unrest” means including but not limited to war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition, embargo,
rebellion, revolution, insurrection, military or usurped power, civil war, riot, commotion, labour unrest, protest action, demonstrations, strikes, go slows, lock outs, disorder and/or acts or threats of terrorism and violence;
1.6.13 “Works” means services rendered, goods sold and delivered, Equipment and/or Operators hired and/or supplied by the Supplier to a Client;
1.6.14 “Works Contract” means a written contract, by virtue of which the Supplier agrees to perform Works.
2. THE AGREEMENT AND ACCEPTANCE
The Client agrees that:
2.1 this Agreement shall regulate and underpin any and all Works, and shall regulate the
parties’ relationship and responsibilities to each other in respect of all Works.
2.2 this Agreement is and will be final and binding upon the Client and is not subject to any
suspensive or resolutive terms or conditions;
2.3 this Agreement supercedes, and replaces all prior agreements, understandings and
representations, but is without prejudice to any securities or guarantees held by the
2.4 this Agreement supersedes any standard terms and conditions which the Client may have.
2.5 terms and conditions attached to, contained in, or referenced on any Order are expressly
excluded from and are superceded by this Agreement.
3.1 Quotations shall be valid for a period of 14 (fourteen) days.
3.2 Quotations are given in good faith upon information provided by the Client and do not take account of unforseen or extraordinary conditions that may be encountered in and during the course of executing Works. The Supplier shall be entitled to charge at its Prevailing Rate for actual services rendered and material supplied in the execution of Works.
3.3 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.
3.4 In the event that the execution of the Works is to extend beyond any estimated duration for any reason whatsoever, the Client shall be liable for payment of the quoted hourly/daily charge out rate, or failing a quoted rate, the Prevailing Rate.
4. ORAL ORDERS AND SITE INSTRUCTIONS
4.1 The Supplier, at its sole and absolute discretion may accept oral Orders and site instructions, however the Client acknowledges the preference of the Supplier for Works Contracts and thus acknowledges and agrees that it shall be liable to the Supplier for all and any Works performed by the Supplier consequent upon an oral Order and/or site instruction, at the Suppliers Prevailing Rate.
4.2 The Supplier reserves the right to decline any Order, without needing to provide reasons therefor.
5. SHIFTS AND HOURLY RATES
5.1 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
5.2 All travel time incurred by the Supplier shall be included in the calculation of the total number of hours/days worked and shall be charged at the agreed or Prevailing Rate.
5.3 The Client agrees to pay Overtime:-
5.3.1 on Saturdays from 5:30 am to 21:00pm at a 25% (twenty five percent) surcharge and from 21:00pm to 5:30am a 50% (fifty percent) surcharge on the hourly rate charged by the Supplier during a Normal shift;
5.3.2 on Sundays and Public holidays at a 50% percentage surcharge on the hourly rate charged by the Supplier during a Normal Shift.
5.3.3 on after hours during the week Monday to Friday at a 25 % surcharge from 15:30pm to 21:00pm and from 21:00pm to 5:30am a 50% (fifty percent) surcharge on the hourly rate charged by the Supplier.
5.4 Standing time per hour alternatively per day at the agreed rate, alternatively at the Prevailing Rate will be charged by the Supplier in the event that it, for whatsoever cause or reason arising, is unable to commence or continue Works when ready equipped to do so.
5.5 Rates unless otherwise specifically stated in writing shall exclude plugging and overpumping.
6. CREDIT FACILITIES AND PAYMENT
6.1 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, upon receipt of invoice or otherwise in accordance with credit terms granted in writing. Under no circumstances is payment to be made into any account other than that the account aforementioned.
6.2 Under no circumstance may the Client withhold payment or apply set off or otherwise make any deductions whatsoever from the invoice price.
6.3 Payment will only be deemed to have been made received by the Supplier once the proceeds of such payment are credited and cleared by the Supplier’s bankers, in its banking account.
6.4 All risk of whatsoever nature attaching to payment shall vest with the Client.
6.5 Payments received by the Supplier will firstly be allocated to legal costs where appropriate, thereafter to interest and then to the capital amount owing.
6.6 The Supplier reserves its rights to request that the Client make payment of the full amount alternatively a portion thereof prior to the commencement of any Works.
6.7 The Supplier reserves the right to allocate the payments in its sole and absolute discretion to any amount comprising the Client’s indebtedness.
6.8 The Supplier reserves the right to terminate, interrupt or suspend performance of any Works in the event that the Client should be in breach of any of the provisions of this Agreement, or any Works Contract including but not limited to short or non-payment of any amount due by it to the Supplier.
6.9 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.
7. HIRE PERIOD
7.1 The hire period shall commence upon the Equipment and/or Operator leaving the Supplier’s premises and shall only terminate when the Equipment and/or Operator returns to the Supplier’s premises.
7.2 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.
7.3 The Client shall notwithstanding any quotation, or Order be liable for payment of the hire fee at the quoted rate, alternatively the Suppliers Prevailing Rate for the entire duration of the hire period.
7.4 In the event that the Equipment is lost, damaged, stolen or destroyed during the hire period, the Client will remain liable for payment of the hire fees until the Equipment is either returned, replaced or the replacement value thereof is paid in full to the Supplier.
7.5 In the event that the Equipment and/or Operator is hired for a fixed period, either party may give notice of early termination by giving 24 hours written notice of termination to the other
of them, without incurring any liability to the other party whatsoever, consequent upon early termination.
8.1 Interest will be charged on all overdue accounts at the rate as Prevailing by the Minister of Finance in terms of the Prevailing Rate of Interest Act per month, compounded monthly in arrears from the date upon which payment fell due, to the date of full and final payment.
9. TIME FOR PERFORMANCE
9.1 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.
9.2 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 Suppliers 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.
Disposal of Waste
10.1 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.
10.2 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.
10.3 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 Works Contract.
10.4 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.
10.5 The Client agrees to be liable for and to arrange MSDS where applicable.
10.6 The Client shall, where applicable, provide the Supplier with TREM cards for the specialised disposal of waste prior to the commencement of any Works.
Damages to Third Parties
10.7 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 proceeding brought by any third party or affected persons, following upon any act or omission, whether wilful, reckless or negligent, carried out in execution of the Works in respect of each of the following:-
10.7.1 the death or bodily injury of such person caused by the Supplier, its Operators or the Client;
10.7.2 the damage, loss or destruction of any real or tangible personal property of such person caused by the Supplier, it’s Operators or the Client; and
10.7.3 any claim, demand, charge, action, cause of action, or other proceeding asserted by such person against the Supplier and or its Operators but resulting from an act or omission of the Supplier or the Client in its capacity as an employer of a person.
10.8 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.
10.9 The Client to take full responsibility for any spillages caused by plugging of lines and reinstating of areas, soil etc.
11 CARE AND OPERATION OF EQUIPMENT
11.1 For the duration of the hire period, the Client shall ensure that the Equipment is only used and operated by Operators, and then only in accordance with the manufactures warranty standards and its intended use.
11.2 The Client accepts responsibility for the safety and security of the Equipment, materials and of the Operator for the duration of the hire period and shall ensure that the Equipment and the Operator in the execution of the Works Contract comply with all laws, ordinances, and regulations relating and maintain the Equipment in accordance with the manufactures recommendations and standards, including registration, roadworthy and and/or licensing requirements, if any.
The Client shall not assign or sublet any interest in terms of this Agreement.
13. ACCEPTANCE OF EQUIPMENT
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 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.
14. BREAKDOWN, REPAIR
14.1 The client shall, at his own costs, maintain the Equipment 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.
14.2 In the event that a breakdown occurs due to normal wear and tear of the Equipment, the Client shall immediately notify the Supplier thereof and may not attempt to repair the Equipment or replace any part thereof.
14.3 The Supplier’s liability to the Client will be limited to the repair or replacement of the Equipment only.
14.4 At the end of the hire period, the Client shall be obliged to return the Equipment to the Supplier in a clean state and in good order and condition, fair wear and tear alone excepted.
14.5 If Equipment is returned in an unclean state, the Client shall be liable for reasonable cost of cleaning thereof which shall include the time taken to clean the Equipment at the Supplier’s Prevailing Rate.
15. DUTY OF THE CLIENT DURING UNREST
15.1 The Client undertakes not to deploy the Supplier, its 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 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 14 above.
15.2 The Client indemnifies and holds the Supplier harmless against all and any damage, loss, destruction, harm, death and/or bodily injury, which may be suffered or sustained to Equipment and/or Operator as a result of Unrest.
15.3 In the event that Unrest should arise, the Supplier shall be entitled to suspend or cancel execution of the Works and any Works Contract at its discretion, without incurring any liability to the Client whatsoever.
15.4 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.
16. RESERVATION OF OWNERSHIP
16.1 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.
17.1 The Client accepts the risk of loss and/or damage to the Equipment and injury to the Operator for the duration of the hire period
17.2 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 maintain insurance and shall note the interest of the Supplier on any such policy.
17.3 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, regardless of whether such
damage or destruction is due to the Client’s, or the Operator’s negligence, 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.
17.4 Without in anyway detracting from the obligations of the Client, the Client shall ensure that for the duration of the hire period,:-
17.4.1 access to the site where the Works are to be performed is made and kept safe and secure and,
17.4.2 access to the site is restricted to persons who are authorised to be on site;
17.4.3 where 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 destruction of Equipment.
17.5 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 it’s 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.
17.6 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 cleaning; and/or servicing thereof;
17.7 The Client shall at all times be fully responsible for the safety and wellbeing of the Operators.
18. LIMITED WARRANTY
18.1 The Supplier warrants that the Works executed pursuant to any Order under and in terms of the Agreement will be in rendered in accordance with industry standards.
18.2 Only suitably qualified Operators will be deployed to operate the Equipment.
18.3 Equipment will, to the best of the knowledge and belief of the Supplier at commencement of the hire period, be operational and suitable for the purpose of performing the Works
18.4 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.
19. SUSPENSION AND CANCELLATION IN EVENT OF NON-PAYMENT
19.1 Notwithstanding anything herein contained to the contrary, the Supplier shall be entitled to suspend, delay and/or cancel performance of the Works and/or Equipment ordered by the Client and/or vary the terms and conditions of payment hereof 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 or 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.
19.2 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.
20. USE OF CONTRACT DOCUMENTS AND INFORMATION INSPECTION
20.1 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 so far as may be necessary for the purposes of executing the Works.
20.2 The Client shall not, without the Supplier’s prior written consent, make use of any document or information mentioned clause 20.1 above except for the purposes of executing the Works.
20.3 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.
21. GOOD FAITH
21.1 In the execution of the Agreement, the Client undertakes to observe the utmost good faith and warrant in its dealings with the Supplier that it shall neither do anything nor refrain from doing anything which might prejudice or detract from the rights, assets or interests of the Supplier.
22. EXCLUSIVITY AND NON-VARIATION
22.1 The terms and conditions embodied herein 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.
23. NO NOVATION
23.1 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.
24. SOUTH AFRICAN LAWS APPLICABLE
24.1 The Agreement shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.
25. CERTIFICATE OF INDEBTEDNESS
25.1 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.
26. 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.
27. NOTICE OF CHANGE OF CIRCUMSTANCES OF CLIENT
27.1 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.
27.2 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% of the issued share capital of the Company or members interest, changes hands.
28.1 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.
29. CESSION, ASSIGNMENT
29.1 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 the Agreement without the prior written consent of the Supplier.
30.1 The provisions contained in the Agreement 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 this agreement which shall continue to be of full force and effect.
30.2 If a court finds that any provision of this Agreement is 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.
31.1 Save as otherwise provided in the Agreement 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/Surety, that the dispute be submitted to arbitration in terms of this clause.
31.2 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 Law Society of the Northern Provinces.
31.3 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.
31.4 The arbitrator shall be entitled:-
32.4.1 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 party 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;
32.4.2 to interview and question under oath, any representative of either of the parties;
32.4.3 to decide the dispute according to what he/she considers just and equitable in the circumstances;
32.4.4 to make such award, including an award for costs, specific performance, an interdict, damages or a penalty or otherwise as he/she in his discretion deems fit and appropriate, provided that should the arbitrator fail to make an award with regard to costs, the costs shall be borne equally by the parties.
32.5 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.
32.6 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.
32.7 Any award made by the arbitrator:-
32.7.1 shall be in writing and shall include reasons therefore;
32.7.2 shall be final and binding;
32.7.3 will be carried into effect; and
32.7.4 may be made an order of any Court to whose jurisdiction the parties to the dispute are subject.
32.8 The 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.
32.9 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.
32.10 This clause shall be severable from the rest of this agreement and shall remain effective notwithstanding that this agreement shall for any reason whatsoever, be terminated.
32. CESSION OF BOOK DEBT
32.1 The Client hereby cedes 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.
32.2 The Client hereby warrants that it has:-
32.2.1 not entered into any agreement restricting or excluding the transferability of the claims that form the object of this cession;
32.2.2 has no knowledge of any counterclaims that may extinguish the claims that form the object of this cession;
32.2.3 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.
32.3 During such time as the cession which is the subject matter of the Agreement remains of force and effect, the Client agrees that it will:-
32.3.1 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;
32.3.2 make available for inspection by the Supplier or the Supplier’s authorised agent at any time during normal business hours all books of accounts, 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;
32.3.3 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.
32.4 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 at any time.
33. 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.
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. Notwithstanding the aforegoing, should the Supplier deploy Equipment without plans and drawings having been 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 48 (forty-eight) hours 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 Works subject to the complaint only but not for any other sums due to the Supplier.
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.
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 of any waste or debris removed from any pipes, sewers, vessels, pumps and/or tanks unless contracted to do so.
3. The Client shall be responsible for all costs, unless otherwise agreed in writing, associated with disposal including but not limited to costs incurred by the Supplier in travelling to the disposal site and/or any delays at disposal site.
4. The standard length of jetting hose is 120m (one hundred and twenty meters) and in the event that additional hose lengths are required the Client shall be liable for the cost thereof.
5. 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
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.
6. 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 entitled to charge for its standing time at the Prevailing Rate until masks are provided.
7. The Supplier shall be entitled to charge a 100% 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.
8. The Client shall be liable for the costs of retrieving, or replacing Equipment which becomes lodged in and during the execution of any Works.
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 accepts no responsibility to 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 damages 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 :-
5.1 the wilful, reckless, negligent act or omission of the Operator in the execution
of the Works;
5.2 the failure of the Client notwithstanding the reason therefore, to provide with plans, drawings and wayleaves as provided for in 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 unfavorable drilling conditions the Supplier reserves its right to abort any boring operations which have already commenced. In such circumstances, the provisions of clause 7 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.
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 Supplier will not be liable to the Client or any third party for any death, personal injury, loss of or damage to property suffered or sustained in transit to and from site, site preparation and de-establishment, and execution of any Works, and the Client indemnifies holds the Supplier harmless against all and any claims of whatsoever nature and howsoever arising, whether in contract, delict, enrichment or under statute law or any other law.
3. The supplier reserves the right to insist upon advance payment of the Works Contract price prior to commencement of the Works.
4. Ownership of all materials supplied remains the property of the Supplier until payment of the full purchase price has been made.
5. The Client shall ensure that the Supplier, it’s 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.
6. 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.
7. No additional labour is included in the drainage rate. Additional labour will be charged for according to site conditions at the Prevailing Rate.
TERMS AND CONDITIONS APPLICABLE TO PRIMUS LINER SERVICES:
- The maximum bend for Primus Line must not exceed 45 degree.
- The pipe to be renovated will be out of order and free from fluids when handed over to the contractor.
- There are not any vertical and/or horizontal bends within the pipeline except for those as stated in the provided plans. Furthermore, there are not any extending obstacles, branch conduits, level slices, sharp welding seams, pipe step joints amongst other things of which CCTV inspections will be required to verify this.
- The necessary diameter of the host pipe is available all along the entire section to be renovated.
- The inner surface of the pipeline is free from bitumen. A coating made from bitumen increases the pulling forces significantly.
- The excavation pits have to be 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. The pre-folded Primus Line hose has to be inserted into the host pipe with an insertion angle of maximum 10 degree. The contractor has to secure any branch and supply lines, in particular glass fibre cables. The client is further responsible for all traffic protection works.
- The contractor is responsible to disinfect and flush the renovated pipeline.
- Please be advised that Primus Line will remain a flexible pipe in all operation condition.
- The installed Primus Line© system must not have a free inflow or discharge.
- The pipe is filled with water in all operating conditions and a constant pressure level along the entire section of the pipeline is available.
- The pH value of the transported water has a minimum of 5 and a maximum of 9.
- In all operating conditions, the maximum flow rate in the Primus Line© system is 3 m/s.
- The system Primus Line© is able to work with a permanent operating temperature of 50°C.
- There has to be a minimum distance of 1.00 m between the end of one bend and the beginning of the next bend.
- Please note that this quotation is for budgetary purposes, a firm quote can be provided once all of the technical details, quantities and associated specifications have been received. CCTV to verify bends, connections or any defects in the line prior to ordering of material.
- The Client shall be liable for the costs of retrieving, or replacing Equipment which becomes lodged in and during the execution of any Works.