SHELTON DRAINAGE SOLUTIONS AND BOREHOLE DRILLING OPERATIONS
TERMS & CONDITIONS
TERMS AND CONDITIONS OF DRAINAGE
1. General and Interpretation
(a) Words and phrases used in these terms and conditions shall bear the meaning given to them on the Quotation and Acceptance attached hereto. In addition, Specification and Estimate shall mean the specification and estimate specified on the Quotation and Acceptance attached hereto.
(b) Upon signature by the Customer on the Quotation and Acceptance attached hereto a binding contract comes into existence on the terms and conditions contained herein. No addition to or variation in the contract shall be binding unless agreed in writing by the Contractor.
(c) Unless the context indicates otherwise:
(1) reference to any gender shall be deemed to include the other genders;
(2) reference to the singular shall be deemed to include the plural and vice versa.
2. Contractors Obligation
The contractor shall, subject to these terms and conditions carry out the Work in accordance with the Specifications and in a prompt and efficient manner.
3. Commencement of Work
Unless a specific date or period for commencement of work has been agreed between the parties the Contractor shall commence work as soon as he finds it practicable for him to do so.
The Customer shall make all arrangements reasonably required by the Contractor and without charge to enable the Contractor to commence work timeously and on arrival of workmen and/or equipment and/or materials.
(a) The Customer shall pay the balance of the price of the Work, within thirty days after final invoice (the due date) (to be delivered upon or following notification by the Contractor to the Customer that the Work has been completed). The Work will be invoiced according to the quantity of materials supplied and the work done on the basis of the rates stated in the Estimate.
(b) The Contractor shall be entitled to charge interest at the rate of five per cent per annum above the prime overdraft rate charged by the Contractors bankers for the time being from time to time upon any moneys remaining unpaid on the due date for payment until the date of actual payment and the customer by his signature on the Quotation and Acceptance attached hereto hereby agrees to pay such interest. The prime rate will be as certified by a General Manager of the Bank whose appointment it shall not be necessary to prove.
(c) The Contractor reserves the right to revise the rates stated in the Estimate consequent upon any increase in the cost of materials, goods, services, transport or other unforeseen contingencies.
(d) The rates stated in the Estimate are exclusive of value added tax, unless stated to the contrary. Where applicable, value added tax will be charged at the rate ruling at the time of delivery.
(e) No cash or trade discounts will be allowed.
(f) The said rates are based on the assumption that the soil and site conditions are as notified to the Contractor before the date of the Estimate. If the Contractor encounters any rock or running sand, or the like or other injurious material or obstruction which has not been so notified, then the said rates may be varied by such amount as is reasonable to take account of any increase in the costs incurred by the Contractor in carrying out the Work.
5. Cartage of pipes and porous filling
The Contractor undertakes to direct and deliver all materials supplied by him to such point as he considers convenient to best enable him to carry out the Work.
6. Suspension of Work
The Contractor shall be entitled to suspend work in carrying out the Work until payment in full is made of the price for the Work calculated in accordance with the Estimate or (at his discretion) to terminate this Contract forthwith upon written notice to the Customer in any of the following events:
(i) the customers failure to comply with his obligations hereunder;
(ii) the Customer committing any act of insolvency as defined in the law relating for the time being to insolvency;
(iii) the Customer being a natural person, dies or being a private company, sustains a change of shareholding;
(iv) the Customer is provisionally or finally liquidated or sequestrated or placed under judicial management or a resolution being passed for its winding up;
(v) a judgement being entered against the Customer and such judgement remaining unsatisfied in whole or in part for a period of seven days;
(vi) a receiver being appointed in relation to the Customers affairs;
(vii) the Customer making or attempting to make any composition with his creditors. Any such suspension or termination shall be without prejudice to any other rights which the Contractor may have in law including but not limited to any claim for payment or otherwise that the Contractor may have hereunder.
Upon termination as aforesaid the Contractor shall be entitled to payment in full at the rates specified in the Estimate in respect of work done and materials supplied up to the date thereof or (as the case may be) a fair and reasonable proportion of the price stated in the Estimate in respect of all work done and materials supplied up to the date thereof.
7. Customers Undertaking
The Customer undertakes to take all reasonable precautions for the protection of the public, livestock and machinery during the execution of the Work and to complete at his cost any fencing required whether for safety or other purposes.
8. Warranty as to workmanship and materials
The Contractor hereby warrants, for the periods mentioned in sub-clauses
(i) and (ii) hereof, that the standards of workmanship involved in the performance of the contract and fitness of materials supplied by the Contractor for use in performance of the contract shall be of no less quality than that laid down by the South African Bureau of Standards (SABS 1200 series of specifications) for general standards of workmanship as issued from time to time.
Any failure by the Contractor to conform to such standards of workmanship as aforesaid or any failure by the Contractor to supply materials of such fitness as aforesaid which appears:
(i) in the case of pipelaying within a period of one (1) years from the date of invoice;
(ii) in the case of ditching within a period of ninety (90) days from the date of invoice; shall forthwith be remedied and made good by the Contractor at his own expense, using no less quality of workmanship and materials as aforesaid. When a complaint regarding workmanship, materials or efficiency of the work has been received, should any investigational work reveal that the Contractors work is good and materials satisfactory, then the costs of such investigation shall be borne by the Customer.
When clearing pipes blocked by material deposited naturally (such as ochre or sand etc), or materials deposited due to poor outfall conditions beyond the Contractors control or by root growth, the costs of such work shall be the responsibility of the Customer.
If this contract or any part of it shall become impossible of performance or otherwise frustrated the Contractor shall be entitled to payment in full at the rates specified in the Estimate in respect of work done and materials supplied up to the date on which frustration occurs or (as the case may be) a fair and reasonable proportion of the price stated in the Estimate in respect of all work done and materials supplied up to the date thereof.
10. Limitation of liability
(a) The Contractor shall carry out the Work with reasonable care and skill and within a reasonable time. Save as provided in clause 8 above, all other warranties, terms and conditions implied by common law, statute, trade usage or otherwise shall be excluded save insofar as such exclusion is made void or prohibited by law;
(b) If the Customer considers that the Work does not comply with the Specification he will forthwith and in any event within fourteen days after presentation of final invoice following completion of the Work give notice in writing to the Contractor of the alleged defect, whereupon the Contractor shall undertake to examine the same and if such examination reveals any failure to comply with the Specification shall repair or make good the relevant defect;
(c) If the Customer considers that the Work does not comply with the warranties hereinbefore contained or with any other warranty, term or condition implied by law exclusion of which is made void or prohibited by law he will forthwith and in any event within seven days after the alleged defect has come to his attention give notice in writing to the Contractor of the alleged defect, whereupon the Contractor shall undertake to examine the same and if such examination reveals any failure to comply with the said warranties, terms or conditions shall repair or make good the relevant defect;
(d) Save as otherwise provided in clause 8 above the warranties, terms and conditions herein contained shall only be operative for a period of twelve months after the Contractor has notified the Customer in writing that the Work has been completed and thereafter the Contractor shall be under no liability whatsoever to the Customer.
(e) The Contractor shall not be liable for any consequential loss whatsoever (including but not limited to crop loss and the loss of profits) which may be suffered by the Customer by reason of any act, omission or default on the Contractor,s part
(f) Save insofar as the relevant damage or defect is caused by the Contractor or its employees the Contractor shall accept no liability whatsoever in the following cases (without derogation from the generality of the aforegoing):
(i) defects or damage caused by negligence of the Customer;
(ii) defects or damage caused by circumstances beyond the control of the Contractor;
(iii) damage caused to cables, water, gas, electric mains or sewers, or any other underground services, the existence and location and depth of which has not been disclosed to the Contractor at least seven days prior to commencement of the Work;
(iv) subsidence, heave, flooding or water pollution;
(v) damage caused by the spreading of soil on land adjacent to trenches and/or ditches;
(vi) damage or injury to livestock;
(vii) damage caused to crops arising out of the execution of the Work;
(viii) damage resulting from lopping or failing of trees and/or hedgerows for access of machinery;
(ix) the failure of the drainage scheme, when completed, to provide any or any adequate drainage where such failure is attributable wholly or mainly to the design upon the basis of which the Work was carried out, unless the design was that of the Contractor or his employee in which case the Contractor shall not be exempted from liability except where the scheme has been designed with the special aim of keeping costs as low as possible and the Customer has been warned in writing, before entering into this contract, that the scheme might prove inadequate for his purposes;
(x) ditches slumping due to flooding or other cause beyond the control of the Contractor;
(xi) subsidence of pipe systems due to land subsidence caused by underground workings or by heave due to clay swelling or drying;
(g) the Contractor is under no obligation to arrange insurance cover of whatsoever nature; if expressly requested in writing the Contractor shall seek to arrange at the Customers expense insurance cover for such risks or losses as the Customer shall request;
(h) Work may be suspended in the event of any strike, lockout, trade dispute, fire, tempest, flood, bad weather, breakdown (save where caused by the Contractors negligence), accident, riot, theft, crime, civil disturbance, war, force majeure or other occurrence impeding or retarding the execution of the Contractors obligations and no responsibility shall attach to either party for any loss or damage, default or delay in carrying out any obligation under this contract (other than the payment of monies due) due to any causes beyond that party’s reasonable control. In the event of suspension of the contract for any reason the Contractor shall be entitled to complete the contract after the cause of the suspension has been removed.
(a) The Customer shall indemnify the Contractor against all liability, loss damage or cost incurred by the Contractor by reason of:
(i) any act of omission occurring in the course of the execution of the Work or the Contractors compliance with its obligations hereunder insofar as such liability, loss, damage or cost has been caused by the negligence or fault of the Customer or his officers, employees or agents, and/or
(ii) any claim made by any third party against the Contractor in the course of or arising from the execution of the Work or any act or omission occurring in the course of the Contractors compliance with its obligations hereunder.
(b) The Customer shall take out at his expense such policy of insurance as may be sufficient and reasonably practicable to cover against the risk of liability under this clause and will permit the Contractor on request to inspect the policy taken out. If the Customer is unable to obtain adequate insurance cover, he shall notify the Contractor accordingly.
(a) If any provision of the contract shall be determined to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect the validity and enforceability of the remaining provisions of the contract, which shall be construed as if such illegal, invalid or unenforceable provision had not been inserted;
(b) any notice required or authorised to be given under this contract my be sent by pre-paid registered mail to the recipient at his address on the Quotation and Acceptance attached hereto or such other address as he may have notified in writing to the sender and the parties further accept domicilium citandi et executandi at their respective addresses aforesaid. A any notice so given shall be deemed to have been delivered three (3) days after posting;
(c) The headings to these terms and conditions are for convenience only and shall have no effect on the interpretation thereof;
(d) No indulgence shown by the Contractor to the Customer shall prejudice the Contractors rights or be a novation of this agreement;
(e) If more than one Customer signs this contract the signatories shall be jointly and severally and in solidum liable for all the Customers obligations hereunder;
13. Settlement of disputes
Any dispute arising from or in connection with this contract shall be referred at the request of either party to the decision of a single arbitrator to be agreed upon between the parties or failing their agreement to be nominated by the chairman for the time being of the Local Lawn Turf Association or such representative body and the determination of such arbitrator shall be final and binding on the parties.