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Terms and Conditions
The following terms and conditions shall apply to the agreement between SHOSPEC and the CLIENT.
1 Words, when used in capital letters, shall have the meaning assigned to them in the Quotation and / or Acceptance to which these Terms and Conditions are Annexed.
2 AGREEMENT
The Agreement between SHOSPEC and the CLIENT which incorporates these terms and conditions shall be formed in following manner and these terms and conditions shall apply pending formation of the agreement:
2.1 At the request of the CLIENT SHOSPEC shall formulate a SCOPE OF WORKS and a BUDGET for the SCOPE OF WORKS.
2.2The SCOPE OF WORKS and / or BUDGET shall be deemed to form part of the
agreement as though they were annexes to the agreement and the provisions contained in such documents shall be deemed to be part of the agreement.
2.3 The SCOPE OF WORKS shall be in accordance with the CLIENT’S specifications although SHOSPEC reserves the right to differ from such specifications should the need arise (in their sole discretion).
2.4 The SCOPE OF WORKS and BUDGET shall the be submitted to the CLIENT as a quotation open for acceptance for the time period stipulated in the quotation or such longer period as SHOSPEC may allow. The quotation shall, at all times, be regarded as a best estimate of costs and shall be binding on both Parties.
2.5 Acceptance is to be made in writing in the manner specified or accepted by SHOSPEC and any additional works or costs shall be separately quoted for.
2.6 Notwithstanding any other term or condition applicable SHOSPEC reserves the right to withhold commencement of the SCOPE OF WORKS or any part thereof or to suspend work if any of its prerequisites have not been delivered and a failure to deliver the prerequisites amounts to breach. The prerequisites may include any of the following called for prior to conclusion of the agreement by SHOSPEC in its discretion and subject to its approval:
2.6.1 Client registration form,
2.6.2 Sureties and / or guarantees,
2.6.3 cash deposit,
2.6.4 Interim payment schedule,
2.6.5 Indemnities and / or waivers of preference,
2.6.6 Any other document or requirement of SHOSPEC which is called for during the process of conclusion of the Agreement.
2.7 SHOSPEC may elect to commence work without having all of its prerequisites in which case SHOSPEC shall not be prejudiced by such election and may call for any prerequisite at any stage and to suspend work until such time as the prerequisite is furnished.
2.8 Any suspension or non commencement consequent upon the failure by the CLIENT to deliver a prerequisite shall be without prejudice to SHOSPEC which shall not be liable for any consequence arising from such suspension or non commencement.
2.9 Notwithstanding the above SHOSPEC may elect to commence WORK prior to the Agreement being concluded in which case agreement shall be tacitly concluded and such of these terms and conditions (which are several from each other) which can apply shall apply.
3 CONTRACT VALUE AND PAYMENT
3.1 The QUOTATION shall contain the best estimate of the pricing for the SCOPE OF WORKS and, upon acceptance by the CLIENT, shall form the CONTRACT SUM.
3.2 SHOSPEC may alter the CONTRACT SUM in a confirmation notice, such alteration to reflect any change in supply (including labour) costs between the date of QUOTATION and the date of acceptance. The CONTRACT SUM will also be varied to take into account any changes requested by the CLIENT. The varied CONTRACT SUM if accepted by the CLIENT shall be the CONTRACT VALUE.
3.3 The CONTRACT VALUE may be apportioned in the documentation to represent a value per component of the SCOPE OF WORKS. Notwithstanding such apportionment the CONTRACT VALUE shall form a single amount in respect of the CONTRACT as a whole and the CLIENT shall not be entitled to refuse payment on the grounds that the element of the work to which payment has been apportioned has not been done or was done differently. The CONTRACT VALUE will be payable once the CONTRACT is completed as provided for herein.
3.4 Notwithstanding the previous provision where an element of the SCOPE OF WORKS has been quoted on a cost per unit basis then the CONTRACT VALUE will be varied according to any variation in the number of units actually supplied.
3.5 All amounts referred to shall be exclusive of VAT which shall be charged by SHOSPEC in addition to the CONTRACT VALUE amounts. It is the CLIENT’S responsibility to supply SHOSPEC with a valid VAT number should the CLIENT be VAT registered.
3.6 Payment is to be made on presentation of invoice and a statement generated by SHOSPEC shall be prima facie evidence of indebtedness.
3.7 Where interim payments (including a deposit) have been provided for, interim payments shall be made strictly in accordance with the payment schedule.
3.8 A failure to effect timeous and / or full payment of any amount owing shall be a material breach and grounds for cancellation.
3.9 In addition to and without prejudice to any other remedy provided for herein or in law, SHOSPEC shall be entitled to charge interest on any overdue amount from date of default until date of full payment, both days inclusive. Interest shall be capitalised monthly and shall be charged at the prime lending rate of the Standard Bank of South Africa from time to time plus two percent.
4 CLIENT AS AGENT
In the event of the CLIENT being the representative of the owner of the property (i.e. a person other than the person for whom the work is ultimately done) on which the WORKS are to be effected the following shall apply:
4.1 The CLIENT shall be presumed to be the agent of the owner and to have the necessary consents and / or authority to order the WORK done.
4.2 Notwithstanding such agency all obligations imposed on the CLIENT in terms hereof shall remain the enforceable against the CLIENT who shall be jointly and severally liable as co-principal debtor.
4.3 SHOSPEC shall nonetheless be entitled to require, as a prerequisite (as contemplated above), a surety from the owner and / or poof of authority.
5 COMPLETION AND WORKMANSHIP
5.1 All materials utilised shall be sourced from reputable sources. However as materials are supplied by third parties SHOSPEC is unable to guarantee any materials which are supplied and used at the CLIENT’S risk. Under no circumstances will SHOSPEC be liable for any latent defect in any materials used.
5.2 Under no circumstances shall SHOSPEC be liable for any defective workmanship or materials supplied by a third party not contracted to itself nor shall it be liable for any consequences arising from such defect.
5.3 All work undertaken by SHOSPEC shall be undertaken by workers to the applicable standard reasonably acceptable within the industry.
5.4 On substantial completion of the WORKS (excluding minor finishing work and any ‘snagging’) the WORK shall be deemed complete for purposes of invoicing.
5.5 All snagging is to be identified by the CLIENT on the date on which they are advised that the substantial completion has occurred or within five days of such date. SHOSPEC shall then attend to any further work which may be required with a view to completing the WORKS as soon thereafter as possible. SHOSPEC shall then sign off that the work is completed.
5.6 Pending transfer of risk and benefit the CLIENT shall be responsible for safeguarding the WORK and ensuring that the property of SHOSPEC is not tampered with and indemnifies SHOSPEC against any loss which SHOSPEC may suffer as a consequence of a failure of his undertaking.
5.7 On the date of signing off all risk in and benefit to the WORKS shall pass to the CLIENT irrespective of whether or not the CLIENT disputes that the WORKS are completed.
5.8 The CLIENT shall not be entitled to a retention amount unless this is recorded in a payment schedule.
5.9 Should there be any dispute as to whether or not the WORKS are satisfactorily completed then the dispute shall be referred to an architect (for matters relating primarily to quality and / or finish) or to a quantity surveyor (for matters relating primarily to quantities and or costings) as an expert appointed to determine the dispute.
5.9.1 The determination of the expert shall, in the absence of manifest error, be final and binding
5.9.2 The determination shall be made by the expert in a fair ad impartial manner determined by the expert.
5.9.3 The expert shall be appointed by agreement between the Parties and failing agreement the Party declaring the dispute shall nominate three possible experts and the other party shall choose one.
5.9.4 The expert may claim his or her costs from the unsuccessful party.
6 ESTIMATE OF DAMAGES
6.1 In the event of any claim for damages by SHOSPEC arising from this agreement then the balance of the CONTRACT VALUE shall be regarded as a reasonable pre-estimate of damages and the SHOSPEC shall be entitled to retain so much of the CONTRACT VALUE as is held by SHOSPEC and to claim the balance in addition to any other provable damages.
6.2 Where payment is to be effected in terms of a payment schedule a failure to make any one payment timeously or in full then, in addition to any other remedy provided for by law or in terms hereof, the full CONTRACT VALUE shall become due, owing and payable on presentation of invoice or in terms of the preceding sub-clause and the payment schedule shall no longer be binding upon SHOSPEC.
6.3 The CLIENT shall be responsible for locating and identifying all hidden cabling (e.g. gas,electricity, water pipes, telecom lines and similar) and SHOSPEC shall not be liable for any damages resulting to such hidden cabling not accurately identified and the client shall and hereby does indemnify SHOSPEC against any damages or consequences arising.
6.4 SHOSPEC shall not be liable under any circumstances whatsoever for any consequential damages, including downtime, suffered by the CLIENT or any third party.
6.5 The CLIENT shall be responsible for providing sufficient contract insurance for the WORKS and shall make SHOSPEC aware of any material provisions of such insurance should it wish SHOSPEC to adhere to such provisions. These provision shall not unreasonably impair SHOSPEC’S ability to fulfill the CONTRACT timeously,
7 THIRD PARTY SERVICE
7.1 Where a third party is to provide any element of the WORK at the instance of the CLIENT then SHOSPEC shall not be liable for any consequences arising from the performance or non performance by such third party of their duties.
7.2 The CLIENT shall be responsible for ensuring that there is adequate public liability insurance for any work done by SHOSPEC on property belonging to a third party and shall indemnify SHOSPEC against any public liability claims arising during the course of the WORKS.
8 VIS MAJEURE
8.1 Notwithstanding anything to the contrary contained in this agreement, neither of the PARTIES shall be liable to the other for any failure by such PARTY to fulfill any of the provisions of this agreement, if such failure was caused by reason of any force majeure or matter or cause beyond the reasonable control of such PARTY, including but not limited to: power supply problems, adverse weather conditions including drought, storm and flood, pestilence, strikes or civil disorder, war, labour unrest or disputes, orders or actions of government or any other competent authority, and in such event the relevant PARTY shall be excused from fulfillment of its obligations in terms hereof for the period during which it was so prevented for the reasons given above from performing its obligations.
8.2 This limitation is subject to the proviso that the failure of a PARTY to carry out its obligations as a result of a lack of funds shall not constitute an event of force majeure and provided further that the performance of the obligations of such PARTY in terms of this agreement shall be resumed by such PARTY as soon as may be reasonably practicable after the disability or cause has ceased.
9 RESERVATION OF OWNERSHIP
9.1 Notwithstanding any other provisions of these terms or conditions and irrespective of any subsequent waiver of builder’s lien is or any other waiver SHOSPEC reserves the right of full ownership of any materials supplied and fitted until such time as the full CONTRACT VALUE has been received.
9.2 SHOSPEC reserves the right to remove such materials in the event of non-payment or other unremedied breach of this agreement and to approach a court of competent jurisdiction for an order to do so should it not be possible to do so otherwise.
9.3 The client hereby indemnifies SHOSPEC against the consequences of any such removal and waives any claim it may have against SHOSPEC arising therefrom.
10 BREACH and NOTICES
10.1 Breach shall occur where a PARTY fails to fulfill any obligation imposed on it by a provision of this agreement and includes a failure to pay any amount required, either at all or in full, by the due date.
10.2 Where Breach occurs the aggrieved PARTY shall give the defaulting PARTY seven (7) days written notice to remedy the breach. Failing full remedy of the breach within this time period the aggrieved PARTY may, without further notice or formality:
10.2.1 cancel this agreement forthwith and claim and recover from the defaulting PARTY such damages as the aggrieved PARTY shall have sustained in consequence of such default, breach and/or cancellation; orinstitute action for:
10.2.1.1 specific performance of the provisions of this agreement, and / or
10.2.1.2 damages.
10.3 Where a PARTY commits a breach and then remedies such breach after receiving written notice and then commits a second breach (not necessarily the same breach as previously) within two months of the first and again remedies such breach after receiving written notice but before the aggrieved PARTY takes further action then the aggrieved PARTY may, despite such remedying of the breach and without further notice or formality, cancel this agreement forthwith and claim and recover from the defaulting PARTY such damages as the aggrieved party shall have sustained in consequence of such default, breach and/or cancellation.
10.4 Any remedy sought in terms of these provisions shall be in addition to and without prejudice to any other remedy available elsewhere in terms of this agreement or by operation of law.
10.5 The ADDRESSES given are the chosen Domicilia of the parties for the service of all notices (including processes).
10.6 A party may at any time change that party's domicilium by notice in writing, provided that the new domicilium is in the Republic of South Africa.
10.7 Any notice given to any party in connection with this agreement shall -
10.7.1 be sent by prepaid registered post to the postal address defined for such party and shall be deemed to have been received seven days after posting; or
10.7.2 be delivered by hand, during normal business hours, to the physical address defined for such party and shall deemed to have been received on the date of delivery; or
10.7.3 be sent by email or facsimile transmission to the address or number provided and shall be deemed to have been received on the first business day following transmission unless sent via the Internet in which case no assumption of delivery may be made.
11 ENTIRE CONTRACT
The agreement between the Parties constitutes the entire record of the contract between the Parties.
12 VARIATION AND CANCELLATION
No agreement varying, adding to, deleting from or cancelling this agreement, shall be effective unless reduced to writing and signed by or on behalf of the parties.
13 INDULGENCES
No latitude, indulgence or extension of time may be allowed or granted by either party to the other in respect of any obligation which any party is bound to perform or observe in terms of this agreement shall be deemed to constitute a waiver or novation of any of the rights of the party granting the indulgence which party shall not thereby be precluded from exercising against the other party any rights which may have arisen in the past or which might arise in the future under this agreement or from requiring strict and punctual compliance by the other party with each and every provision of this agreement.
14 INDUCEMENT TO CONTRACT
No party has been induced into entering into this agreement by virtue of any representation or warranty made or given that is not recorded herein and any warranty or representation shall only be binding if recorded herein.