The following terms and conditions shall apply to the agreement between SHOSPEC and the CLIENT.

  1. DEFINITIONS
    In this agreement, unless a contrary intention clearly appears:

    1. words importing:
      1. any one gender include the other two genders;
      2. the singular include the plural and vice versa; and
      3. natural persons include created entities (corporate or non-incorporate) and vice versa;
    2. the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:
      1. “Contract documents” means this agreement (quotation and terms and conditions), any drawings, the client registration form and any other documents annexed to these terms and conditions;
      2. “SHOSPEC” means Shospec (Pty) Ltd;
      3. “Contract sum” means the amount specified in the quotation to carry out the WORKS;
      4. “CLIENT” means the person, partnership, company, close corporation, community body or other legal body so defined in the quotation;
      5. “Final completion” means the completion of all work in this contract including any snagging;
      6. “Practical completion” means that stage of completion when the WORKS are completed sufficiently for it to be properly used for the purpose for which it was constructed;
      7. “Site” means the place where the WORKS are to be constructed;
      8. “Specialist builders” means those builders/third parties, other than SHOSPEC, who are paid directly by the CLIENT to do work on the site which does not form part of this agreement;
      9. “Variations” means any written changes to the WORKS as agreed and signed off by both SHOSPEC and the CLIENT;
      10. “WORKS” means the construction work which is to be done by SHOSPEC in terms of this contract and as set out in the contract documents.
  2. AGREEMENT
    Upon written acceptance of the above quotation, the parties hereto will be deemed to have concluded an agreement upon the terms and conditions set out herein.
  3. PAYMENT
    1. Payment of the contract sum is to be made by the CLIENT to SHOSPEC on presentation of SHOSPEC’s invoice and in accordance with the payment terms stated on the quotation.
    2. In the event that the quotation provides for a deposit and/or interim progress payments, such payments are to be made strictly in accordance with the time frames provided in the quotation. In the event of any one payment not being timeously made, then in such event the full contract sum will immediately become due owing and payable.
    3. In the event of any payment being made later than provided for herein, then CLIENT shall be liable to pay interest on any overdue amounts at the prime lending rate from time to time as charged by Standard Bank of South Africa Limited, such interest to be capitalised monthly in arrears.
  4. SHOSPEC’S OBLIGATIONS
    SHOSPEC shall:

    1. On acceptance of the quotation, commence building the WORKS on the date when possession of the site is given to it, provided however that the CLIENT has fully complied with all the prerequisites as per clause 6.1;
    2. carry out the WORKS in accordance with the agreement and the reasonable accepted standards of the industry;
    3. Comply with all applicable statutory provisions and local authority requirements;
    4. Insure its employees against death or injury arising out of the execution of the WORKS;
    5. Comply with all Variations.
  5. CLIENT’S OBLIGATIONS The CLIENT shall:
    1. Insure the WORKS and materials on site against any and all loss including loss by fire, explosion, earthquake and for public liability and riot with a registered insurer and furthermore make SHOSPEC aware of any material provisions of such insurance should it require SHOSPEC to adhere to same;
    2. Hand over the site to SHOSPEC on the agreed date of possession and point out all and any boundary pegs and hidden cabling (including gas, electricity and water pipes, telecom lines and the like). In this regard the CLIENT indemnifies SHOSPEC and holds it harmless for any damage caused as a result of not accurately pointing out such boundary pegs and/or cabling;
    3. Make payment to SHOSPEC for the WORKS as set out herein;
    4. Take possession of the WORKS when the WORKS have been completed by SHOSPEC as set out in clause 6 below.
  6. COMMENCEMENT, COMPLETION AND WORKMANSHIP
    1. Notwithstanding any other term or condition contained herein, SHOSPEC reserves the right to withhold commencement of the 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:
      1. Client registration form,
      2. Sureties and / or guarantees,
      3. Cash deposit,
      4. Interim payment schedule,
      5. Indemnities and / or waivers of preference,
      6. Any other document or requirement of SHOSPEC which is called for during the process of conclusion of the Agreement.
    2. Practical completion of the work shall be determined solely by SHOSPEC who shall, after having inspected the WORKS, certify that practical completion has occurred. At this point SHOSPEC shall be entitled to present CLIENT with its final invoice.
    3. Any snagging is to be identified by the CLIENT within 5 (FIVE) days of having been advised by SHOSPEC of practical completion. On completion of any snagging work, SHOSPEC will then certify in writing that final completion has occurred.
    4. All risk and benefit in and to the WORKS shall pass to the CLIENT on the date of final completion as certified by SHOSPEC.
    5. 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. In this regard:
      1. The determination of the expert shall, in the absence of a manifest error, be final and binding
      2. The determination shall be made by the expert in a fair and impartial manner.
      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 failing which the party declaring the dispute can solely appoint the expert.
      4. The expert may claim his or her costs from the unsuccessful party.
  7. RESERVATION OF OWNERSHIP
    1. Notwithstanding any other provisions contained herein and irrespective of any subsequent waiver of its lien or any other waiver, SHOSPEC reserves the right of full ownership of any materials supplied and fitted until such time as the full contract sum has been received.
    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.
    3. The CLIENT hereby indemnifies SHOSPEC against the consequences of any such removal and waives any claim it may have against SHOSPEC arising therefrom.
  8. VIS MAJEURE
    1. Notwithstanding anything to the contrary contained herein, neither of the parties shall be liable to the other for any failure by such party to fulfil 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 fulfilment of its obligations in terms hereof for the period during which it was so prevented for the reasons given above from performing its obligations.
    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. SPECIALIST WORK AND MATERIALS
    1. The CLIENT may directly employ other specialist builders to do work on site whilst the WORKS are in progress. SHOSPEC shall allow, where practically possible, such specialist builders to do their work as and when needed and shall make available, again where practically possible, all facilities to enable such work to be properly done to the satisfaction of the CLIENT.
    2. Under no circumstances shall SHOSPEC be liable for any defective workmanship or materials supplied by a specialist builder not contracted to itself nor shall it be liable for any consequences arising from such defect.
    3. 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.
    4. Notwithstanding the fact that all materials utilised by SHOSPEC are sourced from reputable sources, SHOSPEC is unable to guarantee any materials which are supplied. Under no circumstances will SHOSPEC be liable for any latent defects in any materials used.
  10. BREACH and NOTICES
    1. Breach shall occur where a PARTY fails to fulfil any obligation imposed on it by a provision of this agreement, including a failure to pay any amount required either at all or in full by the due date.
    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:
      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; or institute action for:
        1. specific performance of the provisions of this agreement, and / or
        2. damages.
    3. 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 CONTRACT VALUE as is held by SHOSPEC and to claim the balance in addition to any other provable damages.
    4. 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 breach 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.
    5. 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.
    6. The ADDRESSES set out in the quotation are the chosen Domicilia of the parties for the service of all notices (including processes) herein.
    7. 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.
    8. Any notice given to any party in connection with this agreement shall –
      1. be sent by prepaid registered post to the postal address defined for such party and shall be deemed to have been received FOUR days after posting; or
      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
      3. be sent by email or facsimile transmission during normal business hours to the address or number provided and shall be deemed to have been received on the day of transmission.
  11. 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:

    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.
    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.
    3. SHOSPEC shall nonetheless be entitled to require, as a prerequisite (as contemplated above), a surety from the owner and / or proof of authority.
  12. SURETYSHIP
    By my signature above in accepting the quote I hereby bind myself as surety and co-principal debtor, jointly and severally for and with The CLIENT for the due and punctual performance by the CLIENT of all its obligations to SHOSPEC whether presently due, owing and payable or becoming due, owing and payable in the future.
    I further renounce the benefits of:

    1. Beneficum novae constitutionis de duobus vel pluribus reis debendi (being the benefit by which two or more principal debtors can claim release from the debt on paying their respective share of the debt only); and
    2. Non Causa Debiti (whereby it may be claimed that there is no cause of debt); and
    3. Non Numeratae pecuniae (whereby it may be claimed that no money has been paid to the debtor).
      and confirm having understood the effect of renouncing these benefits.

      I further choose as my domicilum citandi et executandi for all purposes herein, the addresses of THE CLIENT as reflected above.

  13. ENTIRE AGREEMENT AND VARIATIONS
    1. This agreement constitutes the whole agreement between the parties and supersedes all prior verbal or written agreements or understandings or representations by or between the parties regarding the subject matter of this agreement, and the parties will not be entitled to rely, in any dispute regarding this agreement, on any terms, conditions or representations not expressly contained in this agreement.
    2. No variation of or addition to this agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the parties.
    3. Neither party to this agreement has given any warranty or made any representation to the other party, other than any warranty or representation which may be expressly set out in this agreement.