1. General
1.1. These terms and conditions constitute the conditions upon which Astra Contracting (Pty) Ltd and its agents (the “Supplier”) is to supply the Works and Services (the “Services”) specified in the quotation, proposal, or work order, (respectively, the “Work Order”) to the customer named in that Work Order (the “Customer”).
1.2. No variation, amendment or addition to these conditions shall be binding on either party unless agreed in writing between a director of the Supplier and the Customer.
1.3. No forbearance or delay by either party in or before enforcing these terms shall prejudice its rights. No waiver of any right or breach of these terms shall be effective unless in writing and signed by the party making the waiver and any such waiver shall not be construed as a waiver of any other right or breach.
1.4. Unless otherwise agreed to in writing by the parties, the terms and conditions contained herein will supersede all prior representations and agreements.
1.5. It is understood that the Engagement Letter sets out the entire agreement and understanding between the parties relating to the provision of the Services.
2. Definitions
2.1. “Customer” shall mean any person, firm, corporation or Local Government Entity to whom the Supplier provides the Services to.
2.2. “Confidential Information” shall mean information confidential and/ proprietary in nature, including but not limited to, trade, financial, sales, contractual, technology and management secrets, special marketing information, ideas, know-how, technical data, product or process specifications, exclusivity arrangements, designs, formulations, computer programs and concepts originated by the disclosing party, not previously published or otherwise disclosed to the general public, not previously available to the receiving party without restriction, not normally furnished to others without compensation, and which the disclosing party desires to protect against unrestricted disclosure or competitive use, and which is furnished in writing pursuant to the rendering of the Services. No variation, amendment or addition to these conditions shall be binding on either party unless agreed in writing between a director of Supplier and the Customer.
2.3. “Deliverables” shall mean general building works, household repairs, Renovation, Shop fitting, Painting, Tiling / flooring, General Maintenance, Basic Plumbing and construction.
2.4. “Intellectual Property” shall mean all current and future intellectual property rights of whatever nature in relation to or attaching to the Services, including, but not limited to, all vested, contingent and future patents, copyrights, designs, inventions, processes, know-how or techniques, trademarks, service marks and other rights of a similar character, whether or not the same are registered or capable of registration and/or reconstruction.
2.5. 2.6. “Parties” shall mean the Supplier and the Customer. “the Supplier” shall mean Astra Contracting (Pty) Ltd and its agents, the Service Provider for rendering of the Services.
2.7. “Services” shall mean general building works, household repairs, Renovation, Shop fitting, Painting, Tiling / flooring, General Maintenance, Basic Plumbing and construction as rendered by the Supplier and its agents.
3. Customer’s Obligations
3.1. The Customer shall be obliged to provide, in a timely manner, or by any dates set out in a project plan or schedule, access, any information, documentation, feedback and assistance required by the Supplier in providing the Services. If the Customer fails to do so, the Supplier shall be entitled to, inter alia, vary and/or postpone any dates and timelines agreed to by the parties for the completion of any Deliverable and it shall be entitled to all additional charges and costs necessary as a result of the delay and/or increased costs to comply with its obligations.
4. Fees and Payment
4.1. 4.2. The price quoted is an estimate based on the information available at the time and no fixed cost is implied or offered. The final costs will be determined on the provision of accurate time records at the agreed rates. The Supplier reserves the right to amend any quoted amounts
in the event of:
4.2.1. An increase from a Manufacturer and/or Service Provider;
4.2.2. Delays caused by the Customer, which results in the Supplier incurring additional costs;
4.2.3. Changes requested by the Customer, which are not agreed to in the Engagement Letter;
4.2.4. 4.2.5. Increase in charges by a Third Party; and Exchange rate fluctuations from date of quotation and/
or Proposal until date of delivery.
4.3The fees payable by the Customer to the Supplier in respect of the Services, unless stated otherwise, shall be exclusive of:
4.3.1. any other taxes and duties which are levied or charged by any revenue authority (including the South African Revenue Services), all of which shall be for the account of the Customer;
4.3.2. Subsistence, Travel and Accommodation Fees (if applicable). Payment of the Fee and any expenses shall be due and made (without any deduction by way of set-off or otherwise) on the dates specified in the Engagement Letter and/schedule or, if no such date is specified, within 7 days after presentation of invoice and the Supplier hereby reserves the right to charge interest at the rate of prime plus 4 per cent per annum on sums outstanding from the due date until payment. The Supplier also reserves the right to suspend the provision of Services pending receipt of all outstanding Fees.
4.5 All quotations and/or proposals supplied by the Supplier are valid for a period of 30 days.
4.6 Any failure by the Customer to make any payment on due date shall entitle the Supplier, inter alia, to refuse to execute any of the Services to the Customer, to refuse to take any further steps to completing the Services and/or Deliverables, to immediately suspend the provision of any and/or all Services and/or deliverables until such time as all arrears have been paid in full, including any interest due.
4.7 The Supplier shall further be entitled to require the Customer to make payments in advance thereafter for any further Services to be rendered.
4.8. The Customer is not entitled to withhold payment or make any deduction from any undisputed amount due to the Supplier for Services in respect of any set off or counterclaim.
4.9 The Customer hereby agrees and acknowledges that the certain Deliverable may be based on a quote from a Third Party and the Supplier shall not be bound by the Engagement Letter if any Third Party fails to provide any Services as promised or agreed.
4.10 The Supplier shall remain the sole owner of the Deliverables, until such time as the Supplier receives payment in full from the Customer, including any additional costs and taxes levied in terms hereof.
5. Confidentiality and Intellectual Property Rights
5.1. The parties undertake that they shall at all times keep confidential and shall not use or disclose any information provided to them by the other party in connection with the Services save as may be necessary for the proper performance of the Services or as may be required by law or any regulatory authority. Supplier may refer to the provision and general nature of the Services in its promotional and other material.
5.2. Subject to clause 5.1, Supplier shall not be prevented from marketing or using any skills, tools or techniques learned during performing the Services.
5.3. The Customer undertakes that during and for the period of one year after any period during which any employee or contractor of Supplier is engaged in the provision of the Services or any other services to the Customer, the Customer shall not solicit, induce or entice any such employee to leave the service or employment of Supplier.
5.4. In the event of such solicitation, supplier shall be entitled to claim damages to the value of the Services plus damages for the employee in question at the contracted rates.
5.5. If in the course of the Services any Third-party Intellectual Property is provided by one party (the “Provider”) to the other party (the “Recipient”) the Provider warrants that it has obtained for itself and for the Recipient all necessary consents, approvals and licenses for such provision of the same to the Recipient for the purposes of the Services.
6. Limitation of Liability
6.1. The Supplier will be under no liability whatsoever to the Customer or any third party for any loss, injury or damage (including consequential loss, injury or damage) suffered or caused as a result of or arising out of any act or omission (whether negligent or otherwise) by the Supplier, its employees, its affiliates, or agents or any other person in any way related.
6.2. Without admitting any fault or wrongdoing on the part of the Supplier, the Supplier’s liability in respect of the supply of the Services shall be limited to carrying out further Services to correct any Services supplied, or at Supplier’s option, to paying a refund of the fee paid up to a maximum of 50% of the total value of the quotation.
7. Limited Warranty
7.1. Supplier warrants that:
7.1.1. The Services performed under these terms and conditions shall be performed in a good and workmanlike manner; and
7.1.2. It shall not knowingly infringe any law, regulation, copyright or design.
7.2 Save as set out in clauses 7.1 and 7.2 (including sub clauses), all warranties, representations and guarantees relating to the Services and Deliverables and any other matter relating to these terms and conditions, including merchantability and fitness for purpose, and whether express or implied by statute, common law usage, or otherwise, are expressly excluded to the maximum extent permitted by law.
8. Breach
8.1. Should the Customer breach any essential provision of these
terms and conditions (irrespective of the materiality of such
breach or provision) and fail to remedy such breach within
Seven (7) days after receiving written notice requiring such
remedy from the Customer; then
8.1.1. The Supplier shall be entitled, without prejudice to its
other rights in law, to immediately terminate the
services, cancel the agreement, including the right to
claim damages, claim payment for all amounts
outstanding or to claim immediate specific
performance of all of the defaulting party’s obligations.
9. Attorney fees
9.1. In the event of the Supplier having to enforce any of its rights
in terms of these terms and conditions due to the Customer
breach, the Customer shall be liable for the costs incurred by
the Supplier as on the scale between attorney and own client
including collection commission and tracing costs.
10. Severability
10.1. If any provision of these Terms and Conditions is held by any
court to be invalid or unenforceable, such provision shall be
deemed to be modified or deleted, but only to the extent
necessary to enable the remaining provisions of the Terms to
be valid and enforceable.
11. Force Majeure
11.1. The Customer shall not have any claim of any nature
whatsoever against the Supplier for failure to carry out any of
its obligations when rendering Services and/or Deliverable as a
result of vis major, including, but without being limited to, any
strike, lock-out, shortage of labour or materials, delays in
transport, accidents of any kind, riot, political or civil
disturbances, the elements, any act of any State or
Government or any other authority or any other cause
whatever beyond the control of the Supplier. This Clause in no
way excuses the Customer from paying any amount that is due
to the Supplier.
12. Governing Law
12.1. In the event of any dispute, controversy or claim (a “dispute”)
as to any party’s respective rights and obligations or as to any
matter arising from, or that in any way is related to the
Supplier’s appointment, including any question as to its
existence, validity or termination, the parties shall attempt in
good faith to resolve the dispute between themselves.
12.2. If the parties are unable to resolve the dispute by mutual
agreement within 14 days after the dispute is notified in writing
by either one to the other, or within such further period as may
be agreed, then the dispute shall be submitted to and finally
resolved by arbitration, within 30 days of the appointment of
the Arbitrator, in accordance with the rules of the Arbitration
Foundation of Southern Africa, by an arbitrator agreed upon
between the parties, or failing agreement, appointed by the
Arbitration Foundation of Southern Africa.
12.3. Unless otherwise agreed by both parties in writing, the
arbitration shall be held in Pretoria.
12.4. These terms and conditions shall be governed by and
construed in accordance with the laws of South Africa.