Terms & Conditions
FIXITT REFRIGERATION AND APPLIANCE REPAIRS (2017/281708/07) &
TARC CAPE TOWN (Pty) Ltd, -(2014/268617/07)
STANDARD TERMS AND CONDITIONS APPLICABLE TO SERVICES.
(AS AMENDED *APRIL 2020)
The clause headings herein are for reference purposes only and shall not be used in the interpretation thereof.
Unless the context clearly indicates a contrary intention:- expressions which denote any one gender, shall include the other genders; a person shall include a natural person, company, partnership, firm, close corporation, company or any other legal personae; the singular shall include the plural and vice versa.
When any particular number of days is provided for the doing of any act or for any other purposes, the reckoning shall exclude the first day and shall include the last day and shall exclude all Saturdays, Sundays and public holidays which occur during the period.
Any other counterpart, whether documented or in electronic format, referenced in these terms and conditions shall be deemed to be incorporated herein and shall form an integral part of this agreement.
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 these terms and conditions.
In these terms and conditions, 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:-
“Agreement” means any Agreement entered into between the Supplier and the Client;
“Business Day” means any day of the week excluding Saturdays and Sundays and Public Holidays;
“the Client” means any person or entity who contacts * the Supplier to execute Services;
“Equipment” means all and any plant, vehicles, equipment, machinery and tools, including materials and consumables;
“Normal Shift” in relation to an Operator, means hours between 08:30 to 16:30 on a Business Day unless agreed otherwise by the parties in writing;
“Operator” means any employee, contractor, agent, or representative of the Supplier deployed to assist in the execution of Services;
“Order” means any order or instruction, written or oral given by the Client to the Supplier for Services, and shall include an amendment and/ or variation to any Order;
“Overtime” in relation to an Operator, means any time worked which does not fall within a Normal Shift;
“Prevailing Rate” means the Supplier’s prevailing rate whether hourly or daily as the case may be, determined by a certificate issued by the Supplier’s operations/ general 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;
“Public Holiday” means any South African public holiday as published in the Government Gazette from time to time.
“The Supplier” means any of FIXITT REFRIGERATION AND APPLIANCE REPAIRS (Pty) Ltd, -(2017/281708/07) & TARC CAPE TOWN (Pty) Ltd, -(2014/268617/07), upon whom the Client places and Order and/ or who performs Services and is named on invoices addressed to the Client whose chosen domicilium citandi et executandi for purposes of this Agreement is 24 Losack Avenue, Epping 2, Cape Town;
“Terms and Conditions” means these Terms and Conditions as amended from time to time hereafter;
“Unrest” means civil disturbance and disobedience, strike, labour unrest, riot, disruptions, protest action, demonstrations, commotions, go slows, lock outs, threats of terrorism, violence and which includes but is not limited to war hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilisation, requisition, embargo, rebellion, revolution, insurrection, military or usurped power, civil war;
“Services” means services rendered, goods sold and delivered, Equipment and/ or Operators hired and/ or supplied by the Supplier to the Client.
THE AGREEMENT AND ACCEPTANCE
The Client agrees that:
these Terms and Conditions shall apply to every Order and Agreement entered into by and between the Supplier and the Client and shall regulate the parties’ relationship and responsibilities to each other in respect of all Services;
these Terms and Conditions are and will be final and binding upon the Client and is not subject to any suspensive or resolutive terms or conditions;
these Terms and Conditions supersede, and replace all prior agreements, understandings and representations save for securities and guarantees held by the Supplier which shall continue to remain of force and effect, and remain binding on the Client;
these Terms and Conditions supersede the Client’s own terms and conditions;
the Terms and Conditions attached to, contained in or referenced on any Order are expressly excluded from and are superseded by these Terms and Conditions.
Quotations shall be valid for a period of 10 (ten) days only.
Quotations are given in good faith upon information provided by the Client to the Operator and do not take account of unforeseen or extraordinary conditions that may be encountered in and during the course of executing Services, and may be varied, substituted or withdrawn in the sole and absolute discretion of the Supplier. The Client acknowledges that factors and circumstances including but not limited to supply of goods, 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 Services. As such, any estimated duration for execution of the Services is a guideline only and shall not be binding upon the Supplier.
In the event that the execution of the Services is to extend beyond any estimated duration for any reason whatsoever, a certificate issued under the hand of the Operations/General Manager shall be prima facie proof of duration of the Services, binding upon the Client. The Client shall be liable for payment for the full duration of the Services, notwithstanding any quotation/ estimate, at the Supplier’s Prevailing Rate.
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 assessment costs and diagnostic costs, notwithstanding that the Client may not accept Supplier’s quotation.
ORAL ORDERS AND SITE INSTRUCTIONS
The Supplier, at its sole and absolute discretion may accept oral Orders and site instructions from the Client and/ or the Client’s principal, however, the Client acknowledges the preference of the Supplier for written Orders and thus acknowledges and agrees that it shall be liable to the Supplier for any Services performed by the Supplier consequent upon an oral Order and/ or site instruction, at the Supplier’s Prevailing Rate.
The Supplier reserves the right to decline any Order, without providing reasons *therefore.
SHIFTS & HOURLY RATES
Hourly rates in respect of a Normal Shift charged by the Supplier shall vary and may be set out in the Supplier’s quotation, and failing that shall be the Prevailing Rate.
All travel time incurred by the Supplier in travelling to and from site shall be included in the calculation of the total number of hours worked in any day and shall be charged at the Prevailing Rate.
The Client shall be liable to pay an Overtime surcharge for every Operator deployed on Services:-
on Saturdays from 1:30 am to 17:00 pm at a rate of 50% (fifty percent) and from 17:00 pm to 8:30 am at a rate of 75% (seventy-five percent) above the hourly rate charged for Normal Shifts;
on Sundays and Public Holidays at a rate of 75% above the hourly rate charged for a Normal Shift;
on week days (Monday to Fridays other than Public Holidays), at a rate of 50% between the hours 16:30 pm to 20:00 pm and from 20:00 pm to 8:30 am at a rate of 75% (seventy-five percent) above Normal Shift.
Standing time shall be charged at the Prevailing Rate in the event that the Supplier, for whatsoever cause or reason arising, is unable to commence or continue *services when ready and equipped to do so.
All payments shall fall due immediately upon receipt of the Supplier’s tax invoice.
All payments must be paid by the Client directly to the Supplier’s banking account held at First National Bank, branch code 201109, cheque account number 62716083861 OR Standard Bank, branch code 026509, cheque account number -270474706, by way of electronic funds transfer and bear reference to the invoice/ job/ quote number allocated to the Client. Under no circumstances is payment to be made into any banking account other than that of the accounts aforementioned.
Under no circumstance may the Client withhold payment, apply set-off or otherwise deduct any amounts from the invoice price.
Payment will only be deemed to have been made once received by the Supplier and the proceeds of such payment is credited and cleared by the Supplier’s bankers, in its banking account.
All risk of whatsoever nature attaching to payment shall vest with the Client.
Subject to the discretion of the Supplier, payments received from the Client will firstly be allocated to legal costs where applicable, thereafter to interest and finally only to the capital amount owing.
The Supplier reserves its right to demand that the Client make payment of a deposit in an amount determined by the Supplier in its sole discretion prior to commencement of and/ or completion of any Services.
Interest will be charged on all overdue amounts at the rate determined by the Minister of Finance in terms of the Prevailing Rate of Interest Act, compounded monthly in arrears from the date upon which payment fell due, to the date of full and final payment.
The hire period shall commence the moment the Equipment and/ or Operator is deployed from the Supplier’s premises and shall terminate only upon the Equipment and/ or Operator returning to the Supplier’s premises.
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.
The Client will remain liable for payment of the hire fees for the full duration of the hire period. In the event that the Equipment is damaged, the hire period shall terminate only once the Equipment is repaired and delivered to the Supplier and where destroyed, where the Equipment is replaced and delivered to the Supplier or full replacement value is paid to the Supplier.
In the event that the Equipment and/ or Operator is hired for a fixed period, notwithstanding any fixed hire period, either party may give notice of early termination by giving 24 (twenty-four) hours written notice of termination to the other of them, without incurring any liability to the other party whatsoever, consequent upon early termination.
The Client shall ensure that the Equipment is only used and operated by skilled personnel, and then only in accordance with the manufacturer’s prescribed warranty standards as intended.
The Client accepts custody and responsibility for the safety and security of the Equipment and materials for the duration of the hire period. The Client shall ensure that the Equipment and the skilled personnel in the execution of the Services comply with all laws, ordinances, and regulations relating to and maintain the Equipment in accordance with the manufacture’s recommendations and standards, including general upkeep, supervision, sustainment, preservation and requirements, if any.
The Client shall be liable for costs and expenses in maintaining the Equipment in the same condition as received and 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.
In the event that a breakdown occurs due to normal wear and tear of the Equipment, the Client must immediately notify the Supplier thereof and shall not attempt to repair the Equipment or replace any part thereof without the prior written consent of the Supplier.
DUTY OF THE CLIENT DURING UNREST
The Client undertakes not to deploy the 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 (seven) 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 the agreed terms. The Client shall immediately, upon becoming aware of Unrest or upon reasonable apprehension of Unrest, extract the Equipment and/ or Operators to a place of safety.
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 2 (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.
The Client accepts the risk of loss and/ or damage/ destruction to the Equipment and injury to and/ or death of the Operator for the duration that the Equipment are on hire.
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 procure and maintain insurance over the Equipment and shall note the interest of the Supplier on any such policy.
In the event that the Equipment is stolen, lost, damaged or destroyed during the hire period or whilst under the care and/ or custody of the Client, 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.
Without, in any way, detracting from the obligations of the Client, the Client shall ensure that for the duration of the hire period:-
•the equipment is kept safe and secure;
•access to the equipment is restricted to persons who are trained in the use thereof;
•that suitable and adequate security is made available to guard against loss, damage, theft, tampering and/ or destruction of the Equipment.
Where the Supplier in its discretion deems the use of the equipment provided to be unsafe or unsecure the Supplier may take such measures as it deems necessary to secure the Equipment, the costs of which shall be for the account of the Client, alternatively the Supplier may suspend and withdraw the use of its Equipment and Operators from site until such time that the Client has made the necessary changes to the Supplier’s satisfaction. Any resultant standing time shall be charged for at the Prevailing Rate.
The Supplier shall at all reasonable times be entitled to access of the Equipment deployed for the purposes of inspection, and/ or repairing, and/ or repossession of the Equipment, and/ or the cleaning, and/ or servicing thereof;
The Client shall at all times be fully responsible for the safety and wellbeing of the Equipment.
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 Services.
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 proceedings brought by any third party or affected persons, following upon any act or omission, whether reckless or negligent, carried out in execution of the Services in respect of each of the following:-
•the death or bodily injury of such person caused by the Supplier, its Operators or the Client;
•the damage, loss or destruction of any real or tangible personal property of such person caused by the Supplier, its Operators or the Client; and
•any claim, demand, charge, action, cause of action, or other proceedings asserted by such person against the Supplier and/ or its Operators.
The Client and its personnel shall not permit anything to be done in relation to executing the Services 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 or damage to property of any other person.
RESERVATION OF OWNERSHIP
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.
TIME & PERFORMANCE
Time shall not be of the essence in the performance of any Services and the Supplier does not guarantee execution and/ or commencement or completion of the Services on any specific date.
If the Client defers and/ or postpones performance of the Services when the Supplier is ready to or tenders to perform, the Client shall be liable for payment of the Supplier’s 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.
To receive in-home service, the product must be unobstructed and accessible from floor level to service personnel. If during in-home service repair cannot be completed, it may be necessary to remove, repair and return the product. If in-home service is unavailable, FIXITT may elect, at our option, to provide for transportation to and from our service center.
The Customer is responsible for the procurement of all licenses or other compliance with any procedures required to use the Appliance, including but not limited to television licenses required under the Broadcasting Act and compliance with RICA, Gas Compliance Certification.
Due to the difficulty of estimating repair times and traffic conditions, it is not possible to give accurate estimates for response, repair or appointments. Accordingly, all times referred to in this agreement, including but not limited to response times, repair times and appointments shall be approximate estimates and the Customer agrees not to hold FIXITT liable for or to claim for any losses, particularly of a consequential or pure economic nature.
If the Customer is not a Consumer as defined in the Consumer Protection Act, then all risk in and to the Appliance from damage, loss or theft shall remain vested in the Customer for the duration of this agreement.
If the Customer is a Consumer as defined in the Consumer Protection Act, then all risk in and to the Appliance from damage, loss or theft shall remain vested in the Customer for the duration of this agreement unless such loss, damage or theft is proved to have arisen from the gross negligence of FIXITT or its appointed Service Agent.
This Agreement, the Schedule and any appendices hereto, constitute the sole record of the agreement between FIXITT and the Customer with regard to the appliance, and FIXITT shall not be bound by any representation, warranty, or implied term not recorded herein.
The Customer hereby indemnifies FIXITT against any loss or damage suffered by FIXITT arising out of or in connection with the Customer’s use of the Appliance/s from whatever cause and against any claims of whatever nature that may be instituted against FIXITT arising from the use of the Appliance/s and any consequential loss or damage arising from the foregoing.
COLLECTION & DELIVERY
All items will be collected/ delivered within 5-7 working day’s of unit being assessed or tested and ready to dispatch. Where delays occur, every effort will be made to inform the customer. Arrangements must be made that either the customer or their authorized representative, who is a responsible person, is available to accept the appliance at the collection/ delivery address and that appropriate access will be made available. Upon collection/ delivery, it will be required that either the customer or their authorized representative sign and print their name on a duplicate copy of the collection/ delivery note, to confirm approval/ receipt. Any person other than the customer who is available on-site is presumed to be authorized to accept collection/ delivery on their behalf. By signing such invoice document, the receiver confirms that the goods were received undamaged and in good condition. Should no-one be available at the delivery address specified at the time of delivery, the items will be returned. Contact will be made to re-arrange collection/ delivery and FIXITT reserves the right to charge an additional delivery fee. Our sole liability for failing to deliver the products timeously is limited to collection/ delivery being affected at a later agreed time at no additional charge. The customer and/ or their authorized representative, having signed the collection/ delivery note, agrees that FIXITT will not be held responsible for any unavoidable minor/ superficial damage that in no way hampers the functionality of the item’s collected/ delivered while in transit. FIXITT cannot, to the extent permitted by law, be liable for any damage suffered or loss incurred by reason of any acts or omissions of the driver.
LIMITED WARRANTY & EXCLUSIONS
Any fault experienced during the six (6) month warranty period must be reported to FIXITT directly on the following; 0216993153 / *0218112233 / 0823007786 / 0829669337 / 0790137779 / firstname.lastname@example.org / email@example.com / firstname.lastname@example.org. Warranties or breakdown service requests sent to technicians personally will not be entered into. The Invoice or POP must be presented/ available. Should the repair be out of the six (6) month period the item will be re-assessed and quoted for repair.
The warranty does not cover anything which is not part of the appliance including;
•Domestic appliances used for commercial purposes e.g. Pubs, conferences, advertising, cooking schools etc, by the customer or his resident family at the declared address of the customer.
•Failure of the customer or any other persons to comply with the manufactures instructions for installation, maintenance or general operations.
•The use of accessories which are not authorised by supplier.
• The application of any incorrect or abnormal conditions of use for which it is not commonly intended to be used.
• Any defect in wiring, electrical connections or plumbing which does not form part of the appliance at the time of repair or caused by power outages load shedding and electrical surges.
• The presents in the appliance of any objects which it is not intended to cope with such as hair pins and coins, in washing machine, hot foods in fridges and chewing gum and wax crayons in tumble dryers, broken glass in dishwashers, etc.
• Neglect, misuse or abuse of the appliance.
• Anything related to the appearance, which does in FIXITT’s opinion stop the appliances from working adequately.
• Rust or effects of rust and corrosion.
• Parts which are expected to wear out, including batteries, filters, fuses, light bulbs, racks, shelves and trays, etc.
• Fire, wood, flood, civil disturbance, industrial action , acts of God or any other cause beyond the reasonable control of FIXITT.
• All glass surfaces including ceran tops.
• Any accessories or additions, which do not constitute the main body of the warranty agreement.
• Any costs related to and including cleaning, clearing of breakages, overhaul and service.
• Any damages direct, indirect or consequential, relating in any way to the appliance
• Any damage to the equipment by lighting or thunder bolt unless fitted with adequate protection.
• Infestation by insects or animals.
• Cosmetics or parts that do not compromise the operation/function of the appliance, such as the exterior of the Appliance or any cabinet containing the Appliance.
•Plumbing required between the water supply of the home and the Appliance.
•Gas leaks in refrigerators or freezers, which in the opinion of FIXITT cannot be repaired. Light bulbs, glass shelves or ice-makers in a refrigerator.
•Damage caused by freezing.
FIXITT shall not be held liable for any costs incurred by an unauthorised repairer.
The customer shall notify FIXITT within 10 days of any changes of the address. Should the item be sold the customer is allowed to transfer the guarantee to any subsequent owner of the appliance, provided written notice of the change of ownership is given to FIXITT within 14 days of the change. The customer shall take all reasonable precautions to maintain the appliance n good working order.
In the event of a credit or replacement being offered and accepted, the defective unit/ item must be returned or collected within 3 days of acceptance.
In the event that an item under warranty is uneconomical to repair, the cost to repair is more than the replacement value, cannot be repaired and/ or has subsequently been discontinued, the option for a similar replacement will be offered at a fee determined by the age and condition of the appliance.
No refund of the invoiced amount will be considered under any circumstance.
Except for the express warranties set forth in these terms & conditions, all warranties & conditions, whether expressed or implied, written or oral, arising by statute or otherwise, in respect of the repair services, including, without limitation, warranties of title, non- infringement, merchantability, durability or fitness for a particular purpose are hereby disclaimed. Furthermore, in no event will FIXITT be liable for any claim relating to REPAIR SERVICES in an amount greater than the price paid by the customer for such repair services.
The Supplier reserves the right to use all recorded materials on site(s) for advertising/ social media purposes unless otherwise agreed in writing.
SUSPENSION AND/ OR CANCELLATION
Notwithstanding anything herein contained to the contrary, the Supplier shall be entitled to suspend, delay and/ or cancel performance of the Services and/ or any Order and/ or vary the terms and conditions of payment 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 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.
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 and pursue action.
The Supplier reserves the right to terminate, alternatively suspend, any Agreement without cause upon written notice to the Client without liability to the Client whatsoever.
USE OF CONTRACT DOCUMENTS AND INFORMATION INSPECTION
The Client shall not, without the Supplier’s prior written consent, disclose any quote, sample, or information furnished by and on behalf of the Supplier in connection with the Sevices, 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 as far as may be necessary for the purposes of executing the Services.
The Client shall not, without the Supplier’s prior written consent, make use of any document or information except for the purposes of executing the Services.
Any document, other than the Agreement itself shall remain the property of the Supplier.
In the execution of the Agreement, the Client undertakes to observe the utmost good faith and warrants in its dealings with the Supplier that it shall not do anything nor refrain from doing anything which might prejudice or detract from the rights, assets or interests of the Supplier.
EXCLUSIVITY AND NON-VARIATION
These terms and conditions 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.
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.
SOUTH AFRICAN LAWS APPLICABLE
These Terms and conditions shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.
CERTIFICATE OF INDEBTEDNESS
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.
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.
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.
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.
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 these terms and conditions without the prior written consent of the Supplier.
The provisions contained in these terms and conditions 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 these terms and conditions which shall continue to be of full force and effect.
If a court finds that any provision of these terms and conditions are 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.
Save as otherwise provided in these terms and conditions 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, that the dispute be submitted to arbitration in terms of this clause.
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 Legal Practice Council.
The arbitration shall be held at Cape Town, 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.
The arbitrator shall be entitled:-
•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 part 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;
•to interview and question under oath, any representative of either of the parties;
•to decide the dispute according to what he/ she considers just and equitable in the circumstances;
•to make such award, including an award for costs, specific performance, an interdict, damages or a penalty or otherwise as he/ she in his/ her discretion deems fit and appropriate, provided that should the arbitrator fail to make an award with regards to costs, the costs shall be borne equally by the parties.
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.
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.
Any award made by the arbitrator:-
•shall be in writing and shall include reasons therefore;
•shall be final and binding;
•will be carried into effect; and
•may be made an order of any Court to whose jurisdiction the parties to the dispute are subject.
This 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.
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.
This clause shall be severable from the rest of these terms and conditions and shall remain effective notwithstanding that these terms and conditions shall for any reason whatsoever, be terminated.
CESSION OF BOOK DEBT
Simultaneously with entering into any Agreement with the Supplier, the Client is deemed to have ceded 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.
The Client hereby warrants that it has:-
•not entered into any agreement restricting or excluding the transferability of the claims that form the object of this cession;
•has no knowledge of any counterclaims that may extinguish the claims that form the object of this cession;
•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.
During such time as the cession which is the subject matter of these terms and conditions remains of force and effect, the Client agrees that it will:-
•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;
•make available for inspection by the Supplier or the Supplier’s authorised agent at any time during normal business hours all books of account, 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;
•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.
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 as at any time.