Life's Too Short For Bad Service and Poor Workmanship...
The following Standard Terms and Conditions will regulate the relationship between PRECIOUS INVESTMENTS GROUP t/a Precious SMART Solutions (2016/222436/07) and the CUSTOMER in respect of all work effected in terms of this Agreement. These standard terms of agreement shall be deemed to be incorporated in and shall apply consistently to every agreement entered into between Precious SMART Solutions and the Customer. This Agreement shall commence on the Signature Date and shall terminate on the end of warranty.
1. DEFINITIONS
2. AGREEMENT
a) this Agreement represents the entire Agreement between the CUSTOMER and PRECIOUS SMART SOLUTIONS and that any alterations or additions to this Agreement may not be effected unless agreed to by both parties reduced to in writing and signed by both the CUSTOMER and PRECIOUS SMART SOLUTIONS;
b) this Agreement will govern all future contractual relationships between the parties, notwithstanding receipt or acknowledgement of the CUSTOMER’S own order form or conditions;
c) this Agreement is applicable to all existing debts between the parties;
d) this Agreement is final and binding and is not subject to any suspensive or resolutive conditions; and conflicting terms, conditions or agreements without prejudice to any securities or guarantees held by PRECIOUS SMART SOLUTIONS and;
e) this Agreement applies to all employees and sub-contractors of PRECIOUS SMART SOLUTIONS.
2. The Sub-Contractor hereby binds himself in his/her personal capacity as Shareholder (in the case of a company), Member (in the case of a close corporation) or Owner, Partner, or Proprietor, as co-principle debtor jointly and severable for the full amount due to PRECIOUS SMART SOLUTIONS and agrees this Agreement will apply in the same way to him/her as soon as any work is excepted.
3. Notwithstanding the provisions of clause 2.1 above, all orders or contracts of sale, or agreed variations thereto, whether oral or in writing, shall be binding and subject to this Agreement and may not be cancelled by the CUSTOMER.
4. The CUSTOMER hereby gives his/her consent for a credit check (optional).
5. The invalidity of any part of this Agreement shall not affect the validity of any other part.
3. APPOINTMENT
The CUSTOMER appoints PRECIOUS SMART SOLUTIONS to effect the work at the property and agrees that the terms and conditions as set out herein shall be the Agreement between the parties in respect of the work to be effected.
4. QUOTATION
5. PROVISION OF MATERIALS AND EQUIPMENT
a) All warranties contained in the Order Form or these Terms and Conditions include the warranty terms and conditions and procedures of the relevant manufacturer of the product which are additional to the Precious SMART Solutions warranty set out in (3b) below.
b) Unless otherwise specified in the Order Form, Precious SMART Solutions shall provide a 12-month on-site warranty for:
i. the installation workmanship; and
ii. the inverter, panels and batteries of the Solar PV System
iii. batteries; and
iv. Solar PV System
All hardware is covered by the manufacturer’s warranty.
c) Any misuse of the Solar PV System or use of the Solar PV System in a manner not expressly authorized by Precious SMART Solutions may void this warranty.
d) The company shall not be liable for any cost of repair to damage caused to the equipment for reasons which are beyond the Company’s control, war, riots, faults incurred in telephone lines and connections, software viruses, power surges and acts of God i.e. lightning, fire, flooding, etc. or exceeding the maximum load capacity of the equipment.
e) The customer is solely responsible for insuring all equipment after the installation completion date.
4. Service to Solar PV Systems
a) Precious SMART Solutions shall, at its own cost, promptly arrange for the technicians to undertake any necessary repair and replacement works to the Solar PV System that are covered by the Customers Statutory rights or the warranty terms and conditions which provide the Customer with the maximum financial benefit.
b) In the event:
i. that a Customer requests a service call out for any repair or replacement works, and
ii. the Customer shall be liable to pay a fee for such service call out. Precious SMART Solutions standard call rates will apply where the call out is not the result of a fault with the installation or of the components of the Solar PV System.
5. If the CUSTOMER supplies any materials, or equipment, and or, accessories to be utilized in the work, PRECIOUS SMART SOLUTIONS shall not be responsible for any defects thereto, nor the quality thereof, it being agreed that PRECIOUS SMART SOLUTIONS shall accept such materials, and accessories, in the condition in which it is delivered to be utilized in the execution of the work. Extra costs incurred through the use of defective materials or equipment supplied shall be for the CUSTOMER’S account.
6. All fixed and unfixed materials purchased by PRECIOUS SMART SOLUTIONS shall be deemed to be under the control of PRECIOUS SMART SOLUTIONS and subject to his lien for payment of any amounts which may become owing in terms of the Agreement. It is recorded that any materials which have been purchased by PRECIOUS SMART SOLUTIONS and affixed to the property shall remain the property of PRECIOUS SMART SOLUTIONS until payment in full has been effected by the CUSTOMER. Once payment in terms of the Agreement has been effected in full, all materials which have been fixed to the property shall become the sole and exclusive property of the CUSTOMER and all unfixed materials shall be removed from the property, the unfixed materials being deemed to be property of PRECIOUS SMART SOLUTIONS.
7. During the execution of the work, the CUSTOMER shall take reasonable steps to protect all material on his property from the risk of loss, theft or damage thereto, in PRECIOUS SMART SOLUTIONS’s absence. In the event of loss, or theft the CUSTOMER agrees to replace such material, at his/her expense. PRECIOUS SMART SOLUTIONS shall, during his presence on the property, be responsible for all materials on the property and shall exercise the same caution to protect the CUSTOMER’S interests in the material from the risk of loss, theft or damage.
8. It is recorded that the CUSTOMER shall not be entitled to insist on detailed costings in respect of all materials, it being recorded that the work is performed in terms of a fixed cost, as specified on the face hereof, and that the costs of the materials have been factored into such price irrespective of the costs thereof to PRECIOUS SMART SOLUTIONS.
9. If, prior to the commencement of the installation work:
a) the verified cost of installing the Solar PV System increases by more than five percent (5%); and
b) Such cost increase is due to factors outside the reasonable control of Precious SMART Solutions, then Precious SMART Solutions may notify the CUSTOMER in writing of the amount of such increase in costs and provide evidence supporting the amount of the cost increase to the CUSTOMER. Upon receipt of the notice of the price increase the CUSTOMER may either:
i. pay the verified increase in costs for the installation of the Solar PV System; or
ii. elect in writing to not purchase the Solar PV System, in which case:
A. the Agreement contained in the Order Form and these Terms and Conditions shall be terminated; and
B. Precious SMART Solutions shall return to the CUSTOMER, within two (2) days of receiving notice of the CUSTOMER’s election, the amount of the Deposit paid by the CUSTOMER.
6. LAWS, BYLAWS AND REGULATIONS
7. RISK AND INSURANCE
a) Death or bodily injury or illness of any person
b) Physical loss and damage to any property other than the works
c) Removal of or interference with lateral support of an adjoining property
2. The Customer shall be at risk for:
a) The cost of making good physical loss and repairing damage to the works subject to 7.6, including existing buildings and the contents thereof
b) The support of structures being altered or added to
c) Work to be executed and installed in the works by a direct contractor
3. The Contractor shall be at risk for his employees, tools and vehicles
4. The party [7.1] shall take out and provide written evidence to the principal agent regarding:
a) Public liability insurance to insure the interests of both parties for the amount stated in the Agreement and
b) Contract works insurance which shall be in the joint names of the employer and the contractor for the amount and deductible stated in the Agreement. Where applicable such amount shall include existing buildings and their contents. The amount payable by the contractor shall be stated in the Agreement
c) Insurance to cover the interests of both parties where lateral support of an adjoining property is required [7.1.c}where detailed in the tender
5. The insurances are to remain in force from the date of site handover until the date of final completion
6. Where, in the opinion of the principal agent, loss and damage to the works [7.2.a] is due to the contractor’s negligence the contractor shall be liable for such loss and damage. Such liability shall not exceed the insurance deductible stated in the Agreement in any particular instance
8. EXECUTION OF WORK IN ACCORDANCE WITH AGREEMENT AND DRAWINGS
9. ACCESS TO THE WORK SITE
10. PRACTICAL COMPLETION
On the date of practical completion, PRECIOUS SMART SOLUTIONS shall hand the work on the property over to the CUSTOMER and render a final invoice in respect of the contract price. The CUSTOMER shall be obliged to accept the work and the final invoice, subject to the CUSTOMER’S rights to insist on the repair of any defects that may manifest itself as set out in this Agreement.
11. TIME TO COMPLETE WORK
12. INDEMNITY
13. EXCLUSION OF LIABILITY
When any loss results as a result of war, invasion, riot, warlike operations, civil unrest, acts of God, or any other act which is beyond PRECIOUS SMART SOLUTIONS’s control (vis major), PRECIOUS SMART SOLUTIONS shall not be liable for any losses which may result because of such action, notwithstanding any clause herein which may have indemnified the CUSTOMER against the risk of damages and/or loss.
14. DELAY IN COMPLETION OF WORK
If the work is delayed by an act of God, vis major, exceptionally inclement weather, or any other cause beyond the reasonable control of PRECIOUS SMART SOLUTIONS, PRECIOUS SMART SOLUTIONS shall be entitled to an extension for the completion of the work, notwithstanding that the time of completion may have been specified as being of the essence, it being agreed that the time for performance will be extended for such a period as the work may have been interrupted for one of the reasons set out in this clause.
15. SUSPENSION OF WORK
PRECIOUS SMART SOLUTIONS shall be entitled to suspend performance of the work in terms of this Agreement in the event of:
1. A breach by the CUSTOMER to include, but not be limited to:
a) Non-payment of any interim invoice, or amounts on the date on which it may be owing in terms of this Agreement.
b) The failure by the CUSTOMER to supply any material in terms of its obligations that may be reasonably required for the performance of the work by PRECIOUS SMART SOLUTIONS
c) The CUSTOMER not granting PRECIOUS SMART SOLUTIONS access to the work, or any part thereof.
d) The CUSTOMER not making available any electricity, or water which may be required for purposes of the execution of the work.
e) The CUSTOMER not making available any drawings by an architect, or not arranging for the appointment of an engineer, where required, for the performance of the work.
f) Where the CUSTOMER fails to remedy its obligations to enable PRECIOUS SMART SOLUTIONS to proceed with the work.
2. In the event of PRECIOUS SMART SOLUTIONS having to suspend performance of the work in terms of this Agreement, PRECIOUS SMART SOLUTIONS shall be entitled to immediately:-
a) cancel this Agreement and retain all amounts paid.
b) insist on payment of the balance of the contract price as stipulated on the face hereof.
c) remove all unfixed materials from the premises without any compensation to the CUSTOMER.
d) remove any machinery and equipment from the premises.
e) exercise his lien in respect of payment for all amounts that may be due and owing in terms of the Agreement and without prejudice to any of the above, or other rights PRECIOUS SMART SOLUTIONS may have in Law, to lock the CUSTOMER out until such payment has been effected.
16. PAYMENT
1. The CUSTOMER shall pay to PRECIOUS SOLUTIONS the amount as stipulated on the face hereof together with all additional costs in respect of additional work, or additional services rendered pursuant to the execution of the work on the dates specified for payment.
(a) By accepting PRECIOUS SMART SOLUTION’s quotation the CUSTOMER accepts PRECIOUS SMART SOLUTIONS Terms and Conditions.
(b) PRECIOUS SMART SOLUTIONS shall not be bound to CUSTOMER payment terms, unless otherwise agreed by PRECIOUS SMART SOLUTIONS and the CUSTOMER in a dated written and signed document format.
2. The risk of payment by cheque, through the post or by electronic funds transfer rests with the CUSTOMER.
3. The CUSTOMER shall under no circumstances be entitled to withhold payment, for any reason whatsoever. Withholding of payment shall be deemed to be a material breach of the Agreement which would entitle PRECIOUS SMART SOLUTIONS the remedies set out in clause 15.2 above.
4. The CUSTOMER is not entitled to set off any amounts due to PRECIOUS SMART SOLUTIONS by the CUSTOMER against its indebtedness to PRECIOUS SMART SOLUTIONS.
5. PRECIOUS SMART SOLUTIONS shall be entitled to invoice each delivery or performance separately when executed.
6. The CUSTOMER shall pay to PRECIOUS SMART SOLUTIONS the full amount as stipulated in the invoice within a maximum period of 48 hours on receipt of invoice.
a) The CUSTOMER will be charged a 10% interest on outstanding amounts not paid within seven (7) days of date of invoice every seven (7) days or part thereof until handed over to debt collecting agent or paid in full.
b) The CUSTOMER must notify PRECIOUS SMART SOLUTIONS within a maximum period of five (5) days of date of invoice with a written letter by the CUSTOMER explaining payment delay reasons with a written arrangement agreement supplied to the CUSTOMER in terms of PRECIOUS SMART SOLUTIONS acceptance of new payment date arrangement.
c) The CUSTOMER shall pay the full charged amount issued by a debt collecting agency, lawyer firm or third party for collection of late payments.
7. The CUSTOMER agrees that if an account is not settled in full (a) against order; or (b) within the period agreed in clause 15.6 above, PRECIOUS SMART SOLUTIONS is entitled to forward a letter of demand using a third party demanding full and final payment.
8. Outstanding accounts are subject to default listings on the national credit bureau database. On payment of the outstanding debt the default listing will be adjusted to read “Paid Default” until legislation demands complete removal.
9. PRECIOUS SMART SOLUTIONS reserves the right to provide a national credit bureau with updated personal information.
10. The CUSTOMER also consents that PRECIOUS SMART SOLUTIONS may use a national credit bureau database for tracing, should the CUSTOMER abscond.
11. In the event of any payment not being made on due date, the amount then outstanding shall bear interest as prescribed in terms of the National Credit Act No. 34 of 2005 with interest calculated daily and compounded monthly from the date of acceptance of the order.
12. In the event of default, all payments shall firstly be appropriated towards interest and costs and thereafter in respect of the capital amount payable in terms of this Agreement.
13. The CUSTOMER shall be liable to PRECIOUS SMART SOLUTIONS for all legal expenses incurred by PRECIOUS SMART SOLUTIONS on the attorney-and-own client scale in the event of (a) any default by the CUSTOMER or (b) any litigation in regard to the breach, validity or enforceability of this Agreement. The CUSTOMER shall be liable for all tracing, collection or valuation fees incurred as well as for any costs including stamp duties, for any form of security that PRECIOUS SMART SOLUTIONS may demand.
14. Only payments made into the bank account on the invoice / quotation documents, as per the details reflected on the original quote submitted from PRECIOUS SMART SOLUTIONS’s office via e-mail, WhatsApp or fax will be recognized and accepted as formal payment. Only electronic fund transfer payments, cleared bank cheques, cash or deposits will be accepted.
17. GUARANTEES AND WARRANTIES
PRECIOUS SMART SOLUTIONS shall complete the work to the reasonable satisfaction of the CUSTOMER according to acceptable standards of workmanship. All work shall be guaranteed against latent defects as a result of defective workmanship for a period of three (3) months from date of practical completion. Superficial cracks that may appear as a result of materials drying shall not be regarded as defects. Any claims in respect of defective materials shall be directed by the CUSTOMER to the supplier and PRECIOUS SMART SOLUTIONS shall assist in lodging the claim without assuming any liability.
18CLAIMS
18.1Any defects to the work shall be communicated to PRECIOUS SMART SOLUTIONS within seven (7) days from the date of practical completion. PRECIOUS SMART SOLUTIONS shall be afforded an opportunity to within seven (7) days from receipt of such claim inspect the defects and/or workmanship which does not meet with the CUSTOMER’S approval and;
a)If PRECIOUS SMART SOLUTIONS is of the view that the work is of acceptable standard, it shall notify the CUSTOMER, in writing, of its findings as well as the reasons therefore.
i.If the CUSTOMER does not accept PRECIOUS SMART SOLUTIONS’s findings, he/she shall be entitled, within a period of fourteen (14) days from the date of notification by PRECIOUS SMART SOLUTIONS, to refer the matter to arbitration to resolve the complaint. PRECIOUS SMART SOLUTIONS may in its own discretion be entitled appoint an architect of no less than ten (10) years’ experience in the Building, Security and Construction Industry as an arbitrator. All costs in this instance will be for the CUSTOMER’S account.
ii.If the matter is referred to arbitration, the arbitrator shall be requested to complete his/her findings within a period of thirty (30) days and his/her findings shall be final and binding upon both parties.
b)If PRECIOUS SMART SOLUTIONS is of the view that the work is of unacceptable standard then any defects in the workmanship, PRECIOUS SMART SOLUTIONS supplied materials, or damage to the work, or the premises which is as a result of defective material supplied by PRECIOUS SMART SOLUTIONS, or inadequate workmanship shall be repaired by PRECIOUS SMART SOLUTIONS, within a period of fourteen (14) days, to the reasonable satisfaction of the CUSTOMER, at PRECIOUS SMART SOLUTIONS’s costs.
18.2If the CUSTOMER does not notify PRECIOUS SMART SOLUTIONS within seven (7) days of any defect in the workmanship and material, it shall be deemed to have been completed to the reasonable satisfaction of the CUSTOMER and the CUSTOMER shall have no further right of recourse against PRECIOUS SMART SOLUTIONS in respect of any repairs, or defects.
18.3If the CUSTOMER has a claim as a result of latent defects, he/she will address such a claim to PRECIOUS SMART SOLUTIONS, in writing, within the warranty period of thirty (30) days, setting out in detail the nature and extent of the latent defects.
19SUB-CONTRACTORS
PRECIOUS SMART SOLUTIONS shall be entitled to employ the services of any sub-contractors provided that the amounts payable to the sub-contractors are paid by PRECIOUS SMART SOLUTIONS and that the sub-contractor performs his/her mandate in terms of the same or similar conditions to that contained herein.
20GENERAL
20.1The Agreement shall be governed in all respects by the Laws of the Republic of South Africa.
20.2The terms and conditions contained herein, read with the nature and extent of the work and the costs reflected on the face hereof, shall constitute the entire Agreement and shall not be varied unless same is reduced to writing, duly signed by, or on behalf of PRECIOUS SMART SOLUTIONS and the CUSTOMER.
20.3The CUSTOMER consents in terms of Section 45 of the Magistrate's Court Act, 32 of 1944, to PRECIOUS SMART SOLUTIONS instituting any action, or proceedings for enforcing any of its rights under this agreement in the Magistrate's Court of any district having competent jurisdiction by virtue of Section 28 of the same Act. The aforesaid shall however not preclude PRECIOUS SMART SOLUTIONS from instituting action in any division of the High Court which may exercise competent jurisdiction.
20.4PRECIOUS SMART SOLUTIONS shall be entitled to cede and assign any of its rights, or obligations under this Agreement to any third party without prior notification to, or any consent of the CUSTOMER.
20.5The parties choose their addresses specified on the face hereof as its addresses for service of all legal process and any notice delivered by hand shall be deemed to be received on the day it is so delivered, alternatively if same is posted by prepaid registered post, then within four (4) days of date of actual posting of the notice.
21CONTRACT AGREEMENT
21.1POST TENDER PROVISIONS
a)All information provided in this section requires consultation with the parties to the Agreement. The principal agent shall not preselect any of the alternatives available to the contractor
b)The completed Contract Data - Employer and Contract Data - Contractor addenda and such other pertinent documents as listed below shall form part of this Agreement:
c)Further provisions and information agreed by the parties:
21.2CONTRACTUAL AGREEMENT
a)This Agreement is the entire contract between the parties regarding the matters addressed herein. No representations, terms, conditions or warranties not contained in this Agreement shall be binding on the parties. No agreement or addendum varying, adding to, deleting or terminating this Agreement including this clause shall be effective unless reduced to writing and signed by the parties