In these conditions:
1.1. “The Company” means M.F.B. Walling (Pty) Ltd.
1.2. “The services” means the services as indicated on any company forms, price lists, quotations, orders and/or invoices and includes reference to the materials to be procured for the provision of such services. The Company will not execute services required but not specified and agreed including but not limited to removal of rocks, hedges, concrete foundations and/or rubble.
- PRICES AND FEES
2.1. The price of the services shall be the usual price current at the time of the provision of the services, as per the Company’s price list, or as quoted and accepted.
2.2. The rates at which the Company charges for the service it renders shall be at the usual rates, as per the Company’s price list or as quoted and accepted.
2.3. Company price lists shall be considered as a guide by the Customer and the Company may, without notice to the Customer, change the prices of its services current at the time of provision of the said services.
2.4. Prices quoted on the Company’s quotation form may not be changed without prior written notification to the Customer and prices ruling at the time of dispatch shall apply.
3.1. A 70% deposit is required on acceptance of the Company’s quotation. A further 20% payment is to be paid on delivery of the materials to site with the balance of 10% to be paid on date of completion of the services. The date of completion shall be that reflected on the Customer’s purchase order, or as agreed between the Parties from time to time. Only cash or payment by way of electronic fund transfer (EFT) will be accepted. In the event that the services are rendered on behalf of a contractor of a municipality, the Company is to be paid in terms of its accepted quotation up-front in full. Should the Company and the Customer agree a cession in terms of which the municipality is to pay the Company directly, the Company reserves its right to claim payment from the Customer should it not receive such payment from the municipality. When dealing with a third party client, payment is to be effected to the Company in terms of its quotation up-front in full.
3.2. Any increase in the cost of materials, labour and/or transport between the date upon which the Customer is quoted by the Company and the date upon which the services are rendered shall be borne by the Customer, unless otherwise agreed in writing.
3.3. The Customer shall not claim the right to any rebates and/or discounts on any basis of whatsoever nature unless a member of the Company shall have agreed to such rebates and/or discounts in writing, and further provided always that such amount shall not be allowed on any services rendered if payment for any services whatsoever invoiced prior thereto is overdue.
3.4. Should any amount not be paid by the Customer on due date then the whole amount in respect of any and all purchases by the Customer shall become due, owing and payable irrespective of the dates when the services were rendered.
3.5. The Company may appropriate all payments made by the Customer to such accounts as it will in its sole and absolute discretion decide and it shall be entitled to set off amounts owed to the Company from such accounts.
3.6. The Customer shall not be entitled to claim a set off or deduction in respect of any payment due by the Company to the Customer, against any amounts to be paid by the Customer for services rendered.
4.1. Orders by the Customer in the form of the Customer’s standard purchase order for the Company’s services, shall be made in writing to such address as may be nominated by the Company from time to time.
4.2. Orders accepted by the Company shall not be varied or cancelled by the Customer, except with the written consent of the Company.
4.3 A cancellation fee of 25% of the contract price will be payable to the Company.
5.1. The Company shall in its sole discretion decide on the mode of transportation to be utilised in delivering the materials and the route to be followed, provided that the materials are delivered by the agreed date.
5.2. It is the Customer’s responsibility and duty to sign the Company delivery note or the carrier’s delivery note and to point out all boundary pegs to the Company.
5.3. The Customer’s acceptance of the materials delivered constitutes acknowledgment that the materials were delivered in good order, according to specification and correct quantity.
5.4. In the event that the Company makes delivery or renders services to the Customer in instalments, each instalment shall be deemed to be the subject of a separate contract and non-delivery or delay in delivery or service of any instalment shall not affect the balance of the contract or entitle the Customer to cancel the contract and the terms and conditions of this agreement shall be the terms and conditions of each separate agreement.
5.5. Short deliveries or materials damaged in transit must be reported to the Company head office within 10 (ten) days of receipt.
- COMPANY’S LIABILITY
If the materials or services manifest any defect (whether latent or patent), with the exception of walls erected on clay ground and the raising of existing walls in which case no guarantee is provided, within the earlier of a period of 24 (twenty four) months from the delivery date or the date of performance or such other periods as may be stipulated in the purchase order or these terms and conditions, the Company shall, at its costs and expense and within a reasonable time frame repair and/or replace any defective materials or remedy or reperform any of the services. Other than the aforesaid guarantee, the Company will not be liable for any direct, indirect, consequential, special or delictual loss or damage of any nature and howsoever arising which may be suffered by the Customer or any third party as a result of or in connection with any transaction contemplated herein. The Customer is obliged to point out any pipes or electric cables. Should it fail to do so resulting in damage to property, the Company will not be held liable. Clients are required to maintain their gates and steel inserts. The Company will not be held responsible for any problems relating to the automation of gate motors.
The Company shall under no circumstance be responsible for damage or loss caused by wear and tear, misuse, neglect, abuse, accident or natural ground movement.
The Company is not responsible for any garden plants 1 meter on either side of the wall.
Standing or delay times caused by the Customer will be for Customers own account.
- OWNERSHIP AND RISK
7.1. Notwithstanding that all risk in and to all materials sold by the Company to the Customer shall pass on delivery, ownership in all materials sold and delivered shall remain vested in the Company until the full purchase price has been paid and in the event of a breach of these terms and conditions by the Customer, or if the Customer is sequestrated or placed under liquidation or business rescue or commits any act of insolvency or enters into any compromise with its creditors or fails to satisfy a judgement granted against it within 14 (fourteen) days of the date of judgement or changes the structure of its ownership, the Company shall be entitled to take possession of the goods without prejudice to any further rights vested in the Company, and is hereby irrevocably authorised to enter upon the Customer’s premises to take delivery of such goods without a Court order.
7.2. Materials in the possession of the Customer bearing the Company name, trade marks and labels shall be deemed to be those for which payment has not yet been made, and should any breach of these terms occur, may be repossessed by the Company in terms of paragraph 7.1. The Company shall not be obliged to specifically allocate monies paid to materials in the Customer’s possession. Any materials belonging to the Company can be repossessed.
7.3. The Customer shall fully insure the materials purchased from the Company against loss or damage, until the full purchase price has been paid by the Customer for such materials and services. Pending payment to the Company for materials purchased and services rendered, all benefits in terms of the insurance policy relating to the insurance of such materials are ceded to the Company.
7.4. The Customer shall inform the Landlord of the premises at which the materials are kept that such materials are the sole and absolute property of the Company until such time as the full purchase price has been paid to the Company by the Customer.
- LEGAL PROCEEDINGS
8.1. A certificate issued and signed by any member or manager or authorised person of the Company, whose authority need not be proved, in respect of any amount due and payable by the Customer to the Company, the fact that such materials were sold and delivered and services rendered shall, for the purposes of judicial proceedings, be prima facie proof of the facts incorporated therein as well as the prevailing rate of interest calculated on any amount in arrears. Such certificate shall be construed as a liquid document for the purposes of provisional sentence, summary judgment or other judgment.
8.2. The Customer’s physical address as given to the Company herein, shall be recognised as the Customer’s domicilium citandi et executandi (domicilium) for all purposes in terms of this agreement, whether in respect of the serving of any court process, notices, the payment of any amount or communications of whatever nature.
8.3. In the event of the Customer breaching any of its obligations and/or failing to timeously make payment of any amounts to the Company, the Customer agrees to pay, and shall be liable to pay, all legal costs incurred by the Company in enforcing its rights in terms of these terms and conditions on the attorney / own client scale including collection charges and tracing agent’s fees.
- BREACH OF CONTRACT
9.1. In the event of a breach of contract by the Customer, and after having provided the Customer with 7 (seven) days’ written notice to remedy such default or obligation:
9.1.1 the Customer fails to pay amounts when due; and/or
9.1.2 being an individual, should the Customer die or be provisionally or finally sequestrated or surrender or make application to surrender his estate or commit any act of insolvency; and/or
9.1.3 Being a partnership, the partnership is terminated; and/or
9.1.4 Being a registered company or close corporation, is placed under provisional or final order of liquidation or business rescue, has a judgment recorded against it which remains unsatisfied for 7 (seven) days, compromises or attempts to compromise with its creditors, or enters into any transaction which has the effect of a change in the effective control of the Customer;
then without prejudice to any other rights which the Company may have, the Company shall be entitled to demand that the whole amount due by the Customer from whatsoever cause arising be paid immediately; and/or the Company shall be entitled to exercise its rights in terms of paragraph 7; and/or the Company shall be entitled to cancel any agreement which exists between the Company and the Customer and to suspend the carrying out of any of the Company’s obligations, in which event, the Customer shall have no claims of whatsoever nature against the Company arising out of such cancellation, or the suspension by the Company to carry out any of its obligations.
9.2 The Company’s rights in terms of this agreement shall not be exhaustive and shall be in addition to its common law rights.
10.1. This contract represents the entire agreement between the Company and the Customer and shall govern all future contractual relationships between the Company and the Customer and shall also be applicable to all debts which the Customer may owe to the Company.
10.2. No amendment and/or alteration and/or variation and/or deletion and/or addition and/or cancellation of these terms and conditions, shall be of any force and effect unless reduced to writing and signed by a duly authorised representative of the Company and the Customer.
10.3. No warranties, representations or guarantees have been made by the Company or on its behalf, which may have induced the Customer to sign this document.
10.4. No relaxation or indulgence which the Company may give at any time in regard to the carrying out of the Customer’s obligations in terms of any contract shall prejudice or be deemed to be a waiver of any of the Company’s rights in terms of any contract.