TERMS AND CONDITIONS OF QUOTATION / AGREEMENT
(Jetting and cleaning services)
1.1. In the quotation (and in the agreement) the following expressions have the meanings assigned to them hereunder and cognate expressions have corresponding meanings:
1.1.1. “Acceptance date” means the date on which client accepts the quotation in accordance with the provisions of clause 3.1 below.
1.1.2. “Advance amount” means the amount referred to as such in the quotation document.
1.1.3. “agreement” has the meaning contemplated in clause 5.1 below.
1.1.4. “Client means the person referred to as such in the quotation document.
1.1.5. “Commencement date” means the date that is referred to as such in the quotation document.
1.1.6. “Completion date” means, subject to the other provisions of the agreement, the date referred to as such in the quotation document.
1.1.7. “Daily standby rate” means the rate referred to as such and as set out in the quotation document.
1.1.8. “Daily accommodation rate” rate referred to as such and as set out in the quotation document for each member of NU FLOW’S workforce.
1.1.9. “drawings” means the drawings, plans and / or sketches of the pipes in respect of which the services are to be carried out and that were furnished by client to NU FLOW prior to NU FLOW issuing the quotation document.
1.1.10. “equipment” means the equipment contemplated in the quotation document.
1.1.11. “expert QS” means an independent quantity surveyor or firm of quantity surveyors agreed on by the parties or failing such agreement within 5 (five) business days of any dispute contemplated in the agreement being referred to him for determination, an independent quantity surveyor or firm of quantity surveyors based in the Greater Johannesburg Area appointed by the chairperson or the President (or his or her nominee) or such like person for the time being of the South African Council for the Quantity Surveying Profession or any successor body to it;
1.1.12. “Final amount” means the amount equal to the sum of ~
22.214.171.124.the quoted amount, as revised in accordance with the provisions of the agreement, together with the relevant amount of VAT thereon; plus
126.96.36.199.any other additional amounts which client is liable to pay NU FLOW as contemplated in the agreement, together with the relevant amount of VAT thereon; less
188.8.131.52.any amounts which NU FLOW may be required to deduct from the quoted amount in respect of any portion of the pipes not inspected by NU FLOW and that is subject to re-measurement as contemplated in clause 11.1.
1.1.13. “Hose length” means the length of the hose connected to the equipment and that is set out in the quotation document.
1.1.14. “impediment” means an event – other than the non-issuance by any appropriate public authority to a party, for whatever reason, of such authorisations, licences, permits or approvals necessary for the performance by such party of its obligations in terms of the agreement – the happening or cause of which ~
184.108.40.206. prevents, disrupts or otherwise hampers a party (“the impeded party”) in the performance of its obligations contemplated in the agreement.
220.127.116.11.is beyond the control of the impeded party and which may result from the following events, which events will not be exhaustive:
18.104.22.168.1.war, whether declared or not, civil war, civil violence, riots and revolutions, acts of sabotage.
22.214.171.124.2. natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning.
126.96.36.199.3. explosions, fires, destruction of machines, of factories and of any kind of installations.
188.8.131.52.4. boycotts, strikes and lockouts of all kinds, go-slows, occupation of factories and premises, and work stoppages that are industry wide and are not limited a party’s work force only; or
184.108.40.206.5. acts of authority, whether lawful or unlawful, apart from acts from which the party seeking relief has assumed the risk by virtue of any other provisions of the agreement.
220.127.116.11.the impeded party could not, as at the date of acceptance date, reasonably be expected to have taken into account along with the effects thereof on its ability to perform any of its obligations contemplated in the agreement; and
18.104.22.168.it could not reasonably have avoided or overcome or at least could not have reasonably avoided or overcome the effects thereof.
1.1.15. “Induction date” means the date referred to as such in the quotation document.
1.1.16. “NU FLOW” means NU FLOW PROPRIETARY LIMITED, a private company incorporated and registered as such in South Africa and having registration number 2012/063168/07.
1.1.17. “NU FLOW’S banking account” means the banking account of NU FLOW having the details set out in the quotation document.
1.1.18. “NU FLOW’S e-mail address” means both of the following e-mail addresses: legal@NU FLOW.co.za and info@NU FLOW.co.za.
1.1.19. “NU FLOW’s physical address” means the physical address at which NU FLOW’S principal place of business is located as set out in the quotation document.
1.1.20. “NU FLOW’S workforce” means NU FLOW’S technicians and other employees engaged in executing the services on the site.
1.1.21. “Outstanding balance of the final amount” means the amount equal to the difference between the final amount and the advance amount.
1.1.22. “parties” means client and NU FLOW (each “a party”).
1.1.23. “pipes” means the pipes contemplated in the quotation document.
1.1.24. “Prescribed rate” means the rate of interest prescribed from time to time by the Minister of Justice for the purposes of section 1(1) of the Prescribed Rate of Interest Act No. 55 of 1975.
1.1.25. “quotation” means the offer, contained in the quotation document as read with and including these terms and conditions, which is made by NU FLOW to carry out the services.
1.1.26. “Quotation document” means the document signed and dated by NU FLOW.
1.1.27. “Quotation number” means the document number allotted to the quotation as set out in the quotation document.
1.1.28. “Quoted amount” means the amount referred to as such and as set out in the quotation document, and which amount is inclusive of VAT.
1.1.29. “site” means the place(s) where the services are to be carried out as set out in the quotation document.
1.1.30. “services” means conducting jet cleaning of the pipes using the equipment.
1.1.31. “services period” means the period commencing on the commencement date and ending on the completion date.
1.1.32. “Travelling rate” means the rate referred to as such and as set out in the quotation document; and
1.1.33. “VAT” means Value Added Tax payable from time to time in terms of the Value Added Tax Act No. 89 of 1991.
2.1. In the quotation (and in the agreement), unless a contrary intention clearly appears:
2.1.1. Clause headings are for the purpose of convenience and reference only and must not be used in the interpretation of nor modify nor amplify the terms of the quotation (and in the agreement) nor any clause thereof.
22.214.171.124. Unless the context indicates a contrary intention, an expression which denotes ~
126.96.36.199.any gender includes the other gender.
188.8.131.52.a natural person includes a created entity and vice versa; and
184.108.40.206.the singular includes the plural and vice versa.
2.1.2. Any reference to a statutory enactment is to that enactment as at the acceptance date and as amended or re-enacted or substituted from time to time thereafter and includes all and any statutes, ordinances, regulations and by-laws promulgated in terms thereof from time to time.
2.1.3. A reference to any agreement or other document (including the agreement) includes a reference to such agreements and documents as amended from time to time after the acceptance date.
2.1.4. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition clause (clause 1), effect must be given to it as if it were a substantive provision in the body of the agreement.
2.1.5. A reference to “days” means calendar days unless qualified by the word “business”, in which instance a “business day” means any day other than a Saturday, Sunday or public holiday officially recognised as such in South Africa.
2.1.6. When a particular time period is expressed in business days, such time period will be reckoned by ~
220.127.116.11. excluding the first business day.
18.104.22.168. including the last business day; and
22.214.171.124. excluding all days that are not business days.
2.1.7. If the due date for performance of any obligation in terms of the agreement is a day which is not a business day, then (unless otherwise stipulated) the due date for performance of the relevant obligation will be the immediately succeeding business day.
2.1.8. If any obligation or act is required to be performed on a particular day, it must be performed (unless otherwise stipulated) by 16:30 (local time at the place where the obligation or act is required to be performed) on that day.
2.1.9. Where figures are referred to in numerals and in words, if there is a conflict between the two, the words will prevail.
2.1.10. Where any term is defined within the context of any particular clause in the quotation (and in the agreement), the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, will bear the meaning ascribed to it for all purposes in terms of the quotation (and in the agreement), notwithstanding that such term has not been defined in clause 1.
2.1.11. None of the provisions of the quotation (and the agreement) will be construed against or interpreted to the disadvantage of any party by reason of such party having or being deemed to have structured or drafted such provision.
2.1.12. The eiusdem generis rule (i.e., the rule of construction that provides that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms are to be restricted to that same class) will not apply; accordingly, whenever the word “include” or “including” is used followed by specific examples, such examples will be interpreted to be illustrative only and must not be interpreted so as to limit the meaning of any general word or term to the same genus or class as the examples given.
2.1.13. The words “shall” and “will” and “must” used in the context of any obligation or restriction imposed on a party have the same meaning.
2.1.14. A reference to “law” means any law of general application in South Africa and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local government) statutory or regulatory body which has the force of law.
2.1.15. Any reference to a “person” includes, unless the context indicates a contrary intention, any natural person or individual or any juristic person, association, business, close corporation, company, concern, enterprise, firm, partnership, joint venture, trust, undertaking, voluntary association, body corporate and any similar entity, whether or not having separate legal capacity.
2.1.16. The word “writing” means legible writing and in English and includes printing, typewriting, lithography or any other mechanical process, as well as any electronic communication.
2.1.17. The word “notice” means a notice in writing, and “notify” means to give notice in writing.
2.1.18. The word “signature” includes an electronic signature as defined in Section 1 of the Electronic Communications and Transactions Act No. 25 of 2002 and “sign” includes appending such said electronic signature.
2.1.19. Any reference to “business hours” will be construed as being the hours between 09:00 and 16:30 (South African Standard Time [SAST]) on any business day.
2.1.20. “R” or “Rands” denotes the legal currency of South Africa.
2.1.21. No provision of the agreement will, unless otherwise stipulated, constitute a stipulation for the benefit of any person who is not a party to the Agreement.
2.1.22. References to a party include a reference to that party’s agents, representatives, successors in title, assigns, transferees and substitutes allowed at law.
2.1.23. When any party has a “discretion”, such expression means that the relevant party has the sole, absolute and unfettered discretion, with no requirement to act reasonably or provide reasons unless specifically required under the provisions of the agreement.
2.1.24. The expression “all reasonable efforts”, when used in regard to an obligation of any party, means taking, in good faith and with due diligence no less steps than those that would be taken by a commercially reasonable and prudent person in comparable circumstances.
- ACCEPTANCE OF QUOTATION
3.1. To accept the quotation, client or client’s representative, as the case may be, must duly (a) sign and date the quotation document in the designated space provided therefor and initial each page thereof at the foot thereof and (b) thereafter deliver the quotation document to NU FLOW’S physical address or transmit the quotation by e-mail to NU FLOW’S e-mail address.
- VALIDITY OF QUOTATION
4.1. The quotation is valid and open for acceptance by client until 16:30 on the 10th (tenth) business day after the day on which it shall have been transmitted to client’s e-mail address, failing which the quotation will lapse and will not be capable of being accepted.
- BINDING AGREEMENT
5.1. On client’s acceptance of the quotation, in accordance with the provisions of clause 3.1 above, a binding agreement, subject to these terms and conditions as read with and including the quotation document, will automatically come into existence between client and NU FLOW for the rendering of the services by NU FLOW to client (“the agreement”).
- HEALTH AND SAFETY
6.1. If, as a condition to NU FLOW’S workforce being permitted access to the site and / or to commence carrying out the services, NU FLOW’S workforce is required to undergo, at the site, any safety induction course / program prescribed by client and / or any other person who may have authority over the site, NU FLOW’S workforce will undergo the prescribed safety induction course / program at the site on the induction date and at no charge to NU FLOW.
6.2. Whilst on the site, NU FLOW’S workforce will be subject to the prevailing security, safety and health arrangements imposed by client and / or any other person who may have authority over the site.
6.3. If, in terms of the relevant safety and health requirements, NU FLOW’S workforce are required to wear airline masks as part of their personal protective equipment, client must, at its sole cost, provide NU FLOW’S workforce with the required airline masks.
6.4. If, at any time or from time to time during the service period, client and / or any other person who may have authority over the site requires NU FLOW’S workforce to undergo testing for COVID-19 (corona virus disease) or any other virus ~
6.4.1. NU FLOW must procure that they do so; and
6.4.2. client will be liable to NU FLOW for payment, on presentation of NU FLOW’S invoice therefor, of the proven costs incurred by NU FLOW in respect of such testing.
- WARRANTY BY CLIENT: DRAWINGS
7.1. Client warrants to NU FLOW that the drawings are true and complete in every respect.
7.2. NU FLOW relies on the warranty contained in clause 7.1 above in making the quotation.
- COMMENCEMENT AND COMPLETION OF SERVICES
8.1. NU FLOW will, subject to the provisions of the agreement ~
8.1.1. commence carrying out the services on the commencement date; and
8.1.2. complete the execution of the services by no later than the completion date.
8.2. NU FLOW will not commence carrying out the services unless it shall have first received payment of the advance amount.
8.3. NU FLOW will, throughout the services period, carry out the tasks comprising the services during the hours of 08:00 – 17:00 on business days and 08:00 – 13:00 on Saturdays.
8.4. NU FLOW is not under any obligation to have any of NU FLOW’S workforce carry out any of the tasks comprising the services on any day and at any times other than on those days and during those hours set out in clause 8.2 above.
- SCOPE OF SERVICES
9.1. NU FLOW will, subject to the provisions of the agreement, timeously and diligently do or cause to be done all things that are reasonably required to commence, carry on and complete the services in a proper and workmanlike manner and in accordance with the relevant professional techniques and standards which govern the industry of which NU FLOW is a member.
9.2. The distance of a pipe that NU FLOW is able to jet-clean using the equipment in any one direction from any access point into the pipe is limited to a hose length. Accordingly, ~
9.2.1. The maximum distance of a pipe that NU FLOW is able to jet-clean from any access point is a hose length in one direction and a hose length in the opposite direction: and
9.2.2. NU FLOW will not jet-clean any portion of a pipe which is beyond a hose length.
9.2.3. No deduction will made from, and no adjustment will be made to the quoted amount in respect of any portion of a pipe which is beyond a hose length and which NU FLOW shall in fact not have jet cleaned due to such portion of a pipe being beyond a hose length.
9.3. In the event of NU FLOW losing any item of the equipment in a pipe, it must notify client of such loss and in such notice set out its suggestions or advice as to how to retrieve the lost item.
- VARIATION OF SERVICES
10.1. If any variations, modifications, additions and extras to or omissions from the services are required (“variation services”), NU FLOW will not commence with the execution thereof, unless and until the parties shall have first, in writing, agreed (a) the cost of executing the variation services and the resultant increase or decrease, as the case may be in the quoted amount and (b) any resultant extension of the completion date that may be required.
- MEASUREMENT OF SERVICES
11.1. If for any reason is becomes necessary to measure the extent to which the services were rendered and adjust the quoted amount, the quoted amount will be adjusted in accordance with the rates used for calculating the quoted amount as set out in the quotation document and in the absence of such rates, such rates as are fair and reasonable either, as agreed between the parties or in the absence of the parties reaching such agreement, as determined by the expert QS in accordance with the provisions of clause 14.15 below, with the necessary changes being made as may be required by the context.
- PAYMENT OF QUOTED AMOUNT
12.1. As consideration for NU FLOW rendering the services, client must pay NU FLOW the quoted amount.
12.2. Subject to NU FLOW being entitled to an adjustment of the quoted amount in terms of the relevant provisions of the agreement, the quoted amount is fixed, and it is not subject to revision or adjustment.
12.3. Client must pay the advance amount by no later than the 1st (first) business day after the acceptance date.
12.4. Client will be liable for the payment of the relevant amount of VAT charged on the final amount.
12.5. NU FLOW will issue client with a valid tax invoice for the final amount once the services shall have been completed.
12.6. Client must pay the outstanding balance of the final amount by no later than the 1st (first) business day after the day on which NU FLOW shall have issued its said invoice to client.
12.7. Client will be liable for the payment of interest on any portion of the outstanding balance of the final amount that is not paid on the due date for payment thereof calculated at the prescribed rate from the due date for payment until the date of payment in full (both dates included).
12.8. The payment of the advance amount and all and any other amounts payable to NU FLOW in terms of the agreement must be made without deduction or set-off by way of an electronic transfer of immediately available funds into NU FLOW’S banking account and which payment must reflect the quotation number as a payment reference.
- VARIOUS OBLIGATIONS OF CLIENT
13.1. Client must ensure that throughout the services period ~
13.1.1. clean potable water is provided, at no charge to NU FLOW at the site and in sufficient quantities to permit the proper carrying out of the services.
13.1.2. the pipes are in a decommissioned state, i.e., in a drained condition and any and all water flow in and to the pipes is properly diverted.
13.1.3. NU FLOW is given access into the pipes through a manhole or valve having a diameter of at least 350mm (three hundred and fifty millimetres) or a size of no less than 300mm (three hundred millimetres) x 300mm (three hundred millimetres).
13.1.4. any and all preparatory work that is required to be carried out in order for NU FLOW to gain access into the pipes and to work safely is to be carried out, and which preparatory work will include ~
126.96.36.199. providing NU FLOW with unobstructed and safe access to the pipes, such that the equipment and any motor vehicle in which the equipment is housed may be driven up to and parked at all manholes and valves to be used as access points into the pipes.
188.8.131.52. removing any and all manhole or valve chamber lids (concrete or other) where such lids are required to be removed; and
184.108.40.206. removing and reinstating any and all manhole access flanges; and
13.1.5. adequate toilet facilities are provided on the site for NU FLOW’S workforce and at client’s own cost.
- REVISION OF COMPLETION DATE AND QUOTED AMOUNT
14.1. NU FLOW will, subject to the provisions of this clause 14, be entitled to a revision of the completion date if a delay in achieving completion of the services is caused by any one or more of the following:
14.1.1. Adverse effect of weather conditions.
14.1.2. Making good any loss and / or repairing any damage to a pipe, where such loss and / or damage is attributable to conduct on the part of NU FLOW.
14.1.3. An impediment where the event in question could not have been prevented by either party and is beyond the control of both parties (excluding however any epidemic or pandemic, which would include the COVID-19 (corona virus disease) pandemic, which results in the shut-down of the site); or
14.1.4. Loss of any equipment in a pipe caused by negligence or wilful conduct on the part of NU FLOW.
14.2. NU FLOW will not be entitled to an adjustment of the quoted amount due to a revision of the completion date arising out of any one or more of the circumstances mentioned in clause 14.1 above.
14.3. NU FLOW will, subject to the provisions of this clause 14, also be entitled to a revision of the completion date if a delay in achieving completion of the services is caused by any one or more of the following:
14.3.1. A delay in NU FLOW commencing with the services due to a failure on the part of client in making payment of the advance amount in accordance with the provisions of clause 12.3.
14.3.2. Any delay in the successful induction of any of NU FLOW’S workforce, provided that such delay is not attributable to NU FLOW.
14.3.3. The pipes not remaining decommissioned as contemplated in clause 13.1.1 above.
14.3.4. NU FLOW not being given access into the pipes as contemplated in clause 13.1.3 above.
14.3.5. Any preparatory work contemplated in clause 13.1.4 above not having been carried out.
14.3.6. The site being shut down for any reason, including due to any epidemic or pandemic, which would include the COVID-19 (corona virus disease) pandemic; and
14.3.7. Making good any loss and / or repairing any damage to the pipes in those instances where such loss and / or damage is attributable to any cause other than negligence or wilful conduct on the part of NU FLOW.
14.4. NU FLOW will be entitled to an adjustment of the quoted amount due to a revision of the completion date arising out of any one or more of the circumstances mentioned in clause 14.3 above.
14.5. NU FLOW will, subject to the provisions of this clause 14, also be entitled to a revision of the completion date if a delay in achieving completion of the services is caused by an impediment.
14.6. NU FLOW will be entitled to an adjustment of the quoted amount if the delay is caused by an impediment as contemplated in clause 14.5 above provided that (a) the event in question is not an event of the nature contemplated in clause 14.1.3 and (b) that the event in question is one in respect of which there is no fault on the part of NU FLOW.
14.7. Should an event or circumstance mentioned in any of clauses 14.1, 14.3 and 14.5 above occur and which could, in the opinion of NU FLOW, cause a delay in the completion of the services by the completion date, NU FLOW must ~
14.7.1. give client notice of the occurrence of the relevant event or circumstance within 2 (two) business days after having become aware thereof.
14.7.2. take all reasonable steps to avoid or reduce the delay; and
14.7.3. within no more than 5 (five) business days after the date on which it became aware of the occurrence of the relevant event or circumstance or the date on which it ought reasonably to have become aware of the potential delay, whichever date is the earlier, notify client that it intends claiming ~
220.127.116.11. a revision of the completion date or any previous revision thereof, as the case may be and / or
18.104.22.168. an adjustment of the quoted amount as a result thereof.
14.8. NU FLOW must submit a claim in writing to client for a revision of the completion date (or any previous revision thereof, as the case may be) and / or an adjustment of the quoted amount within 5 (five) business days after the delay shall have ceased (“the claim notice”).
14.9. In claiming a revision of the completion date (or any previous revision thereof, as the case may be) and / or the adjustment of the quoted amount, NU FLOW must state the following in the claim notice and in respect of each relevant event or circumstance:
14.9.1. full particulars of the relevant event or circumstance on which it relies for its claim.
14.9.2. full particulars of the effect of the delay on the progress towards the completion of the services.
14.9.3. the extension period claimed, and the calculation of which period must be based on the working hours of NU FLOW’S workforce in executing the services being limited to the days and during the hours contemplated in clause 8.3 above; and
14.9.4. full particulars and calculations of the adjustment of the quoted amount claimed, provided that ~
22.214.171.124. if NU FLOW is unable at the time to provide client with such particulars and calculations, NU FLOW must indicate such to client and provide client instead with an estimation of the adjustment; and
126.96.36.199. the adjustment in the quoted amount will be limited to ~
188.8.131.52.1. the daily standby rate for each day or part thereof by which the completion date is extended; plus, either
184.108.40.206.2. the daily accommodation rate for each day or part thereof by which the completion date is extended, or
220.127.116.11.3. in the case of NU FLOW’S workforce not requiring accommodation the costs, calculated in accordance with the travelling rate, of NU FLOW’S workforce travelling, by road and along the shortest possible route, from NU FLOW’S physical address to the site and return for each day by which the completion date is extended. It will be deemed that NU FLOW’S workforce will not require accommodation if the distance, measured along the shortest possible route, from NU FLOW’S physical address to the site and return is less than 300km (three hundred kilometres) by road.
14.10. Client must within 5 (five) business days after having received the claim notice notify NU FLOW of either (a) the grant in full of the extension period claimed or (b) the reduction of the extension period claimed or (c) the refusal of the entire extension period claimed and in such notice client must ~
14.10.1. if client grants the claim, either as claimed by NU FLOW or as client may have reduced it, ~
18.104.22.168. determine the revised date for the completion of the services; and
22.214.171.124. specify each event or circumstance in respect of which the extension period is granted (whether as claimed by NU FLOW or as client may have reduced same) and the extent of the revision period granted; or
14.10.2. if client refuses the claim, give full reasons for having done so.
14.11. Client must in its notice mentioned in clause 14.10 above also notify NU FLOW of either (a) the grant of the adjustment in the quoted amount claimed or (b) the reduction of the adjustment in the quoted amount claimed or (c) the refusal of the adjustment in the quoted amount claimed in its entirety and in such notice client must ~
14.11.1. if client reduces the adjustment in the quoted amount as claimed by NU FLOW, it must set out (a) full reasons for the reduction and (b) and a full calculation of the reduced amount; or
14.11.2. if client refuses the claim in its entirety, it must set out full reasons for having done so.
14.12. Should NU FLOW dispute client’s reduction or refusal of its claim, as the case may be, it must, within 3 (three) business days after having received client’s notice mentioned in clause 14.10 above, notify client of such fact and whereupon a dispute regarding a revision of the completion date (or any previous revision thereof, as the case may be) will have arisen between the parties (“the extension dispute”).
14.13. The parties must meet with each other on such date, at such place and at such time as the parties may agree (and in the absence of such agreement, at the offices of NU FLOW located at NU FLOW’S physical address) at 10:00 on the 3rd (third) business day after NU FLOW shall have given client the notice mentioned in clause 14.12) and at such meeting endeavour to resolve the extension dispute by discussion, negotiation and joint co-operation.
14.14. In the event of the extension dispute not being resolved in the manner prescribed in clause 14.13 above at the said meeting or within such extended time period as the parties may in writing allow, NU FLOW must refer the relevant dispute to the expert QS for determination.
14.15. The determination of the expert QS will, in the absence of manifest error or fraud, be final and binding on the parties. In making his determination, the expert QS will act as an expert and not as an arbitrator or quasi-arbitrator, and must determine which of the parties is to bear liability for the payment of his costs of determining the extension dispute, or if in his determination both of the parties are to bear such liability, then the extent of their respective liability for payment thereof.
- INDEMNITY BY CLIENT
15.1. Client hereby indemnifies and holds NU FLOW harmless against all and any liability, loss, damages, costs, expenses, claims and proceedings arising out of any negligent or wilful act (of commission or omission) on the part of client, its employees, representatives, contractors or agents and any person for whose acts or omission client is responsible for in law.
16.1. If a party (“the impeded party”) is prevented or restricted, directly or indirectly, from carrying out all or any of its obligations under the agreement by reason of any impediment, the impeded party ~
16.1.1. will be relieved of its obligations under the agreement during the period for which such impediment and its consequences continue, but only to the extent so prevented by the applicable impediment, and
16.1.2. will not be liable for any delay or failure in the performance of any its obligations under the agreement or for any loss or damages which the other party may suffer due to or resulting from such delay or failure, provided always that the impeded party must ~
126.96.36.199. give notice of any such inability on its part to perform to the other party as soon as it may be reasonably possible to do so after the impeded party becomes aware of the impediment; and
188.8.131.52. at all times do or cause to be done all things that may be reasonably required to mitigate all and any losses and / or damages that may suffered by the other party as a consequence thereof.
16.2. The impeded party, in invoking the provisions of clause 16.1 above must give notice to the other party of the cessation of the relevant impediment, as soon as it may be reasonably possible to do so after the impeded party becomes aware thereof.
16.3. During the period that the relevant impediment continues, the impeded party will, not less than every 5 (five) business days, provide the other party with a status report on the impediment as well as the steps being taken by the impeded party to mitigate the effect of the applicable impediment.
16.4. If any party (“the disputing party”) disputes whether an event claimed by the impeded party qualifies as an impediment and / or disputes the continuation of the impediment, the disputing party must notify the impeded party thereof, within 5 (five) business days of receipt of the notice as contemplated in clause 184.108.40.206 above, and failing which the disputing party will be deemed to have waived its right to dispute such claim.
16.5. Notwithstanding the provisions of clause 16.4 above, the right of the disputing party to dispute the continuation of the impediment and / or the steps being taken by the impeded party to mitigate the effect of the impediment, will continue and will not be deemed to be waived, and will continue for as long as the impeded party invokes the provisions of clause 16.1 above.
16.6. In the event that the disputing party gives the impeded party the notice mentioned in clause 16.4 above and within the said 5 business day period, a dispute concerning the impediment (the “impediment dispute”) will have arisen between the parties, and the parties must meet with each other on such date, at such place and at such time as the parties may agree (and in the absence of such agreement, at the offices of NU FLOW located at NU FLOW’S physical address at 10:00 on the 3rd (third) business day after the disputing party shall have given the impeded party the notice mentioned in clause 16.4 above) and at such meeting endeavour to resolve the impediment dispute by discussion, negotiation and joint co-operation.
16.7. In the event of the impediment dispute not being resolved in the manner prescribed in clause 16.6 above at the said meeting or within such extended time period as the parties may in writing allow, the impediment dispute must be referred to the expert QS for determination in accordance with the provisions of clause 14.15 above.
16.8. Notwithstanding any provisions of the agreement to the contrary, if an impediment persists for a continuous period of 60 (sixty) business days or if any number of impediments together persist over an intermittent period totalling 60 (sixty) business days, and the parties have not reached a mutually satisfactory resolution to the changed circumstances, and the effect of the impediment(s) is / are continuing, then either party may, without prejudice to any rights that it may have under the agreement or in law, terminate the agreement in terms of a notice to the other party.
- TERMINATION DUE TO INSOLVENCY
17.1. Either of the parties may, without prejudice to any alternative or additional right of action or remedy available to it at law, cancel the agreement on notice to the other of them (“the other party”) and with immediate effect if ~
17.1.1. The other party is placed under a provisional or final order of liquidation.
17.1.2. Business rescue proceedings (as contemplated in Chapter 6 of the Companies Act No. 71 of 2008) are commenced in respect of the other party; or
17.1.3. The other party commits any act which would, if the other party were a natural person, be an act of insolvency contemplated in terms of Section 8 of the Insolvency Act 24 of 1936.
- LIMITATION OF LIABILITY
18.1. In no circumstances will NU FLOW be liable to client, regardless of the basis on which client may be entitled to claim damages from NU FLOW (including breach of any provision of the agreement or a breach of any warranty given in terms of the agreement, negligence, misrepresentation, or other contractual or delictual claim), for any special, incidental, punitive, or indirect damages, or for any economic consequential damages or lost profits or savings, even if foreseeable or even if it has been advised of the possibility of such damages.
18.2. Subject to the provisions of clause 18.1 above, NU FLOW’S liability to client in respect of all and any claims for damages that client may have against it, whether in terms of any applicable law or the agreement, will be limited in the aggregate to so much of the final amount as shall have been paid to and received by NU FLOW that does not exceed 2.5% (two comma five percent) of the final amount.
19.1. Should any party (“the defaulting party”) commit a breach of any of the provisions of the agreement (other than those provisions which contain their own remedies or limit the remedies in the event of a breach thereof) and fail to remedy such breach within 10 (ten) business days after written notice shall have been given to it by the other party (“the aggrieved party”) calling on the defaulting party to remedy such breach [or if it is not reasonably possible to remedy the breach within the said 10 (ten) business day period, then within such further period as may be reasonable in the circumstances – the onus of demonstrating such reasonableness being on the defaulting party – provided however, that the defaulting party also furnishes evidence within the said 10 (ten) business day period, to the reasonable satisfaction of the aggrieved party, that it has taken whatever steps are available to it to commence remedying the breach], the aggrieved party may, without prejudice to any other rights of action or any other remedies which may be available to it in law, but subject to the provisions of clauses 18.1 and 18.2 above ~
19.1.1. claim immediate specific performance of any of the defaulting party’s obligations under the agreement, with or without claiming damages, whether or not such obligation shall have fallen due for performance and to require the defaulting party to provide security to the satisfaction of the aggrieved party for the defaulting party’s obligations, or
19.1.2. cancel the agreement, with or without claiming damages.
- LEGAL COSTS
20.1. In the event of NU FLOW taking any steps against client (including, the institution of legal action) pursuant to a breach or a repudiation of the agreement on client’s part or to otherwise enforce its rights under the agreement or to defend any legal action instituted against it by client, NU FLOW, if successful, may recover from client all costs incurred by it in regard to taking such steps or defending any such said action brought against it by client, as the case may be, and which costs will include legal costs recoverable in accordance with the relevant tariff of the relevant court of law determined on the scale as between attorney-and-client.
- WHOLE AGREEMENT
21.1. The agreement contains all the express provisions agreed on by the parties with regard to the rendering of the services by NU FLOW to client and the parties hereby waive the right to rely on any alleged and / or express provision (albeit agreements, representations or warranties) not contained herein.
21.2. No party will be bound by any express term, representation, undertaking, warranty, promise or the like not recorded in the quotation (and the agreement), whether or not the same induced the conclusion of the agreement and / or whether or not the same was negligent.
21.3. The agreement will supersede all and any other agreements, discussions and / or understandings relating to the rendering of the services by NU FLOW to client, oral or written, that may have been entered into between NU FLOW and client prior to the acceptance date.
- NO VARIATION
22.1. No amendment, addition or variation, novation or consensual cancellation of the agreement or any provision or term thereof (including this clause 22.1) or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of the agreement and no settlement of any disputes arising under the agreement will be binding on the parties unless recorded in writing and signed by the parties.
- NO WAIVER
23.1. No waiver of any of the terms and conditions of the agreement will be binding for any purpose unless expressed in writing and signed by the party giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of a party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege by such party. No relaxation or indulgence which a party may show or grant to any other party will in any way prejudice or be deemed to be a waiver of the first mentioned party’s rights under the agreement and will not preclude or estop the first mentioned party from subsequently exercising any rights enjoyed by it under the agreement.
- CUMULATIVE RIGHTS AND WAIVER
24.1. No remedy expressly granted in the agreement to a party will be deemed to exclude any other remedy which would otherwise be available in law to such party. The respective rights and remedies of the parties under the agreement are cumulative, may be exercised as often as the parties consider appropriate and are in addition to their respective rights and remedies under common law.
- SURVIVAL OF PROVISIONS
25.1. The termination of the agreement for any reason will not affect ~
25.1.1. the rights of any of the parties ~
220.127.116.11. that may have accrued before the termination of the agreement; or
18.104.22.168. that specifically or by its nature survives the termination of the agreement; or
25.1.2. such of the provisions of the agreement which expressly provide that they will operate after any such termination or which of necessity must continue to have effect after such termination, notwithstanding that the clauses themselves do not expressly provide for this.
26.1. All provisions and the various clauses of the agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of the agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, will, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of the agreement will remain of full force and effect. The parties declare that it is their intention that the agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.
- CHOSEN ADDRESSES
27.1. The parties select as their respective addresses for the purpose of citation and service of legal process the following physical addresses:
27.1.1. NU FLOW: NU FLOW’S physical address.
27.1.2. Client: Client’s physical address.
27.2. The parties select as their respective addresses for the purposes of giving or sending any notices, requests, demands, consents, invoices, other documents or communications of whatsoever nature (collectively referred to as “notices”) provided for or necessary in terms of the agreement, the following physical and e-mail addresses:
27.2.1. NU FLOW – marked “For the attention of The Board of Directors”
22.214.171.124. Physical address: NU FLOW’S physical address.
126.96.36.199. E-mail address: NU FLOW’S e-mail address.
188.8.131.52. Physical address: Client’s physical address.
184.108.40.206. E-mail address: Client’s e-mail’s address.
27.3. A party may by notice to the other party change its chosen physical address to another physical address provided that the same is in South Africa and change its chosen e-mail address to another e-mail address.
28.1. Any notice required or permitted to be given or made in terms of the agreement will be valid and effective only if in writing.
28.2. Any notice to a party ~
28.2.1. delivered by hand at its chosen physical address ~
220.127.116.11. during business hours will be deemed (unless the contrary is proved) to have been received by that party on the date of delivery thereof; or
18.104.22.168. outside of business hours, will be deemed (unless the contrary is proved) to have been received by that party at 09:00 on the 1st (first) business day following the date of delivery thereof; or
28.2.2. sent by e-mail to its chosen e-mail address ~
22.214.171.124. during business hours will be deemed (unless the contrary is proved) to have been received by that party on the date of transmission thereof provided that the addressee either acknowledges receipt or the sender requests, obtains and retains a ‘read receipt’ in confirmation of the successful transmission thereof; or
126.96.36.199.outside of business hours will be deemed (unless the contrary is proved) to have been received by that party at 09:00 on the 1st (first) business day following the date of transmission thereof, provided that the addressee either acknowledges receipt or the sender requests, obtains and retains a ‘read receipt’ in confirmation of the successful transmission thereof.
28.3. Notwithstanding any provision of the agreement to the contrary, a (written) notice actually received by a party will be an adequate notice to it notwithstanding that it was not sent to or delivered at its chosen physical address or chosen e-mail address.
29.1. The parties undertake, subject to the other provisions of the agreement, to do all things that may be necessary to give full effect to the provisions of the agreement.
- GENERAL WARRANTIES BY CLIENT
30.1. Client warrants to NU FLOW that ~
30.1.1. it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to accept the quotation (and thereby enter into the agreement).
30.1.2. the agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms.
30.1.3. to the best of its knowledge and belief (which knowledge and belief it warrants shall have been arrived by it after having made do and careful enquiry), it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all of its obligations in terms of the agreement.
30.1.4. it is entering into the agreement as principal (and not as agent or in any other capacity); and
30.1.5. it is not relying on any statement or representation by or on behalf of NU FLOW, except those expressly set forth in the quotation.
30.2. Each of the warranties given by client in terms of clause 30.1 above or any other clause of the agreement ~
30.2.1. is a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in the agreement;
30.2.2. continues and will remain in force notwithstanding the completion of any or all the transactions contemplated in the agreement.
30.2.3. insofar as it is promissory or relates to a future event, will be deemed to have been given as at the date of fulfilment of the promise or future happening of the event, as the case may be.
30.2.4. is a representation of fact that is material to the conclusion of the agreement; and
30.2.5. is relied on by NU FLOW in issuing the quotation and thereby entering into the agreement.
- WARRANTY OF AUTHORITY
31.1. The person who signs the quotation document for and on behalf of client, by doing so, warrants that he or she, as the case may be, is duly authorised to do so.