TERMS OF SERVICE
The following standard terms and conditions will regulate the relationship between SA SERVICE GUYS (Pty) Ltd and the CUSTOMER in respect of all SERVICES effected in terms of this agreement.
1. DEFINITIONS
1.1 SA SERVICE GUYS – Shall mean SA Service Guys (PTY) LTD a private company registered under the laws of the Republic of South Africa under number 2020/220985/07 , contracted by the CUSTOMER to affect the SERVICES in terms of this agreement.
1.2 CUSTOMER – Shall mean the owner of the EQUIPMENT/ Machinery/ Forklift/ Generator/ Property
1.3 PROPERTY – Shall mean the CUSTOMER’S Property where the Heavy machinery is located
1.4 SERVICES – Shall mean all services and/or repair and/or maintenance and/or installations and/or fault-finding to be effected in terms of this agreement by SA SERVICE GUYS on the PROPERTY as specified on the face hereof, it being understood that no additional SERVICES shall be deemed to form part of this agreement unless it is specifically recorded in an addendum hereto.
1.5 CONTRACT PRICE – Shall be the amount payable in terms of this agreement as specified on the face hereof in respect of the SERVICES to be effected on the property as quoted for in the quotation.
1.6 PRACTICAL COMPLETION – Shall mean the date on which the SERVICES has been completed and handed over to the CUSTOMER together with SA SERVICE GUYS final invoice in respect of the SERVICES so completed.
1.7 EQUIPMENT – Shall mean any appliances and apparatuses to be installed, or used in the execution of the SERVICES
1.8 PARTS – Shall mean mechanical, electrical or electronic device designed and used to perform some function and to produce a certain effect or result.
1.9 CONSUMABLES – Shall mean items contained within the Equipment, which are consumed at regular intervals during the normal use of the Equipment, including, but not limited to, batteries, oil, anti-freeze, fuel and filters.
1.10 MACHINERY – Shall mean Customers Equipment and/or Machinery and/or Forklifts And/or Generators
2. AGREEMENT
2.1 The CUSTOMER agrees that (a) this Agreement represents the entire Agreement between the CUSTOMER and SA SERVICE GUYS and that any alterations or additions to this Agreement may not be effected unless agreed to by both parties, reduced to writing and signed by the CUSTOMER and SA SERVICE GUYS; (b) this Agreement will govern all future contractual relationships between the parties, not withstanding 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; (e) and conflicting terms, conditions or agreements without prejudice to any securities or guarantees held by SA SERVICE GUYS and; (f) this Agreement applies to all employees and sub-contractors of SA SERVICE GUYS.
2.2 The subcontractor hereby binds himself in his personal capacity as Shareholder (in the case of a company), Member (the case of a close corporation) or Owner, Partner, or Proprietor, as co-principle debtor jointly and severably for the full amount due to SA SERVICE GUYS and agrees this agreement will apply in the same way to him as soon as any work is excepted.
2.3 Not withstanding 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.
2.4 The CUSTOMER hereby gives his/her consent for a credit check.
2.5 The invalidity of any part of the Agreement shall not affect the validity of any other part.
3. APPOINTMENT
3.1 The CUSTOMER appoints SA SERVICE GUYS to effect the SERVICES on their property and/or MACHINERY and agrees that the terms and conditions as set out herein shall be the Agreement between the parties in respect of the SERVICES to be effected.
4. QUOTATION
4.1 All quotations will remain valid for a period of fourteen (14) days from the date of the quotation, or until the date of issues of any new price list, whichever occurs first, or unless specified in writing by SA SERVICE GUYS.
4.2 Delivery and performance times quoted are estimates and are not binding on SA SERVICE GUY’S.
4.3 All quotations are subject to the availability of input goods or services and subject to correction of good faith errors by SA SERVICE GUYS, and the prices quoted are subject to any increase in the cost price, including currency fluctuations, to SA SERVICE GUYS before acceptance of the order.
4.4 In the event of the CUSTOMER disputing the amount of the cost increase in clause 4.3 above, the said amount may be certified by an independent auditor and such certificate shall be final and binding on the CUSTOMER.
5. PROVISION OF PARTS, EQUIPMENT AND CONSUABLES
5.1 Unless the contrary is specified on the face hereof, SERVICE GUYS’s shall provide all PARTS and/or EQUIPMENT necessary for the proper execution of the SERVICES.
All PARTS and/or EQUIPMENT shall be of the kind and quality as described on the face hereof.
5.2 SA SERVICE GUYS reserves the right, at its sole discretion, to provide alternative PARTS and/or EQUIPMENT at the prevailing prices to those ordered by the CUSTOMER, should those PARTS and/or EQUIPMENT have been superseded, replaced or otherwise become unavailable.
5.3 All PARTS and/or EQUIPMENT are sold “voetstoets” with no warranty against latent defects. All guarantees, including common law guarantees, are hereby specifically excluded.
5.4 If the CUSTOMER supplies any PARTS and/or, EQUIPMENT, to be utilized in the SERVICES, SA SERVICE GUYS shall not be responsible for any defects thereto, nor the quality thereof, it being agreed that SA SERVICE GUYS shall accept such PARTS and/or EQUIPMENT, in the condition in which it is delivered to be utilized in the execution of the SERVICES. Extra costs incurred through the use of defective PARTS and/or EQUIPMENT supplied shall be for the CUSTOMER’S account.
5.5 All fixed and unfixed PARTS purchased by SA SERVICE GUYS shall be deemed to be under the control of SA SERVICE GUYS and subject to his lien for payment of any amounts which may become owing in terms of the Agreement. It is recorded that any PARTS and/or EQUIPMENT which have been purchased by SA SERVICE GUYS and affixed to the property shall remain the property of SA SERVICE GUYS until payment in full has been effected by the CUSTOMER. Once payment in terms of the agreement has been effected in full, all PARTS which have been fixed to the property shall become the sole and exclusive property of the CUSTOMER.
5.6 If the PARTS and/or EQUIPMENT is left in the possession of the CUSTOMER during the execution of the SERVICES, the CUSTOMER shall take reasonable steps to protect all PARTS and/or EQUIPMENT on his property from the risk of loss, theft or damage thereto, in SA SERVICE GUYS absence. In the event of loss, or theft the CUSTOMER agrees to replace such PARTS and/or EQUIPMENT, at his or her expense. SA SERVICE GUYS shall, during his presence on the property, be responsible for all PARTS on the property and shall exercise the same caution to protect the CUSTOMER’S interests in the PARTS and/or EQUIPMENT from the risk of loss, theft or damage.
5.7 It is recorded that the CUSTOMER shall not be entitled to insist on detailed costings in respect of all PARTS, it being recorded that the SERVICES is performed in terms of a fixed cost, as specified on the face hereof, and that the costs of the PARTS and/or EQUIPMENT have been factored into such price irrespective of the costs thereof to SA SERVICE GUYS.
6. LAWS, BYLAWS AND REGULATIONS
6.1 SA SERVICE GUYS shall comply with any Act of Parliament, regulations and bylaws of any local authority and/or any public service company, or authority relating to the work, as may be applicable and required, provided that if any fees are payable to any statutory body, or similar entity, the costs thereof shall be for the CUSTOMER’S account, it being recorded that the contract price stipulated on the face hereof is exclusive of any additional fees, charges, or taxes that may be payable pursuant to this particular clause.
7. EXECUTION OF WORK IN ACCORDANCE WITH LAWS AND REGULATIONS
7.1 SA SERVICE GUYS shall only do work that requires specialized tools and/or qualifications when such tools and/or qualifications can be made available.
8. ACCESS TO THE SERVICES AND/OR PROPERTY SITE
8.1 The CUSTOMER shall afford SA SERVICE GUYS access to the PROPERTY to perform on-site SERVICES in accordance with SA SERVICE GUYS’s obligations. In this regard, it is specifically agreed and recorded that SA SERVICE GUYS shall have access to the PROPERTY from 08H00 to 17H00 from Mondays to Fridays and from 09H00 to 14H00 on Saturdays and14H00 to 15H00 Sundays if necessary to perform the SERVICES and the CUSTOMER shall make available, at his cost, the necessary water, sanitary facilities and electricity required by SA SERVICE GUYS to give effect to its obligations in terms of this agreement.
8.2 SA SERVICE GUYS shall further, at the same times have a right of passage through such occupied PARTS for purposes of reaching the SERVICES site on the property.
9. PRACTICAL COMPLETION
9.1 On the date of practical completion, SA SERVICE GUYS shall hand the SERVICES on the property over to the CUSTOMER and render a final invoice if needed. The CUSTOMER shall be obliged to accept the SERVICES 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.
10. TIME TO COMPLETE SERVICES
10.1 SA SERVICE GUYS shall commence the execution of the SERVICES on a date mutually suitable to the parties, and if such date is specified on the face hereof, then on such date as specified.
10.2 The SERVICES shall be completed within a reasonable period from the date of commencement; it being recorded that the CUSTOMER shall have no right in respect of any penalties if the SERVICES is not completed within a specified period of time.
11. INDEMNITY
11.1 The CUSTOMER hereby indemnifies SA SERVICE GUYS, its directors and/or the franchisees against any loss, liability, damage (whether direct or indirect) or expense of any nature whatsoever which may be suffered by the CUSTOMER or any third party as a result of or which may be attributable directly or indirectly to the SERVICES rendered.
11.4 Notwithstanding anything to the contrary contained herein, SA SERVICE GUYS shall not be liable for any direct, indirect, contingent or consequential loss (including but not limited to loss of business, loss of data and/or loss of profits) incurred or sustained by the CUSTOMER or any third party howsoever arising in respect of the CUSTOMER’s use of SA SERVICE GUYS SERVICES.
12. LIABILITY
12.1 Neither SA SERVICE GUYS, its directors, nor the franchisees shall be responsible for and disclaims all liability for any loss, liability, damage (whether direct or indirect) and/or expense of any nature whatsoever which may be suffered by the CUSTOMER or any third party, as a result of or which may be attributable, directly or indirectly, to SERVICES rendered by SA SERVICE GUYS.
13. DELAY IN COMPLETION OF SERVICES
13.1 If the SERVICES is delayed by an act of God, vis major, exceptionally inclement weather, or any other cause beyond the reasonable control of SA SERVICE GUYS, SA SERVICE GUYS shall be entitled to an extension for the completion of the SERVICES, 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 SERVICES may have been interrupted for one of the reasons set out in this clause.
14. SUSPENSION OF SERVICES;
SA SERVICE GUYS shall be entitled to suspend performance of the SERVICES in terms of this agreement in the event of:
14.1 A breach by the CUSTOMER to include, but not be limited to:
14.1.1 Non payment of any interim invoice, or amounts on the date on which it may be owing in terms of this agreement.
14.1.2 The failure by the CUSTOMER to supply any PARTS and EQUIPMENT (if agreed upon) in terms of its obligations that may be reasonably required for the performance of the SERVICES by SA SERVICE GUYS.
14.1.3 The CUSTOMER not granting SA SERVICE GUYS access to the SERVICES and/or PROPERTY site, or any part thereof.
14.1.4 The CUSTOMER not making available any electricity, or water which may be required for purposes of the execution of on-site SERVICES . 14.1.5 The CUSTOMER not arranging for the appointment of an electrician and/or contractor where required, for the performance of the SERVICES. 14.1.6 Where the CUSTOMER fails to remedy its obligations to enable SA SERVICE GUYS to proceed with the SERVICES.
14.2 In the event of SA SERVICE GUYS having to suspend performance of the SERVICES in terms of this agreement SA SERVICE GUYS shall be entitled to immediately:-
14.2.1 Cancel this agreement and retain all amounts paid.
14.2.2 Insist on payment of the balance of the contract price as stipulated on the face hereof.
14.2.3 Remove all PARTS used without any compensation to the CUSTOMER.
14.2.4 Remove any PARTS and EQUIPMENT from the premises.
14.2.5 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 SA SERVICE GUYS may have in Law.
15. PAYMENT
15.1 The CUSTOMER shall pay to SA SERVICE GUYS the amount as stipulated on the face hereof together with all additional costs in respect of additional SERVICES, or additional SERVICES rendered pursuant to the execution of the SERVICES on the dates specified for payment unless otherwise stated in writing
15.1.1 By accepting SA SERVICE GUYS quotation the CUSTOMER accepts SA SERVICE GUYS Terms and Conditions.
15.1.2 SA SERVICE GUYS shall not be binded to CUSTOMER payment terms, unless otherwise agreed by SA SERVICE GUYS and the CUSTOMER in a dated written and signed document format.
15.2 The risk of payment by cheque through the post or by electronic funds transfer rests with the CUSTOMER.
15.3 The CUSTOMER shall under no circumstances be entitled to withhold payment, for any reason whatsoever. Withholding of payment shall be deemed to be a breach of the agreement which would entitle SA SERVICE GUYS the remedies set out in clause 14.2 above.
15.4 The CUSTOMER is not entitled to set off any amounts due to SA SERVICE GUYS by the CUSTOMER against it’s indebtedness to SA SERVICE GUYS.
15.5 SA SERVICE GUYS shall be entitled to invoice each delivery or performance separately when executed.
15.6 The CUSTOMER shall pay to SA SERVICE GUYS the full amount as stipulated in the invoice within a maximum period of 30 (thirty) days on receipt of invoice.
15.6.1 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.
15.6.2 The CUSTOMER must notify SA SERVICE GUYS within a maximum period of 5( five) 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 SA SERVICE GUYS acceptance of new payment date arrangement.
15.6.3 The CUSTOMER shall pay the full charged amount issued by a dept collector agency, lawyer firm or third party for collection of late payments.
15.7 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, SA SERVICE GUYS is entitled to (i) forward a letter of demand using a third party demanding full and final payment.
15.8 Outstanding accounts are subject to default listings on a 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.
15.9 SA SERVICE GUYS reserves the right to provide a national credit bureau with updated personal information.
15.10 The CUSTOMER also consents that SA SERVICE GUYS may use a national credit bureau database for tracing, should the CUSTOMER abscond.
15.11 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 Usury Act with interest calculated daily and compounded monthly from the date of acceptance of the order.
15.12 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.
15.13 The CUSTOMER shall be liable to SA SERVICE GUYS for all legal expenses incurred SA SERVICE GUYS 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 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 SA SERVICE GUYS may demand.
15.14 Only payments made into the bank account on the invoice / quotation documents, as per the details reflected on the original quote submitted from SA SERVICE GUYS office via e-mail only will be recognized and accepted as formal payment. Only electronic fund transfer payments, cleared bank cheques, cash or deposits will be accepted.
16. GUARANTEES AND WARRANTIES
16.1 SA SERVICE GUYS shall complete the SERVICES to the reasonable satisfaction of the CUSTOMER according to acceptable standards of SERVICES . All SERVICES shall be guaranteed against latent defects as a result of defective SERVICES for a period of six (6) months from date of practical completion. Any claims in respect of defective PARTS shall be directed by the CUSTOMER to the supplier and SA SERVICE GUYS shall assist in lodging the claim without assuming any liability.
17. CLAIMS
17.1 Any defects to the SERVICES shall be communicated to SA SERVICE GUYS within seven (7) days from the date of practical completion. SA SERVICE GUYS shall be afforded an opportunity to within fourteen (14) days from receipt of such claim inspect the defects and/or SERVICES which does not meet with the CUSTOMER’S approval and;
17.1.1 If SA SERVICE GUYS is of the view that the SERVICES is of acceptable standard, it shall notify the CUSTOMER, in writing, of its findings as well as the reasons therefore.
17.1.1.1 If the CUSTOMER does not accept SA SERVICE GUYS’S findings, he shall be entitled, within a period of fourteen (14) days from the date of notification by SA SERVICE GUYS, to refer the matter to arbitration to resolve the complaint. SA SERVICE GUYS may in its own discretion be entitled appoint an electrician and or mechanic of no less than ten (10) years experience in their respective Industry as an arbitrator. All costs in this instance will be for the CUSTOMER’S account.
17.1.1.2 If the matter is referred to arbitration, the arbitrator shall be requested to complete his findings within a period of thirty (30) days and his finding shall be final and binding upon both parties.
17.1.2 If SA SERVICE GUYS is of the view that the SERVICES is of unacceptable standard then any defects in the SERVICES, SA SERVICE GUYS supplied PARTS, or damage to the SERVICES, or the property which is as a result of defective PARTS and/or EQUIPMENT supplied by SA SERVICE GUYS, or inadequate SERVICES shall be repaired by SA SERVICE GUYS, within a period of fourteen (14) days, to the reasonable satisfaction of the CUSTOMER, at SA SERVICE GUYS’s costs.
17.2 If the CUSTOMER does not notify SA SERVICE GUYS within seven (7) days of any defect in the SERVICES manship and PARTS and EQUIPMENT, 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 SA SERVICE GUYS in respect of any repairs, or defects.
17.3 If the CUSTOMER has a claim as a result of latent defects, he will address such a claim to SA SERVICE GUYS, in writing, within the warranty period of six (6) months, setting out in detail the nature and extent of the latent defects.
18. SUB CONTRACTORS
18.1 SA SERVICE GUYS shall be entitled to employ the services of any sub-contractors provided that the amounts payable to the sub SA SERVICE GUYS are paid by SA SERVICE GUYS and that the sub-contractor performs his mandate in terms of the same or similar conditions to that contained herein.
19. GENERAL
19.1 The agreement shall be governed in all respects by the Laws of the Republic of South Africa.
19.2 The terms and conditions contained herein, read with the nature and extent of the SERVICES 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 SA SERVICE GUYS and the CUSTOMER.
19.3 The CUSTOMER consents in terms of Section 45 of the Magistrate’s Court Act, 32 of 1944, to SA SERVICE GUYS 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 SA SERVICE GUYS from instituting action in any division of the High Court which may exercise competent jurisdiction.
19.4 SA SERVICE GUYS 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.
19.5 The 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.
