1. DEFINITIONS
1.1 "Everight" shall mean Everight (Pty) Ltd, or any agents or employees thereof.
1.2 "Customer" shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products and services from Everight.
1.3 "Products" shall mean:
1.3.1 all Products of the general description specified on the front of this agreement and supplied by Everight to the Customer; and
1.3.2 all Products supplied by Everight to the Customer; and
1.3.3 all inventory of the Customer that is supplied by Everight; and
1.3.4 all Products supplied by Everight and further identified in any invoice issued by Everight to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.5 all Products that are marked as having been supplied by Everight or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Everight; and
1.3.6 all of the Customer's present and after-acquired Products that Everight has performed work on or to or in which goods or materials supplied or financed by Everight have been attached or incorporated.
1.3.7 The above descriptions may overlap but each is independent of and does not limit the others.
1.4"Products and Services" shall mean all products, services, goods and advice provided by Everight to the Customer and shall include without limitation all painting services and the supply of associated products and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Products and Services by Everight to the Customer.
1.5 "Price" shall mean the cost of the Products and Services as agreed between Everight and the Customer and includes all disbursements e.g. charges Everight pay to others on the Customer's behalf subject to clause 4 of this contract.
2. ACCEPTANCE
2.1 Any instructions received by Everight from the Customer for the supply of Products and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises Everight to collect, retain and use any information about the Customer, for the purpose of assessing the Customer's credit worthiness, enforcing any rights under this contract, or marketing any Products and Services provided by Everight to any other party.
3.2 The Customer authorises Everight to disclose any information obtained to any person for the purposes set out in clause 3.1.
4. PRICE
4.1 Where no price is stated in writing or agreed to orally the Products and Services shall be deemed to be sold at the current amount as such Products and Services are sold by Everight at the time of the contract.
4.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the Products and Services that is beyond the control of Everight between the date of the contract and delivery of The Products and Services.
5. PAYMENT
5.1 Payment for Products and Services shall be made in full within 3 days of the invoice date the date that is written on the invoice("the due date").
5.2 The customer agrees to pay Everight on completion of work, at the agreed price as per the quote or agreed payment plan. The customer is entitled to a 5% retention on every invoice due for payment until all reasonable queries (‘snags’) have been resolved in accordance the Scope of Work and relevant industry standards. A snag list if applicable is to be provided by the customer to Everight within 5 working days of receipt of the invoice. Everight is to rectified all snags within 5 working days of receipt thereof. After the 5 working days has elapsed in which snags are to be completed the customer is to pay the retention amount of 5% in full within 3 working days.
5.3 Where upfront payment is made all snags are to be submitted within 5 working days of completion once snags are completed the contract is deemed complete and all other snags will be subject to section 17 of the terms and conditions.
5.4 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part thereof.
5.5 Any expenses, disbursements and legal costs incurred by Everight in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor's fees or debt collection agency fees.
5.6 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
6. QUOTATION
6.1 Where a quotation is given by Everight for Products and Services:
6.1.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
6.1.2 The quotation shall be inclusive of vat unless specifically stated to the contrary;
6.1.3 Everight reserve the right to alter the quotation because of circumstances beyond its control.
6.2.4 Where Everight has stated to apply a third coat of paint on areas of direct sunlight, this will be determined by senior management or by the consultants on the job, either quality control or paint manufacturers.
6.2 Where Products and Services are required in addition to the quotation the Customer agrees to pay for the additional cost of such Products and Services.
6.3 No work, other than that stipulated in our quotation/modification or annexure will be carried out, unless requested in writing and should this be necessary, will constitute extra.
6.4 Any extras required whilst on site or requested subsequent to the original quotation will be invoiced for separately and will not constitute part of the original contract.
6.5. Any delays that are through no fault of Everight will be charged for separately.
6.6 A deposit may be required.
7. AGENCY
7.1 The Customer authorises Everight to contract either as principal or agent for the provision of Products and Services that are the matter of this contract.
7.2 Where Everight enters into a contract of the type referred to in clause 7.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
8. TITLE AND SECURITY
8.1 Title in any Products and Services supplied by Everight passes to the Customer only when the Customer has made payment in full for all Products and Services provided by Everight and of all other sums due to Everight by the Customer on any account whatsoever. Until all sums due to Everight by the Customer have been paid in full, Everight has a security interest in all Products and Services.
8.2 If the Products and Services are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Products and Services shall remain with Everight until the Customer has made payment for all Products and Services, and where those Products and Services are mixed with other property so as to be part of or a constituent of any new Products and Services, title to these new Products and Services shall deemed to be assigned to Everight as security for the full satisfaction by the Customer of the full amount owing between Everight and Customer.
8.3 The Customer gives irrevocable authority to Everight to enter any premises occupied by The Customer or on which Products and Services are situated at any reasonable time after default by the Customer or before default if Everight believes a default is likely and to remove and repossess any Products and Services and any other property to which Products and Services are attached or in which Products and Services are incorporated. Everight shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. Everight may either resell any repossessed Products and Services and credit the Customer's account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Products and Services and credit the Customer's account with the invoice value thereof less such sum as Everight reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
8.4 Where Products and Services are retained by Everight pursuant to clause 8.3 the Customer waives the right to receive notice.
8.5 The following shall constitute defaults by the Customer:
8.5.1 Non payment of any sum by the due date.
8.5.2 The Customer intimates that it will not pay any sum by the due date.
8.5.3 Any Products and Services are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Products and Service.
8.5.4 Any Products and Services In the possession of the Customer are materially damaged while any sum due from the Customer to Everight remains unpaid.
8.5.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer's assets or a landlord distains against any of the Customer's assets.
8.5.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
8.5.7 Any material adverse change in the financial position of the Customer.
8.6 If the Consumer Act applies to any transaction between the Customer and Everight, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.
9. SECURITY INTEREST FOR SERVICE PROVIDERS
9.1 The Customer gives Everight a security interest in all of the Customer's present and after-acquired property that Everight has performed services on or to or in which goods or materials supplied or financed by Everight have been attached or incorporated.
10. GENERAL LIEN
10.1 The Customer agrees that Everight may exercise a general lien against any Products and Services or property belonging to the Customer that is in the possession of Everight for all sums outstanding under this contract and any other contract to which the Customer and Everight are parties.
10.2 If the lien is not satisfied within seven (7) days of the due date Everight may, having given notice of the lien at its option either
10.2.1 Remove such Products and Services and store them in such a place and in such a manner as Everight shall think fit and proper and at the risk and expense of the Customer or
10.2.2 Sell such Products and Services, or part thereof upon such terms as it shall think fit and apply the proceeds in or towards discharge of the lien and costs of sale without being liable to any person for damage caused.
11. DISPUTES
11.1 No claim relating to Products and Services will be considered unless made within seven (7) days of delivery or appplication.
12. LIABILITY
12.1 The Consumer Act and other statutes may imply warranties or conditions or impose obligations upon Everight which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Everight, Everight liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statue.
12.2 Except as otherwise provided by clause 12.1 Everight shall not be liable for
12.2.1 Any loss or damage of any kind whatsoever, arising from the supply of Products and Services by Everight to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Products and Services provided by Everight to The Customer; and
12.2.2 The Customer shall indemnify Everight against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Everight or otherwise, brought by any person in connection with any matter, act, omission, or error by Everight its agents or employees in connection with the Products and Services.
12.3 If, contrary to the disclaimer of liability contained in these terms and conditions of trade, Everight is deemed to be liable to the Customer, following and arising from the supply of Services by it to the Customer, then it is agreed between Everight and the Customer that such liability is limited in its aggregate to R4000.00.
12.4 If client fails to make payment within 3 working days of invoice as stipulated on invoice, the client forfeits any claims against Everight
13 Manufacturer's warranty applies where applicable.
14 INSURANCE CLAIMS
14.1 Everight does not work with or in conjunction with insurance companies, all claims must be submitted independently by the client.
14.2 If a claim is submitted through any insurance broker or agency, payment is not dependant on the resultant payout from such agency or broker.
14.2.1 The client is liable for payment within the prescribed 30 days
14.2.2 If payment is not received penalties and charges will be levied as stated in section 5
15. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
15.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Everight agreeing to supply Products and Services and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Everight the payment of any and all monies now or hereafter owed by the Customer to Everight and indemnify Everight against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due on reverse side invoice.
16. CONTRACT
16.1 Everight shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
16.2 Failure by Everight to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Everight has under this contract.
16.3 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforce ability of the remaining provisions shall not be affected, prejudiced or impaired.
16.4 Where a deposit is given or email confirmation of contractual relationship, the client becomes bound by these terms and conditions
17 GUARANTEE
17.1 Where payment is not made as per section (5) five the client forfeits any guarantee that has been offered or stated in any form by Everight.
17.2 No guarantee will be given where property is situated in a stormwater catchment, below high water mark area or areas in high water tables or known water catchment areas.
17.3 As per industry standard no guarantee is given on boundary walls. In certain instances where specifically stipulated and agreed apon by Everight a guarantee may be given and is subject to all sections of the terms of the contract.
17.4 Guarantee on manufactured products are guaranteed by the manufacturer. Where possible Everight will facilitate claims against faulty products however the onus is on the client to enforce these guarantees.
17.5 All guarantees and claims against Everight are subject to section (12).
18 MANAGING AGENTS
18.1 Where a managing agent authorizes work on behalf of a tenant or owner
18.1.1 Both parties become jointly and severally liable and are subject to the terms and conditions as stated in this contract
18.2 In undertaking to authorize and commission jobs on behalf of an owner or tenant the managing agent stands surety for all amounts outstanding.