1. Scope and Application

1.1 These General Terms and Conditions for Works (herein referred to as “these GTCW”) shall apply to all the offers made or submitted by “AMITECH INDUSTRIAL SA (PTY) LTD” (herein referred to as “the Contractor”) and to the acceptance by the Contractor of any order given by any prospective client, and shall govern the contract for works between the Contractor and any client save and except where the Contractor has expressly and specifically agreed to variation in or modification to these GTCW. No variation in or modification to these GTCW shall be valid, effective and binding on the Contractor except as agreed to by the Contractor in written form.

1.2 Any terms and conditions of any client stipulated in the client’s invitations for tenders or order forms, or incorporated in documents of whatsoever nature, which deviate from or contravene these GTCW shall not apply unless expressly and specifically accepted by the Contractor in writing.

1.3 The agents or representatives of the Contractor shall have no authority to conclude contracts for works or instruments of similar nature on behalf of, or in any way bind, the Contractor towards any client. Any contract for works or instrument of similar nature concluded between an agent or representative of the Contractor and a client shall become effective for and binding on the Contractor only if written confirmation having been provided by the Contractor. The agents or representatives of the Contractor are not entitled to receive payments on behalf of the Contractor without prior written authorization from the Contractor to that effect.

1.4 In addition to those terms defined above and elsewhere herein, as used in these GTCW, the following terms shall have the meanings set forth below:

“Client”  means the firm, entity or individual employing the Contractor under the Contract to carry out the Works;

 “Contract”  means these GTCW including special terms and conditions and appendices incorporated herein in accordance with the provisions hereof;

“Parties” means the Contractor and the Client;

“Section”  means a part of the Works identified in the Contract as a Section;

“Site”  means the places provided by the Client where the Works are to be executed and any other places as may be designated in the Contract as forming part of the Site; 

“Start Date”  means the date on which the Contractor is required, and is placed in a position by the client to commence the execution of Works in accordance with the provisions of the Contract;

“Time for Completion”  means the time provided to the Contractor for completing the execution of Works or any Section thereof as contained in the Contract or any written extension thereto; and

“Works”  means the works to be executed by the Contractor in accordance with the Contract.

1.5 The headings in these GTCW shall not be deemed part thereof or to be taken into consideration in the interpretation or construction thereof.

2.  Formation of the Contract

2.1 All invitations, orders and contracts, in whatsoever form or content, are subject to written acceptance by the Contractor. Subject to the provisions of these GTCW, acceptance by the Contractor, in writing, of an invitation made and/or an order placed by a Client shall form an effective, binding and valid contract (the “Contract”) between the Parties.

2.2 Unless otherwise expressly provided by the Contractor, all offers made, or bids or tenders submitted by the Contractor to a Client shall not be binding on the Contractor, and the Contractor shall be entitled to revoke any offer or bid or tender at any time prior to acceptance thereof by the Client and before the conclusion of the Contract.

2.3 All invitations made to or orders placed with the Contractor shall be binding on the respective client for a period of 30(thirty) days from the date the respective invitation or order reaches the Contractor.

2.4 These GTCW, as amended from time to time by the Contractor in writing, shall be subject to the terms and conditions then existing, and shall apply to all future transactions between the Contractor and the Client concerning the execution of Works by the Contractor.

3. General Obligations

3.1 The Client shall prepare the Site before the Start Date and ensure that it is free from any obstruction/s or adverse condition/s which could interfere with the operations to be carried out by the Contractor for the commencement, execution and completion of the Works.The Client warrants that the Contractor shall have unimpeded access to all land and access routes and ways in respect of which access is required for the execution and completion of the Works, at no cost to the Contractor. The Client shall be responsible for any damage to such land or access route or any moveable or immovable property thereon resulting from such access and shall indemnify the Contractor in respect of liability for any such damage, unless such damage is caused by the wilful default or gross negligence of the Contractor or its duly authorised agents or representatives.

3.2 The Client shall provide the Contractor safe, adequate and stable storage area and facilities at the Site, duly protected against climatic conditions, for the plant, equipment and materials required for the execution and completion of the Works, or for incorporation therein. Unless otherwise expressly set forth in the Contract, the Client shall, at the Site or at a place near the Site and free of charge, make accommodation available for the personnel of the Contractor with all utilities and reasonable amenities provided.

3.3 The Client shall, throughout the execution and completion of the Works and the remedying of any defects therein, provide and maintain at its own cost all lights, guards, fencing, warning signs and watching, when and where necessary or required by any competent authority, for the protection of the Works and the plant, equipment and materials for incorporation therein or for the convenience of the public and others.

3.4  The Client shall, except if and so far as the Contract expressly sets forth otherwise, provide the Contractor, at its own cost, with all appropriate connections made, the gas, electricity, water, energy, compressed air, scaffolds and transportation vehicles necessary for the execution and completion of the Works and the remedying of defects therein, and make available to the Contractor the additional skilled, semi-skilled or unskilled labor required by the Contractor. The Client shall have the full obligation and responsibility in respect to the execution and completion of any works and the remedying of defects therein, which may be necessary for the execution and completion of the Works and the remedying of defects therein, and have not been expressly undertaken by the Contractor. 

3.5 The Client shall make available to the Contractor such data and information on hydrological and sub-surface conditions relevant to the Works, and provide to the Contractor, free of charge, all the drawings, calculations, models and technical information of a like nature required for execution and completion of the Works. The Contractor shall be under no obligation to investigate, control or verify the correctness and reliability of any data, information, drawing or technical document provided by the Client or by his representatives. The Contractor shall not, and does not assume, nor shall it take any responsibility and liability in respect of any such data, information, drawings or technical documents and the Client accordingly indemnifies the Contractor in this regard.

3.6 The Client shall, except if and to the extent of loss or damage caused by wilful misconduct or gross negligence on the part of the Contractor or its duly authorised representatives, be liable for any loss or damage to the Works, or any part thereof, or plant, equipment and materials for incorporation therein, as from the date of the Start Date. The Client shall ensure that it at all times for the full duration of the Contract is sufficiently insured for Public Liability Claims.

3.7 The Client shall, without limiting his obligations under Clause 3.6, take full responsibility and liability, and indemnify the Contractor, as the case may be, for any loss or damage to persons or property in respect of  : (i) war, hostilities or invasion, (ii) rebellion, revolution, insurrection, or military or usurped power, or civil war, (iii) ionizing radiations, or contamination by radio-activity from any nuclear fuel, or from nuclear waste, radio-active toxic explosive or other hazardous properties of any nuclear assembly, (iv) riot, commotion or disorder, unless solely restricted to employees of the Contractor and arising from the conduct of the Works, (v) loss or damage due to the use or occupation by the Client of any Section or part of the Works, (vi) loss or damage to the extent that it is due to the data, information, designs, calculations and technical documents relevant to the Works, and (vii) any operation of the forces of nature.

3.8 The Client shall cause any other contractors employed by him and their workmen to afford to the Contractor all reasonable opportunities for executing the Works, and not to induce any obstruction thereof to prejudice the Time for Completion by the Contractor.

3.9 The Contractor shall bear all costs and expenses which may be incurred by him in connection with the preparation and submission of offers, bids or tenders. In the event that a Client, prior to the conclusion of a Contract or in connection with an offer, bid or tender submitted by the Contractor, requests the Contractor to prepare specific designs, calculations and technical documents of a like nature, the Contractor shall be entitled to demand compensation for such services and invoice the Client separately in respect thereof.

3.10 All software, drawings, calculations, samples, patterns, models and other technical information of like nature submitted or furnished by the Contractor as a supplement and/or addendum to any offer, bid or tender, or to an acceptance issued pursuant to the provisions hereof, shall be deemed and interpreted as binding and/or conclusive, only if it is explicitly provided by the Contractor. The Contractor shall be and remain the owner of any intellectual or property rights relating to such software, drawings, calculations, samples, patterns, models and other technical information of like nature. Such software, drawings, technical documents or other technical information provided by the Contractor shall be used solely for the purposes of that specific Contract, and if no contract is concluded, they shall not, without the prior written authorization of the Contractor, be used, copied, reproduced, transmitted or communicated to a third party.

3.11 Except where otherwise provided in the Contract, the Contractor shall be entitled to subcontract the Works by giving prior notification to the Client. No written consent is required from the Client.

3.12 Where provison is made in these GTCW and in the Contract for the giving or issue of any notice, consent, approval or determination by any person, unless otherwise specified such notice, consent, approval or determination shall be in writing. Any such notice, consent, approval or determination shall not unreasonably withheld or delayed by the Parties.

4. Execution of Works and Completion

4.1 The Contractor shall commence the Works on the Start Date, proceed with the Works with due expedition and complete the Works within the Time for Completion of the Works, or any Section or part thereof, provided that the Client has obtained all such approvals, consents, authorizations, licenses, permits, decisions or similar items required to be obtained from any government entity or private person for the commencement and execution of Works, and further provided that the Client duly performs and observes his obligations set forth in these GTCW.

4.2 In the event of delay or suspension in the execution of the Works, or any Section or part thereof, the Contractor shall so notify the Client promptly, stating the event, effect or conditions giving rise to such delay or suspension.

4.3 In the event of: (i) extra and additional work, (ii) any cause of delay referred to in these GTCW, (iii) adverse climatic conditions, (iv) any delay, prevention or impediment by the Client, (v) demands or requests of governmental authority, national defense, civil commotion, strike, local or general boycott, labor trouble, industrial dispute, inability to obtain fuel, power, raw materials or actions by local or other administrative agencies, seizure, embargo, and (vi) other special circumstances beyond the reasonable control of the Contractor, including events of Force Majeure, the Contractor shall be entitled to a reasonable extension of the Time for Completion of the Works, or any Section or part thereof. If, due to acts, events, effect, conditions or causes referred to in the preceding provision, the execution and completion of the Works becomes impossible, the Contractor shall be entitled to revoke the Contract and be indemnified by the Client against any claim for damages and the like.

4.4 Unless the Parties have specifically agreed otherwise, the Contractor shall have the right to carry out the Works during the night or on locally recognized days of rest or by multiple shifts.

4.5 Unless specifically agreed by the parties in writing, the Client shall not be entitled to claim liquidated damages for the delay of the Contractor in completing the Works within the Time for Completion or Extended Time for Completion. In instances contained in these GTWC and in the Contract, where the Client is entitled to claim liquidated damages, the Contractor’s total aggregate liability for delay shall not exceed 5%(five percent) of the part of the Contract price corresponding to the delayed Section or part of the Works.

4.6 In the event that the Contactor is not able to comply with the Time for Completion, as stated and/or extended in accordance with the preceding provisions hereof, for the whole of the Works or if applicable any Section thereof, the Client shall, in consultation with the Contractor, determine a reasonable extension of the Time for Completion (“Extended Time for Completion”), and so notify the Contractor in writing. If the Contractor fails to comply with the Extended Time for Completion, the Client shall be entitled to terminate the Contract. In the event of termination of the Contract pursuant to the preceding provision, the Contractor shall be entitled to immediate payment by the Client of amounts due to it in respect of the completed parts of the Works and the goods, materials, plant or equipment supplied or ordered by the Contractor for incorporation therein, which are convenient for the use of the Client or, which the Client has elected to occupy or use.

4.7 When the Works or, if applicable any Section thereof, have been substantially completed, the Contractor may give notice to the Client to that effect, provided that any outstanding work shall be finished during the Defects Liability Period (as defined in Clause 5.2). The whole of the Works or, if applicable, any Section thereof, shall be taken over by the Client within 14 (fourteen) days of the date of delivery of such notice, and upon lapse of the aforesaid 14 (fourteen) days, the Works or the respective Section shall be deemed as fully or substantially completed, as the case may be, and accepted and taken over by the Client. Similarly, in accordance with the conditions and procedures set out in the preceding provisions of this Clause, (i) any substantial part of the Works which has been completed otherwise than as provided in the Contract, occupied or used by the Client, or (ii) any part of the Works which the Client has elected to occupy or use prior to completion, shall be deemed as fully or substantially completed, as the case may be, and accepted and taken over by the Client. It is an express term of these GTWC that all the risks associated with the Works or Sections shall at all times during the carrying out of the Works be carried by the Client.

5. Materials, Workmanship and Warranties

5.1 The Contractor hereby warrants that it shall, with due care and diligence, execute and complete the Works and remedy the defects therein in accordance with the provisions hereof, and take the necessary measures for the adequacy and stability of Site operations and methods of construction. The Contractor shall not be responsible and liable, except and to the extent otherwise specifically agreed by the Parties, for any defects and/or liabilities arising in connection with the design or specification of the Works.

5.2 In these GTCW the expression “Defects Liability Period” shall mean a period of 60 (sixty) days calculated from: (i) the date of completion and taking over of the Works as provided in Clause 4.7, or (ii) in the event of Sections or parts of the Works having been completed and taken over under Clause 4.7, the respective dates so established.

5.3 Subject to the provisions of Clauses 5.4, 5.5, and 5.6 below, during the Defects Liability Period, the Contractor shall: (i) complete the work, if any, outstanding on the date of take over determined pursuant to Clause 4.7, and (ii) execute such work of remedying defects due to the use of materials or workmanship not in accordance with the Contract, or failure on part of the Contractor to comply with any express obligation on the Contractor’s part under the Contract.

5.4 Where the Works are, subject to the terms and conditions set forth herein, other than as warranted, and provided that the Client has duly complied with the notification requirements hereunder, the Contractor shall, at its own cost and sole option, execute all such work of repair, replacement, amendment or reconstruction it deems appropriate to remedy the respective defect.

5.5 The Client is under theobligation to inspect the Works or, if applicable any Section or part of the Works, completed and taken over in accordance with the provisions of Clause 4.7, within the Defects Liability Period, and notify the Contractor of any defects or outstanding work discovered, within 10 (ten) days of discovery of the respective defect or outstanding work. In the event of hidden defects, the Client is under the obligation to notify the Contractor within 10 (ten) days of the discovery of the respective hidden defect. The Client shall have no remedy for any defect or outstanding work or lack of conformity if he fails to notify the Contractor within the time limits set forth in the preceding provisions.Without prejudice to the foregoing provisions, no action for defects or lack of conformity can be taken by the Client, whether before judicial or arbitral tribunals, after the expiry of 1 (one) year from the date of completion and taking over of Works as provided in Clause 4.7.

5.6 The Works or, if applicable any Section or part of the Works, completed and taken over in accordance with the provisions of Clause 4.7,  shall be deemed to comply with the requirements and specifications of the Contract, and the Contractor shall be relieved of his warranty obligations, if, (i) there are minor discrepancies in weight, measurement or quantity, or (ii) any minor discrepancies do not adversely affect the justified interests of the Client, or (iii) the Contractor is not responsible for the defect or discrepany which may have been discovered, or (iv) the Contractor is prevented by the Client from rectifying the defect or discrepancy which may have been discovered.

5.7 If any loss or damage happens to any property of the Client, other than the plant, equipment and materials to be incorporated in the Works, from a cause directly attributable to the Contractor, the responsibility and liability of the Contractor in respect of such loss or damage shall, against all claims, proceedings, costs and charges whatsoever, be limited to the scope of reasonable cover of the insurance to be procured by the Contractor to that effect. In the event that such loss or damage arises from wilful misconduct of the Contractor or its duly authorised representatives, the preceding provision shall not apply.

5.8 Without prejudice to the terms, conditions and limitations set forth in Clauses 5.1 to 5.6 (included) above or elsewhere in the Contract, the Contractor’s total aggregate liability for any and all losses and damages to the Client resulting from any cause whatsoever, including but not limited to the Contractor’s default in executing and completing the Works or remedying defects as required under the Contract, irrespective of whether such damage or defects are discoverable or latent, shall in no event exceed the part of the Contract price payable or paid by the Client in respect of the whole or a part of the Works in respect to which damages and losses are claimed. In no event shall the Contractor be liable for incidental, indirect or consequential damages such as loss of production, loss of opportunity, loss of profit, loss of revenues and other indirect losses or damages.

6. Price and Payment Terms

6.1 The prices and quantities set out in the Contract are the estimated prices and quantities for the Works, and they are not to be taken as the actual and correct Contract price and quantities in respect of the Works to be executed by the Contractor. The Contractor shall, except as otherwise specifically agreed, ascertain and determine the value of the Works in accordance with the Contract and shall be paid that value pursuant to the provisions herebelow.

6.2  The Contract price does not include any applicable Value Added Tax. Should the Contractor bear any costs which are for the Client’s account, such sums shall forthwith be reimbursed by the Client to the Contractor.

6.3 Save and to the extent that the Contract may explicitly provide otherwise, the Contractor shall be entitled to adjust the prices to compensate for increases in costs at the Contractor’s account, including increases in such costs as labor, raw materials and other factors of significance related to the Works, which the Contractor may incur from the date of conclusion of the Contract to the date of completion and taking of the Works as provided in Clause 4.7.

6.4 The Contract price, whether in whole or part, shall become due and payable for immediate payment upon issuing by the Contractor of the relevant invoice. The Contractor shall be entitled to request a reasonable amount of advance payment to be made at its sole discretion. . If the Contractor has requested an advance payment without indicating a specific date for payment thereof, it will be accepted that such advance payment must be received by the Contractor at least 30 (thirty) days before the Start Date. If no advance payment is requested the whole of the Contract price, and if advance payment is requested, the remaining amount of the Contract price, shall be paid as provisional sums. The Contractor shall be entitled to issue bi-weekly invoices for payment as provisional sums, in respect of: (i) any part of the Works executed as of the date of the respective invoice, (ii) the goods, materials, plant or services supplied and/or ordered for supply to the Site, and (iii) the contingecies.

6.5 The handing over by the Client and acceptance by the Contractor of cheques, promissory notes or instruments of a like nature shall not constitute payment where delivery and acceptance of such instruments shall be deemed as provision of collaterals to secure payment obligations of the Client. Any costs to be incurred in connection with the execution by the Contractor of, or collection by the Contractor under, any cheque, promissory note or similar instrument shall be for the Client’s account. Notwithstanding whatever means or mode of payment used, payment of the Contract price shall not be deemed to have been effected before the Contractor’s account has been fully and irrevocably credited in immediately available funds.

6.6 In case that the Client fails to pay by the stipulated date, the Contractor shall be entitled to interest upon that sum of the invoiced price from the time when payment was due to the time of actual payment. Unless otherwise agreed, the rate of interest shall be a rate per centum per annum determined by the Contractor, to be equal to the aggregate of a margin of 4%(four percent) per annum and the average bank short-term lending rate pe centum per annum to prime borrowers at the state of the Contractor’s place of business.

6.7 In the event that the Client fails to pay, in part or whole, when due any amount which he is obligated to pay under the terms of the Contract, such event shall constitute Client default with respect to payment. If a Client payment default occurs, then the Contractor shall be entitled to request payment of all amounts, whether mature or not, outstanding under the invoices issued. The Contractor shall further be entitled to require the Client to provide additional collateral or security for the obligations of the Client under the Contract and/or suspend his performance under the Contract until the receipt of full payment and the provision of the collateral or security and/or require extension of the Time for Completion, and/or request from the Client the compensation of loss and damage suffered by him in connection with such default.

6.8 In the event of the Contractor having to institute any legal action against the Client for the payment of the whole or any part of the Contractprice and/or reimbursements, then the Client shall be liable for payment of all costs on an attorney and own client scale together with all court fees and the like.

6.9 Except and to the extent that the Parties have otherwise agreed in writing, the Contractor shall, as reimbursable expenditures and in addition to the Contract price, be entitled to issue seperate invoices for the expenditures reasonably and actually incurred by it in the execution of the Works. These reimbursable expenditures include, but are not limited to : (i) the transportation cost of his personnel between his place of business and the Site and/or place of accamodations, (ii) the transportation cost of his personnel between the permanent residence of the respective personnel and the Site and/or place of accamodations for national holidays recognized in the home country of such personnel, and (iii) the cost items not covered in the price referred to in Clause 6.2 but which may be required by the Contractor for completion of the Works, subject to prior consent by the Client, which reimbursable expenditures shall be paid by the Client as provided herein.

7. Final Provisions

7.1 Unless otherwise expressly and specifically agreed in writing, the Client shall not be entitled to terminate, in whole or part, the Contract for his convenience. In the event that the Client terminates the Contract for his convenience, he shall, in addition to any remedy or relief available to the Contractor under the Contract and law, pay to the Contractor, (i) the price of the Works executed and the price of the goods, materials, plant and equipment supplied or ordered by the Contractor for incorporation in the Works, as of the date of such termination, and (ii) a cancellation penalty in an amount not less than 20 % (twenty per cent) of the full Contract price for the whole of the Works.

7.2 The provisions of the General Terms and Conditions of Sale (the “GTCS”) issued by the Contractor (the Contractor therein referred to as the “Supplier”) shall apply, mutatis mutandis, as supplementary and additional provisions to these GTCW. In the case of any discrepancy or inconsistency between the provisions of these GTCW and of the GTCS, the provisions of these GTCW shall prevail and apply.

7.3 Should the Contract be concluded in English version in addition to this English version, the English version shall prevail over the English one in case of discrepancy or contradiction.

7.4 The Contract shall be governed by and interpreted in accordance with the laws of the Contractor’s registered place of business. The jurisdiction of the Contractor’s registered place of business shall however not limit any other rights or remedies available to the Contractor under the laws of any other jurisdiction where the assets of the Client may be found.