- +27 (0) 10 446 5705
- gp@orsco.co.za
- Plot 13, RD 5, Brentwoood Park, Gauteng, 1501
VERSION 3: 11 06 2025
1.1 In the quotation (and in the agreement), unless inconsistent with the context, the following expressions appearing bold type have the meanings assigned to them hereunder and cognate expressions have corresponding meanings:
1.1.1 “acceptance date”: the date on which client accepts the quotation in accordance with the provisions of clause 4.1 below;
1.1.2 “additional amounts”: any amounts additional to the quoted amount which client is liable to pay ORSCO as contemplated in the agreement, together with the relevant amount of VAT thereon, including ~
1.1.2.1 any amount additional to the quoted amount contemplated in clause 18.6 below;
1.1.2.2 the completion test amount;
1.1.2.3 any variation works amount;
1.1.2.4 any amount additional to the quoted amount contemplated in clause 20.4 below; and
1.1.2.5 any amount additional to the quoted amount contemplated in clause 20.6 below;
1.1.3 “advance amount”: the amount referred to as such in the quotation document;
1.1.4 “advance amount payment date”: the 3rd (third) business day after the acceptance date;
1.1.5 “agreement”: has the meaning contemplated in clause 6.1 below;
1.1.6 “ASOE” means ASOE MANUFACTURING INCORPORATED of 27 East Meilan Road, Hailing District, Taizhou, Jiangsu, China 225319 (telephone number: 0523 8960 0128; website address: www.ashoe.com);
1.1.7 “ASOE guarantees or warranties”: the written guarantees or warranties that may be issued by ASOE in respect of the product issued by ASOE in respect of the product and which is attached to the quotation document;
1.1.8 “client”: the person referred to as such in the quotation document;
1.1.9 “client’s e-mail’s address”: the e-mail address of client contained in the quotation document;
1.1.10 “client’s physical address”: the physical address at which client’s principal place of business is located, as contained in the quotation document;
1.1.11 “commencement date”: subject to the other provisions of the agreement, the later of ~
1.1.11.1 the date referred to as such in the quotation document;
1.1.11.2 the date of the 10th (tenth) business day after the day on which ORSCO shall have received delivery at its business premises of product ordered from and supplied to it by ASOE; and
1.1.11.3 the date of the 3rd (third) business day after the day on which ORSCO shall have inspected the pre-commencement works and reasonably determined that the same is reasonably satisfactory for the required purposes;
1.1.12 “completion certificate” means: a written certificate issued by ORSCO to client and in terms whereof ORSCO certifies the achievement of works completion and the date on which works completion was achieved;
1.1.13 “completion date”: subject to the other provisions of the agreement, the date referred to as such in the quotation document;
1.1.14 “completion test”: a test conducted for the purpose of demonstrating that the pipe, having been relined with the product, does not leak and which test will take the form of filling the pipe with the completion test required volume of water, bleeding-out the air trapped between the Product and the Pipe (which bleeding-out process can take between 12 (twelve) to 96 (ninety-six) hours to complete) and thereafter pumping water through the Pipe at a pressure that is no less than 1,5 (one comma five) times the working pressure of the pipe for a continuous period of no less than 30 (thirty) minutes
1.1.15 “completion test required volume of water”: that uninterrupted flow of potable water, expressed in m3/ph (cubic metres per hour) contemplated in the quotation document;
1.1.16 “completion test amount”: the amount, exclusive of VAT, that is equal to the product of the number of days (which includes any part of a day) over which ORSCO carries out the completion test multiplied by the daily completion test rate;
1.1.17 “completion test certificate”: a certificate certifying the readings and results of the successful completion test and the date on which the successful completion test was concluded;
1.1.18 “daily accommodation rate”: the rate referred to as such and as set out in the quotation document for each member of ORSCO’S workforce;
1.1.19 “daily completion test rate”: the rate referred to as such and as set out in the quotation document;
1.1.20 “daily standby rate”: the rate referred to as such and as set out in the quotation document;
1.1.21 “defect”: any aspect of the product and / or the workmanship in the execution of the works which is not in accordance with the agreement;
1.1.22 “drawings”: the drawings, plans and / or sketches of the pipe in respect of which the works is to be carried out and that were furnished by client to ORSCO prior to ORSCO issuing the quotation document, if any;
1.1.23 “equipment”: the equipment used by ORSCO in carrying out the works;
1.1.24 “expert QS”: 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;
1.1.25 “final amount”: the amount equal to the sum of ~
1.1.25.1 the quoted amount, together with the relevant amount of VAT thereon; plus
1.1.25.2 additional amounts which client is liable to pay ORSCO as contemplated in the agreement, together with the relevant amount of VAT thereon;
1.1.26 “impediment”: 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 ~
1.1.26.1 prevents, disrupts or otherwise hampers a party (“the impeded party”) in the performance of its obligations contemplated in the agreement;
1.1.26.2 is beyond the control of the impeded party and which may result from the following events, which events will not be exhaustive:
1.1.26.2.1 war, whether declared or not, civil war, civil violence, riots and revolutions, acts of sabotage;
1.1.26.2.2 natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning;
1.1.26.2.3 explosions, fires, destruction of machines, of factories and of any kind of installations;
1.1.26.2.4 boycotts, strikes and lock-outs 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
1.1.26.2.5 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;
1.1.26.3 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
1.1.26.4 it could not reasonably have avoided or overcome or at least could not have reasonably avoided or overcome the effects thereof;
1.1.27 “induction date”: the date referred to as such in the quotation document;
1.1.28 “interest rate” means the rate is 4% (four percent) above the prescribed rate;
1.1.29 “latent defect”: a defect which a reasonable inspection of the works, if conducted prior to the achievement of works completion, would not have revealed;
1.1.30 “latent defects liability period”:
1.1.30.1 the period of 5 (five) years after either (a) the date on which ORSCO shall have concluded the successful completion test as set out in the completion test certificate, in the event that ORSCO is required to conduct the completion test, or (b) the date on which ORSCO shall have achieved works completion as certified in terms of the completion certificate, in the event that ORSCO is not required in terms of the agreement to conduct the completion test ~
1.1.30.1.1 in respect of a latent defect attributable to workmanship in the execution of the works which is not in accordance with the agreement; and
1.1.30.1.2 in respect of a latent defect attributable to any aspect of the product (which excludes any flanges used in the works) which is not in accordance with the agreement; and
1.1.30.2 in respect of any flanges used in the works, the period of 2 (two) years after either (a) the date on which ORSCO shall have concluded the successful completion test as set out in the completion test certificate, in the event that ORSCO is required to conduct the completion test, or (b) the date on which ORSCO shall have achieved works completion as certified in terms of the completion certificate, in the event that ORSCO is not required in terms of the agreement to conduct the completion test;
1.1.31 “normal working hours”: the hours of 08:00 – 16:30 on business days and 08:00 – 13:00 on Saturdays;
1.1.32 “ORSCO”: ORSCO PROPRIETARY LIMITED, a private company incorporated and registered as such in South Africa and having registration number 2012/063168/07;
1.1.33 “ORSCO’S banking account”: the banking account of ORSCO having the details set out in the quotation document;
1.1.34 “ORSCO’S e-mail address”: both of the following e-mail addresses: legal@orsco.co.za and gp@orsco.co.za;
1.1.35 “ORSCO’S physical address”: the physical address at which ORSCO’S principal place of business is located as set out in the quotation document;
1.1.36 “ORSCO’S workforce”: ORSCO’S technicians and other employees engaged in executing the works on the site;
1.1.37 “outstanding balance of the final amount”: the amount equal to the difference between the final amount and the advance amount;
1.1.38 “parties”: client and ORSCO (each “a party”);
1.1.39 “pipe”: the pipe(s) contemplated in the quotation document and in respect of which the works is executed;
1.1.40 “potable water” means water that meets the minimum requirements to be considered safe for human consumption, as prescribed by the South African National Standard (SANS) 241: 2024 Drinking Water Specification or any SANS specification that supersedes the first-mentioned SANS specification at any time and from time to time;
1.1.41 “pre-commencement works”:
1.1.41.1 the creation of sufficient access to and space for the works to be carried out at each end of each pipe that is required to be lined as part of the works;
1.1.41.2 the cleaning and descaling of the inside of each potable pipe, if such task does not form part of the works; and
1.1.41.3 such other tasks mentioned in and referred to as such in the quotation document;
1.1.42 “pre-commencement works completion date” means a date not later than the 5th (fifth) business day prior to the commencement date;
1.1.43 “pre-commencement works inspection date” means the business day immediately following the pre-commencement works completion date;
1.1.44 “pre-commencement works satisfaction notice” means the notice contemplated in clause 10.5 below;
1.1.45 “prescribed rate”: 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;
1.1.46 “product”: the interactive pipe liner manufactured and supplied to ORSCO by ASOE;
1.1.47 “programme” means the programme detailing the commencement date and the completion date and the planned sequential execution of units of work and activities to be carried out by ORSCO in order to achieve works completion by the completion date;
1.1.48 “prohibited chemical”:
1.1.48.1 Any chemical or substance that is not permitted or otherwise approved, in terms of any law, to be found in potable water; or
1.1.48.2 Any chemical or substance permitted, in terms of any law, to be found in potable water but which has a concentration higher than that permitted or otherwise approved, in terms of any law, to be found in potable water;
1.1.49 “quotation”: the offer, contained in the quotation document as read with and including these terms and conditions, that is made by ORSCO to carry out the works;
1.1.50 “quotation document”: the document signed and dated by ORSCO;
1.1.51 “quotation number”: the document number allotted to the quotation as set out in the quotation document;
1.1.52 “quoted amount”: the amount referred to as such and as set out in the quotation document, and which amount is inclusive of VAT;
1.1.53 “site”: the place(s) where the works are to be carried out as set out in the quotation document;
1.1.54 “successful completion test”: the test contemplated in clause 12.8 below;
1.1.55 “works”:
1.1.55.1 the supply of the product;
1.1.55.2 the internal relining of the pipe with the product; and
1.1.55.3 the conduct of the completion test in the event that client, in terms of the provisions of clause 12.2 below, notifies ORSCO that it requires ORSCO to conduct the completion test;
1.1.56 “works completion”: that stage of completion of the works when the works shall have been completed in every respect such that no portion of the works is incomplete and no defects are apparent in any portion of the works, provided, however, that:
1.1.56.1 if ORSCO is not required in terms of the agreement to conduct the completion test as part of the works, the said stage of completion of the works will be deemed to have been achieved on the date certified by ORSCO, in terms of the completion certificate issued to client as contemplated in clause 11.5, as being the date on which works completion was achieved; or
1.1.56.2 if ORSCO is required in terms of the agreement to conduct the completion test as part of the works, the said stage of completion of the works will be deemed to have been achieved on the date on which the successful completion test was concluded, as certified in terms of the completion test certificate;
1.1.57 “works period”: the period commencing on the commencement date and ending on the completion date;
1.1.58 “working pressure of the pipe”: that pressure expressed in bars contemplated in the quotation document;
1.1.59 “travelling rate” means the rate referred to as such and as set out in the quotation document; and
1.1.60 “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 the agreement) nor any clause thereof.
2.1.1.1 Unless the context indicates a contrary intention, an expression which denotes ~
2.1.1.2 any gender includes the other gender;
2.1.1.3 a natural person includes a created entity and vice versa; and
2.1.1.4 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 above), 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 ~
2.1.6.1 excluding the first business day;
2.1.6.2 including the last business day; and
2.1.6.3 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 above.
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”, unless the context indicates a contrary intention, means (a) any natural person or individual or (b) 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 “US$” or “USD” or “Dollar” denotes the legal currency of the United States of America;
2.1.22 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.
2.1.23 References to a party include a reference to that party’s agents, representatives, successors in title, assigns, transferees and substitutes allowed at law.
2.1.24 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.
2.1.25 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.
3.1 If there is any conflict or inconsistency between any provision contained in these terms and conditions and any provision contained in the quotation document, including that section of the quotation document headed “notes” and / or “additional notes”, the provision contained in the quotation document will prevail over the provision these terms and conditions, but only to the extent of such conflict.
4.1 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 ORSCO’S physical address or transmit the quotation by e-mail to ORSCO’S e-mail address.
5.1 The quotation is valid and open for acceptance by client until 16:30 on the 20th (twentieth) 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.
6.1 On client’s acceptance of the quotation, in accordance with the provisions of clause 4.1 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 ORSCO for the execution and the payment for the works (“the agreement”).
7.1 ORSCO will furnish client with the programme within 10 (ten) business days after client shall have made payment in full of the advance amount.
7.2 ORSCO must not deviate from the programme without client’s prior consent.
7.3 The programme will be used for ~
7.3.1 verifying the actual progress achieved by ORSCO from time to time in timeously carrying out the works; and
7.3.2 the application of any contractual remedies under the agreement by either of the parties.
7.4 If at any time, ORSCO gives notice to client that the actual progress achieved by it in carrying out the works is inconsistent with the programme ~
7.4.1 ORSCO must submit a revised programme and proposed remedial actions to be taken to ensure that the works completion is achieved by the completion date; and
7.4.2 client must, within 2 (two) business days after receipt thereof, approve and / or comment on the revised programme and proposed remedial actions in writing.
7.5 The programme will not be regarded as having been amended or revised unless and until client shall have approved thereof in writing.
8.1 If, as a condition to ORSCO’S workforce being permitted access to the site and / or to commence carrying out the works, ORSCO’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, ORSCO’S workforce will undergo the prescribed safety induction course / program at the site on the induction date and at no charge to ORSCO.
8.2 Whilst on the site, ORSCO’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.
8.3 If, at any time or from time to time during the works period, client and / or any other person who may have authority over the site requires ORSCO’S workforce to undergo testing for COVID-19 (corona virus disease) or any other virus ~
8.3.1 ORSCO must procure that they do so; and
8.3.2 client will be liable to ORSCO for payment, on presentation of ORSCO’S invoice therefor, of the proven costs incurred by ORSCO in respect of such testing.
9.1 Client warrants to ORSCO that the drawings are true and complete in every respect.
9.2 ORSCO relies on the warranty contained in clause 9.1 above in making the quotation.
10.1 Subject to the other provisions of the agreement, ORSCO must commence carrying out the works on the commencement date.
10.2 ORSCO cannot commence with carrying out the works until such time as ~
10.2.1 the pre-commencement works shall have been carried out to the reasonable satisfaction of ORSCO; and
10.2.2 all contractors, sub-contractors and persons (other than ORSCO and ORSCO’S workforce) whose involvement and / or co-operation is required in order for ORSCO to commence the works are ready to carry out whatever their respective tasks may be.
10.3 Client must procure that all contractors, sub-contractors and persons (other than ORSCO and ORSCO’S workforce) whose involvement and / or co-operation is required in order for ORSCO to commence the works are ready to carry out whatever their respective tasks may be at the time that ORSCO is required to commence with carrying out the works in terms of the agreement.
10.4 Client must, at client’s own cost, carry out and complete the pre-commencement works or cause the pre-commencement works to be carried out and completed by no later than the pre-commencement works completion date.
10.5 Client must give ORSCO notice of the completion of the pre-commencement works (“pre-commencement works completion notice”) by no later than 12:00 noon on the business day immediately preceding the pre-commencement works inspection date.
10.6 Provided that client shall have given ORSCO the pre-commencement works completion notice as contemplated in clause 10.5 above, ORSCO must inspect the pre-commencement works for the purpose of determining whether the same is reasonably satisfactory for the required purposes.
10.7 If, having inspected the pre-commencement works, ORSCO determines that the same is reasonably satisfactory for the required purposes it must give client a notice to such effect (“pre-commencement works satisfaction notice”)
10.8 The issue of the pre-commencement works satisfaction notice will constitute irrebutable proof that, as at the date of issuance thereof, ORSCO is reasonably satisfied that it will have sufficient space for the works to be carried out at each end of the pipe so that, amongst other things, it will be able to use the equipment effectively and without any hinderance.
10.9 If, having inspected the pre-commencement works, ORSCO reasonably determines that the same is not reasonably satisfactory for the required purposes ~
10.9.1 ORSCO must give client notice to such effect and specify in such notice the respects in which the pre-commencement works are unsatisfactory (“dissatisfaction notice”);
10.9.2 client must, after having received the dissatisfaction notice from ORSCO, without any undue delay, do all such things as shall be required to rectify the deficiencies in the pre-commencement works and render the pre-commencement works reasonably satisfactory for the required purposes; and
10.9.3 the provisions of clauses 10.5, 10.6 and 10.7 above and this clause 10.9 must be followed until such time as the pre-commencement works are completed for the required purposes to the reasonably satisfaction of ORSCO and ORSCO issues its pre-commencement works satisfaction notice.
10.10 Subject to (a) ORSCO having received payment of the advance amount, (b) client having carried out and completed the pre-commencement works and (c) the other provisions of the agreement, ORSCO must commence carrying out the works on the commencement date.
10.11 Should ORSCO commence carrying out the works without having first issued its pre-commencement works satisfaction notice to client, ORSCO will be deemed to have signified, on the date on which it commences carrying out the works, that the pre-commencement works shall have been completed to its reasonable satisfaction for the required purposes.
11.1 ORSCO must, subject to the provisions of the agreement, achieve works completion by no later than the completion date.
11.2 ORSCO will, unless expressly stated to the contrary in the programme or the quotation document, throughout the works period, carry out the tasks comprising the works during normal working hours, provided, however, that in so far as the completion test comprises part of the works, the completion test will be carried out over a continuous uninterrupted period of time and which period of time may fall entirely or partially outside of normal working hours.
11.3 ORSCO is not under any obligation to have any of ORSCO’S workforce carry out any of the tasks comprising the works outside of normal working hours.
11.4 In the event that client, in terms of the provisions of 12.2 below, notifies ORSCO that it requires ORSCO to conduct the completion test, the works will include conducting the completion test and in which event ORSCO will achieve works completion within whatever length of time it takes to complete the successful completion test and where ORSCO’S workforce will conduct the completion test over a continuous uninterrupted period, i.e., outside of normal working hours and on weekends and public holidays, commencing on the day immediately following the day on which the installation of the product is completed.
11.5 If ORSCO is not required in terms of the agreement to conduct the completion test as part of the works, ORSCO must, on the achievement of works completion, issue the completion certificate to the client.
12.1 In so far as the quotation document does not expressly include a charge for the conduct of the completion test, the quoted amount excludes such charge.
12.2 In the event that client requires ORSCO to conduct the completion test, client must give ORSCO a notice to such effect by no later the induction date or the date on which it gives ORSCO, for the very first time, the pre-commencement works completion notice, which ever date is the later, and failing which, ORSCO will not be under any obligation to conduct the completion test.
12.3 If ORSCO conducts the completion test, client will, in addition to its liability for payment of the quoted amount, also be liable to ORSCO for payment of the completion test amount.
12.4 ORSCO must, at its cost, provide all apparatus, electricity (in those cases where no electricity supply to the site exists), equipment, fuel (for generators where no electricity supply to the site exists), consumables, instruments, labour, materials and suitable qualified and experienced staff, as is necessary to carry out the completion test efficiently, provided, however, that client will be responsible, at its own cost, for providing no less than the completion test required volume of water for each and every completion test that is conducted, regardless of the number of times that the completion test may be conducted.
12.5 ORSCO must give client no less than 12 (twelve) hours’ prior notice of the date on and time at which ORSCO intends conducting the completion test. Client may, within its discretion, attend the conduct of the completion test and / or appoint any person to do so for and its behalf.
12.6 If the works fail to pass the completion test, the works will be deemed to be defective and ORSCO must make good the defect.
12.7 After the defect in question shall have been remedied, ORSCO must conduct the completion test repeatedly until such time as the works pass the completion test, which includes giving client prior notice, as contemplated in clause 12.5 above of each completion test to be conducted.
12.8 ORSCO will have achieved works completion when the works shall have passed the completion test (“the successful completion test”).
12.9 ORSCO must issue client with the completion test certificate.
12.10 If neither client nor the person who may have been appointed by client to attend the conduct of the successful completion test for and client’s behalf shall have attended the conduct of the successful completion test, client will be deemed to have accepted the readings and results of the successful completion test as accurate.
13.1 Client acknowledges that ~
13.1.1 the product is an interactive pipe liner (i.e., a liner that does not bond to the host-pipe) and as such it is susceptible to collapse in the event of a vacuum, particularly in those instances (although not limited to instances) where the water volume conveyed in a pipe relined with the product varies in relation to ocean tides or ground water;
13.1.2 the pipe, after having been lined with the product, must remain full at all times; and
13.1.3 client is solely responsible for ensuring that the pipe, after having been lined with the product, remains full at all times by whatever means necessary, including the installation of non-return valves to the pipe.
13.2 Client further acknowledges that ~
13.2.1 The pipe is an existing pipe that requires remedial work to be affected thereto due to deterioration over time and accordingly the works comprises work of a remedial nature, i.e., to rehabilitate existing pipe;
13.2.2 ORSCO is not responsible for the design of the pipe;
13.2.3 ORSCO does not warrant to client that ~
13.2.3.1 the pipe or the design thereof or the manner of its installation were at any point in time suitable for the purposes for which it had been manufactured and installed or is or will be used; and
13.2.3.2 the pipe, after having been relined with the product, will be suitable for the purpose(s) for which it is used.
14.1 ORSCO warrants that it will carry out the works in a proper and workmanlike manner and in accordance with the relevant professional techniques and standards which govern the industry of which ORSCO is a member.
14.2 ORSCO warrants, subject to the other provisions of the agreement, that, for the duration of the latent defects liability period mentioned in clause 1.1.30.1 above, the product (which excludes any flanges) used in the works will not break down or otherwise fail, provided that ~
14.2.1 A pipe relined with the product is not used at any time and for any duration within the said latent defects liability period for any use other than for normal use, namely, being used for the conveyance solely of potable water.
14.2.2 A pipe relined with the product is not, at any time and for any duration within the said latent defects liability period, used contrary to the specifications and prescripts of ASOE.
14.2.3 A pipe relined with the product is not, at any time and for any duration within the said latent defects liability period, subjected to any abuse, vandalism, any natural forces, external heat or any stresses of any kind which the said pipe would not reasonably be expected to be subjected to in the ordinary course of its use for the purposes for which it was intended to be used;
14.2.4 No prohibited chemical enters or is introduced, directly or indirectly, into a pipe relined with the product at any time and for any duration within the said latent defects liability period;
14.2.5 No amount of potable water exceeding a temperature in excess of what is customarily considered to be the standard or customary ‘domestic hot’ temperature enters or is introduced, directly or indirectly, into a pipe relined with the product at any time and for any duration within the said latent defects liability period;
14.2.6 No item or installation is attached to a pipe relined with the product at any time and for any duration within the said latent defects liability period other than such items or installations as shall have been authorised in writing by ORSCO;
14.2.7 No modification of whatever nature is made to a pipe relined with the product at any time within the said latent defects liability period; and
14.2.8 The external surfaces of a pipe relined with the product does not become corroded, regardless of the cause of the corrosion so as to result in a leak in the said pipe within the said latent defects liability period.
14.3 ORSCO warrants, subject to the other provisions of the agreement, that, for the duration of the latent defects liability period mentioned in clause 1.1.30.2 above , the flanges used in the works will not break down or otherwise fail, provided that ~
14.3.1 the flanges are not loosened, dismantled, interfered or tampered with; and
14.3.2 the flanges are not exposed to or do not come into contact with any prohibited chemical; and
14.3.3 the flanges are not subjected to any abuse, vandalism, any natural forces, external heat or any stresses of any kind which the flanges would not reasonably be expected to be subjected to in the ordinary course of their use for the purposes for which it was intended to be used.
15.1 ORSCO 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 works (a) in the manner warranted in terms of clause 14.1 above and (b) in accordance with the programme in so far as the programme shall have been provided to client.
16.1 Subject to the provisions of clauses 16.2 and 16.3 below, if any variations, modifications, additions and extras to or omissions from the works are required (“variation works”), ORSCO will not commence with the execution thereof, unless and until the parties shall have first, in writing, agreed (a) the amount, additional to the quoted amount, payable by client for the variation works (“the variation works amount”) and (b) any resultant extension of the completion date that may be required (“variation works agreement”).
16.2 If client requires ORSCO not to carry-out any portion of the works (“the omitted works”), it must give ORSCO a notice to such effect and in which event ~
16.2.1 ORSCO will not carry out the omitted works set out in client’s said notice; and
16.2.2 client will not be entitled to any decrease or reduction in the quoted amount and will remain liable to ORSCO for payment of the full quoted amount.
16.3 The provisions of clause 16.1 above will not apply to the conduct of the completion test in the event that a charge for the conduct of the completion test is not expressly set out in the quotation document and client gives ORSCO the notice contemplated in clause 12.2 above; the provisions of clause 12 above will apply to the variation of the works where such variation works takes the form of the conduct of the completion test being included as part of the works.
16.4 The works includes cleaning the pipe prior to the installation of the product using high pressure jetting only to the extent required to achieve a light descaling of the inside of the pipe. If the pipe is corroded internally to the extent that in descaling it by high pressure jetting, the pipe is blasted-through, the blasted-through section of the pipe must be replaced prior to ORSCO being able to reline the pipe. The replacement of such section of the pipe will constitute a variation works and ORSO will not bear any liability for the pipe having being blasted-through in the aforesaid circumstances, including any liability to client and / or the owner of the pipe for the costs of replacing the relevant section of the pipe.
16.5 The client acknowledges that the product cannot be installed in a pipe which has an obstruction therein.
16.6 A slight build-up of corrosion inside a pipe that is not removed by the light descaling of the pipe, as contemplated in clause 16.4 above, will not constitute an obstruction of the pipe that will prevent the product from being installed therein.
16.7 The removal of any object found in the pipe which cannot be simply flushed out of the pipe (for example, any object that is attached or connected to the inside of the pipe, such as a butterfly valve that is jammed / stuck closed and will not open or a steel welded peg) will constitute a variation works.
17.1 Client will be liable for the payment of VAT leviable on any amounts payable by client in terms of the agreement.
17.2 Any amounts payable by client in terms of the agreement are exclusive of VAT, unless the contrary is stated.
18.1 As consideration for ORSCO carrying out the works, client must pay ORSCO the final amount.
18.2 Subject to ORSCO being entitled to payment of amounts additional to 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.
18.3 Client must pay ORSCO the advance amount by no later than the advance amount payment date.
18.4 The product will be purchased by ORSCO from ASOE, who is based in the Peoples Republic of China, and the purchase price of which will be payable by ORSCO in US$.
18.5 The quoted amount in respect of the product is based on the US$ : Rand exchange rate as published by the South African Reserve Bank prevailing as at 10:00 on the date on which ORSCO transmits the quotation document to client.
18.6 If, having duly accepted the quotation, client fails to pay the advance amount by the advance amount payment date and instead pays the advance amount on any day after the advance amount payment date (“the later payment date”), regardless of whether or not ORSCO shall have consented to such late payment of the advance amount, and if the US$, as at the later payment date, shall have appreciated against the Rand compared to the exchange rate that prevailed on the advance amount payment date, ORSCO will be entitled to payment of, and client will be liable for payment of an amount additional to the quoted amount that is equal to the difference in amount between that portion of the quoted amount attributable to the product calculated at the US$ : Rand exchange rate as published by the South African Reserve Bank prevailing as at 10:00 on the later payment date less that portion of the quoted amount attributable to the product as set out in the quotation document.
18.7 ORSCO will issue client with a valid tax invoice for the final amount once the completion certificate or the completion test certificate, as the case may be, shall have been issued to client.
18.8 Client must pay the outstanding balance of the final amount by no later than the 1st (first) business day after the day on which ORSCO shall have issued its said invoice to client.
18.9 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 interest rate from the due date for payment until the date of payment in full (both dates included).
18.10 The interest mentioned in clause 18.9 above will accrue from day to day, be calculated on a 365 (three hundred and sixty-five) day factor, irrespective of whether or not any relevant year is a leap year, and will be capitalised in arrears on the last day of every month.
18.11 The payment of the advance amount and all and any other amounts payable to ORSCO in terms of the agreement must be made without deduction or set-off by way of an electronic transfer of immediately available funds into ORSCO’S banking account and which payment must reflect the quotation number as a payment reference.
18.12 Client will be responsible for verifying the accuracy of the details of ORSCO’S banking account that shall have been provided to it in writing, by way of telephoning a responsible person in the employ of ORSCO known to client and using a telephone number advertised on ORSCO’S website (www.orsco.co.za) as that of ORSCO. Client will bear the risk of any payment that it makes, intended to be paid to ORSCO, not in fact being received by ORSCO in those circumstances there client shall have failed to telephonically verify the details of ORSCO’S banking account in the manner aforementioned prior to it having made the particular payment.
19.1 Client must ensure that throughout the works period ~
19.1.1 ORSCO is given unobstructed and safe access to the site;
19.1.2 ORSCO is given sufficient access to and space for the works to be carried out at each end of each pipe that is required to be lined as part of the works so that, amongst other things, ORSCO is able to use the equipment effectively and without any hinderance;
19.1.3 ORSCO’S workforce is provided with a safe working environment within which to carry out the works;
19.1.4 any and all the pipes feeding into the same line as the pipe(s) (that are to be lined as part of the works) are not used during the works period and / or that the water flow in such pipes is properly diverted from the pipe(s) (that are to be lined as part of the works) for the duration of the works period;
19.1.5 ORSCO is provided, at no charge to ORSCO, with a continuous supply of electricity as shall be required by ORSCO to carry out the works, unless it is provided in the quotation document that ORSCO will make use of a generator to do so;
19.1.6 ORSCO is provided, at no charge to ORSCO, with a continuous supply of potable water to the site and in such quantities as shall be required by ORSCO to carry out the works, including for the purpose of conducting the completion test in the event that ORSCO is required, in terms of the agreement to conduct the completion test; and
19.1.7 adequate toilet facilities are provided on the site for ORSCO’S workforce and at client’s own cost.
19.2 Client must ensure that, throughout the period that ORSCO demobilises from or de-establishes site ~
19.2.1 ORSCO is given unobstructed and safe access to the site;
19.2.2 ORSCO’S workforce is provided with a safe working environment within which to demobilise from or de-establish site; and
19.2.3 adequate toilet facilities are provided on the site for ORSCO’S workforce at no cost to ORSCO.
20.1 ORSCO will, subject to the provisions of this clause 20, be entitled to a revision of the completion date if a delay in achieving works completion is caused by any one or more of the following:
20.1.1 Adverse effect of weather conditions.
20.1.2 The inability of ORSCO to procure the product, provided that ORSCO shall have timeously ordered the product and taken all reasonable steps to avoid or reduce the delay;
20.1.3 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 ORSCO, provided, however, that where the loss and / or damage is caused by ORSCO having blasted through a corroded pipe as contemplated in clause 16.4 above, such conduct will be deemed to not be attributable to ORSCO.
20.1.4 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, that results in the shut-down of the site); or
20.1.5 Loss of any equipment in a pipe caused by negligence or willful conduct on the part of ORSCO.
20.2 ORSCO will not be entitled to an adjustment of the quoted amount due to a revision of the completion date arising out of an impediment mentioned in clause 20.1 above.
20.3 ORSCO will, subject to the provisions of this clause 20, also be entitled to a revision of the completion date if a delay in achieving works completion is caused by any one or more of the following:
20.3.1 A delay in ORSCO commencing with the works due to any of the pre-commencement works not having been carried out as contemplated in clause 10.3 above;
20.3.2 A delay in ORSCO commencing with the works due to any contractors, sub-contractors or persons (other than ORSCO and ORSCO’S workforce) contemplated in clause 10.3 above not having been ready to carry out whatever their respective tasks may have been at the time that ORSCO was required to commence with carrying out the works in terms of the agreement.
20.3.3 A delay in ORSCO commencing with the works due to a failure on the part of client in making payment of the advance amount in accordance with the provisions of clause 18.3 above;
20.3.4 Any delay in the successful induction of any of ORSCO’S workforce, provided that such delay is not attributable to ORSCO;
20.3.5 ORSCO not being given access into the site as contemplated in clause 19.1.1 above;
20.3.6 ORSCO not being given sufficient access to and space for the works to be carried out at each end of each pipe (that is required to be lined as part of the works) as contemplated in clause 19.1.2 above;
20.3.7 ORSCO’S workforce not being provided with a safe working environment within which to carry out the works;
20.3.8 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;
20.3.9 Any pipe feeding into the same line as any pipe (that is to be lined as part of the works) being used during the works period and / or the water flow in such pipes not having been properly diverted from the pipe (that is to be lined as part of the works) for the duration of the works period;
20.3.10 ORSCO not being provided with a continuous supply of electricity as contemplated in clause 19.1.5 above;
20.3.11 ORSCO not being provided with a continuous supply of water to the site as contemplated in clause 19.1.6 above;
20.3.12 Making good any loss and / or repairing any damage to any pipe in those instances where such loss and / or damage is attributable to any cause other than negligence or willful conduct on the part of ORSCO; and
20.3.13 ORSCO executing any variation works in terms of a variation works agreement.
20.4 ORSCO will be entitled to payment of an amount additional to the quoted amount due to a revision of the completion date arising out of any one or more of the circumstances mentioned in clause 20.3 above.
20.5 ORSCO will, subject to the provisions of this clause 20, also be entitled to a revision of the completion date if a delay in achieving works completion is caused by an impediment.
20.6 ORSCO will be entitled to payment of an amount additional to the quoted amount if the delay is caused by an impediment as contemplated in clause 20.5 above provided that (a) the event in question is not an event of the nature contemplated in clause 20.1 above and (b) that the event in question is one in respect of which there is no fault on the part of ORSCO.
20.7 Should an event or circumstance mentioned in any of clauses 20.1, 20.3 and 20.5 above occur and which could, in the opinion of ORSCO, cause a delay in achieving works completion by the completion date, ORSCO must ~
20.7.1 give client notice of the occurrence of the relevant event or circumstance within 2 (two) business days after having become aware thereof;
20.7.2 take all reasonable steps to avoid or reduce the delay; and
20.7.3 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 ~
20.7.3.1 a revision of the completion date or any previous revision thereof, as the case may be; and / or
20.7.3.2 payment of an amount additional to the quoted amount as a result thereof.
20.8 ORSCO 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 payment of an amount additional to the quoted amount within 5 (five) business days after the delay shall have ceased (“the claim notice”).
20.9 In claiming a revision of the completion date (or any previous revision thereof, as the case may be) and / or payment of an amount additional to the quoted amount, ORSCO must state the following in the claim notice and in respect of each relevant event or circumstance:
20.9.1 full particulars of the relevant event or circumstance on which it relies for its claim;
20.9.2 full particulars of the effect of the delay on the progress towards the achievement of works completion;
20.9.3 the extension period claimed and the calculation of which period must be based on normal working hours except however, where the works or any portion thereof is required to be conducted over an uninterrupted period of time that traverses normal working hours; and
20.9.4 full particulars and calculations of the amount additional to the quoted amount claimed, provided that ~
20.9.4.1 if ORSCO is unable at the time to provide client with such particulars and calculations, ORSCO must indicate such to client and provide client instead with an estimation of the adjustment; and
20.9.4.2 the amount additional to the quoted amount will be limited to ~
20.9.4.2.1 the daily standby rate for each day or part thereof by which the completion date is extended; plus, either
20.9.4.2.2 the daily accommodation rate for each day or part thereof by which the completion date is extended, or
20.9.4.2.3 in the case of ORSCO’S workforce not requiring accommodation, the costs, calculated in accordance with the travelling rate, of ORSCO’S workforce travelling, by road and along the shortest possible route, from ORSCO’S physical address to the site and return for each day by which the completion date is extended. It will be deemed that ORSCO’S workforce will not require accommodation if the distance, measured along the shortest possible route, from ORSCO’S physical address to the site and return is less than 300km (three hundred kilometres) by road.
20.10 Client must, within 5 (five) business days after having received the claim notice, notify ORSCO 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 ~
20.10.1 if client grants the claim, either as claimed by ORSCO or as client may have reduced it, ~
20.10.1.1 determine the revised date for the achievement of works completion; and
20.10.1.2 specify each event or circumstance in respect of which the extension period is granted (whether as claimed by ORSCO or as client may have reduced same) and the extent of the revision period granted; or
20.10.2 if client refuses the claim, give full reasons for having done so.
20.11 Client must in its notice mentioned in clause 20.10 above also notify ORSCO of either (a) the grant of the amount additional to the quoted amount claimed or (b) the reduction of the amount additional to the quoted amount claimed or (c) the refusal of the amount additional to in the quoted amount claimed in its entirety and in such notice client must ~
20.11.1 if client reduces the amount additional to in the quoted amount as claimed by ORSCO, it must set out (a) full reasons for the reduction and (b) and a full calculation of the reduced amount; or
20.11.2 if client refuses the claim in its entirety, it must set out full reasons for having done so.
20.12 Should ORSCO 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 20.10 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”).
20.13 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 ORSCO located at ORSCO’S physical address) at 10:00 on the 3rd (third) business day after ORSCO shall have given client the notice mentioned in clause 20.12 above) and at such meeting endeavour to resolve the extension dispute by discussion, negotiation and joint co-operation.
20.14 In the event of the extension dispute not being resolved in the manner prescribed in clause 20.13 above at the said meeting or within such extended time period as the parties may in writing allow, ORSCO must refer the relevant dispute to the expert QS for determination, subject to the following provisions:
20.14.1 The expert QS, in making his determination, may, within his sole discretion, determine the appropriate processes, methods and procedures to be adopted for making his determination, provided that he must not adopt any process, method or procedure which is manifestly biased, unfair or unreasonable;
20.14.2 The expert QS will have the power to make all investigations necessary and to obtain from the parties and any other persons, all information and documentation considered by the expert QS to be reasonably necessary for making his determination;
20.14.3 The expert QS, in making his determination, will act as an expert and not as an arbitrator or quasi-arbitrator;
20.14.4 The decision of the expert QS will, in the absence of manifest error or fraud, be final and binding on the parties;
20.14.5 The decision of the expert QS is enforceable as a matter of contractual obligation between the parties and not as an arbitral award; and
20.14.6 The expert QS must, in making his determination, also determine which of the parties is to bear liability for payment of his charges for making his determination and if both parties are to bear such liability, then the portion thereof to be borne by them respectively.
21.1 Subject to the provisions of clauses 21.2 and 21.3 below, ORSCO will be liable to make good at its cost ~
21.1.1 all latent defects which appear in the works up to and including the last day of the latent defects liability period mentioned in clause 1.1.30.1 above, which are attributable to a breach of the warranty contained in clause 14.1 above and / or a breach of the warranty contained in clause 14.2 above and provided that client shall have given ORSCO notice thereof by no later than the last day of the said latent defects liability period; and
21.1.2 all latent defects which appear in the flanges used in the works up to and including the last day of the latent defects liability period mentioned in clause 1.1.30.2 above, which are attributable solely to a breach of the warranty contained in clause 14.3 above and provided that client shall have given ORSCO notice thereof by no later than the last day of the said latent defects liability period.
21.2 ORSCO will ~
21.2.1 as soon as may be reasonably possible after having received the notice mentioned in clause 21.1.1 or 21.1.2 above, commence with the requisite work required to be performed in order to remedy the latent defect(s) stated in the said notice; and
21.2.2 complete such said remedial work within a reasonable period of time after having commenced therewith.
21.3 The extent of the remedial work that ORSCO is obliged to carry out in order to remedy the relevant latent defect(s) as contemplated in clause 21.2 above is limited strictly to replacing the product and / or replacing the relevant flanges, as the case may be.
21.4 Client’s sole claim against ORSCO arising out of a latent defect contemplated in clause 21.1 above is for the replacement of the product and / or replacement of the relevant flanges, as the case may be. Accordingly, and without limiting the provisions of the aforegoing, client will not have any claim against ORSCO for any loss or damage to any property, including to any pipe or installation, or for any cost or expense suffered as a result of a latent defect contemplated in clause 21.1 above.
21.5 Save for the warranties, guarantees, representations and the like issued by ASOE as set out in the ASOE guarantees or warranties, ORSCO does not warrant to client that the ASOE, warrants, guarantees or otherwise represents that the product is free from any defect or is suitable for any purpose, including for the purposes of relining the pipe(s).
21.6 Subject to the provisions of clause 21.3 above, ORSCO hereby cedes to client, with effect from the date of payment in full of the outstanding balance of the final amount, all and any rights of recourse and remedies that ORSCO, under any applicable law and / or the ASOE guarantees or warranties, may have against ASOE arising out of a failure of the product.
22.1 Client hereby indemnifies and holds ORSCO harmless against all and any liability, loss, damages, costs, expenses, claims and proceedings arising out of any negligent or willful 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.
23.1 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 ~
23.1.1 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
23.1.2 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 ~
23.1.2.1 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
23.1.2.2 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.
23.2 The impeded party, in invoking the provisions of clause 23.1 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.
23.3 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.
23.4 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 23.1.2.1 above, and failing which the disputing party will be deemed to have waived its right to dispute such claim.
23.5 Notwithstanding the provisions of clause 23.4 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 23.1 above.
23.6 In the event that the disputing party gives the impeded party the notice mentioned in clause 23.4 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 ORSCO located at ORSCO’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 23.4 above) and at such meeting endeavour to resolve the impediment dispute by discussion, negotiation and joint co-operation.
23.7 In the event of the impediment dispute not being resolved in the manner prescribed in clause 23.6 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 20.14 above, with the necessary changes being made as may be required by the context.
23.8 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 totaling 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.
24.1 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 ~
24.1.1 The other party is placed under a provisional or final order of liquidation;
24.1.2 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
24.1.3 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.
25.1 In no circumstances will ORSCO be liable to client, regardless of the basis on which client may be entitled to claim damages from ORSCO (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.
25.2 Subject to the provisions of clause 25.1 above, ORSCO’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 ORSCO that does not exceed 2.5% (two comma five percent) of the final amount.
26.1 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 25.1 and 25.2 above ~
26.1.1 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
26.1.2 cancel the agreement, with or without claiming damages.
27.1 In the event of ORSCO 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, ORSCO, 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.
28.1 The agreement contains all the express provisions agreed on by the parties with regard to the execution of the works by ORSCO and the parties hereby waive the right to rely on any alleged and / or express provision (albeit agreements, representations or warranties) not contained herein.
28.2 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.
28.3 The agreement will supersede all and any other agreements, discussions and / or understandings relating to the execution of the works, oral or written, that may have been entered into between ORSCO and client prior to the acceptance date.
29.1 No amendment, addition or variation, novation or consensual cancellation of the agreement or any provision or term thereof (including this clause 29.1) or of any agreement 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.
30.1 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.
30.2 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.
30.3 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.
31.1 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.
31.2 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.
32.1 The termination of the agreement for any reason will not affect ~
32.1.1 the rights of any of the parties ~
32.1.1.1 that may have accrued before the termination of the agreement; or
32.1.1.2 that specifically or by its nature survives the termination of the agreement; or
32.1.2 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.
33.1 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.
33.2 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.
34.1 The parties select as their respective addresses for the purpose of citation and service of legal process the following physical addresses:
34.1.1 ORSCO: ORSCO’S physical address.
34.1.2 Client: Client’s physical address.
34.2 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:
34.2.1 ORSCO – marked “For the attention of The Board of Directors”
34.2.1.1 Physical address : ORSCO’S physical address
34.2.1.2 E-mail address : ORSCO’S e-mail address
34.2.2 Client:
34.2.2.1 Physical address : Client’s physical address
34.2.2.2 E-mail address : Client’s e-mail’s address
34.3 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.
35.1 Any notice required or permitted to be given or made in terms of the agreement will be valid and effective only if in writing.
35.2 Any notice to a party ~
35.2.1 delivered by hand at its chosen physical address ~
35.2.1.1 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
35.2.1.2 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
35.2.2 sent by e-mail to its chosen e-mail address ~
35.2.2.1 during business hours will be deemed (unless the contrary is proved) to have been received by that party on the date of transmission thereof; or
35.2.2.2 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.
35.3 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.
36.1 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.
37.1 Client warrants to ORSCO that ~
37.1.1 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).
37.1.2 the agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms;
37.1.3 to the best of its knowledge and belief (which knowledge and belief it warrants shall have been arrived by it after having made due 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;
37.1.4 it is entering into the agreement as principal (and not as agent or in any other capacity); and
37.1.5 it is not relying on any statement or representation by or on behalf of ORSCO, except those expressly set forth in the agreement.
37.2 Each of the warranties given by client in terms of clause 37.1 above or any other clause of the agreement ~
37.2.1 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;
37.2.2 continues and will remain in force notwithstanding the completion of any or all the transactions contemplated in the agreement;
37.2.3 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;
37.2.4 is a representation of fact that is material to the conclusion of the agreement; and
37.2.5 is relied on by ORSCO in issuing the quotation and thereby entering into the agreement.
38.1 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.
