Terms of Business
A R Brink & Associates – Our Standard Terms of Service and Trading are:
1. DEFINITIONS
Unless the context shows otherwise:
“ARB” means A R Brink & Associates CC and includes all of its members and employees.
“Customer” means any agent or principal (who shall be jointly and severally liable to ARB) at whose request or on whose behalf ARB provides any services, information or advice.
“Days” means calendar days and includes national, public, religious, banking, court holidays and weekends. In the computation of days the first day will be excluded and the last day included.
2. INVOICES
2.1 Invoices are due, owing and payable in cash, in full, immediately on presentation, without deduction or set-off, free of exchange, free of banking charges and free of foreign exchange conversion charges.
2.2 Payment shall not be withheld or delayed on the basis that the customer has a dispute with ARB or has any alleged claim or counterclaim against ARB.
2.3 Invoices are free of interest from the date of the invoice to the end of that same month in which the invoice is dated. Thereafter interest at 2 % per calendar month or part thereof shall accrue on the outstanding balance until paid in full.
2.4 ARB’s fees are based on either an hourly or daily rate at ARB’s discretion depending upon the type of survey. The time charged will include both time spent during travel to and from the survey location, the survey period including preparation and reporting time. If traveling away from Durban then time will commence to count per day from the date of departure from Durban and continue until return to Durban. Preparation and reporting time to be charged in addition. If requested, the timesheet will be drafted which supports the invoice. The time required to draft the timesheet will also be charged for.
2.5 An upfront portion of the estimated fees & expenses maybe required if the client is new to ARB. This portion would be paid to ARB prior to commencing the attendance with the balance due on issuance of invoice and prior to release of the final report.
2.6 Disbursements and expenses, including but not limited to, travel and accommodation, work or advice by sub-contractors, specialist experts, chemises, naval architects, engineers, analysis of whatever nature, tally contractors, sampling contractors, courier services, communications; incurred and raised for each matter, if not arranged for and settled directly by the client, will be charged by ARB to the Customer at cost plus 25 percent.
3. PAYMENT
ARB is entitled to be paid and is entitled to recover any amount due to it by and from the customer.
4. INSTRUCTIONS
Customers may give verbal instructions to ARB. ARB may wish to confirm those instructions in writing to the customer. Such confirmation shall be conclusive evidence of the details of the instruction given unless the customer disagrees in writing to ARB within 10 (ten) days from the date of ARB’s written confirmation.
5. LIABILITY
5.1 In providing a report, services, information or advice ARB does not guarantee accuracy in so doing.
5.2 ARB shall not be liable for any loss, damage or cost whatsoever sustained by any person (legal or juristic), in delict or contract or any other cause of action due to any act, omission, delay or error, whether or not negligent, and howsoever caused by any information or advice given in any form by ARB.
5.3 ARB shall not be liable for any consequential loss.
5.4 Nevertheless, should a court find ARB liable for any loss, damage or cost such shall be limited to R1000.00.
6. NOTICE
Notice of any claim or suit must be given to ARB within 90 days of the date the services were first performed or the date the damages were first discovered, whichever is the later, failing which the lack of notice shall constitute an absolute bar to the claim or suit against ARB.
7. CERTIFICATE
A certificate signed by any member of ARB as to the indebtedness of the customer shall be prima facie evidence of indebtedness for the purposes of any application, action, judgment, order or for any other purpose.
8. INDEMNITY
Without prejudice to any of ARB’s rights the customer indemnifies and holds harmless ARB against all damages, liabilities, costs, expenses, fees for services, and disbursements whatsoever and howsoever incurred by ARB arising directly or indirectly or in connection with the customer’s express or implied instructions.
9. AUTHORISATION
If the customer is a company, close corporation or partnership and at any time any director, member or partner has purported or purports to perform any act on behalf of the customer without being authorised to do so the company, close corporation or partnership shall be bound as if the director, member or partner had been so authorised.
10. ADDRESS FOR SERVICE
The customer’s legal address (domicilium citandi et executandi) shall be the address set out on the customer’s correspondence. In the case of that address not being within the Republic of South Africa service shall be valid if sent by fax to any fax number stated on the customer’s correspondence.
11. JURISDICTION
The customer submits to the jurisdiction of the KwaZulu-Natal High Court, Durban, South Africa for all disputes arising out of or in connection with this agreement.
12. LAW
These standard trading terms, all agreements, and disputes relating thereto shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.
13. VARIATION
These ARB standard terms of service cannot be varied, added to, or cancelled except by means of a further written agreement between the parties
14. RELAXATION
No relaxation of terms or indulgence which ARB may grant to the customer will be deemed to be a waiver or limit or alter or prejudice any of its rights.
15. SEVERABILITY
Each provision of these standard terms of service are severable from the remaining provisions and the remaining provisions shall not be affected and shall remain in full force and effect.
16. COSTS
The customer agrees to pay any costs including VAT of all Counsel’s fees, attorney’s fees on the attorney and own client scale, including collection commission, tracing charges, finance charges, directly or indirectly incurred by ARB in enforcing any of its rights or recovery of any amount arising out of or in relation to the ARB Standard Terms of Service
17. WORK
ARB shall be deemed to have performed its obligations in a proper manner and in accordance with any agreement until the customer proves to the contrary.
18. SUBCONTRACTING
ARB may at its sole discretion sub-contract any work to a third party. The customer agrees that ARB has no responsibility or liability to it for any act, omission or negligence of the third party.
19. POST
Irrespective of prior business dealings between the parties, all cheques, bank drafts, electronic transfers, cash, and documents sent to ARB shall not be deemed to have been received by ARB until they are actually received by ARB.
20. MITIGATION
If ARB is unable for any reason to obtain instructions from the customer and/or due to urgency (as perceived by ARB), ARB has an absolute discretion to make any decisions that ARB believes to be in the interests of the customer, and ARB shall not incur any liability as a result thereof.
21. FORCE MAJEURE
21.1 ARB shall not be liable for circumstances beyond its control.
21.2 Not derogating from 21.1 above, ARB may withhold the release of a final report due to any reason beyond its control, particularly if a third party has not submitted information required for the completion thereof. In the circumstances, any communication of the findings of work done by ARB to the customer, whether written or verbal shall be deemed to be an effective discharge of all of ARB’s obligations herein. On effective discharge of its obligations ARB reserves the right to present a final invoice to the customer. The customer shall not be entitled to cancel the contract or withhold payment or refuse to pay ARB because the customer has not received the final report.
22. ARB reserves all rights, including copyright and trademarks, in these standard terms of service and no part of it may be used, redistributed or stored in any format without the specific written permission of ARB.
23. COPYRIGHT
23.1 No part of any report, service, information, or advice may be copied, loaned, reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods or otherwise disclosed to any third party or used in any manner whatsoever. Without derogating from the generality of the previous sentence, the customer or its agent or attorney may not use any part of the report in any correspondence, document, pleadings with any third party, or use same in any claim, dispute, arbitration, legal proceedings whatsoever. Upon receipt of payment in full, ARB automatically grants to the Customer a licence to use the report, services, information or advice.
23.2 For the avoidance of doubt, if ARB does not receive payment in full then no licence to use is granted to the customer and the right of ownership in respect of the report, service, information or advice, remains the property of ARB.
23.3 ARB may immediately terminate the licence if ARB does not receive payment in full of any further report, addendum report, service, information or advice.
24. INTERPRETATION
The headings in this agreement are for convenience only and are not to be taken into account when interpreting the agreement.
