1. Any deletions, alterations or variations to the terms of the contract are to be signed by both parties on mutual agreement.
2. The act of filling the pool or spa by the Owner after work has been executed by the contractor, will be regarded as an indication that the work executed was entirely satisfactory to the Owner.
3. Re-filling of the pool or spa is entirely the responsibility of the Owner. The owner shall provide a constant water supply to fill or replenish the water in the pool or spa. This water shall be free of undesirable qualities for the production of clear water, excessive metal ions, high lime content or any other imbalance.
4. The owner shall be responsible for the operation or the pool or spa and treatment of the water from the day the pool or spa has been filled.
5. Unless otherwise specified herein, the Contractor shall, where possible, lead water into a convenient sewerage outlet when emptying a pool or spa. Notwithstanding the aforegoing, the Contractor shall not e responsible for any damage incurred to any property as a result of such emptying and draining away of water.
6. No indulgence, extension of time, relaxation or latitude which the contractor may show, grant or allow to the owner, shall constitute a waiver by the contractor of any of the contractor’s rights and the contractor shall not thereby be prejudice or be stopped from exercising any of its rights against the owner which may have arisen in the past or which might arise in the future.
7. The owner acknowledges that the pool will be emptied at his own risk, The Contactor will take reasonable care in emptying the pool but will not be responsible for damage caused to the pool structure, surround filter system or plumbing, as a result thereof.
8. Hazardous conditions, such as water seepage into the pool, due to water table, or wet soil problems: Should special work be required to stem the flow of water, the Contractor will be entitled to charge a pro-rata figure for additional work required.
9. The Contractor shall not be responsible for the displacement of coping and mosaic tiles during the removal or mosaics and/or marbelite.
10. Ownership of all goods and equipment supplied by the Contractor in terms of this contract shall remain vested in the Contractor until the Owner has made payment in full or all amounts due in respect of this contract. In the event of the owner failing to make payment of any amount on due date, the Contactor shall without prejudice to any of its rights in terms hereof, have the right to forthwith enter upon the premises and to remove all or any of such goods and equipment.
11. All risk in the materials will pass to the owner upon delivery, subject to unused material remaining the property of the contractor, which shall be entitled forth with to remove such materials.
12. Payment will be due as to 50% of the contract price on the face or this contract on delivery of the materials to the site, the balance on delivery to the owner of a certificate of completion, the issue of which certificate shall render the owner liable to effect payment in full, free of any deduction. Such certificate shall moreover be prima facie proof of the completion of the work and the onus of proving the contrary, shall rest upon the owner. In the event of the owner failing to make payment of the contract price or any portion thereof on due date, the contractor may at its option and without prejudice to any other rights which it may have in law, claim payment of all amounts due in terms of the contract. In addition thereto, the contractor shall be entitled to postpone the commencement of or stop all or any work in progress until such payment be made, Until such time as all sums due by the owner to the contractor will gave been paid in full, and claim or fight of action which the owner might have against the contractor of whatsoever nature arising out of or in connection with the contract, shall be deemed to have been suspended and not to have arisen despite any circumstances to the contrary, and shall arise only upon payment of the contract price having been made in full.
13. The owner hereby appoints the installation address set out overleaf as his domicillium citandi executandi for all purposes of and incidental to the contract, and at which address he agrees to accept any notice or legal process in this matter.
14. The contract contains the entire agreement between the parties and neither of them shall be bound by any undertakings, representation, warranties, promises or the like not recorded herein. No warranties of whatsoever nature and whether express or implied, are made by the contractor or his agents, and whether as regards workmanship or materials, unless expressly stated in writing. However, any such written warranties will be voided by any abuse or neglect in maintenance and chemical dosing on the part of the owner and his servants or agents.
15. The Contractor shall not be responsible or liable in any way for marking, staining, scratching, or variation in colour due to the composition of marbelite, occurring after the application of the finish to the exposed surface of the pool. Dark colour marbelite will give off a white calcium efflorescence and white marbelite will stain if not maintained and brushed regularly as the calcium will harden on the surface.
16. Fibreglass linings are applied by hand lamination method onto an existing pool shell. While every effort is made to ensure a contour-free surface, the Contractor is not responsible for existing irregularities as well as matt, pattern, resin streaks, and wear caused by automatic pool cleaners. The use of stabilized chlorine floaters will damage the surface if not monitored or tested weekly. The contractor will not be responsible for damage caused by chemical abuse.
17. In the event of a dispute between the parties, the onus of proof leis solely upon the Owner.
18. The contractor shall not in any way be responsible for any damage howsoever arising or caused by the owner in draining the pool for whatever reason within the guarantee period, The pool should not be drained without consultation and mutual consent.
19. Any soil removed, if required, from the site will be subject to a separate agreement and is excluded from this contract.
20. No allowance is included for excavation and/or additional materials used in waterlogged or unpickable soil, hard or soft rock, clay, ouklip, ground containing boulders, rubble or unconsolidated fill. If these conditions require the use of pneumatic breakers, blasting, specific machinery, sub soil drainage, any extra handwork or extra machinery time and/or extra materials, they will be the subject of a special quotation and are specifically excluded from this contract. However, the contractor shall be entitled to make an extra charge or extra machine time and/or extra materials should the above conditions prevail without a special quotation. Should the special quotation prove too costly the owner has the option to pay the contractor for this work done and materials used to that stage, at his prevailing rates and cancel the contract.
21. Underground services: Should any underground services such as sewers, cables, water pipes and drains be encountered in the course of or in connection with the works, the onus of diverting or removing the same and all risk in such diversion or removing shall be for the account of the owner, provided that should the contractor choose to effect such diversion or removal the owner shall by the contractor, in consideration thereof, or demand and in addition to the contract price and amount equal to the contactor’s cost of such removal or diversion as certified by the contractor, plus 10% of such cost. If any such underground services as aforesaid are damaged on or about the works, the owner shall bear all loss and liability resulting therefrom.
22. Installation of an Earth leakage relay or Load control Unit is specifically excluded from the contract. Where the local authority concerned specifies such installation or requires alterations of any nature to the Owner’s electrical installation the owner shall be responsible for the extra costs resulting from this additional installation and/or alterations.
23. All pool dimensions are approximate with reasonable tolerances either way. The parties agree that ascertained and liquidated damages for errors by the contractor in the perimeter of the pool as specified on the reverse side of this contract shall be proportionate to the contract price.
24. The paving shall be graded to what in the contractor’s sole and absolute opinion constitutes the best grade having regard to ground conditions and drainage. Grading will generally follow the existing contours of the ground, instructions necessitating digging or filling more than 10cm depth may be charged as an extra. The contactor is not responsible for drainage after it leaves the paving.
25. In the event of a retaining wall being necessary as a result of the levelling of the ground or construction of the pool, the owner shall be liable for the costs and erection of such retaining wall together with the costs of any drainage of any other ancilliary work required.
26. Any dispute of whatsoever nature arising out of this contract concerning any of the rights and/or obligations of the parties, either during the currency of the contract, including any dispute as to the validity of the contract, is hereby referred to for arbitration and final decision of a single arbitrator under the Small Claims Arbitration Tribunal (SCAT) Rules current at the time of the declaration of the dispute and as published by the Association of Arbitrators (Southern Africa) and the parties agree to accept this award as final and binding upon them.
The arbitrator shall be:
· Selected by agreement between parties, or failing such agreement,
· Appointed at the request of either party by the office of the National Spa and Pool Institute of South Africa (NSPI).
The cancellation of this contract by either party for whatever reason shall not affect the validity of this clause.
Please note that the upper limit for SCAT Rules is a dispute of R60.000. If there is a possibility that “SCAT Rules shall apply irrespective of the amount in dispute” or include a
provision to use the summary or standard procedure Rules.