1. SALES / DESIGN
1.1. EM LANDSCAPES hereby sells to the Client who hereby purchases the goods / products / materials / services to be rendered as set out / provided for in terms of EM LANDSCAPES’s Quotation.
1.2. Should any items as provided for in terms of the initial Quotation require AMENDMENT and/or adjustment, all such AMENDMENTS and/or adjustments are to be agreed upon between the parties in writing, such amendments and/or adjustment to be provided by EM LANDSCAPES to Client by way of a further Quotation. Any Quotation, amendments, variations or the like thereto must be agreed by both parties.
1.3. Any ADDITIONAL REQUIREMENTS that the Client may have in addition to those as provided for by EM LANDSCAPES in terms of its initial Quotation and/or any amendments thereto, will only be valid and of any force and effect if same are reduced to writing and agreed by both parties.
1.4. No verbal undertakings will be valid unless such undertakings have been reduced to writing by way of a Quotation / Addendum and agreed by both parties.
1.5. All or any amendments / additions / substitutes or the like to any Quotation/s or Addendums and/or Agreements between the parties shall be governed by and subject to these Terms and Conditions.
1.6. Clients are responsible to familiarise themselves with the correct drawing and/or size, variety, design and density of product included in quote.
1.7. All quotations are provided free of charge and include up to three (3) revisions based on client feedback or requested changes. Any revisions requested after the third revision will be subject to an additional quotation revision fee, which will be communicated to and approved by the client in writing before any further revisions are undertaken. The Company reserves the right to suspend further quotation work until such fee has been accepted and paid.
2. PROPOSAL AND CONTRACT DRAWINGS
2.1. Two sets of drawings may be provided. Firstly, a Proposal Drawing and secondly a Contract Drawing.
2.2. Where only one drawing is presented to the client then this drawing will be considered the Contract Drawing.
2.3. The Contract Drawing must be signed off by the client, approving the design and layout prior to project commencement.
2.4. All PROPOSAL DRAWINGS (including diagrams, pictures, photographs and the like) as provided by EM LANDSCAPES to the Client are conceptual (i.e. artistic creative impressions) and do not represent the actual or exact installed result. Such Proposal Drawings (diagrams or impressions) are merely mood impressions and are provided by EM LANDSCAPES to the Client indicating an anticipated result once the Products (plants and the like) are established and grown.
2.5. A CONTRACT DRAWING will be signed / agreed by the client in writing (separate to Proposal Drawing) and will depict the scale and positioning. The Contract Drawing forms an addendum to this contract and may be used as a point of reference to verify installation specifications. Please note that the size and density of plants as indicated in the Contract Drawing (diagrams, pictures, photographs and the like) are not indicative of the final installed handover result – the drawing is indicative of the matured result of the garden once the plants have grown.
2.6. Drawings apply to initial design only and not to any subsequent changes or amendments thereafter.
2.7. EM LANDSCAPES reserves the right to not do a drawing as part of the contract.
3. OPERATIONS / PRODUCTS / SERVICES
3.1. EM LANDSCAPES will only be responsible for such Plants / Materials / Items / Work / Services and the like (or any substitutes thereto) as provided for and set out in terms of the Quotation/s (or any written amendments thereto).
3.2. EM LANDSCAPES always endeavours, to the best of its abilities, to ensure that items as quoted for in terms of their Quotation/s (or any amendments thereto) are available. Should any such item(s) as quoted, not be available due to seasonal changes, lack of availability or quality concerns, EM LANDSCAPES reserves the right to substitute such Plants / Materials / Items with those like that quoted for it in terms of its Quotation.
3.3. EM LANDSCAPES does not guarantee delivery or completion by a specified date. Completion of project is dependent on weather conditions, third party delays and factors that may be outside our control. Should a specific deadline be requested by client it must be authorised in writing by EM LANDSCAPES.
3.3.1. All time limits as provided for by EM LANDSCAPES in terms of its Quotation/s or any amendments and/or additions thereto are merely estimates. EM LANDSCAPES endeavours, to the best of its abilities, to adhere to such time limits. Due to the nature of EM LANDSCAPES’s work, it is unable to guarantee any such time limits provided and accordingly cannot be held liable and/or responsible for any delays occasioned because of any delays in completing any work timeously.
3.4. Should the Client elect to change the choice/s of plants, as provided for in terms of the Quotation or any amendments thereto, then and in such event the Client may do so provided that:
3.4.1. Changes made before the deposit is paid will be made at no additional cost being incurred subject to value for value substitutes. Where extra costs are incurred should be done so in writing, thereafter client will be billed.
3.4.2. Changes made to product selection / quantity etc, once the deposit has been paid, but prior to planting will incur up to a 20% levy on value for value substitutes, as well as additional labour incurred.
3.4.3. Should the Client elect to effect any changes to their choice/s of plants after the plants have already been planted or the materials installed, EM LANDSCAPES will re-quote the client for any such additional charges as may be incurred by the change, including but not necessarily limited to cost of plants, labour, transport, administration and the like in order to give effect to such changes as required by client. Plants or products which are uninstalled will either be removed from site at a refuse removal charge; or left with the client should they require.
3.4.4. Clients may add new phases to a project whilst in progress by consultation and signature of a new quotation without a 20% additional levy being incurred. This only applies to new work, additional work and / or phases.
3.5. Any concerns are to be submitted in writing to EM LANDSCAPES within 5 (five) days of completion of the project. Any concerns received after 5 (five) days will be invalid; and / or treated as a new project, requiring a new quote.
3.6. A team manager/supervisor will be appointed to the Client’s landscape / maintenance to oversee and manage such site. Depending on the size of the project, a team will comprise a minimum of 1 person(s), such people all outfitted in uniforms. EM LANDSCAPES contracts all labour.
3.7. With respect to any construction (pools, water features, walls, paving and the like), it is the client’s responsibility to have plans drawn up and approved by the municipality,
body corporate and/or neighbors. EM LANDSCAPES will continue with the project with the understanding that the client has complied with the above approval.
3.8. If trees are to be felled, where necessary, it is the client’s responsibility to obtain necessary permission from the required authorities, such as municipalities and the like. EM LANDSCAPES will continue to work under this assumption.
3.9. Where any landscaping, garden, or maintenance services are to be performed within a residential estate, gated community, or similar development governed by a Homeowners’ Association (HOA) or managing agent, it shall be the client’s sole responsibility to obtain all required approvals, permissions, permits, access clearances, and to comply with any applicable estate rules, conditions, or working hours. EM LANDSCAPES shall proceed with the provision of such services on the understanding that all necessary HOA or estate approvals have been obtained, and shall not be held liable for any delays, stoppages, penalties, or additional costs arising from the client’s failure to secure such approvals.
4. PAYMENT
4.1. Payment by the Client in respect of all or any landscape work undertaken by EM LANDSCAPES, including but not necessarily limited to amendments, additions, extras or the like are payable as follows:
4.1.1. 80% deposit of the amount in terms of the Quotation, on acceptance of the documentation, for scheduling.
4.1.2. The 20% outstanding amount in terms of the Quotation to be paid within 5 (five) working days of completion of the project.
4.1.3. If any line item on the Quotation is to be completed by a third party / sub-contractor, that line item is to be paid 100% in advance to schedule and secure the installation, not including labour.
4.1.4. Where the client is invoiced via a building contractor or similar third party, a 100% deposit of the amount in terms of the Quotation shall be payable upon acceptance of the documentation, prior to commencement or scheduling of the project.
4.2. Where the client has contracted for monthly, weekly and/or bi monthly maintenance services, the client shall be invoiced at month end, calculated in accordance with the agreed per-day rate as set out in the applicable Quotation. All such invoices shall be payable within 5 (five) working days from the date of invoice.
4.3. EM LANDSCAPES reserves the right, in their sole discretion, not to commence any work and/or changes and/or amendments or the like, until such time as the Client has affected payment.
4.4. Interest at the rate of prime plus 4% pa to be levied on all late / overdue payments.
4.5. No further new work and/or following phases of new work will be attended to and/or progressed until such time as all or any amounts due by the Client to EM LANDSCAPES have been paid.
4.6. EM LANDSCAPES hereby irrevocably reserves the right, in its sole discretion, to suspend services, supplies and/or stop any work and/or discontinue any operations for so long as the Client is in default with its payments and/or in the event that any payments made by the Client are reversed, returned, stopped or the like.
4.6.1. Should any plant(s) / product be left on site during such time – this will remain the property of EM LANDSCAPES until such time the relevant payment has been made.
4.7. EM LANDSCAPES reserves the right to retrieve any plant(s) / product(s) that may have been installed, to the retail value required, should the client default on their balance payment.
4.8. Once product has been paid for in full and delivered to the client’s location, it becomes the responsibility of the client; including but not limited to security, watering and general care.
5. WARRANTIES
5.1. All warranties are limited and subject to the supplier’s warranty.
5.2. EM LANDSCAPES provides a warranty to the Client in respect of any pumps in line with the supplier’s warranties.
5.3. All pots and prefabricated water features will enjoy a warrantee subject to the manufacturer’s warrantee.
5.4. EM LANDSCAPES does not warrant any irrigation products; as supplied by third party / sub-contractor.
5.5. Should the Client not effect payment of any amounts due, timeously or at all, then and in such event EM LANDSCAPES may, in its sole discretion, elect to cancel all or any warranties provided to the Client.
5.6. EM LANDSCAPES does not extend warrantees on any transplants they may need to perform; including but not limited to plants or lawn.
5.7. Craning in trees carries no Warranty whatsoever.
5.8. No warranty can be given for any paving that is lifted, although all precautions will be taken to ensure the correct replacement of the paving.
6. INDEMNITY
6.1. Whilst EM LANDSCAPES, to the best of their ability, takes every reasonable step possible to endeavour to prevent damage, the Client hereby agrees to indemnify and hold harmless EM LANDSCAPES against any loss or damage suffered by it, inter alia the damaging of any underground pipes, existing irrigation, plumbing or electrical this includes intercom pipes, the lifting of paving or reinstallation thereof due to or incidental to the laying of piping and wiring, the drilling of holes in perimeter walls (for piping and wiring) and holes in building walls (for wiring for controller units or for screws to attach trellises) or the like or any other claim, demand, loss or damage from any cause howsoever or whatsoever arising from or incidental hereto.
6.2. EM LANDSCAPES does not supply the paint in respect of any touch ups or any paint as may be necessary to remedy and/or re-paint any walls or the like.
7. ADDITIONAL COSTS
7.1. All electrical points in respect of any water features, lights, pumps, irrigation controllers or the like are to be provided by the Client. If the Client requires EM LANDSCAPES to attend to this, then and in such event EM LANDSCAPES will secure the services, at an additional cost to Client, for all or any such requirements in this regard and it will be specified in a Quote.
7.2. Low voltage solenoid wiring is not installed in conduit. If the client wishes low voltage wiring to be placed in conduit it should be stipulated on the quote; and may lose any warranty associated.
7.3. The quote for refuse / rubble removal is as per visible stipulated removal excluding building rubble or that of third parties. Any additional removal that comes to light will be at an additional cost per load.
7.4. EM LANDSCAPES will not be liable for all, or any damages, Injuries or neglect suffered by or incidental to any third party or contractors.
7.5. Any product, plants or ancillary items which have been installed by EM LANDSCAPES but damaged by a third party and/or Contractor, such damage will be for the account of the Client.
7.6. In light of the work undertaken by EM LANDSCAPES, we would prefer to commence the project only once all or any other contractors are off site. In the event that this is not possible, then and in such event EM LANDSCAPES will not be held liable for any damage suffered to its product by or incidental to any third party and/or contractor.
7.7. If a site requires additional maintenance (mowing, weeding and watering), as a result of delays caused by third parties on site then such maintenance and other costs will be for the client’s account.
7.8. Any tree-felling undertaken by EM LANDSCAPES excludes the cost of stump removal.
7.9. All or any additional work or changes as undertaken by EM LANDSCAPES will be quoted for and must be signed off by the Client prior to any such work proceeding.
7.10. In the event of EM LANDSCAPES discovering underground Rock, extra charges may be incurred for drilling, jack hammering, blasting and removal.
7.11. Any contract not initiated or completed within Six (6) months of signature will incur an increase.
7.12. Trays for pots are an additional extra and need to be requested and costed as such.
7.13. EM LANDSCAPES will not be held responsible for the removal of soil in the event of pool installation.
7.14. Pool installation quote excludes pool equipment such as safety net, brooms and Kreepy Krauly.
8. GENERAL
8.1. EM LANDSCAPES reserves the right not to commence any work on behalf of the Client until such time as all or any documentation, including but not limited to Client Information Form, Terms and Conditions, Quotations, Drawings and/or Diagrams, Plans, Suretyships, Amendments, Addendums and the like have been signed and completed by the Client.
8.2. If EM LANDSCAPES cannot supply portion of or all of the goods / services/ materials / products for any reason beyond EM LANDSCAPES’s control including inter alia, the lack of instruction from the Client, stock shortage, industrial dispute, government action, state of war, civil disturbance, act of God, flooding, drought, frost, temperature cold and hot, hail or any other vis major, EM LANDSCAPES may at its sole discretion cancel the whole or any part of the agreement forthwith. In the event of such cancellation, EM LANDSCAPES shall not be liable to the Client for any loss, whether in contract or delict including, without being limited to, any loss of profits thereby caused.
8.3. A Quotation is valid for 14 days.
9. DISPUTE RESOLUTION
9.1. If in the event of a dispute arising between the parties, each of the parties consents to the referral to expert determination of any dispute arising out of these Terms and Condition, whether in relation to its formation, interpretation, performance, termination or otherwise, such determination to be held within 21 (twenty-one) days of such dispute arising. The expert shall be an advocate who has practiced no less than 10 years at a Magistrates Court in Westen Cape or alternatively an industry expert of not less than 10 years experience, such expert to be mutually agreed upon between the parties.
9.2. Should the parties be unable to agree on an expert, then in such event the matter will be referred to the Magistrates Court in Western Cape for such expert to be appointed by them.
9.3. The expert shall act as an expert and not as an arbitrator. The expert’s findings, including an order for costs, shall be final and binding on the parties and may, on application, be made an Order of Court.
10. BREACH OF CONTRACT
10.1. In the event of the Client committing a breach of any of the provisions of the contract or should application be made for the liquidation or judicial management or sequestration of the Client or should the Client, being a natural person, die or compromise or attempt to compromise with any of his creditors or fail to satisfy any judgment, having been entered against him (within 7 (seven) days of such judgment having been entered against him), or commit any act of insolvency, then EM LANDSCAPES shall, without prejudice to any other rights EM LANDSCAPES may have, be entitled to:
10.1.1. claim immediate payment of the full balance of the amount outstanding, as well as payment of all other sums due to EM LANDSCAPES or to cancel the contract and claim possession of the goods; and
10.1.2. Claim any damages EM LANDSCAPES may have suffered.
10.2. On cancellation, ownership of those goods relating to that portion of the contract that has been cancelled and which may have been passed to the Client shall revert to EM LANDSCAPES.
11. CREDIT, OWNERSHIP, SECURITY, SURETYSHIP AND INTEREST
11.1. All the amounts owing by the Client to EM LANDSCAPES shall be paid on demand. In the event of a dispute, a certificate by EM LANDSCAPES’s auditors as to the amount of the Client’s indebtedness to EM LANDSCAPES shall constitute prima facie proof of such indebtedness at the date referred to therein.
11.2. Ownership of all goods or wares purchased by the Client through or from EM LANDSCAPES remains or shall to any extent necessary be deemed vested in EM LANDSCAPES until they are paid for in full. A certificate issued by EM LANDSCAPES’s auditors as to which goods and wares purchased by the Client through or from EM LANDSCAPES have not been paid in full shall constitute prima facie proof of that fact.
11.3. Other than the warranties provided by EM LANDSCAPES in terms hereof, all risk in and to such products / materials and goods shall pass to the Client on delivery / completion, provided that ownership of the goods shall remain vested in EM LANDSCAPES until such goods have been paid for in full by the Client.
11.4. In the event of EM LANDSCAPES having to instruct an attorney to enforce its rights against the Client, then the Client shall pay EM LANDSCAPES’s attorney and own client costs incurred.
11.5. If the Client is a company or other artificial person, then the person signing this document on behalf of the Client hereby warrants his authority to do so.
11.6. By his signature hereto and as security for all the Client’s obligations to EM LANDSCAPES from time to time, the Client thereby cedes, transfers, makes over and assigns unto EM LANDSCAPES all of the Client’s rights, title, interest in and to its book debts, both present and future, subject to the provisions of the Usury Act, No 73 of 1968 and/or the National Credit Act, No 34 of 2005 (hereinafter referred to as the National Credit Act).
11.7. In the event of the payment to EM LANDSCAPES being delayed, for whatever the reason and/or non payment of EM LANDSCAPES’s invoice, EM LANDSCAPES shall be entitled in addition to any other rights it may have in terms of these conditions, charge the customer interest at the rate of 4% above the overdraft rate charged by EM LANDSCAPES’s bankers from time to time from the date of the invoice until the date that funds are received into EM LANDSCAPES’s bank account, both days inclusive. The aforementioned interest rate will be established primarily by a certificate issued by a manager of EM LANDSCAPES’s banker, whose position or appointment it will not be necessary to prove.
11.8. EM LANDSCAPES reserves the right to remove all products from site without client consent in event of payment terms not being adhered to.
12. SEVERABILITY AND LEGAL COSTS
12.1. Each paragraph in this document is severable, the one from the other, and if any paragraph is found to be defective or unenforceable for any reason by any competent court, the remaining clauses shall be of full force and effect and continue to be of full force and effect.
12.2. If the Client is in any way in breach and EM LANDSCAPES engages the services of an attorney to collect the whole or any portion of the amount owing to it by the Client or to enforce any other right arising from the contract the Client shall pay all costs occasioned as a result on a scale as between the attorney and his own client, including all tracing charges and collection commission at the maximum rate allowed.
13. DOMICILE AND NOTICES
13.1. The Client chooses as its address (domicilia citandi et executandi) for the effective service of all notices flowing from this agreement, the address which appears on the Quotation document.
13.2. EM LANDSCAPES chooses as its address (domicilia citandi et executandi) for the effective service of all notices flowing from this agreement, the following:
13.2.1. Physical address: Helderrant Farm, R310 Baden Powel, Lyndoch, Stellenbosch, 7600
13.2.2. Email: emlandscapes1@gmail.com
14. MISCELLANEOUS PROVISIONS
14.1. This agreement embodies the entire agreement between the parties relating to the matters dealt with herein and no representations, warranties undertakings or promises have been made both before and after the signing of this agreement by the parties hereto, except as incorporated herein.
14.2. The provisions of this agreement may be amended by EM LANDSCAPES from time to time, provided that none of the terms and conditions of this agreement is capable of being waived, amended, added to or deleted unless such waiver, amendment, addition or deletion, is reduced to writing.
14.3. The provisions of this agreement shall, as far as is permitted by law, be binding upon the parties, executors, trustees, curators, legatees, heirs and other successors in title.
14.4. No indulgence on the part of any party in exercising any right conferred upon such party in terms of this agreement shall constitute a waiver or novation of any such right, nor shall any single or partial exercise of any right preclude any other or future exercise thereof or the exercise of any other right under this agreement.
14.5. The Client may not cede or assign any of its rights or obligations in terms of this agreement without the prior consent of the other parties.
14.6. The parties undertake to do or procure the doing of all such things, the taking of all such steps and the passing of all such resolutions to give effect to the terms, conditions, import, and spirit of this agreement.
14.7. This agreement is not subject to any suspensive conditions, either preventing or postponing the coming into operation of this agreement.
14.8. In the event of there being any conflict between this agreement and the conditions of sale applicable to the goods reflected in the invoice and/or any documentation submitted by the Client to EM LANDSCAPES at any time prior to date of the invoice the provisions of this agreement shall prevail.
14.9. Should any of the provisions contained in this Application form, each provision being severable from all other provisions contained herein, offend or in any way contravene the National Credit Act, the provisions of the National Credit Act shall prevail in respect of that specific offending or contravening provision.
14.10. Any debt that is incurred is transferable. Should the debtor be it an individual, a corporation or a company transfer its assets to another identity, corporation or a company, then the debt may be transferred and remain liable.
14.11. In the event that the Client does not fall within the operation of the provisions of the National Credit Act, or is specifically excluded from the operation of the said Act, the provisions of the National Credit Act shall not be applicable to such purchaser, and EM LANDSCAPES shall not be obliged to apply the provisions of the said Act, or the provisions of this Agreement that make reference to or specifically apply to the said act to the Client. Should the situation in this clause 14.11 arise, EM LANDSCAPES shall have the right, at its sole discretion, to elect whether the provisions of any other governing legislation that exists for the time being shall prevail over the provisions of this agreement.