Terms of Engagement for K2024795119 (Pty) Ltd t/a Leaf & Stone Natural Pools

This document sets out the terms and conditions upon which K2024795119 (Pty) Ltd t/a Leaf & Stone Natural Pools with registration number 2024/795119/07 with address at 17 Clairvaux Road, Kalk Bay, Cape Town (“Leaf and Stone”) has agreed to provide its design and installation services for chemical free natural pools or pool conversions from chemical based pools to chemical-free natural pools (“the Services”) to you, as the Client in accordance with the terms below (“Terms”).

Your acceptance of any Leaf and Stone quotation and the Service indicates your explicit and/or tacit acceptance of these Terms, and any Annexures attached.

INTRODUCTION

Leaf and Stone shall provide the Client with the Services in accordance with these Terms.

RELATIONSHIP OF THE PARTIES

The relationship between Leaf and Stone and the Client shall be as set forth in these Terms. Nothing contained herein shall be deemed to be or otherwise construed as constituting or creating a partnership, joint venture, employer/employee agreement or any similar relationship between the parties. Leaf and Stone shall not, by reason of the actions of the Client or any third party, incur any liability in favour of any third party.

DURATION

These Terms shall become effective and binding upon the Client from the date of acceptance of Leaf and Stones proposal and final quotation for the Services (“the Effective Date”).
These Terms shall endure from the Effective Date until the design and installation or conversion of the pool (“Project”) and the Services have been concluded.
These Terms shall terminate:

when the Project has been concluded with the Client;
with effect from an agreed-upon date, should the parties agree in writing to terminate these Terms; or
at the election of the innocent party in the event of a breach of these Terms as provided for in clause 15 below.

Should these Terms terminate for any reason whatsoever:

Leaf and Stone shall immediately cease with providing the Services to the Client regardless of the stage of installation that the Project is at;
In the event that the project has not commenced but a 20% deposit has been paid to secure scheduling, Leaf & Stone shall retain the full 20% deposit. This deposit is explicitly paid by the client to reserve the scheduling of the project and is strictly non-refundable.
If materials have been procured prior to the commencement of the project, the client shall not be entitled to a refund for such materials.

The client may collect the materials from Leaf & Stone at a mutually agreed-upon time. Alternatively, Leaf & Stone may, at its sole discretion, negotiate the purchase of the materials from the client, provided the materials are deemed suitable for use in other projects within a reasonable timeframe.
Any such arrangements shall be documented in writing and agreed upon by both parties.

If the job is already underway, then, Leaf and Stone shall issue a final invoice to the Client for any Services provided by them up to and including the date of termination, which invoice shall be payable on or before the date specified in such final invoice.

SERVICES AND CLIENT PROCESS

Leaf and Stone shall create a final quote for the Client (“the final quote”) (as attached to these Terms), setting out the Project scope, installation process which they shall provide as part of the Services to and in favour of the Client, exclusions not included in the installation process and the associated costs (“Fees”).
Should the Client seek to make changes to the final quote prior to the commencement of the Services, the Client shall be entitled to engage with Leaf and Stone in relation to such changes, and Leaf and Stone shall amend the final quote accordingly at no cost. The Client acknowledges and accepts that all ideas, concepts, drawings, and designs provided as part of the final quote here will be belong to Leaf and Stone at all times and the Client may not use the ideas, concepts, drawings and/or designs with any third party without Leaf and Stone’s written consent.

The Client may engage with Leaf and Stone for a design consultation (“Consultation”) prior to the finalisation of the final quote for an additional cost. The ideas, concepts, drawings and designs as provided to the Client during the Consultation shall thereafter belong to the Client and the Client shall be free to use the ideas, concepts and designs as they wish.

Prior to the acceptance and finalisation of the final quote, the Client is strongly encouraged to engage the services and/or advice of a qualified engineer to ensure that the Project as proposed by Leaf and Stone is fit for purpose. In the absence of such advice, the Client accepts Leaf and Stones final quote and information as is and at their own risk.
Once the final quote has been finalised and signed by the Client, and subject to payment of any deposits payable as set forth in the final quote, Leaf and Stone shall commence with the provision of the Services as agreed and which shall be further detailed in the Final Quote.
Should the Client seek to amend the final quote, or add any additional Services after Leaf and Stone has already commenced with the Services following the Client’s initial approval of the final quote, the Client may do so subject to payment of such additional Fees as Leaf and Stone may advise in writing.
Should the Client fail and/or neglect and/or refuse to make payment of any portion of the Fees then due and payable for any reason whatsoever, Leaf and Stone shall be entitled to pause with the Services and the Project until such payment has been received.
Leaf and Stone shall not be liable to the Client or any third party for any delays or failures in providing the Services where such delays or failures result from the Client’s failure and/or refusal to provide Leaf and Stone with timeous feedback and/or approvals required by Leaf and Stone as part of the Services.

FEES AND PAYMENT TERMS

As consideration for the provision of the Services by Leaf and Stone, the Client shall pay Leaf and Stone the Fees.
Upon the Effective Date of these Terms, the Client shall pay a non-refundable deposit (“Deposit”) to Leaf and Stone which is detailed further in the Final Quote.
The remaining amount of the Fees shall be paid in accordance with the timelines and payment dates as further detailed in the Final Quote.
The Client shall pay any invoices issued by Leaf and Stone in terms of the clause above on or before the due date set forth in such invoice, and via electronic funds transfer into a bank account nominated by Leaf and Stone for that purpose in the invoice, or otherwise in writing.
All Fees are exclusive of VAT, which Leaf and Stone shall add to its invoices in the event that VAT applies.
Leaf and Stone reserves the right to suspend the Services in its sole discretion should any payment be delayed.
Should an invoice remain unpaid for more than 10 days (ten days) business days, interest will be charged on any outstanding amounts at a rate of 2% (two percent) per month (being 24% (twenty-four percent) per annum). The Client undertakes to pay any such interest along with the Service Fee, where necessary.
The Client acknowledges and agrees that it is not a valid reason to withhold payment of the Service Fee due to the Client not being paid by a third party, and accordingly, the Client will pay the Service Fee timeously, regardless of whether it has been paid by a third party or not.

GENERAL OBLIGATIONS OF LEAF AND STONE

Leaf and Stone undertakes to the Client that they will:

render the Services in accordance with these Terms and the final quote, and shall act in a manner as they reasonably consider to be the most beneficial to the interests of the Client and the Client’s individual team members;
perform the Services to the best of their ability;
render the Services according to good industry practice and exercise the highest degree of due care, diligence and skill in the provision of the Services;
endeavour to protect and preserve the Client’s premises and/or area surrounding the Project site and not cause any undue damages to the premises and/or area surrounding the Project site ;
ensure that, at all material times, they are appropriately certified, qualified, and lawfully entitled to provide the Services in all respects;
ensure that at all material times, use appropriately certified, qualified and experienced sub-contractors to provide the Services where sub-contracting is required;
use their own assets, equipment and personnel to perform the Services, and shall not rely on the Client to provide them with any such assets, equipment and/or personnel; and
not do anything or allow any act to be done which does or is reasonably and foreseeably likely to prejudice the good name and reputation of the Client.

GENERAL OBLIGATIONS OF THE CLIENT

The Client undertakes to Leaf and Stone that it will:

provide detailed and accurate project brief requirements to clarify all questions brought forward by Leaf and Stone during the briefing process;
pay the Fees in terms of clause 5 punctually and in full as and when it becomes due and payable;
provide Leaf and Stone and its authorised personnel and representatives access to their premises during working hours for the duration of the Project;
provide accurate and complete information and directions to Leaf and Stone as and when requested, and work collaboratively with Leaf and Stone to ensure the highest quality delivery of the Services;
provide Leaf and Stone with access to their premises and/or property and/or information required by Leaf and Stone to perform the Services;
provide Leaf and Stone with any feedback and/or approvals required by Leaf and Stone as part of the Services in order to ensure that the project go-live and deadline dates are adhered to; and
not do anything or allow any act to be done which does or is reasonably and foreseeably likely to prejudice the good name and reputation of Leaf and Stone.
The client must ensure access to electricity is available at the project site throughout the installation process.
The client is responsible for providing water for the installation process. During the placement of the EPDM liner, Leaf & Stone will conduct a flood test by filling the wetland and/or pool to verify the waterproofing before placing gravel and rocks. The water used for this testing will then be drained, and the client must supply the necessary water for this procedure.

USE OF SUB-CONTRACTORS

The Client acknowledges and understands that Leaf and Stone may use and contract with sub-contractors for any of the rights or obligations contained in these Terms.
Leaf and Stone shall only make use of sub-contractors who are reliable, reputable and shall perform the Services with the same precision and quality offered by Leaf and Stone.
Leaf and Stone shall be liable for the services performed by the sub-contractors used to carry out any Services as required under these Terms.

WARRANTIES

Leaf and Stone offers the following warranties to the Client as part of the Services:

Waterproofing Warranty for EDPM Liner:

Leaf and Stone provides the Client with a warranty against the waterproofing system, specifically for leakages and/or failures due to defects in workmanship.
This warrant is valid for a period of 5 (five) years, which shall commence from the date of completion of the Services.
This warranty shall be void if the waterproofing system of the Pool is punctured, improperly maintained, or subjected to conditions not outlined in the maintenance guidelines provided to the Client by the Leaf and Stone.
All aspects of waterproofing (plaster finishes and fibreglass) may be sub-contracted to reputable and reliable subcontractors (as contemplated in clause 8 above). Leaf and Stone shall notify the Client as soon as reasonably possible prior to engaging the services of a subcontractor.

In instances where Leaf and Stone subcontracts the waterproofing of the Pool to a sub-contractor, Leaf and Stone shall be liable for the work done by the sub-contractor.
Leaf and Stone will be entitled to charge add a 20% (twenty percent) markup on the Fees for coordination and risk mitigation and management. Should the Client opt out of this arrangement, the Client shall be entitled to contract directly with the subcontractors as referred by Leaf and Stone or use their own waterproofing contractor to perform the Services.

Structural Warranty:

Should Leaf and Stone sub-contract with a subcontractor to build the shell and structure of the Pool, Leaf and Stone provides the Client with a warranty for the structural integrity of the Pool shell against defects in materials and workmanship, including retaining walls and basin.

In instances where Leaf and Stone subcontractors this Service to a subcontractor, Leaf and Stone shall be liable for the work done by the subcontractor.
Leaf and Stone will be entitled to charge add a 20% (twenty percent) markup to the Fees for coordination and risk mitigation and management. Should the Client opt out of this arrangement, the Client shall be entitled to contract directly with the subcontractors as referred by Leaf and Stone or use their own waterproofing contractor to perform the Services.

The warranty shall be valid for a period of 5 (five) years, which shall commence from the date of completion of the Services.
This warranty does not cover damage caused by misuse of the Pool, improper maintenance, natural disasters, and/or external forces beyond the Leaf and Stone and the subcontractor’s control.

Warranty for Mechanical Components:

Leaf and Stone provides the Client with a 1 (one) year warranty for the mechanical components installed for the Pool, including pumps, filters, UV systems, and skimmers. This warranty is valid from the date of completion of the Services.
Should the manufacturer of the mechanical components offer its own warranties to the Client, the manufacturer warranties will apply and take precedence over the warranty offered by Leaf and Stone. This does not include replaceable consumables like UV bulbs, filter sand etc.
Leaf and Stone shall assist the Client with processing any warranty claims for faulty mechanical components of the Pool. Leaf and Stone shall cover the costs and/or expenses associated with the removal and reinstalment of the mechanical components, however, the Client will be liable for Leaf and Stone’s call out fee to attend to the removal and reinstalment.
However, there may be additional labour costs and/or expenses incurred for removing and reinstalling faulty mechanical components that is are not covered unless explicitly stated.
The manufacturer’s warranty period is as follows:

low-power Pool pumps, Leaf and Stone primarily uses Hailea Pumps (220V) or Jebao Pumps (12V), which come with a 2 (two) year manufacturer’s warranty; and
Large Pool pumps used to run glass or bead filters (0.7kW and up) generally come with a 3 (three) year manufacturer’s warranty.

To make a warranty claim during the abovementioned warranty periods, the Client is required to notify Leaf & Stone, in writing, within 14 (fourteen) days of noticing a defect in mechanical components or the Pool. Leaf and Stone will arrange for an inspection with the Client to determine the cause of the issue. If the problem/defect is covered under warranty, Leaf and Stone will schedule the necessary repairs or replacement at no additional cost to the Client.
This warranty is non-transferable and applies only to the Client accepting these Terms and the Services.
This warrant does not cover:

normal and daily wear and tear of the Pool;
damage caused by improper maintenance, including failure to maintain proper water quality and chemistry within recommended parameters;
Failure to make use of Leaf and Stone’s annual maintenance service;
damage caused by misuse of the Pool, accidents, or natural disasters; and
damage resulting from modifications, alterations, replacements and/or repairs made by a third party other than Leaf & Stone.

POOL MAINTENANCE

To ensure the warranty mention in clause 9 above remains valid, the pool must be maintained in accordance with the guidelines provided by Leaf and Stone during installation.
As part of routine maintenance, the Client is required to:

empty the skimmer basket at least once every 3 – 5 (three to five) days;
backwash the bead or glass filter once a week or when the pressure gauge indicates when necessary;
make use of an automatic pool suction cleaner, pool cleaning robot or a pool vacuum to keep the floor of the Pool clean of leaves and debris;
prune surrounding trees and/or plants, remove dead leaves from the Pool and curb excessive tree and/or plant growth every 2 (two) months around the Pool;
brush the walls to remove any build-up of sludge, biofilm etc.;
schedule a maintenance and service check-up with Leaf and Stone annually for proper service and maintenance of the Pool.

The Client understands and accepts that failure to adhere to these maintenance requirements may void the warranty in clause 9 above.

LIMITATION OF LIABILITY

The Client agrees that Leaf and Stone shall not be liable for any loss, injury, illness, damages, claims, costs (including attorney and associated costs), interest and expenses suffered by the Client and arising out of or in connection with, whether directly or indirectly, the Services.
The Client hereby unconditionally and irrevocably indemnifies (and shall keep indemnified) Leaf and Stone against all losses, injury, illness, damages, claims, costs (including attorney and associated costs), interest and expenses which the Client may, does or is likely to sustain as a result of any claim arising out of or in connection with Leaf and Stone’s provision of the Services, whether directly or indirectly, other than in circumstances where Leaf and Stone has been grossly negligent or committed wilful misconduct in the provision of the Services.
It is specifically recorded that Leaf and Stone shall not be liable for:

any damages and/or defects caused by sub-contractors;
poor water quality as a result of improper client maintenance or non-adherence to the maintenance guidelines;
damages caused by repairs and/or replacements effected by third parties;
harmful pathogens that may arise and live in the Pool as a result of the poor water quality,
safety and security fences and precautions on or around the Pool. The Client is solely responsible for the safety and security precautions once the Project has been completed;
the attraction, interactions and/or incidents that may occur from wildlife and insects. It is the Client’s responsibility to prevent all access to the Pool and take safety precautions where necessary;
drowning and/or near drownings in the Pool;
biofilm that may cause slips, falls, injuries to third parties using the Pool.

INTELLECTUAL PROPERTY

Leaf and Stone may provide the Client with Pool installation, construction, design, technical final quotes, drawings, maintenance guidelines, advice and/or information (“the works”) to ensure proper use and maintenance of the Pool. The Client understands and accepts that Leaf and Stone will, at all times, be the owner of the works and the Client will not share the works with any third party whatsoever.
The Client understands and agrees that it will have no rights, title, or interest to any of the contact details, information, databases, or know-how which utilises to provide the Services. Such information of will at all times remain the sole intellectual property of .

CONFIDENTIALITY

For the purposes of these Terms, “Confidential Information” means all disclosed information and materials, whether marked as confidential or not and of any nature or form, including without limitation, all information:

relating to the Services, the final quote and Project as a whole; and/or
relating to any design, maintenance guides and information, process, drawing, photograph, sketch, physical or digital sample, technique, material combination, trade secret, know-how, idea, specifications, inventions, information, intellectual property rights, marketing idea, business method, pricing plan and strategy, supplier, manufacturer, research, or any combination used, possessed, owned and/or being developed by either party.

Unless otherwise agreed to in advance, in writing, or except as expressly permitted by these Terms, the parties will not, except as required by law or court order, use Confidential Information belonging to the other party or disclose any Confidential Information to any third party.
The parties shall use the same degree of care to avoid disclosure of the other party’s Confidential Information as that party employs with respect to its own Confidential Information of like importance, but not less than a reasonable degree of care.
All Confidential Information supplied by the Client to Leaf and Stone shall, at all times, be and remain the exclusive property of the Client, but shall be held by Leaf and Stone in safe custody at its own risk and maintained and kept in good condition by Leaf and Stone until returned to the Client. The Confidential Information shall not be disposed of or used other than in accordance with the Client's written instructions or authorisation.
Upon the termination or expiration of these Terms for any reason, or upon the other party’s earlier request, each party will deliver to the other party all of the Confidential Information in tangible form that the party may have in its possession or control which belongs to the other party and provide a warranty that all other Confidential Information has been destroyed.

PROTECTION OF PERSONAL INFORMATION

For this clause, “Responsible Party” is used as defined under the South African Protection of Personal Information Act, 2013 (“POPI”) to mean the party who sources and decides what to do with the personal data they have attained for processing. Similarly, the use herein of the term “Operator” as per POPI is used to mean the party who processes personal data on the Responsible Party’s instruction for a particular processing function.
Both parties understand that they may process (including but not limited to, accessing, seeing, recording, using, transmitting and/or routing) personal data of data subjects as either a Responsible Party (for their own personal data acquired for their purposes) or as an Operator (for the personal data provided to them from the Responsible Party).
Both parties warrant to the other that they will adhere to all requirements and duties imposed on them by the application of POPI, as dictated by the role that they fulfill relating to the personal data they process. For the avoidance of doubt, Leaf and Stone shall, at all times, be the Operator of any and all personal data it processes on the instruction of the Client in accordance with these Terms.
Further, both parties expressly indemnify the other party against any third-party claims which may be brought against either party for the party’s failure to adhere to their duties as prescribed under POPI related to their role as either or both the relevant Responsible Party and/or Operator.
These duties naturally include the duty of each party to retain and store all data received from the other party as strictly confidential at all times.
Should either party require the other party to fulfill any particular conditions relating to its processing of any personal data as the Operator, the parties shall detail and agree to the same conditions in a distinct written data processing agreement between them.
If either party operates as a Responsible Party, they warrant to the other party (as the relevant Operator of the Responsible Party’s personal data handed to them) that they have expressly obtained all relevant consents and/or can evidence its lawful bases for relaying any of their own or own users’/data subjects’ personal data to the other party for the purposes of that other party processing it for whatever reason as the Operator.
Both parties also understand and agree that for data continuity and risk-mitigation purposes, should these Terms be terminated for any reason, and unless otherwise provided for in another data processing agreement between them, the parties will immediately cease all processing of personal data provided to them by the other party, as well as permanently delete/destroy any personal data of the other party’s on/within their systems. To assist each other in this process, both parties will provide the other party with whatever information or tools needed in order to action this destruction as required.

BREACH

Either party (“the innocent party”) shall be entitled without notice, as in addition to any remedy available to it in law or under these Terms, including obtaining an interdict, to claim specific performance of any obligation whether or not the due date for performance has arrived, or termination of these Terms (in either case without prejudice to the innocent party’s right to claim damages occasioned by the other party (“breaching party”)) in the event that:

on written notice to that effect by the innocent party should the breaching party commit any breach or permit the commission of any breach of any material obligation or warranty contained in these Terms and, in respect of such a breach capable of remedy, fail to remedy that breach within 10 (ten) business days after the giving of written notice to that effect by the innocent party to the breaching party; or
the breaching party repeatedly breaches any of the terms and/or conditions contained herein in such a manner as to justify the innocent party in holding that the breaching party’s conduct is inconsistent with the intention or ability of the breaching party to carry out the provisions of these Terms.

DISPUTE RESOLUTION

Should any dispute, disagreement or claim arise between the parties (“dispute”) concerning these Terms, the parties shall meet within 5 (five) business days of such notice and negotiate in good faith to resolve such dispute.
Should the parties fail to resolve such dispute in the aforesaid manner or within such further period as the parties may agree to during their negotiation, the parties will resolve the dispute through arbitration as set forth herein below.
The arbitration will be held in Cape Town, South Africa.
The arbitration shall be conducted in accordance with the Commercial Rules of the Arbitration Foundation of Southern Africa (“AFSA”) before a single arbitrator.
The parties shall endeavour to reach agreement on the identity of the arbitrator provided that, if they are unable to agree to the appointment of the arbitrator within 10 (ten) business days of either party writing to the other, requiring such agreement, the chairperson of AFSA will appoint an arbitrator whose appointment shall be final.
The award rendered by the arbitrator shall be final, and the judgment may be entered upon in terms with the applicable law in any court.
The parties both agree that in no circumstance will either party publicize the dispute on any public platform, including social media platforms. The parties understand that any publicity of this nature can cause serious damage to the other party, which damage may result in a financial claim.

SERVICE ADDRESS

Each of the parties choose domicilium citandi et executandi for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purposes arising from these Terms at their respective addresses set out on the cover page hereof, including email addresses.

GENERAL

No alteration, cancellation, variation of, or addition to these Terms shall be of any force or effect unless reduced to writing and signed by all Parties to these Terms or their duly authorised representatives.
These Terms cancel and supersede the terms and conditions of all prior negotiations and agreements between the Parties.
This document contains the entire agreement between the Parties and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
No indulgence, leniency or extension of time which any Party may give or allow to the other Party in respect of the performance of any obligation hereunder, shall in any way prejudice the Party giving or allowing the indulgence, leniency or extension or preclude such Party from exercising any of its rights and enforcing the obligations of the other Party in terms hereof.
The rule of construction that these Terms shall be interpreted against the Party responsible for the drafting or preparation of these Terms, shall not apply.
These Terms shall be governed by and construed and interpreted in accordance with the law of the Republic of South Africa.
The expiration, cancellation or other termination of these Terms shall not affect those provisions of these Terms as expressly provide that they will operate after such expiration, cancellation or other termination or which of necessity must continue to endure after such expiration, cancellation or other termination, notwithstanding that the relevant clause may not expressly provide for such continuation.
Each and every provision of these Terms (excluding only those provisions which are essential at law for a valid and binding agreement to be constituted) shall be deemed to be separate and severable from the remaining provisions of the agreement. If any of the provisions of these Terms (excluding only those provisions which are essential at law for a valid and binding agreement to be constituted) is found by any court of competent jurisdiction to be invalid and/or unenforceable then, notwithstanding such invalidity and/or unenforceability, the remaining provisions of these Terms shall be and remain of full force and effect.