Terms & Conditions

POWER2SA TERMS AND CONDITIONS OF SUPPLY OF GOODS TO RESELLERS

1. INTERPRETATION
1.1. Definitions: In these Conditions, the following words shall have the following
meanings:
1.1.1. Business Day: a day other than a Saturday, Sunday, bank or public holiday in
South Africa;
1.1.2. Buyer: the purchaser of the Goods from the Supplier.
1.1.3. Contract: the contract between the Supplier and the Buyer for the sale and
purchase of the Goods in accordance with these Conditions, which shall comprise
these Conditions, the relevant Order and any other documents incorporated into
these Conditions by reference.
1.1.4. Delivery Point: the location set out in the Order or such other location as is
agreed in writing between the Supplier and the Buyer. In the absence of any location
specified in the Order or otherwise agreed between the Parties, the Delivery Point
shall be the Buyer’s principal place of business.
1.1.5. Force Majeure Event: as defined in condition 13.
1.1.6. Goods: the goods (or any part of them) set out in the Order.
1.1.7. Group: means in relation to a company, that company, each and any subsidiary
or holding company from time to time of that company, and each and any subsidiary
from time to time of a holding company of that company.
1.1.8. Holding company and subsidiary: means a "holding company" and "subsidiary"
as defined in the Companies Act 71 of 2008.
1.1.9. Manufacturer: the manufacturer of the relevant Goods.
1.1.10. Manufacturer’s Specifications: any description or specification for the Goods
included in any catalogues, brochures or other materials published by or on behalf
of the Manufacturer.
1.1.11. Order: the Buyer’s order for the Goods, as set out in the online order form
submitted by the Buyer, the Buyer's purchase order form, the Buyer’s written
acceptance of the Supplier's quotation, overleaf, or as otherwise submitted by the
Buyer to the Supplier, as the case may be.
1.1.12. Returned Goods: all Goods returned to the Supplier in accordance with
condition 9.
1.1.13. Supplier: Power2SA Pty Ltd whose registered office is at 118 Bavaria
Road, Louwlardia, Centurion, Gauteng, 0157, SA.
1.1.14. Supplier’s Premises: 118 Bavaria Road, Louwlardia, Centurion, Gauteng,
0157, SA.
2. THE CONTRACT
2.1. These Conditions apply to the Contract to the exclusion of any other terms that
the Buyer seeks to impose or incorporate, or which are implied by trade, custom,
practice or course of dealing.
2.2. The Order constitutes an offer by the Buyer to purchase the Goods in accordance
with these Conditions.
2.3. The Order shall only be deemed to be accepted when the Supplier issues a
written acceptance of the Order, or, if earlier, when the Supplier dispatches the
relevant Goods for delivery, at which point the Contract shall come into existence.
2.4. Any quotation for the Goods provided by the Supplier shall not constitute an
offer. Unless otherwise expressly set out therein, a quotation shall only be valid for
a period of 7 days from the date of issue. Any acceptance by the Buyer of a quotation
from the Supplier shall constitute an Order (which is subject to acceptance by the
Supplier in accordance with these Conditions).
2.5. No terms or conditions endorsed on, delivered with or contained in the Buyer's
purchase order, order confirmation, specification or other document shall form part
of the Contract.
2.6. No variation to these Conditions shall have effect unless expressly agreed in
writing by the Supplier and the Buyer.
3. DESCRIPTION
3.1. The quantity and description of the Goods shall be as set out in the Order.
3.2. The Supplier shall have no liability in respect of and does not provide any
warranty in relation to the Manufacturer’s Specifications, whether the same have
been supplied by the Supplier to the Buyer or not.
4. PRICE
4.1. The price payable for the Goods shall, unless otherwise expressly agreed in
writing between the Supplier and the Buyer, be the price set out in the officially
acknowledge Order, or, if no price is set out in the Order, the price set out in any
quotation provided by the Supplier to the Buyer which has been accepted by the
Buyer within the time period for acceptance as referred to in condition 2.4 (where
such a quotation exists), or where no such quotation exists, the price set out in the
Supplier’s published list as at the date when the Order is submitted to the Buyer.
4.2. The price of the Goods is exclusive of all taxes (including without limitation value
added tax), duties and levies (or local equivalents), which shall be payable by the
Buyer, subject to receipt of an invoice, at the applicable rates.
4.3. The price of the Goods is exclusive of the costs of carriage and insurance to the
Delivery Point, which shall be payable by the Buyer and the Buyer shall be
responsible for off-loading the Goods at the Delivery Point.
4.4. The Supplier may, by giving notice to the Buyer at any time before delivery
increase the price of the Goods to reflect any increase in the cost of the Goods that
is due to:
4.4.1. any factor beyond the Supplier’s control (including foreign exchange
fluctuations, increases in taxes and duties and increases in labour, materials and
other manufacturing costs);
4.4.2. any request by the Buyer to change delivery date(s), Delivery Point, quantities
or types of Goods ordered; or
4.4.3. any delay caused by any instructions of the Buyer or failure of the Buyer to
give the Supplier adequate or accurate information or instructions.
5. PAYMENT
5.1. The Supplier may invoice the Buyer for the Goods and any costs in respect of
carriage and / or insurance payable by the Buyer on or at any time following
acceptance of the Buyer’s Order for the Goods.
5.2. Unless the Supplier has agreed to an alternate credit period in accordance with
condition 5.4 below, the Buyer shall pay the invoice in full without any deduction or
set off immediately upon confirmation of the Order, via electronic funds transfer,
directly into the nominated bank account of the Supplier, as per the Supplier’s
invoice.
5.3. If it is agreed that the Delivery Point is to be outside the Republic of South Africa,
the Buyer shall pay to the Supplier the taxes, duties and levies referred to in
condition 4.2 within 14 days of the date of the relevant invoice in respect of the
same, unless, the Supplier has agreed to an alternate credit period in accordance
with condition 5.4 below.
5.4. The Supplier may set an alternate period for payment of invoices by the Buyer
at its sole discretion. This may be a longer or shorter period than the period set out
at 5.2 and 5.3 above. The Supplier’s agreement to a credit period shall not bind it in
respect of all future orders and the Supplier may determine a different credit period
for each Order placed by the Buyer and any credit period agreed by the Supplier is
subject to review in accordance with condition 5.5 below.
5.5. The Supplier may review the credit period assigned to the Buyer from time to
time at its sole discretion. The Supplier shall be entitled to revise the same as it may
in its absolute discretion decide (including removal altogether forthwith). If the
credit period assigned to the Buyer:
5.5.1. is removed at any such review, the Supplier shall notify the Buyer accordingly
and such removal shall apply: (a) with effect from deemed receipt of such notice in
accordance with condition 10 (Communications) and (b) to any and all invoices
issued to the Buyer by the Supplier which are outstanding as at the date of deemed
receipt of such notice (provided that interest for late payment may only be charged
with effect from the date of deemed receipt of the Supplier’s notice to the Buyer
that the credit period is removed), as well as to any invoices issued by the Supplier
to the Buyer from and including the date of deemed receipt of such notice.
5.5.2. is decreased (but is not removed entirely pursuant to condition 5.5.1) at any
such review, any such decreased credit period shall apply to any and all invoices
issued to the Buyer by the Supplier with effect from the date of the relevant review.
5.5.3. is increased at any such review, any such revised credit period shall apply to
any invoices issued by the Supplier to the Buyer from and including the date of such
review or such later date as the Supplier may decide and notify to the Buyer.
5.6. For the avoidance doubt, time of payment shall be of the essence.
5.7. All payments received, if not supported by a remittance advice, will be allocated
to the oldest invoices on the account.
5.8. No payment by the Buyer shall be deemed to have been received until the
Supplier has received cleared funds.
5.9. If the Buyer fails to pay the Supplier any sum due, the Buyer shall be liable to pay
interest to the Supplier on such sum from the due date for payment at the maximum
permissible rate as allowed for in terms of the National Credit Act 34 of 2005,
accruing on a daily basis until payment is made, both before or after any judgment.
5.10. The Buyer shall pay all amounts due under the Contract in full without any
deduction or withholding except as required by law and the Buyer shall not be
entitled to assert any credit, set-off or counterclaim against the Supplier in order to
justify withholding payment of any such amount in whole or in part. The Supplier
may at any time, without limiting any other rights or remedies it may have, set-off
an amount owing by it to the Buyer against any amount payable by the Supplier to
the Buyer.
5.11. The Supplier may at is sole discretion and without liability to the Buyer refuse
to fulfil an Order, including any order that it has accepted, whilst any invoice issued
by the Supplier to the Buyer remains overdue and payable.
5.12 It is agreed that payments may be made via Visa, Mastercard; Diners or
American Express credit cards or by bank transfer into the Supplier’s bank account,
as per Condition 5.2 above.
5.13 Credit card transactions will be acquired for the Supplier via PayFast (Pty) Ltd,
who are the trusted online payment solution for over 80, 000 merchants in South
Africa. PayFast uses the strictest form of encryption, PCI DSS Level 1 and no credit
card details are stored on the website.
5.14 The Buyer’s details shall be stored by the Supplier separately from card details
which are entered by the Supplier on PayFast’s secure site. Further details can be
obtained on the PayFast website www.payfast.co.za.
5.15 The merchant outlet country at the time of presenting payment options to the
cardholder is South Africa.
5.16 The Supplier shall, in relation to PayFast transactions, take responsibility for all
aspects relating to the transaction, including sale of Goods and services sold on the
website, customer service and support, dispute resolution and delivery of Goods.
6. DELIVERY
6.1. The Supplier shall deliver the Goods to the Delivery Point.
6.2. Delivery of the Goods shall be completed when the Goods arrive at the Delivery
Point (subject to the Buyer’s right to refuse delivery in accordance with condition
6.5).
6.3. Any dates quoted or accepted by the Supplier for delivery of the Goods are
approximate only, and the time of delivery is not of the essence. The Supplier shall
not be liable for any delay in delivery of the Goods that is caused by a Force Majeure
Event or the Buyer’s failure to provide the Supplier with adequate delivery
instructions or any other instructions which are relevant to the supply of the Goods.
6.4. If the Goods have not been delivered by the date or, if relevant, by the end the
time period given by the Supplier as the approximate date/period for delivery from
time to time then, unless the delay is caused by a Force Majeure Event or the Buyer’s
POWER2SA PTY LTD TERMS AND CONDITIONS OF SUPPLY OF GOODS TO RESELLERS

failure to provide the Supplier with adequate delivery instructions or any other
instructions which are relevant to the supply of the Goods or the Goods have not
been delivered to the Buyer for the reasons stated in condition 6.6, then the Buyer
shall be entitled to give written notice to the Supplier requiring the Supplier to
deliver the Goods within not less than 30 days following receipt of such notice,
whereupon, if the Supplier fails to comply, the Buyer may terminate the Contract on
written notice to the Supplier.
6.5. The Supplier shall use its reasonable endeavours to keep the Buyer reasonably
informed of the anticipated time and date of delivery and the Buyer shall accept
delivery of the Goods at the Delivery Point provided that it has received not less than
24hours’ notice of such delivery. If it has received less than 24 hours’ notice then,
unless the delivery is being made on the delivery date or within the delivery period
specified in the Order or otherwise agreed between the Parties, then the Buyer may
refuse to accept delivery if it not reasonable to expect the Buyer to accept delivery
on that date taking into account the Buyer’s ability to grant access to the Delivery
Point on that date and any material inconvenience to the Buyer in complying.
6.6. If the Buyer either fails to take delivery of the Goods delivered in accordance
with condition 6.5 or if the Buyer fails to accept delivery of any of the Goods at the
Delivery Point (except in circumstances where it is reasonable for the Buyer to refuse
to accept delivery as set out in condition 6.5), then the Supplier may store the Goods
until delivery is effected and the Buyer shall be liable for all reasonable costs,
expenses and loss incurred by the Buyer in connection with such failure including,
without limitation, additional transport costs, storage costs and insurance costs.
6.7. The Supplier may deliver the Goods by instalments. Each instalment shall be
invoiced and paid for in accordance with the provisions of the Contract and shall be
a separate Contract. No cancellation or termination of any one Contract relating to
an instalment shall entitle the Buyer to repudiate or cancel any other Contract or
instalment.
7. NON-DELIVERY
7.1. The quantity of Goods as recorded by the Supplier on the proof of delivery signed
by the Buyer shall be conclusive evidence of the quantity received by the Buyer on
delivery unless the Buyer can provide conclusive evidence proving the contrary.
7.2. Any liability of the Supplier for non-delivery of the Goods shall be limited to
replacing the Goods within a reasonable time or issuing a credit note against any
invoice raised for such Goods. The Supplier shall have sole discretion in deciding
whether to replace Goods or issue a credit note in accordance with this condition
7.2.
8. RISK / TITLE
8.1. The Goods are at the risk of the Buyer from the time of delivery. Title in the
Goods shall not pass to the Buyer until the Supplier has received in full (in cash or
cleared funds) all sums due to it in respect of the Goods and all other sums which are
or which become due to the Supplier from the Buyer on any account.
8.2. Until title in the Goods has passed to the Buyer, the Buyer shall:
8.2.1. hold the Goods on a fiduciary basis;
8.2.2. store the Goods (at no cost to the Supplier) separately from all other goods of
the Buyer or any third party in such a way that they remain readily identifiable as the
Supplier's property;
8.2.3. not destroy, deface or obscure any identifying mark on or relating to the
Goods;
8.2.4. maintain the Goods in satisfactory condition and keep them insured on the
Supplier's behalf for their full price against all risks to the reasonable satisfaction of
the Supplier. On request the Buyer shall produce the policy of insurance to the
Supplier;
8.2.5. notify the Supplier immediately if it becomes subject to any of the events listed
in condition 8.3; and
8.2.6. give the Supplier such information relating to the Goods as the Supplier may
require from time to time;
8.2.7. the Supplier shall have the right, immediately upon the Supplier being of the
belief that the Buyer has not complied with the provisions of this clause 8, or has not
or will not effect payment in terms of clause 5, to immediately, without any further
notice, reclaim possession of the Goods without any prejudice to any of its rights in
terms of this agreement; but the Buyer may resell the Goods in the ordinary course
of its business (but not otherwise) before the Supplier receives payment for the
Goods. However, if the Buyer resells the Goods before that time:
8.2.8. it does so as principal and not as the Supplier’s agent; and
8.2.9. title to the relevant Goods shall pass from the Supplier to the Buyer
immediately before the time at which resale by the Buyer occurs.
8.3. If title to the Goods has not passed to the Buyer, the Buyer's right to possession
of the Goods shall terminate immediately if:
8.3.1. the Buyer becomes sequestrated, liquidated or is placed into business rescue
or makes an offer of compromise with its creditors; or
8.3.2. the Buyer suffers or allows any execution, whether legal or equitable, to be
levied on its property or obtained against it, or is unable to pay its debts; or
8.3.3. generally commits any act of insolvency as defined in the Insolvency Act No.
24 of 1936;
8.3.4. any event occurs, or proceeding is taken, with respect to the Buyer in any
jurisdiction to which it is subject that has an effect equivalent or similar to any of
the events mentioned in conditions
8.3.1 to 8.3.2; or
8.3.5. the Buyer encumbers or in any way charges the Goods; or
8.3.6. the Buyer suspends, threatens to suspend, ceases or threatens to cease to
carry on all or substantially the whole of its business; or
8.3.7. the financial position of the Buyer deteriorates to such an extent that in the
opinion of the Supplier the capability of the Buyer adequately to fulfil its
obligations under the Contract has been placed in jeopardy.
8.4. If before title to the Goods passes to the Buyer the Buyer becomes subject to
any of the events listed in condition 8.3, or the Supplier reasonably believes that
any such event is about to happen and notifies the Buyer accordingly, then,
provided that the Goods have not been resold, or irrevocably incorporated into
another product, and without limiting any other right or remedy
the Supplier may have, the Supplier may at any time require the Buyer to deliver up
the Goods or may enter (pursuant to condition 8.5) any premises of the Buyer or of
any third party where the Goods are stored in order to recover them.
8.5. The Buyer grants the Supplier, its agents and employees an irrevocable licence
at any time to enter the Delivery Point and any premises where the Goods are or
may be stored in order to inspect them, or, where the Buyer's right to possession has
terminated, to remove and recover them.
8.6. On termination of the Contract, howsoever caused, the Supplier's rights
contained in this condition 8 shall remain in effect.
9. RETURNS AND REFUNDS
9.1. All claims of damage present on delivery and claims that the warranty in
condition 10 has been breached must take place in accordance with the provisions
of this condition 9 and the Supplier’s Return Policy in force from time to time a copy
of which can be obtained from the Supplier’s order management team, or on the
Supplier’s website.
9.2. If the Buyer considers that any Goods delivered to the Buyer were damaged on
delivery or not in compliance with the warranty in clause 10 the following process
must be followed:
9.2.1. The Buyer must notify the Supplier in writing within 10 Business Days of the
damage or the alleged breach of warranty. Such notice must include details of the
Goods alleged to be damaged or in breach of warranty, the Order to which the Goods
relate and details of the damage or alleged breach of warranty.
9.2.2. On receipt of notice in accordance with condition 9.2.1 above, the Supplier’s
technical support team will contact the Buyer and request that tests are performed
by the Buyer in accordance with the instructions of the Supplier’s technical support
team (“Phase One Testing”).
9.2.3. If the Phase One Testing does not provide a conclusive result, then a returns
order will be generated by the Supplier and the Goods must be returned to the
Supplier in accordance with the Supplier’s instructions for further testing (“Phase
Two Testing”).
9.2.4. If either Phase One Testing or Phase Two Testing reveals that the Goods are
damaged or in breach of the warranty in clause 10, the Supplier may at its sole
discretion provide the Buyer with a credit note for the full price of the Return Goods,
excluding any delivery charges, duties, taxes, or other charges or provide the Buyer
with replacement Goods (whereupon it shall have no further liability for a breach of
the warranty in condition 10.3 in respect of such Goods).
9.2.5. If the results of Phase One Testing and/or Phase Two Testing reveal that there
is no damage or breach of the warranty in clause 10, the Supplier will not accept
return of the Goods and will not issue any credit note in respect of such Goods. If the
Goods are in the possession of the Supplier, then the Buyer must collect the
Goods, at its own cost and risk within one calendar month of notification that there
is no damage or breach of warranty. If the Buyer fails to collect the Goods within one
month of notification that there is no damage or breach of warranty, the Supplier
will be entitled to sell the Goods to another party will full title guarantee. No refund
will be issued to the Buyer.
9.2.6. The Supplier shall have no liability in respect of damage or breach of warranty
in the Goods arising or caused on or after delivery has occurred.
9.3. If the Goods are not damaged or in breach of the warranty in clause 10 but the
Buyer decides that they no longer want Goods that have been ordered and delivered
and would like to return them to the Supplier, then the following steps must be
taken:
9.3.1. The Buyer must notify the Supplier in writing within 10 Business Days that they
wish to return Goods. This notice must be submitted to the Supplier’s order
management team by the submission of a return order form.
9.3.2. The Return Goods to be returned in accordance with condition 9.3.1 must be
returned to the Supplier’s Premises within 15 Business Days of delivery. Such return
is to take place between the hours of 9.00am and 4.00pm on a Business Day and at
the cost and risk of the Buyer.
9.3.3. All Return Goods must be correctly packaged and labelled with the unique
order return number generated following submission of the return order form in
accordance with condition 9.3.1 above.
9.3.4. Once Return Goods are received by the Supplier, they will be checked by a
member of the Supplier’s return team. Provided that the Return Goods have been
returned in accordance with the provisions of this condition 9.3 and the Return
Goods are in re-saleable condition, a credit note of 75% of the value of the Goods
(including VAT) will be issued.
9.4. If any Goods are delivered to the Buyer in error, the Buyer agrees that it shall
notify the Supplier within 10 days of delivery. In the event of a genuine error on the
part of the Supplier, the Supplier will arrange for the incorrect Goods to be collected.
Until the incorrect Goods are collected, they must be stored in accordance with
condition 8.
9.5. Any cash refund to be made under this condition 9 will be made by electronic
transfer to the account from which payment was originally made. The Supplier will
aim to process any refund so that it reaches the Buyer’s account within 28 Business
Days of the Supplier confirming that a refund will be made.
9.6. Notwithstanding the contents of condition 9.5 above, if the Supplier has
delivered the Goods as a result of direct marketing and the Buyer has cancelled the
agreement during the cooling off period, or if the Buyer did not have an opportunity
to examine the Goods before delivery, and has rejected same on delivery, the
Supplier shall refund the Buyer with 10 Business Days of confirmation of such
cancellation or rejection. The provisions of this clause shall not apply where the
Goods have been disassembled, altered, permanently installed or combined with
other Goods or where there is a public regulation prohibiting the return of the
Goods. In the event that the Goods have been used or need to be repackaged, the
Supplier may charge the Buyer a reasonable amount for such inconvenience.
POWER2SA PTY LTD TERMS AND CONDITIONS OF SUPPLY OF GOODS TO RESELLERS

9.7 Any replacement Goods to be sent to the Buyer will be delivered in accordance
with the delivery procedure in condition 6.
9.8. The Supplier shall have no liability in respect of any costs incurred in respect of
the de-installation and / or re-installation of replacement Goods, including but not
limited to the cost of any equipment and/or labour required.
9.9 The Buyer shall not be entitled to return any Goods which are not suitable for
their purpose, if for reasons of public health or public regulation such returns are
prohibited, or, after having been supplied to the Buyer, the Goods have been
partially or entirely disassembled, altered or combined with other goods or property.
10. WARRANTY
10.1. Each of the sub-conditions in condition 10 shall be treated as separate and
independent.
10.2. The Supplier hereby excludes to the fullest extent permitted by law all
warranties, conditions and other terms implied by statute, common law or
otherwise.
10.3. The Supplier warrants that on delivery the Goods shall be free from material
defects in design, material and workmanship.
10.4. Subject to conditions 10.5 and 10.6, in the event that the Buyer considers the
warranty in condition 10.3 to have been breached, it agrees that it shall follow the
process detailed in condition 9.2.
10.5. The Supplier shall not be liable for any failure to comply with the warranty set
out in condition 10.3 if:
10.5.1. the Buyer makes any further use of such Goods after giving notice in
accordance with condition 10.4; or
10.5.2. the defect arises because the Buyer failed to follow the Supplier’s or the
Manufacturer’s oral or written instructions as to the storage, commissioning,
installation, use and/or maintenance of the Goods or (if there are none) good trade
practice; or
10.5.3. the Buyer alters or repairs such Goods without the written consent of the
Supplier;
10.5.4. the defect arises as a result of fair wear and tear, wilful damage, negligence
by the Buyer or any third party, or abnormal storage or working conditions.
10.6. The warranties contained in condition 10.3 do not include:
10.6.1. any equipment, materials or supplies not supplied by the Supplier,
10.6.2. damage or loss of function sustained during periods with wind speeds
exceeding 60 metres/second or submersion in water unless the Goods are designed
to operate in such conditions,
10.6.3. any accidental loss or damage not caused by the Supplier or any loss or
damage caused by any acts of God or any loss or damage to the extent contributed
by any acts of God.
10.7. These Conditions apply to any repaired or replacement Goods supplied to the
Buyer.
10.8. Except as provided for in this condition 10, the Supplier shall have no liability
to the Buyer in respect of the Goods’ failure to comply with the warranty set out in
condition 10.3. Subject to condition 9.1, the Buyer’s sole remedy in respect of a
breach of the warranty in condition 10.3 shall be as set out in condition 10.4
and subject to the requirements imposed upon the Buyer in condition 10.4.
10.9 The Buyer warrants that it has read and familiarised itself with the provisions of
Sections 60 and 61 of the Consumer Protection Act 68 of 2008, and that it agrees
that the procedures set out in conditions 9 and 10 of this Contract are in accordance
with such provisions.
11. LIMITATION OF LIABILITY
11.1. Nothing in these Conditions excludes or limits the liability of the Supplier or any
member of its Group:
11.1.1. for death or personal injury caused by the Supplier's negligence; or
11.1.2. for any matter which it would be illegal for the Supplier to exclude or attempt
to exclude its liability; or
11.1.3. for fraud or fraudulent misrepresentation.
11.2. Subject to condition 11.1, neither the Supplier nor its Group shall be liable to
the Buyer, whether in contract, delict (including negligence), breach of statutory
duty, or otherwise, for any indirect or consequential loss arising out of and / or in
connection with this Contract including any losses that result from the Supplier’s
and/or its Group’s deliberate personal repudiatory breach of the Contract.
11.3. Subject to condition 11.1, neither the Supplier nor its Group shall be liable to
the Buyer, whether in contract, delict (including negligence), breach of statutory
duty, or otherwise, for:
11.3.1. any loss of profit;
11.3.2. any loss of business or opportunity;
11.3.3. any loss of anticipated savings;
11.3.4. any loss of energy supply; or
11.3.5. any costs of and / or associated with de-installation and / or reinstallation of
Goods.
11.4. Subject to conditions 11.1, 11.2 and 11.3 the maximum aggregate liability of
the Supplier and its Group, together, to the Buyer in respect of all losses arising under
and / or in connection with the Contract, whether in contract, delict (including
negligence), breach of statutory duty, or otherwise shall not exceed 125% of the
price paid or payable by the Buyer for the relevant Goods.
11.5. The Buyer expressly acknowledges that by entering into contract with the
Supplier it acknowledges and agrees (i) to the exclusions and limitations of liability
set out herein and (ii) that the price which has been agreed for the Goods reflects
the level of liability accepted by the Supplier. The Buyer further acknowledges that
it is its own responsibility to seek legal advice on the meaning and effect of these
exclusions and limitation of liability and that it is able to and should seek to protect
itself against any potential loss or damage which is not recoverable from the
Supplier by means of obtaining insurance from third party providers.
12. COMMUNICATIONS
The Buyer chooses as its domicilium citandi et executandi the addresses and email
addresses inserted in the online application form.
13. FORCE MAJEURE
Neither Party shall be liable to the other Party in respect of any of its obligations in
terms of the Contract, if such Party is prevented from fulfilling its obligations due to
circumstances beyond its reasonable control.
14. ENTIRE AGREEMENT
14.1. The Contract constitutes the whole agreement between the Parties and
supersedes all previous agreements between the Parties relating to its subject
matter.
14.2. Each party acknowledges that, in entering into the Contract, it has not relied
on, and shall have no right or remedy in respect of, any statement, representation,
assurance or warranty (whether made negligently or innocently) that is not set out
in this Contract. Each party agrees that it shall have no claim for innocent or
negligent misrepresentation or negligent mis-statement based on any statement in
this Contract.
14.3. Nothing in this condition shall limit or exclude any liability for fraud.
15. ASSIGNMENT AND SUBCONTRACTING
15.1. The Supplier may at any time assign or transfer all or any of its rights under the
Contract.
15.2. The Buyer may not assign or transfer or purport to assign or transfer all or any
of its rights or obligations under the Contract without the prior written consent of
the Supplier.
15.3. The Supplier may subcontract or delegate in any manner any or all of its
obligations under the Contract to any third party or agent provided that the Supplier
shall remain liable for such performance.
16. GENERAL
16.1. Failure or delay by the Supplier in enforcing or partially enforcing any provision
of the Contract shall not be construed as a waiver of any of its rights under the
Contract. Any waiver by the Supplier of any breach of, or any default under, any
provision of the Contract by the Buyer shall not be deemed a waiver of any
subsequent breach or default and shall in no way affect the other terms of the
Contract.
16.2. If any provision or part-provision of this agreement is or becomes invalid, illegal
or unenforceable, it shall be deemed modified to the minimum extent necessary to
make it valid, legal and enforceable. If such modification is not possible, the relevant
provision or part-provision shall be deemed deleted. Any modification to or deletion
of a provision or part-provision under this condition shall not affect the validity and
enforceability of the rest of this agreement.
16.3 The Supplier shall take all reasonable steps to protect the personal information
of the Buyer. For the purposes of this clause, “personal information” shall be defined
as detailed in the Promotion of Access to Information Act 2 of 2000.
17. CERTIFICATE OF BALANCE
The Buyer agrees that the amount due and payable to the Supplier may be
determined and proven by a certificate issued and signed by any director or manager
or member or partner of the Supplier, whose authority need not be proven or by any
independent auditor nominated by the Supplier. Such certificate shall be binding and
shall be proof of the indebtedness of the Buyer, and the Buyer shall bear the onus of
proving that the amount is not due and payable.
18. DISPUTE RESOLUTION
18.1. The Parties shall negotiate in good faith to settle any dispute that arises out of
this agreement.
18.2. In the event of the Parties not being able to settle any dispute, either party may
approach a court of competent jurisdiction
18.3. In addition, the Parties may agree to arbitration, and shall conclude a written
agreement to arbitrate within 7 (seven) days of the dispute arising, which shall
contain all the details of the arbitration process.
19. LEGAL COSTS
19.1. Each party shall bear its own costs incurred in connection with the negotiation,
drafting and execution of this agreement.
19.2. The legal costs incurred by either party in enforcing their rights in terms of this
agreement, shall be claimable against the other arty on the scale as between the
agreement between the successful party and its attorneys.