Terms & Conditions
1. THE SUPPLIER AND THE SERVICES
1.1 The “Supplier” is Suncontrol as described in the Schedule of Particulars.
1.2 The Supplier carries on the business of the provision of renewable energy and sustainable solutions consulting services, the implementation thereof, (“the Services”) and the sale of related Products.
1.3 All Orders are subject to the terms and conditions contained herein to the exclusion of all others.
2. CONDITIONS AND PROCEDURE FOR PROVIDING THE PRODUCTS AND SERVICES
2.1 All requests for Products or Services, (“Orders”), must be in writing and shall contain full particulars of the Products or Services required including the preferred date for delivery / implementation.
2.2 The Supplier will not be liable whatsoever where incorrect or insufficient information is supplied by the Client in respect of an Order.
2.3 The Supplier shall, in its own discretion, not be obligated to accept an Order.
2.4 The Services and Products shall at all times be subject to the availability of the required products or other components from the suppliers, where applicable, as well as the various service providers who the Supplier may appoint to implement the Services.
2.5 After the receipt of an Order the Supplier shall issue a quotation which shall be valid for a period of 14 days. Where prices are unknown at the time of the quotation they shall be marked as estimates only.
2.6 On written acceptance of the quotation the Order shall be deemed to be confirmed and a binding contract shall arise between the parties, whereafter the Client shall be liable to the Supplier for all fees charged or costs incurred in carrying out the Order.
2.7 The Supplier shall be entitled to request an upfront deposit of up to 100% of the quoted price and the Supplier shall not be obligated to commence the Services or order any Products until the deposit clears.
2.8 The Supplier shall not be liable for any delays to delivery of the Products or Services caused by late payment of the deposit or any amount contemplated in these terms.
3. THE SERVICES AND CHANGES
3.1 The Services shall be provided and Products supplied in accordance with an approved Order. An Order may be amended by agreement between the parties. Any changes to an Order may lead to changes to the price and delivery date, are subject to applicable lead times and shall be agreed between the parties prior to implementation. The Supplier may request an additional deposit to cover the agreed changes.
3.2 The Client shall cooperate with the Supplier and provide it with such information and assistance as the Supplier shall reasonably require to enable it to provide the Services or supply the Products.
3.3 The Client accepts and shall be liable for price changes due to fluctuations in the price of Products between the date of Order and delivery / implementation which are beyond the reasonable control of the Supplier. The Client shall be entitled to cancel the Order should the price change materially.
3.4 The Services and delivery of Products shall be effected during working hours unless otherwise agreed in which case additional fees may be applicable.
4. THE PRICE AND PAYMENT
4.1 The price for the Services shall be the price quoted by the Supplier to the Client which price may be adjusted where estimated costs have been finalised or otherwise in accordance with these terms.
4.2 Prices shall exclude VAT unless otherwise specified.
4.3 The balance of the price, after deducting any deposit paid, shall be paid upon presentation of an invoice and payment shall be made free of any deductions or setoff of any amount.
4.4 Interest on outstanding amounts shall accrue from the date when payment is due until payment is received at a rate of 2% above the prime lending rate, as listed by First National Bank from time to time.
4.5 Payment shall be made to the Supplier by way of electronic funds transfer to the Supplier’s nominated banking account quoting the Client’s reference number.
4.6 The Supplier may remove any Products in the Client’s possession until payment is made.
4.7 A certificate signed by a manager of the Supplier as to the amount of the Client’s indebtedness hereunder shall be prima facie evidence of the amounts of indebtedness of the Client.
5. DELIVERY AND SNAG LIST
5.1 The Supplier shall use its best endeavours to ensure delivery of the Products or Services by the delivery date in the Order, or, if there is no date, within a reasonable time where time is not of the essence.
5.2 The Client acknowledges that delivery of the Products or Services may be dependant on the performance of third party suppliers. The Supplier shall not be responsible for any delays in delivery in circumstances beyond its reasonable control and not caused by its own negligence.
5.3 Delivery shall be effected by the Supplier when it has complied with the requirements of the Order. Any dispute as to whether the Products or Services have been delivered will be resolved by negotiation, failing agreement, by arbitration contemplated in these terms.
5.4 If, in order to install a Product or render the Service, the Supplier is required to remove paving, the Supplier will be entitled to charge an additional fee of R450 per hour therefor. The Supplier is not equipped to replace paving which will be done at the Client’s instance and sole expense. While the Supplier will take care during the removal of paving it shall not be liable for any damage caused to the paving.
5.5 On the delivery date, the Client shall inspect the final product and workmanship and immediately report any damage or defects thereto. The parties shall, on the delivery date, compile a snag list which the Supplier shall attend to within 14 days thereof. Any items not on the snag list will be deemed to have been received free of damage or defects and the Supplier shall not be responsible to replace the Products and shall not be liable to the Client in any way therefor.
6. LEAD TIME
The lead time required by the Supplier shall, where applicable, be contained on the quotation or otherwise communicated to the Client. The Client must take notice of lead times. Supplier shall not be responsible for any delays caused by the Client.
7. POSSESSION, RISK AND OWNERSHIP
7.1 Possession and risk of all Products shall pass to the Client upon delivery, after which the Supplier shall not be liable to the Client in respect of the Products including the damage or destruction thereof, otherwise than as contained in these terms.
7.2 Ownership of the design, concept, and any system or Products created in terms of the Order are subject to copyright of the Supplier.
7.3 Notwithstanding the above, once Products are dispatched from the Supplier’s warehouse to be transported by a third party courier or freight service provider, the risk in respect of the Products and the responsibility to arrange insurance therefor shall be borne by the Client. The Client shall only have recourse against the relevant insurers, courier or freight service provider for any loss or damage to the Products. The Supplier shall only be responsible for loss or damage caused to the Products where it has undertaken to personally deliver the Products to the Client.
8. SYSTEM DESIGN
8.1 The Supplier shall provide the Products and Services in accordance with the Client’s requirements and written instructions. Where, however, the Supplier is left with a discretion to design the system, or
implement the system or any component of the system, such design or implementation will be subject to the Supplier’s sole discretion and the Client will be bound to accept delivery of the Products and Services where they serve the function for which they were requested.
8.2 The Client may request changes to the system or design which will be subject to the Supplier’s hourly rate quoted in advance of the changes.
8.3 Amendments made to the system or design will affect the delivery date, which are subject to the lead times, and the Supplier shall, in those circumstances, not be liable whatsoever in respect of any such delay
9. PERMISSION
The Client grants the Supplier permission to take pictures of all installed products, designs and concepts created for the Client and use those pictures for promotional purposes which includes the publishing thereof on social media platforms and including those pictures in the Supplier’s portfolio or catalogue.
10. REPRESENTATIVES
10.1 The Client’s representative, per the Schedule of Particulars, is authorised to make and approve Orders, proposals, change Orders or proposals and give instructions on the Client’s behalf which shall be binding on the Client. The representative can delegate authority to anybody else by notice to the Supplier.
10.2 Should any agent or employee of the Client claim to have the abovementioned authority, any actions of that agent or employee will be binding on the Client as if such authority was granted.
11. WARRANTIES, GUARANTEES, LIABILITIES AND INDEMNITY
11.1 The Supplier provides no warranties or guarantees, implied or otherwise, to the Client, other than those in terms of these terms and conditions.
11.2 All Products shall carry their manufacturer’s warranties and guarantees only, copies of which will be attached to the quotation or can be supplied to the Client on request, which terms are specifically incorporated herein by reference.
11.3 Workmanship holds a 1-year warranty and the Supplier will repair products or systems damaged directly as a result of poor workmanship within the warranty period.
11.4 The Supplier will supply the Products and Services with a level of care, skill and diligence in line with industry best practice and use suitably qualified subcontractors or suppliers where required.
11.5 The Supplier shall not be liable for any damage resulting from a water leak, however caused. The Client shall be responsible for notifying its insurers of the installation by the Supplier ensuring that they put an adequate insurance policy in place which covers their property against, inter alia ,water damage.
11.6 The Supplier shall not be liable for any direct and/or indirect damage caused as a result of drilling into concealed electrical cables and/or water pipes.
11.7 The Client warrants that any concept, system or products requested from the Supplier, will not infringe on the copyrights of others.
11.8 The Client shall be liable for the costs associated with any delays caused by it.
11.9 The Supplier does not warrant that the final product will be fit for any purpose other than the purpose requested by the Client and confirmed by the Supplier.
11.10 The Supplier shall not be liable for any damage or loss of whatever nature arising out of the provision of the Products or Services, including loss of profit and consequential loss.
11.11 Notwithstanding the above, the Supplier’s total liability arising under or in connection with the provision of the Products or Services, whether arising in contract, delict (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the price payable in respect of the relevant Products or Services.
11.12 The Client will indemnify and hold the Supplier harmless against any claim made by a third party against the Supplier in respect of the use of the Products or otherwise.
12. CANCELLATION
The Client shall give the Supplier reasonable notice of the cancellation of an Order. The Client shall be liable to the Supplier for any costs already incurred by the Supplier in respect of the Order, as well as any penalties incurred by the Supplier in respect of the cancellation. In addition the Client shall be liable to the Supplier for 10% of the quoted price should the Client cancel the Order within 5 days of the delivery date. The Supplier’s right to claim any damages including loss of profits from the Client, remains reserved.
13. NON-USE OF INTELLECTUAL PROPERTY
13.1 Should the Client, after receiving a proposal from the Supplier, decide not to proceed with the Order, the Client acknowledges that ownership of design, concept and other technical information, (“Intellectual Property”), to the extent that it is not public, are subject to copyright and ownership remains with the Supplier. The Client will not be permitted to use, reproduce or sell that Intellectual Property or any part of it.
13.2 Should the Client attempt to brief another supplier using the Intellectual Property or any portion thereof, the Client will be liable to the Supplier in the amount equal to the profits that the Supplier would have earned had the Order been carried out.
14. PROPER LAW, JURISDICTION AND ARBITRATION
14.1 All Services and supply of Products are subject to the Law of the Republic of South Africa. The Client consents to the jurisdiction of the Magistrate’s Court in respect of any action arising and notwithstanding the amount of that claim
14.2 Where a dispute arises between the parties for which no remedy is contained in the standard terms, such dispute may, by agreement between the parties, be resolved by way of arbitration to be held at the Supplier’s offices, by an Arbitrator appointed by mutual agreement or, failing which, appointed by the President of the Law Society and whose decision shall be final and binding on the parties.
15. BREACH AND FORCE MAJEURE
15.1 If a party commits a material breach of these terms and does not rectify the breach within 7 days of being called to do so, the other party may cancel the relevant Order and, inter alia, claim damages.
15.2 The Supplier shall be entitled to rescind from a Order (without liability) and to return any deposit paid by the Client in the event that the Supplier’s performance of the Order is hindered or prevented by strikes or other trade disputes, riots, war (declared or undeclared), acts of civil insurrection, fire, flood, accident or other cause beyond the control of the Supplier preventing it from performing the Order.
16. NO AMENDMENT, WAIVER
No amendment or consensual cancellation of any provision or term of the standard terms, or any document arising out of the standard terms, shall be valid unless agreed and reduced to writing between the parties.