1.
|
GENERAL
|
|
a)
|
As used in these General Terms and Conditions, the person or company to whom this proposal is addressed is hereafter referred to as "Buyer" and Greenergy Solar Industries (Pty) Ltd. as "Seller". The equipment or materials referred to in this proposal are hereafter referred to as "Goods". The ultimate user of the Goods is hereafter referred to as "Owner".
|
|
b)
|
These terms form part of any quotation of proposal or contract to which they are attached and any Goods to be supplied or supplied are subject to these terms. Seller reserves the right to make changes to its technical and/or commercial proposal if and when the final contractual conditions deviate.
|
|
c)
|
Seller's proposal and any resulting contract is based upon the covenant by Buyer that all the information and data provided by Buyer and/or Owner is full, complete, accurate and does not contain information which is misleading and/or erroneous and that all required data, reviews and/or approvals will be provided by Buyer to Seller free of charge and in a timely manner.
|
|
d)
|
Buyer shall be responsible for and bear the cost of any alteration to Goods supplied by the Seller arising from any discrepancy, error or omission in any drawing, specification or other information supplied by or approved by Buyer.
|
|
e)
|
Buyer and Seller agree that the language of the proposal, subsequent negotiations and contract will be the English language.
|
|
f)
|
The acceptance of Seller's proposal includes the acceptance of these general terms and conditions.
|
|
g)
|
The proposal remains open for acceptance for a period of thirty (30) days from the date of submittal unless an alternate period is specified in the proposal.
|
|
h)
|
If there is any inconsistency or variance between de provisions of any quotation or proposal by the Seller and these terms then the former shall prevail to the extent of that inconsistency or variance provided such that notwithstanding any acceptance by the Seller of any order or offer to purchase from the Buyer that may contain any provision inconsistent with or purporting to vary or reject any of these terms, any contract between the Buyer and Seller arising from Seller's acceptance of such order or offer to purchase shall be subject to these terms unless and to the extent that the Seller expressly agrees in writing to any variation thereof.
|
|
i)
|
If one of more clauses of these terms or any provisions included in any quotation or proposal or contract arising between Buyer and Seller is declared legally invalid, the remainder of these terms and any provisions shall be in no way affected.
|
|
j)
|
THE BUYER'S ATTENTION IS DRAWN TO STATUTORY PROVISIONS, WHICH MAY APPLY TO THIS PROPOSAL OR CONTRACT. To the extent permitted at law, no warranties expressed or implied by law, trade custom, or otherwise and no representations, descriptions, conditions or statement are binding on the Seller unless set out in these terms or expressly incorporated into these terms by reference in writing.
|
2.
|
DELIVERY
|
|
a)
|
If a date of delivery is referred to in this proposal or any contract resulting therefrom, it is estimated only and not guaranteed. However, Seller will make every reasonable endeavor to adhere to such delivery date. If any technical data, specifications, instructions, goods, materials or payments have to be provided to Seller in advance, any delay therein will cause the delivery date to be postponed accordingly. Seller cannot be in default unless, for reasons imputable to Seller, Seller still fails to make delivery within a further and reasonable period, which shall be at least ten (10) full working days, stated to Seller in writing subsequent to the expiry of the anticipated delivery date. In case of such default, Buyer may only cancel the contract to the extent that it has not yet been performed and to the extent that Buyer cannot reasonably be expected to let the, as yet unperformed, part of the contract stand. Seller is authorized to make part deliveries.
|
|
b)
|
Unless otherwise specified herein, delivery will be made ex-works points of manufacture and delivery to a carrier's vehicle including loading shall constitute delivery by the Seller to the Buyer, at which time, the risk, care and custody with respect to the Goods will pass to, and subsequently remain, with Buyer. In the absence of instructions from the Buyer on the choice of the carrier, the Seller will instruct on the Buyer's behalf a carrier to complete delivery. The carrier's vehicle shall be of a type allowing vertical or horizontal access for loading as required by the Seller. The title to the Goods delivered to Buyer shall not transfer to Buyer until Buyer has paid the purchase price in full to Seller.
|
|
c)
|
Buyer must make an examination of Goods delivered by Seller immediately upon delivery and must inform Seller in writing of any incompleteness, unsoundness of the Goods discovered by him in the course of such examination however in any event not later than within five (5) working days after receipt. Nonobservance of these obligations shall entail the extinction of all rights in connection with any incompleteness, unsoundness and/or defects, which Buyer could/should have discovered in the course of such examination. Seller shall not be liable for any damage, defects and/or incompleteness due to the transportation of the Goods.
|
|
d)
|
No representation is made by Seller with respect to the ability to acquire permit for the installation or operation of the Goods.
|
|
e)
|
The contract or Buyer's purchase order shall be accompanied by sufficient information to enable Seller to commence work and proceed without interruption.
|
3.
|
STORAGE
|
|
If through no fault of Seller delivery cannot be accepted by Buyer, any resulting costs such as but not limited to storage, insurance, extra handling costs and/or redelivery costs will be paid by Buyer, and the risk, care and custody with respect to the Goods will nevertheless pass to Buyer.
|
4.
|
TERMS OF PAYMENT
|
|
a)
|
Payment for the Goods shall be due and payable as set forth in the proposal or as otherwise mutually agreed upon. Any liability on the part of Seller is subject to the terms of payment and all other contractual and legal obligations of Buyer being strictly observed by Buyer.
|
|
b)
|
If any payment is overdue, Buyer shall, in addition to the statutory interest, also owe compensation for any currency price losses suffered by Seller and for all handling costs, judicial and extra judicial cost incurred by Seller in connection with the collection of the monies due and payable to Seller.
Buyer may set off (part of) the purchase price due against a due and payable debt from Seller to Buyer only, if such debt has been expressly admitted by Seller in writing or has been established by a final court verdict.
|
5.
|
TAXES
|
|
The prices provided for herein are exclusive of any present or future import duty, withholding, federal, state, county, municipal, or other sales, use, excise, gross receipts, value added or similar tax with respect to the Goods, services, labor or transportation charges on such services and/or Goods covered hereby, and of any inventory or property tax or similar charges with respect to the services and/or Goods covered hereby after the Goods or any portion thereof is ready for shipment.
If Seller is assessed or is required by applicable law or regulation to pay or collect any such duty, tax or charge on account of this transaction, Buyer shall pay then such amount of tax or taxes to Seller in addition to the prices provided for herein.
If Buyer is exempt from the payment of any applicable duty, tax or charge or has a direct payment permit with respect to such duty, tax or charge, Buyer shall provide Seller with a suitable copy of the appropriate certificate or permit at the time the contract or purchase order is issued.
|
6.
|
TIME OF ACCEPTANCE AND EFFECTIVE DATE
|
|
a)
|
The price and terms quoted in the proposal are subject to acceptance by Buyer within the validity period of this proposal. However, Seller reserves the right to amend or withdraw its proposal at any time, prior to the moment Seller receives the formal written acceptance by Buyer.
|
|
b)
|
The effective date of contract or purchase order shall be the date Seller signs and accepts such document.
|
7.
|
GUARANTEES
|
|
a)
|
Seller warrants to Buyer that the Goods will be of good quality and free from defects in material and workmanship.
|
|
b)
|
Seller will, at its option, repair or replace ex-works point of manufacture Goods which are proven to be defective within twelve (12) months from the time such Goods are put into operation, but no longer than eighteen (18) months from the date of shipment, whichever is the earlier, provided Buyer notifies Seller in writing as soon as such defect is discovered and provided further that such defects are due solely to faulty design, material or workmanship furnished by Seller hereunder. Seller assumes no liability for damage as a result of improper transport and/or improper storage and/or improper installation and/or erection nor for improper operation or maintenance by Buyer and/or Owner, nor for erosion or corrosion nor for bacterial influences, nor for normal wear and tear, nor for any Goods which have been subjected to misuse, neglect, accident, repairs or alterations by other than Seller's employees, nor for damage which is not due to reasons solely attributable to Seller.
|
|
c)
|
The guarantee set forth in this article 7 is expressly in lieu of all other guarantees, warranties, obligations and liabilities, express or implied by Buyer's inquiry or by law, including but not limited to those of merchantability and fitness for a particular purpose.
|
8.
|
SUBCONTRACTS
|
|
The cost entailed for Seller by any obligation to take back packaging may be charged by Seller to Buyer.
Seller shall be entitled to place subcontracts or suborders for the fabrication or supply of any of the Goods or parts thereof supplied hereunder.
|
9.
|
CHANGES
|
|
a)
|
Buyer may, by instructions to Seller, direct changes in the Goods. Seller shall notify Buyer of the effect of such changes on the price, guarantees, anticipated delivery date and/or other impact and Seller shall not be obligated to make such changes, unless Buyer thereafter agrees in writing on the adjustments to be made. Seller shall not, however, be required to make changes, which, in its opinion, affect its ability to satisfy its guarantees unless relieved of such guarantees.
|
|
b)
|
In the event of a suspension of Seller's work by Buyer's instructions or lack of instructions, the price and delivery date of the Goods may be adjusted accordingly.
|
10.
|
APPROVALS
|
|
Buyer shall have the right to approve the drawings prepared by Seller prior to issuance of such drawings for use in manufacture and/or erection. If Seller does not receive approval or rejection within ten (10) days after receipt by Buyer of an item subject to approval, approval shall be deemed to have been granted.
|
11.
|
SUSPENSION AND TERMINATION
|
|
a)
|
In the event that Buyer fails to fulfill any of its substantial obligations, including (without limitation) Buyer's failure to fulfill its payment obligation, Seller shall have the right to suspend its performance in whole or in part with immediate effect without prior notice being required. All costs and damages resulting from Buyer's non-fulfillment, whether or not Seller elects to suspend, will be borne by Buyer, in addition to a reasonable extension of time for performance of Seller's obligations.
Seller shall resume its activities if and when payment of all costs and damages is effected. Seller is entitled to terminate the contract if the non-fulfillment of Buyer's obligation(s) is not rectified by Buyer within 90 (ninety) days after notice thereof.
Seller may also terminate the contract at any time without prior written notice being required in case of bankruptcy/insolvency/(provisional) suspension of payment, windingup, closing down or dissolution of Buyer's business.
|
|
b)
|
In the event Buyer terminates in all or in part a contract resulting from this proposal or in the event Seller terminates the contract for reasons indicated under a) above, the following applies: Seller shall receive all payments due until date of termination. Further, Buyer shall reimburse Seller all direct and indirect cost and expenses incurred, and all losses (including overhead and profit) suffered by Seller up to the date of such termination, as well as any such cost and expenses incurred by Seller as a result of subcontracts or suborders cancelled or terminated as a result thereof. In addition, in case of termination by Buyer for convenience, Seller shall be paid a fixed termination fee to be mutually agreed upon by Buyer and Seller.
|
12.
|
FORCE MAJEURE
|
|
a)
|
Delay in or failure to carry out the obligations imposed upon either party under the agreement resulting here from shall not be deemed breaches of the contract, if such delay or failure results from an event such as, but not limited to fire, explosion, labor disputes, casualty or accidents, lack or failure of transportation facilities, epidemic, cyclone, flood, drought, or lack or failure of the other party or the other parties, subcontractors to perform work or supply labor, materials, or utilities as required by the contract or by reason of war, declared or undeclared, revolution, civil commotion, acts of public enemies, blockade or embargo, compliance with (inter-)national export control regulations, or by reason of any law, proclamation, regulation, ordinance, demand, or requirement of any government or any subdivision authority or representative of any government or by reason of any other cause whatsoever, whether similar or dissimilar to these enumerated, beyond the reasonable control of the party involved. Seller shall be reimbursed for the cost incurred in, and in connection with, stopping and returning to work, due to a force majeure occurrence and shall be entitled to an appropriate extension of time.
|
|
b)
|
If Buyer delays in or fails to make payments as required by the contract for any reason, including those enumerated in the preceding paragraph of this article 12, Seller may suspend its work until such payments have been made, and may terminate the contract if such delay or failure lasts for ninety (90) days. Seller shall be paid any increased costs occasioned by Buyer's delay in or failure to pay, including any extra cost resulting from suspending and resuming the work or in terminating the contract.
|
13.
|
PATENT LIABILITY
|
|
a)
|
Seller shall defend at its own expense any suit or action brought against Buyer based on a claim that any Goods or part thereof furnished hereunder which is specially designed by Seller constitutes an infringement of any apparatus claim of any patent of South Africa granted prior to the effective date of the contract, if notified promptly in writing and given authority, information and assistance by Buyer for the defense of same. Seller shall pay all damages and cost awarded therein against Buyer. In case said Goods or any part thereof are (is) held in suit to constitute infringement and its use enjoined, Seller shall at its own expense either procure for Buyer the right to continue using said Goods or replace it with non-infringing Goods, or modify it so it becomes non-infringing.
|
|
b)
|
Buyer and/or Owner shall hold Seller harmless in any patent infringement suit based on:
1. Processes which Buyer and/or Owner may practice.
2. Any (combination of) Goods, the design for which is specified or provided for by Buyer and/or Owner.
|
14.
|
TITLE, USE OF TECHNICAL DATA
|
|
a)
|
Buyer shall hold in confidence and not disclose to others or use, except as required for the proper execution of the contract, information acquired by Buyer in the course of the tender phase and/or during the execution of the contract.
|
|
b)
|
Title to all technical data, including but not limited to drawings, bills of material, flow diagrams, layout details, and specifications prepared by Seller, shall remain with Seller. Buyer shall have the right to use such data furnished by Seller only for installation, erection, operation and maintenance of the Goods, but shall not disclose these data to others except to the extent necessary to accomplish the foregoing. Duplication or the purchase of replacement Goods will not be made without the prior written consent of Seller.
|
15.
|
PROPRIETY INFORMATION
|
|
All information submitted by Greenergy Solar Industries (Pty) Ltd. (GSI) verbally, in reports, specifications, drawings, written documentation or in any other form or manner (hereinafter referred to as "Information") is submitted solely for the use of Buyer for the purpose envisaged by the proposal and upon conclusion of the contract or purchase agreement, for the performance thereof and shall not be used for any other purpose nor be disclosed to any other party without the prior written consent of GSI and such only subject to a confidentiality restriction. The Information shall not be disclosed to any other party other than Buyer's employees and/or representatives who need to know such Information in connection with the (performance of the) contract. Buyer shall instruct its employees and/or representatives to comply with the confidentiality obligations of the proposal and the subsequent contract. Buyer shall not modify, copy, reverse assembly, reverse engineer, de-compile or otherwise attempt to derive the source code from any Information.
The provisions of this article shall survive the termination or expiration of the proposal and upon conclusion of a contract or purchase agreement, the termination thereof.
|
16.
|
SERVICE BY BUYER
Buyer shall provide the following, as required by Seller, on a no charge basis:
|
|
a)
|
Any and all modifications of Buyer's facilities as are required to enable Seller to perform its obligations.
|
|
b)
|
All utilities and services as required by Seller including but not limited to the following:
|
|
|
1.
|
Materials storage area within one hundred meters of the work site. Such area shall be completely within Buyer's enclosure and under Buyer's security system.
|
2.
|
Parking facilities for Seller's personnel within one hundred meters of work site.
|
3.
|
Adequate office space for Seller and Seller's subcontractor(s) with adequate air conditioning.
|
4.
|
Electricity, steam and compressed air.
|
5.
|
Fresh water and drinking water.
|
6.
|
Space for storage of equipment.
|
7.
|
Suitable access to work site.
|
8.
|
A clean and level job site with complete foundations.
|
9.
|
Suitable foundations to receive and to install the Goods on.
|
10.
|
All necessary permits, licenses, easements, and rights of way.
|
|
|
c)
|
Seller shall not be responsible for any damage or repairs caused by or resulting from defects in materials or work not furnished by Seller under a contract resulting from this proposal nor for any consequences due to breach of any obligation by Buyer and/or by its contractors.
|
|
d)
|
Buyer assumes all responsibility for securing from the proper governmental authorities:
|
|
|
1.
|
Any approval of the plans and specifications.
|
2.
|
Any permits required by law and other governmental regulations and municipal ordinances for the transport and installation of the Goods to be furnished hereunder.
|
3.
|
Any fees in connection therewith.
|
|
|
|
If any changes are required in the equipment covered by the contract or purchase order resulting from this proposal to meet the approval of said governmental authorities, Buyer shall inform Seller of such changes and shall reimburse it for changes actually made to comply with the requirements of said authorities, subject to the provisions of article 9 hereof.
|
|
e)
|
Buyer and/or Owner ensure Seller free uninterrupted and continuous access to and on the site.
|
17.
|
INSURANCE
|
|
a)
|
During the performance of the work covered by the contract, Seller shall obtain and maintain the following insurance:
|
|
|
1.
|
Workmen's Compensation Insurance as required by law.
|
2.
|
Employer's Liability Insurance (bodily injuries) with a limit of ZAR 500,000 per accident, and Employer's Liability Insurance (occupational diseases) with limits of ZAR 500,000 per person and ZAR 1,500,000 in the aggregate.
|
3.
|
Comprehensive General Liability Insurance with a limit of ZAR 500,000 each person and ZAR 500,000 each occurrence for bodily injuries; and ZAR 500,000 each accident subject to an annual aggregate of ZAR 1,500,000 for property damage. This insurance includes contractor's contractual liability but excludes products and completed operations liability.
|
4.
|
Comprehensive Automobile Liability Insurance, covering all owned, non-owned and hired vehicles with limits of ZAR 500,000 each person and ZAR 500,000 each accident for bodily injuries; and ZAR 1,500,000 each accident for property damages.
|
|
|
b)
|
The insurance called for above is subject to limitations and exclusions applying to each type of insurance.
|
|
c)
|
All insurance to be carried under article 17 hereof shall be endorsed to require the insurer to furnish Seller and Buyer with ten (10) days' written notice prior to the effective date of any cancellation of insurance.
Seller shall if required by Buyer furnish Buyer with certificates or other documentary evidence showing that the insurance to be carried by Seller in accordance with article 17 sub a hereof has been arranged. Seller shall notify Buyer of any such insurance it is unable to procure or of any change in such insurance. In the event Seller is unable to procure any of the insurance it is required to secure under article 17 sub a hereof or if any of such insurance is cancelled or if any of such insurance expires before work is completed under the agreement, both Buyer and Seller shall use their best efforts to procure similar insurance or replace such insurance.
In the event that such efforts are unsuccessful, Seller shall not be required under article 17 sub a. hereof to maintain such insurance.
|
18.
|
INDEMNIFICATION AND LIABILITY FOR PERSONAL INJURY AND PROPERTY DAMAGE
|
|
a)
|
Until completion of the contract or purchase agreement, Seller shall hold harmless and indemnify Buyer against any claim, loss or liability for damage to the persons or property of third parties, caused by gross negligence and willful misconduct by Seller and growing out of or connected with the work to the extent Seller recovers from insurance carried pursuant to article 17 sub a.
|
|
b)
|
Buyer shall hold harmless and indemnify Seller against any claim, loss and/or liability resulting from damage to the plant or any other property of Buyer and/or Owner except to the extent Seller recovers from insurance carried pursuant to article 17 sub a.
|
|
c)
|
Seller's liability to Buyer for personal injury and death arising out of gross negligence and willful misconduct or from other causes shall be limited to that specifically stated in article 17 and 18.
|
19.
|
LIMITATION OF LIABILITY
|
|
a)
|
Seller's liability for damages and/or losses, regardless of what the cause thereof may be, shall be limited to the repair or replacement of the defective part or parts of the Goods as aforesaid. Without prejudice to the foregoing and for the avoidance of doubt, it is expressly noted and mutually agreed upon that Seller shall not be liable to Buyer and/or Owner for damages and/or losses arising out of or connected with delays (other than mutually agreed liquidated damages), curtailment of plant operations, process failure, pollution and environmental damage, occupational disease and/or toxic torts, conditions at Owner's job site, loss of profits, loss of productivity, cost of removing any parts or equipment to be repaired or replaced, transportation and/or (re) installation charges in connection with the repair or replacement nor shall Seller be liable for any contingent liability nor for any form of indirect and/or consequential damages and/or losses, however caused.
|
|
b)
|
Seller's cumulative liability in the aggregate for all obligations such as but not limited to warranties, guarantees, liabilities, penalties and indemnifications, under the contract or purchase order or at law, whether express or implied, including but not limited to those of merchantability and/or fitness for a particular purpose is limited to ten percent (10%) of the purchase price actually paid to and received by the Seller.
|
|
c)
|
Buyer and/or Owner shall defend, hold harmless and indemnify Seller against any liability for damages from third parties (including but not limited to, Owner in case Buyer is not the Owner) who claim to have suffered any loss or damage in connection with/or resulting from any agreement between Seller and Buyer or any Goods delivered or services rendered by Seller pursuant thereto.
|
|
d)
|
Claims for damages from Buyer against Seller shall be barred and be null and void after twelve (12) months have elapsed from the day on which the damage occurred or could have been discovered.
|
20.
|
GOVERNING LAW
|
|
This proposal and any contract or purchase order resulting therefrom shall be construed and given effect according to the laws for the time being in force in the Republic of South Africa.
|
21.
|
COMPLIANCE WITH LAWS
|
|
Seller warrants that the Goods furnished hereunder have been produced in compliance with applicable laws and regulations. If laws, regulations and/or codes applicable to the contract or purchase order are modified after the date of issuance of the proposal, any alteration which Seller may be obliged to implement in order to conform with such modifications as required, shall be considered as a change conform article 10.
Buyer acknowledges and accepts that the validity of the proposal and any contract resulting therefrom shall be conditional upon Seller being able to obtain the necessary export license(s), permit(s).
|
22.
|
EXPORT CONTROL REGULATIONS
|
|
The validity of this proposal and subsequent contract is based on the condition that the required export/re export authorizations will be granted and continued by the competent authorities in South Africa and in the countries of origin of the offered technical data and/or services and/or Goods. Buyer and/or Owner understand and agree that the furnishing of all technical information and/or services and/or Goods and the right to use it is subject to the continuing approval of the relevant (International) governmental authorities. Buyer and/or Owner herewith declare that the technical data and/or services and/or Goods, which will be received by Buyer and/or Owner under subject agreement(s) or the direct product of the data, will be used for civil use only. The term "direct product" as defined hereinabove means the immediate product produced directly by the use of the technical information (i.e. the Goods itself, but not the product produced by the Goods).
|
23.
|
DISPUTE RESOLUTION
|
|
Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Cape Town, the Republic of South Africa and any courts that have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
|
24.
|
ENTIRE AGREEMENT
|
|
Each party acknowledges that this proposal and the resulting contract or purchase order contains the whole agreement between the parties in relation to the subject matter of their dealings and it has not relied upon any oral or written representation made to it by the other party or its employees and has made its own independent investigations into all matters relevant to the subject matter of their dealings.
|
