Terms and conditions

1. DEFINITIONS

“The Company” means Green Power Energy Solutions (Pty) Limited.

“Contract” means the contract for the purchase and sale of the Goods

“The Goods” means products of any kind manufactured or sold by the Company

“The Purchaser” means the person, firm or other entity which contracts with the Company for the purchase of Goods.

2. GENERAL

These Terms and Conditions govern the sale of Goods by the Company to the exclusion of any other terms and conditions (including any terms or conditions which the Purchaser purports to apply under any purchase order, confirmation of order, specification or other document) and no variation, modification or substitution for these Terms and Conditions (even though included in or referred to in the document placing or confirming the order as aforesaid) shall be binding on the Company unless specifically accepted by the Company in writing and signed by a Director of the Company.

3. ORDERS AND SPECIFICATIONS

3.1. The Purchaser shall be responsible for ensuring the accuracy of any Purchase Order submitted by it to the Company.

3.2. All the illustrations and information concerning dimensions, colour, finish, etc. are for guidance only and are subject to variation due to changes in production processes. While the Company makes every effort to ensure the accuracy of the information contained in its literature, the Company shall not be liable for the consequences of any error or omission in the descriptions, illustrations, dimensions or other information in correspondence, catalogues and any other literature supplied by the Company. However as the Company’s policy is one of continual improvement it reserves the right to alter specifications of any Goods without notice. All descriptions, illustrations, specifications, examples and technical information in any brochure provided by the Company shall not form part of any contract of purchase and sale with the Company.

3.3. The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in writing. In entering into the Contract, the Purchaser acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.

3.4. Any advice or recommendation given by the Company or its employees or agents to the Purchaser or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Purchaser’s own risk and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed

3.5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by the Company shall be subject to correction without any liability on the part of the Company.

3.6. The Purchaser shall be responsible to the Company for ensuring the accuracy of the terms of any order including all applicable specifications submitted by the Purchaser and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms and for detailing any delivery instructions.

3.7. Changes in specification

3.7.1. The Company reserves the right to make any changes to the Purchaser’s specification of the Goods which are required to conform to any applicable safety or other statutory requirements.

3.7.2. Where changes are made to the Purchaser’s specification the company shall notify the Purchaser who shall either provide a new specification or permit the Company to proceed with the supply of the Goods in accordance with the Company’s changes.

3.7.3. Any change to the specification shall be subject to the waiver of warranty.

3.8. No order which has been accepted by the Company may be cancelled by the Purchaser except with the agreement in writing of the Company and on terms that the Purchaser shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.

4. PRICE

Provided that the quote is not accepted within the 30 days period from the date that the quote is prepared, the Company reserves the right to vary without notice any price quoted to conform to the Company’s price current at the time of acceptance of any order placed by the Purchaser. Prices quoted are per item excluding VAT. The Purchaser is liable to pay VAT.

5. PAYMENT

5.1. Time for payment shall be the essence of the contract. The Purchaser shall make payment according to the payment and settlement terms agreed in writing by the Company;

5.2. The Purchaser shall pay interest on the outstanding balance of the invoice value or any part thereof at the rate of 4% above the First National Bank prime rate, in the period between the due date for payment and final settlement. In these circumstances the Company may suspend deliveries under any or all contracts with the Purchaser while the Purchaser is in arrears and/or give notice in writing that if any such sums are not paid within 14 days, any or all contracts may be cancelled and hence if all such sums are not paid within that time, the Company may treat any or all such Contracts as determined and claim damages for repudiation;

5.3. If the Purchaser shall fail to make any payment under any Contract with the Company on the due date or shall be in breach of these Terms and Conditions or any other term of any Contract with the Company or should the Purchaser:

i. become insolvent;

ii. suffer the appointment of an administrator or an administrative receiver over any of its assets;

iii. go into liquidation whether compulsorily or voluntarily (except for the purposes of reconstruction or amalgamation);

iv. make any arrangement or composition with its creditors;

v. become the subject of a bankruptcy order;

vi. cease, or threaten to cease to carry on business; or

should the Company reasonably apprehend that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly, then the Company shall have the right (without prejudice to any other rights and remedies):

i. to suspend or withhold further deliveries so long as the default continues, and/or;

ii. to serve notice on the Purchasers that unless all sums due are paid forthwith it will cancel the relevant contract and any other contract with the Purchaser and if payment is not made forthwith thereafter the Company may treat the relevant contract and also at its option any other contract as repudiated and determined and recover damages accordingly, and/or;

iii. to recover from the Purchaser any cost or expenses incurred should a third party agency be used in the collection of any monies due from the Purchaser and/or;

iv. enter the Purchaser’s premises for the purpose of repossessing the Goods in respect of which title has not yet passed.

5.4. The Purchaser shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company but if the Purchaser does so, all moneys owing by the Purchaser to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.

6. DELIVERY AND PERFORMANCE

6.1. The Purchaser shall be bound to accept the Goods when they are ready for delivery by the Company and delivery shall be deemed to take place when the Goods are delivered to the Purchaser at the nominated address for delivery or to a nominated carrier as the case may be. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Purchaser.

6.2. The Company reserves the right to deliver and/or invoice the Goods in instalments and each delivery shall constitute a separate Contract, any failure of or any defect in any one delivery shall not vitiate any contract in respect of that or any other delivery.

6.3. Claims by the Purchaser for shortages in delivery cannot be accepted unless they are received by the Company in writing within 7 days of the expected date of receipt of the Goods at the Purchaser’s premises.

6.4. If for any reason the Purchaser cannot accept delivery of the Goods at the time when the Goods are due and ready for delivery, the Company may either elect to store the Goods pending their actual delivery and the Purchaser shall be liable to the Company for the cost (including insurance) of their so doing from the delivery date initially accepted by the Purchaser (however the Company shall be under no obligation to insure the Goods in storage and the risk of any loss or damage to the Goods howsoever arising shall be borne by the Purchaser) or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Purchaser for the excess over the relevant invoice price or charge the Purchaser for any shortfall below the relevant invoice price.

7. EXCLUSIONS

7.1. If the Company fails to deliver the Goods for any reason other than any cause beyond the Company’s reasonable control or the Purchaser’s fault and the Company is accordingly liable to the Purchaser, the Company’s liability shall be limited to the excess (if any) of the cost to the Purchaser (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

7.2. The Company shall not be liable for loss of profit or other consequential loss. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace the Goods (or the part in question) free of charge or at the Company’s sole discretion refund to the Purchaser the price of the Goods (or a proportionate part of the price) but the Company shall have no further liability to the Purchaser.

7.3. Any time or date given for delivery or performance is given as an estimate only and is not the essence of the contract and the Company shall not be liable for any loss or damage howsoever arising as a result of failure to deliver or perform at such time or date.

7.4. The Company shall not be liable to the Purchaser or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Company’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Company’s reasonable control.

7.5. Subject to clause 11 the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and subcontractors to the Employer in respect of any breach of this Contract or any representation, statement or tortious act or omission, including negligence, arising under or in connection with this Contract.

7.5.1. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Contract.

7.5.2. Nothing in this Contract excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence, or for fraud or fraudulent misrepresentation.

7.5.3. Subject to cause 7.4.1 and 7.4.2:

7.5.3.1. The Company’s total liability for direct loss or damage in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance of or failure to perform this Contract shall be limited to contract price; and

7.5.3.2. Subject to clause 7.4.3.1, the Company shall not be liable to the Purchaser for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise (in each case whether direct, indirect or consequential, or for any costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with this Contract.

7.6. The Company will supply the Purchaser with an instruction leaflet with details of the correct method for installation. The Company will not be liable for any loss arising out of the incorrect installation provided it was not contracted by the Purchaser to install the Product in terms of the Contract.

7.7. The Company must be given the opportunity to inspect an installation before any suspected faulty product is removed from the position where it has been installed.

8. TITLE

8.1. Title to the Goods shall not pass to the Purchaser until the Company has received in cash or cleared funds, payment in full of the invoice together with any interest and/or delivery charges in addition to payment of all other outstanding sums. Where the Purchaser is entitled to sell the Goods as the Company’s agent, the Purchaser shall be obliged to account to the Company immediately thereafter for such of the proceeds of sale as shall be sufficient to discharge the invoice.

8.2. Where the Goods are in the Purchaser’s possession, the Purchaser shall keep them separately from all other Goods in its possession in such a way that they are immediately identifiable as the Company’s property. At any time before payment in full of all sums due from the Purchaser to the Company, the Company may by notice in writing to the Purchaser, determine the Purchaser’s right to sell the Goods and if the Purchaser is in possession of the Goods the Purchaser shall thereupon return them to the Company free of charge and shall in any event cease to be in possession of them with its consent. In placing an order, the Purchaser irrevocably authorises the Company to enter upon its premises for the purposes of repossessing the Goods in respect of which title has not yet passed to the Purchaser.

9. RISK

9.1. Risk in the Goods shall pass to the Purchaser either at the time of delivery, or if the Purchaser wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.

9.2. The Purchaser shall insure those Goods against all loss or damage to the full purchase price for the period from the date of delivery until the passing of title in the Goods to the Purchaser.

9.3. The proceeds of any insurance claim or the right to receive the same shall be held by Purchaser on trust for the Company and paid to it in settlement of the outstanding invoice.

10. RETURNS

10.1. Goods will not be accepted back for credit unless written approval has been obtained from the Company.

10.2. A 20% handling charge subject to a minimum of R500.00 may be levied by the Company on all fault-free Goods returned at the Purchaser’s request. Any such Goods should be returned carriage paid and must be in current original undamaged packaging.

10.3. If Goods are returned without the authorisation by the Company in writing, the reimbursement of any carriage charges, if appropriate, will be limited to the amount that the Company would have incurred had the Company been given the opportunity to arrange their own collection.

11. Warranty policy

This warranty policy only applies if referred to in a sales agreement between Green Power and the Purchaser and it will replace the standard warranty clause provided in the Green Power general terms and conditions of sale.

Warranty period

Subject to the provisions as set out in the Warranty Terms and Conditions, Purchaser receives the warranty for the applicable period, as described below.

i. LED 3-5 years (as stated in the offer proposal accepted by the Purchaser)

ii. Fluorescents 1-3 years (as stated in the offer proposal accepted by the Purchaser)

Special conditions

i. The warranty period starts on the date of invoice.

ii. The warranty period is based on a burning behaviour of max. 4,000 hours/year. In case of more than 4,000 hours/year, the warranty period will be adjusted pro-rata.

iii. This warranty policy is only valid when products are properly installed and operated in application conditions as specified in the product datasheet.

iv. Purchaser receives this ‘standard warranty’ by default. On request, an ‘extended warranty’ or ‘customized project warranty’ can be agreed after evaluation of the specific application conditions.

v. Purchaser shall not rely on any other information or documentation.

Additional Conditions (non-exhaustive)

i. This warranty is only valid for products sold in South Africa. In other regions, other conditions may apply.

ii. The Products have been purchased directly from Green Power.

iii. Proof of purchase for the Products is available for inspection by Green Power.

iv. The Products have been properly installed and operated in accordance with the manufacturer’s instructions.

v. Adequate records of operating history are kept and available for inspection by Green Power.

vi. A Green Power representative will have access to the defective Products. If the Products or other parts become suspect, the representative shall have the right to invite other manufacturers’ representatives to evaluate the lighting systems.

vii. Labour costs for (de)-installation of the Products are not covered under this warranty.

11.1 Limited Warranty

This warranty shall only apply to lighting products sold by Green Power in South Africa (hereinafter referred to as ‘Product’). The warranty is only applicable to the party purchasing the products directly from Green Power (hereinafter referred to as: ‘Purchaser’). Green Power warrants that each Product will be free from defects in material and workmanship. The foregoing warranty shall be valid for the period mentioned in the applicable warranty policy for the Products referred to in your sales agreement. If a Product fails to operate in accordance with this warranty Green Power will provide a free replacement of the failed Product subject to the applicable warranty policy and the limited warranty terms and conditions set out below.

11.1 Terms and Conditions

i. Green Power warranty flows only to Purchaser. If any Product covered by this warranty is returned by Purchaser in accordance with section 10 and within the applicable warranty period set out in the warranty policy and on examination, Green Power determines to its satisfaction that such Product failed to satisfy this warranty, Green Power will, at its option, repair or replace the Product or the defective part thereof, or reimburse Purchaser the purchase price. For purposes of clarity, ‘repair or replace the Product or the defective part thereof’ does not include any removal or reinstallation activities, costs or expenses, including without limitation, labor costs or expenses.

ii. If Green Power chooses to replace the Product and is not able to do so because it has been discontinued or is not available, Green Power may refund the purchaser or replace the product with a comparable product (that can show small deviations in design and product specification).

iii. No agent, distributor or dealer is authorized to change, modify or extend the terms of the warranty on behalf of Green Power.

iv. This warranty only applies when the Product has been properly wired and installed and operated within the electrical values, operating range and environmental conditions provided in the specifications, application guidelines, IEC standards or any other document accompanying the Products. If a Product is found to be defective, or not performing in accordance with the product specifications, the Purchaser must notify Green Power in writing within 7 days.

v. Green Power will facilitate the technical resolution of problems.

vi. This warranty does not apply to damage or failure to perform arising as a result of any Acts of God or from any abuse, misuse, abnormal use or use in violation of any applicable standard, code or instructions for use, including without limitation, those contained in the latest safety, industry and/or electrical standards.

vii. This warranty shall be void in the event any repairs or alterations, not duly authorized by Green Power in writing, are made to the Product by any person. The manufacturing date of the product has to be clearly readable. Green Power reserves the right to make the final decision on the validity of any warranty claim.

viii. If requested by Green Power, the non-conforming or defective Products shall become Green Power’ property as soon as they have been replaced.

11.2 Warranty Claims

All warranty periods mentioned are subjected to a Green Power representative having access to the Product or system for verification of non-compliance. Warranty claims have to be reported and returned to the local Green Power office within 30 days after discovery, specifying at least the following information (additional information may be required on request):

i. details of the failed Products;

ii. installation date and invoice date;

iii. detailed problem description, number and % of failures date-code of failure;

iv. application, hours burned and number of switching cycles;

v. Where a warranty claim is justified, Green Power will pay for freight expenses.

vi. Green Power may charge Purchaser for returned Products that are not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith.

11.3 No implied or other warranties

i. The warranty and remedies contained in this warranty are the only warranties given by Green Power with respect the Products and are given in lieu of all other warranties, whether express or implied, including without limitation warranties of fitness for a particular purpose, which warranties are hereby disclaimed.

ii. These terms and conditions state Green Power’ entire liability and obligation to Purchaser and Purchaser’s sole and exclusive remedy in connection with defective or non-conforming Products supplied by Green Power to Purchaser, whether or not such damages are based on any warranty not explicitly mentioned in these terms and conditions, tort, contract or any other legal theory, even if Green Power has been advised or is aware of such defects.

11.4 Limitations and conditions

i. This is a limited warranty and excludes, among other items, installation, providing access to products (scaffolding, lifts, etc.), and special, incidental and consequential damages (such as loss of revenue/profits, damage to property or other miscellaneous costs not previously mentioned).

ii. Upon request, Green Power’ representatives shall be allowed access to the defective Product, system or application for verification of non-compliance.

iii. Green Power cannot be held liable for electrical supply conditions, including supply spikes, over-voltage/under-voltage and Ripple Current control systems that are beyond the specified limits of the products and those defined by relevant supply standards.

12. SUSPENSION

Should the Company be delayed in or unable to make delivery owing to any cause whatsoever beyond its control, The Company shall be free at its entire discretion either to suspend or terminate the Contract without incurring any liability to the Purchaser for any loss or consequential damage arising there from.

13. GENERAL

13.1. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

13.2. No waiver by the Company of any breach of the Contract by the Purchaser shall be considered as a waiver of any subsequent breach of the same or any other provision.

13.3. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

13.4. Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of The Institute of Arbitrators.

13.5. All contracts between the Company and the Purchaser and the above conditions shall be interpreted according to and governed by South African Law and the parties submit to the non-exclusive jurisdiction of the Court for the resolution of all disputes arising there from.

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