General terms and conditions. All agreements made and entered into by BLOCKPOWER (“the Company”) and any purchaser of the Company’s goods and/or services (“the Customer”) shall be on the terms and conditions contained in the proposal/quote/order/invoice and subject to the following terms and conditions. These terms and conditions are intended to be fair, just and reasonable as contemplated in section 48 of the Consumer Protection Act 68 of 2008, and shall be interpreted accordingly. To the extent that any provision hereof is found to be unfair, unreasonable or unjust, such provision shall be severable and the remaining provisions shall continue in full force and effect.
In the event of any order being given to the Company on a proposal/quotation/purchase order/invoice reflecting the Customer’s name as the entity from which the order emanates, such order shall be deemed to have emanated from the Customer, provided that the Company reasonably believed the person placing or signing the order was duly authorised to do so on behalf of the Customer.
Payment terms and VAT. All amounts owing to the Company together with the applicable value-added tax (VAT) (“the Purchase Price”) shall be paid on such terms as may be indicated on the relevant proposal/quotation/purchase order/invoice, unless the Company agrees in writing to a negotiated term of payment. To the extent that any credit is extended to the Customer in terms of this agreement, the provisions of the National Credit Act 34 of 2005 (“the NCA”) shall apply, and in the event of any conflict between these terms and the NCA, the NCA shall prevail.
If the Customer should fail to object to any item appearing on the Company’s statement of account within 7 (seven) days of date of the dispatch of the statements, the accounts shall be deemed to be in order.
Interest. Interest shall be charged on any overdue amounts, or the balance thereof from time to time, at the prime lending rate as published by the South African Reserve Bank from time to time, plus 2% (two percent) per annum, calculated and compounded monthly in advance, from due date until date of payment, subject to the provisions of the in duplum rule.
Acceleration on overdue amounts. In the event of the Customer defaulting in making payment of any amount that has become due and payable, then the full balance outstanding, whether due or not, will immediately become due and payable without notice to the Customer.
Ownership of goods. Ownership of any goods forming the subject matter of any agreement shall remain vested in the Company until all amounts due (including any interest) have been paid in full. The Customer undertakes to keep all goods forming the subject matter of any agreement in respect of which the purchase price (and interest, if any) has not been discharged in full, free from attachment, hypothec or other legal charge or process and where relevant shall notify the landlord of its premises from time to time in writing that the goods are the property of the Company. The Company shall, in its sole discretion, without notice to the Customer, be entitled to take possession of any goods forming the subject matter of any agreement in respect of which payment of the purchase price (and interest, if any), or any portion thereof, is overdue, in which instance the Customer shall be entitled to a credit in respect of such goods so returned, being the price at which the goods are sold, or the value thereof as determined by the Company.
The Company shall have the option (but without prejudice to any of its other rights against the Customer) by notice in writing to the Customer to rescind this contract and any other contract between the Company and the Customer, or to suspend performance of any of its obligations hereunder, should any sum owing by the Customer to the Company remain overdue for a period exceeding 20 (twenty) business days after written notice of default has been given to the Customer, or the Customer be in material breach of this agreement or any other agreement relative to the provision of goods and/or services by the Company to the Customer and the Customer fails to remedy such breach within 20 (twenty) business days of receipt of written notice requiring the Customer to do so.
Risk of loss and damage. The risk of loss of or damage to the goods shall pass to the Customer on delivery.
Delivery of goods. The Customer shall take delivery of the goods with reasonable despatch. If the Customer delays delivery, reasonable storage costs relating to the goods shall be charged to the Customer as from the specified delivery date and the goods shall be stored at the Customer’s sole risk.
The date of delivery is given in good faith and all reasonable efforts shall be made to comply therewith. The Company shall not be liable for any loss, damage or delay due to the failure of the Company for any reason whatsoever to deliver the goods on the date of delivery. No failure of or delay in delivery of any goods shall entitle the Customer to treat this agreement as repudiated.
The Company shall be entitled to suspend or reduce the fulfilment of any agreement for the supply of goods at any time if any contingency beyond the Company’s control arises, including but not limited to reduced or non-availability of raw materials, strikes, lock-outs, fire, pandemics, epidemics, government-imposed restrictions, load-shedding or utility failures, civil unrest, or any act or event which interferes with or prevents the manufacture, production or delivery of the goods for which no fault can be attributed to the Company or its representatives. The Company shall notify the Customer in writing as soon as reasonably practicable after the occurrence of any such event, providing reasonable details of the nature of the event and its expected duration. The Company shall use reasonable endeavours to mitigate the effects of any such event and shall resume performance of its obligations as soon as reasonably practicable after the event has ceased.
Damage and loss. Save as expressly provided for in these terms and conditions, and subject to the provisions of the Consumer Protection Act 68 of 2008 where applicable, the Company shall not be liable for any indirect, special or consequential loss, damage or delay whatsoever and howsoever the same may arise or be caused, including, without restricting the generality of the foregoing, by reason of any negligence by the Company or its employees or agents. The Company’s total liability under any agreement shall in no event exceed the total purchase price paid by the Customer under the relevant agreement. The Customer specifically acknowledges that the proposal/quote/order/invoice does not in any manner whatsoever include any lightning protection against or in respect of the goods.
When the Customer purchases the goods for re-sale, the Customer shall ensure that the purchaser of the goods (“the Third Party”) is apprised of these terms & conditions so as to ensure that the Third Party’s claims (if any) against the Company are limited to the extent stated herein, and without limiting the foregoing.
Should the Customer fail to make payment of any amount that has become due and payable in terms of this agreement, then and in the execution of this agreement, the Customer (“the Cedent”) hereby cedes, transfers and makes over to the Company (“the Cessionary”) the Cedent’s right, title and interest in and to any claim for payment of any amount due to the Cedent by any Third Party to whom the Cedent resells any goods purchased by the Cedent in terms hereof. The Cedent hereby authorises the Cessionary to notify the Third Party of this cession. The Cessionary hereby accepts the said cession upon and subject to the terms and conditions set out herein.
The Customer hereby indemnifies and holds the Company harmless against all claims, loss, damage, expense or proceedings of whatsoever nature against or on the part of the Company arising out of the re-sale or distribution of the goods, or for any reason whatsoever including any failure to deliver goods timeously, to any Third Party, provided that this indemnity shall not apply to the extent that such claims arise from defective goods supplied by the Company or from the Company’s own negligence, gross negligence or wilful misconduct, and nothing in this clause shall limit or exclude any liability which cannot lawfully be limited or excluded under the Consumer Protection Act 68 of 2008.
The Company may, as a condition of entering into any agreement with the Customer, require that any director, member, shareholder, trustee, or other representative of the Customer execute a separate deed of suretyship and co-principal debtorship in the form prescribed by the Company from time to time, binding such person as surety and co-principal debtor for the due performance of all obligations of the Customer to the Company. Such deed of suretyship shall constitute a separate and independent agreement from the principal obligation and shall be executed voluntarily by each surety after having been afforded a reasonable opportunity to obtain independent legal advice. No suretyship obligation shall arise under these terms and conditions absent the execution of such separate deed.
Upon receiving deposit payment or part payment of any quotation sent to the Customer, the quotation shall be deemed to have been accepted by the Customer, together with these terms and conditions. The Customer acknowledges that it has been afforded a reasonable opportunity to familiarise itself with these terms and conditions prior to making such payment.
The Customer undertakes to notify the Company, in writing, within 7 (seven) days of any change of ownership of the Customer’s business, or should the Customer be a Company, any share transaction where the majority shareholding is affected. The Customer acknowledges that upon any change of ownership in the Customer any outstanding amount whether due or not shall be deemed to be immediately payable by the Customer to the Company.
Notwithstanding the amount which may at any time be owing by the Customer to the Company, the Parties do hereby consent, in terms of Section 45 of the Magistrates Court Act (No 32 of 1944 as amended), to the Jurisdiction of the Magistrate’s Court for the determination of any action or proceeding which may be brought by the Company against the Customer arising out of any agreement or transaction between the Parties, it being recorded that the Company shall be entitled, but not obliged, to bring any action or proceeding in the said court.
Should the Company instruct its attorneys or collection agent to collect any overdue amounts, or to take any action against the Customer or any Third Party, in the implementation or protection of the Company’s interests in terms hereof, the Company shall be entitled to the recovery of all legal or collection costs arising there from, on the scale as between attorney, agent or collection agency and own Customer.
The Customer, its members/directors/shareholders/trustees or other representatives and any signatory to any agreement between the Company and the Customer in relation to the delivery of goods and/or services to the Customer by the Company, hereto chooses as their Domicilium Citandi et Executandi for all purposes arising out of any such agreement: (a) the physical address stipulated on the quote/order/invoice; (b) the email address provided by the Customer to the Company; and (c) any other electronic address (including a registered user portal or website address) designated by the Company from time to time for the receipt of notices and documents. Any notice or document delivered by hand to the physical address shall be deemed received on the date of delivery; any notice sent by email shall be deemed received on the date of transmission, provided no delivery failure notification is received; and any notice posted on the Company’s designated electronic portal shall be deemed received 3 (three) business days after posting. The Customer further undertakes to notify the Company forthwith in writing of any change of physical or electronic address.
The Customer consents to the Company sharing information relative to the Customer’s account with the Company, with other credit grantors and credit information agents. Information shared with such credit grantors and agents is used to make credit granting decisions, to prevent fraud and manage risk. The Customer hereby gives consent that its personal information (and, where applicable, the personal information of its members, directors, shareholders, or trustees) may be forwarded to the relevant credit bureaux in order for the Company to obtain a full credit report. The Company shall process all such personal information in accordance with the Protection of Personal Information Act 4 of 2013 (POPIA).
A certificate signed by a manager or any director of the Company reflecting the amount owing by the Customer to the Company and of the fact that such amount is due, owing and unpaid shall be prima facie proof of the effects therein stated for the purpose of any action, proof of debt on insolvency or for any purpose whatsoever where the amount of such claims is required to be established, and it shall rest with the Customer to prove that such amount is not owing and/or due and unpaid, within an agreed upon time period. The Company may make such certificate and supporting documentation available to the Customer electronically via the Company’s website, customer portal, or by email, and such electronic delivery shall constitute valid delivery for all purposes.
Severability. Each clause of these conditions of sale is severable, the one from the other and if any one or more clauses are found to be invalid or unenforceable, that clause/clauses shall not affect the balance of these conditions of sale, which shall remain of full force and effect.
Whole agreement. This contract contains the entire agreement between the parties and any other terms thereof whether express or implied or excluded here from and any variations, cancellations or additions to this contract shall not be of any force or effect unless reduced to writing and signed by the parties or their duly authorised signatories.
Non-variation. No alteration, cancellation, variation, waiver of or addition hereto shall be of any force or effect unless expressly accepted in writing by the Company.
Waiver. No indulgence, leniency or extension of time shown or granted to the Customer shall in any way prejudice the Company or preclude the Company from exercising any of its rights in the future. No indulgence, relaxation, leniency, extension of time, or granted to the Customer by the Company shall in any way operate as or be deemed to be a waiver by the Company of any rights under this agreement.
Cooling off. Should the transaction between the Company and the Customer fall within the ambit of the Consumer Protection Act No 68 of 2008 (“the Act”), the Customer acknowledges that, in terms of Section 16 of the Act, it has 5 (five) business days in which to rescind the transaction without reason or penalty, should the transaction be a result of direct marketing on behalf of the Company. The Customer further acknowledges its rights under sections 48, 49, 51, and 54 of the Act, including the right to fair and honest dealing, the right to receive information in plain and understandable language, and the right to demand quality service.
Lead times. Lead times shall be in accordance with the proposal/quote and subject to the delivery periods stated in clause 10 hereof.
The Company will not be held responsible for any delays to the lead times provided as a result of, but not limited to the following;-
Where weather conditions make it impossible or unsafe for us to perform any of our services;
Should materials that are ordered not be received on the date or time agreed with any supplier (and a suitable replacement from an alternative supplier is not available);
Variations issued in addition to the original order, at any given time after the original quote/order has been approved;
Where an independent designer/interior decorator/builder/project manager may be appointed to approve/advise on aspects involving detail/construction methods of the relevant product/service and this individual delays any communication to instruct/answer questions relating to information required to complete any item/service for the Customer;
Where other contractors/service providers have been appointed to provide their products/services in conjunction with our installation order and at any time during the project these contractors/service providers cause a delay that directly/indirectly influences our installation/service;
Where we are unable to gain access to the premises, for whatever reason, to carry out the services;
Where the areas on the premises are not ready for our product/services to be affected;
Delays by the Client on importing goods with their agent/tax authority;
Defects liability period. The Company shall provide the Customer with a 12 month defects liability period in respect of workmanship and installation of the goods only. The 12 month period shall be calculated as from the date of project handover once the customer has approved the installation and has received a handover certificate. Guarantees on goods shall be determined in accordance with the specific manufacturers warranty, which will be provided to the Customer upon the issue of the handover certificate.
Where an independent contractor is appointed before or during the project, these individuals will be responsible for the signing/approval of any snag/defect list and hand over certificates, of which only one of each may be issued.
Upon the approval/issue of a defects list, all defects that may occur hereafter will be treated as items covered under the Company’s warranty that is reflected on the quote/order/invoice and will be rectified by the Company after such a time that full payment has been received and the hand over certificate stating that the defects list has been completed is signed;
Should access at any time be denied for any reason during the defects rectification period to resolve these defects or should the Customer ignore or delay our requests to inspect the completion of these defects within 14 (fourteen) days, the Company shall be entitled to assume that the products/services rendered have been completed to the Customer’s satisfaction.
36. Should our supplied product be used in any way during or directly after supply/installation, we will assume the product to be complete for its intended use and payment would become due unless otherwise agreed in writing by the Company.
By accepting the quote/order/invoice, whether by signature, electronic acceptance (including ticking an acknowledgement checkbox on the Company’s quoting, invoicing, or billing system), payment of a deposit, or conduct consistent with acceptance, the Customer acknowledges that: (a) it has been afforded a reasonable opportunity to read and understand these terms and conditions; (b) it has familiarised itself with the terms and conditions contained herein; (c) it accepts these terms and conditions as binding; and (d) where applicable, it has been advised of its rights under the Consumer Protection Act 68 of 2008. The Company shall ensure that an express acknowledgement mechanism (such as a checkbox or signature field) is incorporated into its electronic quoting and billing systems to record the Customer’s acceptance.
Governing law. This agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa.
Limitation of liability. To the maximum extent permitted by law, the Company’s total aggregate liability to the Customer under or in connection with this agreement, whether in contract, delict (including negligence), or otherwise, shall not exceed the total Purchase Price paid or payable by the Customer under the relevant proposal/quotation/purchase order/invoice giving rise to the claim. The Company shall not be liable for any indirect, consequential, or special loss or damage of any kind, including but not limited to loss of profit, loss of revenue, loss of production, or loss of business opportunity, howsoever arising.
Dispute resolution. In the event of any dispute arising out of or in connection with this agreement, the parties shall first attempt to resolve the dispute through good faith negotiation. Should the dispute not be resolved within 14 (fourteen) business days of written notice of the dispute being given by one party to the other, either party may refer the dispute to mediation in accordance with the rules of the Arbitration Foundation of Southern Africa (AFSA). Should mediation fail to resolve the dispute within 30 (thirty) days of the mediator being appointed, either party shall be entitled to institute legal proceedings.
Protection of personal information. The Company shall process all personal information of the Customer and its representatives in accordance with the Protection of Personal Information Act 4 of 2013 (POPIA) and any applicable data protection legislation. The Customer consents to the Company collecting, storing, and processing its personal information for the purposes of performing its obligations under this agreement, managing the Customer’s account, and complying with applicable laws and regulations. The Customer has the right to request access to, correction of, or deletion of its personal information held by the Company, subject to applicable legal requirements.
