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GENERAL TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS

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1. DEFINITIONS

The following definitions apply, except where the context otherwise requires:

Applicable Law means all laws, regulations, directives, statutes, subordinate  legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions and awards of any court or competent authority or tribunal having jurisdiction  over  the Parties or the location where the Services is performed and all codes of  practice having  force of law, statutory guidance and policy notes and any amendments thereto.

Claim means any actions, claims, causes of action, demands, debts, losses, damages, costs (including legal costs) expenses and liabilities, in law, contract or tort relating to, arising from or in connection with the Contract.

Commissioning Date means the date on which the System first becomes operable.

Customer means the person, company, firm or legal entity who purchase the System from EasyPower

Consequential Loss means (a) any consequential, indirect, punitive or special losses under the Applicable Law, and (b) any loss of product, loss of actual or anticipated profit or revenue, loss of contract, business interruption or increased cost of working, whether direct or indirect to the extent these are not included in (a) above and whether or not foreseeable at the date of the Contract.

Contract means the Invoice issued by EasyPower together with these Standard GTCs and any appendices,         schedules         and/or        amendments        agreed        in        writing; EasyPower means EasyPower Solar South Africa (PTY) Ltd company organized and existing under the laws of South Africa with its head office located at 54 Malta Road Cosmos Business Park Johannesburg South Africa

Existing Systems means any system or part of a system already installed at the premises including but not limited to controls, equipment, relays, power supplies, wiring and circuits Goods means the goods specified in the Invoice to be supplied by EasyPower to be part of the System.

GTCs means the provisions of this document to regulate terms of supply and installation of the System

Installation means the Services to be provided by EasyPower to install the System.     Installation Charge means the Price to be paid by Customer for installation of the System Installation Date means the date booked by EasyPower or such other date as is reasonable in the circumstances to install the System.

Invoice means a document issued by EasyPower to Customer to specify Goods and Services to be provided

Normal working hours means between 8 a.m. and 5 p.m. Monday to Friday excluding Bank or Public Holidays.

Party   means   EasyPower   or   Customer   and   Parties   means   both. Premises means Customer’s place where System will be provided and installed. RoE means exchange rate used to calculate price of the System.

Services means the services to be supplied including but not limited to Installation y/o maintenance of the Goods part of the System.

System means all or any part of EasyPower’s Goods or Services to be installed at Customer premises.

System Price means the Price to be paid by Customer for provision and installation of the  System

T&Cs            means            the            general            warranty            policy.   Third Party means any person who is not a member of EasyPower or Customer

 

2.APPLICATION OF TERMS

  1. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of EasyPower which is not set out in the Contract.

  2. The Contract for provision and installation of the System shall be these Standard GTCs in conjunction with the Invoice and any other conditions as detailed in writing in the Invoice.

  3. If there is conflict between the terms of (i) the Invoice and (ii) the Standard GTCs or any other document forming part of the Contract, the terms of the Invoice shall prevail. If there is conflict between the Standard GTCs and the terms of any other document forming part of the Contract, the Standard GTCs shall prevail.

 

3.SPECIFICATIONS

  1. EasyPower reserves the right to vary the Goods and Services by written variation including for an increase or decrease in the quantity, character, quality, kind or execution of the Goods/Services, and changes to delivery and the work program

 

4.INSTALLATION

  1. EasyPower shall use its reasonable endeavors to install the System by the Installation Date. However the Installation Date is intended to be an estimated and time for installation shall not be made of the essence by notice.

  2. Customer shall allow EasyPower full and unrestricted access to the premises during Normal hours (provided that not less than 24 hours’ notice has been provided by EasyPower) prior to and on the Commissioning Date for the purposes of surveying, measuring and installing the System.

  3. If for any reason the Customer is unable to provide access pursuant clause 4.2, EasyPower reserves the right to charge the Customer an additional fee for surveying, measuring and installing the System outside Normal Working Hours and any such additional fee shall be based upon EasyPower’s current cost information at that date.

  4. Notwithstanding clause 4.3, if for any reason Customer fails to allow access to the Premises

    1. Risk of the System shall pass to the Customer and (ii) EasyPower may store the System

 

until installation, whereupon the Customer shall be liable for all related cost and expenses including without limitation storage and insurance.

  1. EasyPower will provide temporary scaffolding during installation, it is recommended that Customer install a permanent access to the roof in order to perform maintenance of the System and facilitate repairs.

  2. EasyPower shall not be liable for any damage caused to the Premises during installation of the System.

  3. Customer warrants that all relevant permits or permissions necessary to install the System from Authorities and its landlord if applicable have been granted.

 

5.EXISTING ELECTRICAL INSTALLATIONS

  1. EasyPower reserves the right to make additional charges to the customer for (i) Incorporating and existing electrical installation into the System (ii) Testing any part of the existing electrical installation prior to its incorporation into the System (iii) Repairing or replacing any part of the existing electrical installation prior to incorporation which is not in a good working order or is unsuitable for incorporation

  2. EasyPower may not be able to ascertain whether any cables and wiring from part of the existing Electrical installation and which have been installed within the fabric of the Premises, or buried underground, confirm to the relevant standards.

  3. If requested to do so by EasyPower, Customer will use its best efforts to obtain information about existing Electrical Installation from its previous installer.

  4. Unless Customer informs EasyPower otherwise, EasyPower assumes that exiting Electrical Installation and the wiring and cabling associated with it, already comply with the relevant standards and are in full working order.

 

6.EXISTING SYSTEMS

  1. If requested by Customer, and if EasyPower’s sole opinion it is feasible and sensible so to do, EasyPower may attempt to incorporate and existing system into the System, or provide service to an existing system EasyPower will not be responsible for any part of the existing system which remains on the Premises whether or not it forms part the System.

 

7.COMMISSIONING

  1. Within fourteen days of receipt by EasyPower of the balance of the installation charge, EasyPower will issue a handover certificate and the manuals of the operation of the System

  2. Where an existing system is incorporate into the System any certificate provided will apply only for the System and not for existing system.

 

8.TITLE AND RISK

  1. The System is at risk of the Customer (i) upon customer full or partial payment of the Goods or (ii) the time of the delivery of the Goods whatever occurs first.

  2. Ownership of the System shall not pass to the Customer (notwithstanding that EasyPower shall at all times retain full legal, equitable and beneficial ownership in any part of the System) until EasyPower has received in accordance with Invoice issued, all sums due to it whit respect to the System,

  3. Until Ownership of the System has passed to the Customer, the Customer shall maintain  the System in satisfactory condition and keep the System insured on EasyPower’s behalf for its full price against all risk to the reasonable satisfaction of EasyPower. On request Customer shall produce a copy of the policy of insurance.

  4. EasyPower shall be entitled to recover payment for the System notwithstanding that ownership of the System has not passed from EasyPower

  5. Customer grants EasyPower, its agents and employees an irrevocable license at any time to enter the Premises in order to recover the System if payment of the System as detailed in the Invoice has not been made on its due date.

  6. On termination of the Contract, howsoever caused, EasyPower’s (but not the Customer’s) rights under this clause shall remain in effect.

 

9.PRICE

  1. Price of the System and installation charge shall be the amount as set out in EasyPower’s Invoice and shall be exclusive VAT, Whitholding Tax, and importation taxes when applicable.

  2. Price has been calculated based on the RoE detailed in the quotation. Any fluctuation on the RoE will entitle EasyPower to index the price of the System at the time of order placing and payment. Installation price will not be subject to RoE variations

  3. Installation Charge is based on the supply and installation being interrupted. Where installation is carried out in conjunction with building, rebuilding or other refurbishment programme then the number of the visit to the Premises required to complete the installation may increase. EasyPower reserve upon giving written notice to Customer to charge and additional fee in these circumstances, which shall be based on EasyPower’s current cost information at that date.

  4. If the System is not installed within 30 days after initial Installation Date due to Customer fault, EasyPower reserves the right upon giving written notice to the Customer to increase Installation Charge

  5. EasyPower reserves the right, giving written notice to Customer at any time prior to installation to increase Installation Charge for any delay caused by the instruction of the Customer or failure by Customer to give EasyPower adequate information or instructions.

  6. EasyPower reserves the right, by giving written notice to Customer at any time to increase Installation Charge based upon unforeseen costs to EasyPower.

 

10.PAYMENT

  1. Customer shall pay System Price and Installation Charge in accordance with Invoice issued by EasyPower on the due day

  2. If any sum due under the Contract is not paid by Customer within the 7 days of   becoming

 

 

 

due then Customer shall pay interest to EasyPower on the amount outstanding of 2% per month.

  1. Time for payment of the Installation Charge shall be of the essence of the Contract. NO payment due to EasyPower under the Contract shall be deemed to have been paid until EasyPower receive clear funds.

  2. Customer shall be liable for all costs incurred by EasyPower in the recovery of any amount or the enforcement of any rights which it has hereunder on an attorney and own Customer scale and cost of counsel as on brief whether incurred prior to or during institution of the legal proceedings or if judgement has been granted in connection with the enforcement of such judgement.

 

11.DELIVERY

  1. EasyPower will supply the Goods and provide Installation on the Installation Date at the Premises specified by Customer.

  2. Goods are quoted ExStock, custom made and or large quantities are subject to availability and lead times. Availability will be confirmed by EasyPower to Customer upon reception of the payment.

  3. Incoterms® 2010 shall at all times apply to the procurement of Goods.

 

12.WARRANTIES

  1. EasyPower warrants that (subject to other provision of these GTCs) upon delivery, the System shall be of satisfactory quality.

  2. EasyPower warrants to the Customer that the Installation will be carried out using reasonable care and skill.

  3. EasyPower warrants that has made every effort to materialize Customer requirements on solar power production and Customer acknowledges that System are entirely weather dependent and such EasyPower can not control those factors and can not make any warranties over power production figures from the System. Values presented are estimation and contain a margin of error which is deemed acceptable for engineering design practices.

  4. Product Warranties. as per T&Cs general warranties policy available at www.easypowersolar.co.za.

 

13.PERFORMANCE REMEDIES

  1. Within thirty 30 after Commissioning Date, Customer shall notify EasyPower in writing of any defective Goods or Services. EasyPower will at its absolute discretion (i) certifies that the defect caused by an act or default of the Customer including but not limited to excessive use, neglect, unauthorized interference, or misuse of the System (ii) that the System is defective by way or faulty design, workmanship or material and (iii) the System shall have been properly maintained by EasyPower; EasyPower shall at its option repair or replace the defective part of the System.

  2. EasyPower shall not be liable for a breach of the warranties if (i) The defect arises because the Customer failed to follow EasyPower’s written instructions as to the use or maintenance of the System (ii) The Customer alters or repair the System and (iii) if the Installation Charge (or any on-going maintenance charge) has not been paid by the due date.

  3. If EasyPower complies with clause 12.1 it shall have not further liability for a breach of the warranties in clause 11.1 and 11.2 in respect of the System

  4. When a claim by the Customer relating to a purported breach of the warranties in clause

11.1 and 11.2 is unproven, Customer shall be responsible for all cost and expense of EasyPower (including but not limited to call out charges) based upon EasyPower’s current cost information at that date.

 

14.INTELLECTUAL PROPERTY

  1. All intellectual property associated with design, calculations, plans or any other product developed by EasyPower with occasion of the System will be owned by EasyPower. Customer is fully aware that usage of these products for purposes not authorized in this GTCs or without previous EasyPower’s approval will generate unquantified damage to EasyPower

 

15.CONFIDENTIALITY

  1. Any information disclosed by or on behalf of EasyPower to Customer in connection with  the Contract is to be treated as confidential by Customer and shall be used only in connection with the System to be installed.

 

16.INDEMNITIES

  1. EasyPower shall indemnify, defend and hold Customer harmless against all Claims in respect of: (i) loss of or damage to property of EasyPower whether owned, hired, leased or otherwise provided by EasyPower (ii) personal injury including death or disease to any person employed by EasyPower; (iii) injury to or sickness, disease or death of any Third Party or loss of or damage to any property of any Third Party (in both instances to the extent caused by EasyPower); and (iv) any Consequential Loss of EasyPower arising out of or in connection with the Contract.

  2. Customer shall indemnify, defend and hold EasyPower harmless against all Claims in respect of: (i) loss of or damage to property of Customer whether owned, hired, leased or otherwise provided by Customer (ii) personal injury including death or disease to any person employed by Customer ; (iii) injury to or sickness, disease or death of any Third Party or loss of or damage to any property of any Third Party (in both instances to the extent caused by Customer); and (iv) any Consequential Loss of Customer arising out of or in connection with the Contract.

  3. All exclusions and indemnities given under this clause 16 apply irrespective of whether any claim is made in tort, contract or otherwise at law and apply irrespective of cause and

 

notwithstanding the negligence (including gross negligence) or breach of duty (whether statutory or otherwise) of the indemnified party or any other entity or party.

 

17.LIMITATION OF LIABILITY

  1. Subject to clause 16, EasyPower total liability in the Contract, tort including gross negligence or breach of duty shall be limited to the Installation Charge.

 

18.TERMINATION

  1. Should Customer fail, refuse or neglect to make payment of any amounts due and payable in term of the Contract, EasyPower shall be entitle in addition to any other rights or remedies it might have in Applicable Law, to (i) immediately cancel the Contract on written notice, (ii) remove its equipment without hindrance (iii) institute an action for damages.

  2. If Contract is cancelled by Customer for any reason whatsoever after reception of any payment the payment will be considered as a deposit and it will be forfeited to EasyPower and the balance of the Contract price as listed in the invoice shall become due and payable by Customer.

 

19.FORCE MAJEURE

  1. If EasyPower is prevented from or delayed in the carrying out its obligations under the Contract due to circumstances beyond the reasonable control of EasyPower including, without limitation acts of God, governmental actions, war or national emergency, acts of terrorism, protest, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either Party’s workforce) default on the part of any subcontractor, restraints or delays affecting

 

20.GOVERNING LAW

  1. The Contract is governed by, construed, interpreted and applied in accordance with the laws of South Africa.

 

21.DISPUTE RESOLUTION

  1. Any dispute or controversy arising out of or in connection with the Contract or the subject matter hereof, including any dispute concerning:

  1. the existence, validity, breach, termination or cancellation and effect of the Contract or the rectification thereof

  2. damages in contract, tort, equity or compensation for unjust enrichment or any other Claim, whether or not the rest of this Contract apart from this clause is valid and enforceable,

which is not amicably settled by the Parties within thirty (30) days of the dispute first arising, shall be finally settled by arbitration under the rules of AFSA in South Africa.

  1. The seat of the arbitration shall be South Africa. The language of the arbitration shall be English.

  2. The Parties agree that the decision or award of the arbitrator will be final and binding on the Parties.

  3. This clause is a separate, divisible agreement from the rest hereof and shall:

  1. not be or become void, voidable or unenforceable by reason only of any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority or  other cause relating in substance to the rest hereof and not to this clause. The Parties intend that any such issue shall be subject to arbitration in terms of this clause;

  2. be governed by and construed in accordance with the governing law in clause 20; and

  3. remain in effect even if the Contract terminates for whatever reason.

 

22.GENERAL

  1. The Contract constitutes the entire agreement between the Parties with respect to the supply and installation of the System and supersedes all prior negotiations,  representations or agreements either written or oral. The Parties will not be bound by any statement, representation, promise, inducement or understanding of any kind or nature not recorded herein.

  2. No amendment or consensual modification of, or to, this Contract, this clause 21.2 included, shall be effective unless made in writing and signed by the Parties.

  3. If any provision of the Contract is found by any court, arbitrator or entity of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability shall not affect the other provisions of the Contract and all provisions not affected by the invalidity or unenforceability shall remain in full force and effect.

  4. The Contract does not create a partnership, joint venture or similar association between the Parties and neither shall have the authority to represent or bind the other unless specifically agreed.

  5. Any notice under the Contract shall be delivered in writing in the English language personally, by email to the other

 

23.INTERPRETATION

  1. The captions and titles are for convenience only and do not affect the interpretation or construction of the Contract.

  2. The word “including” is not limiting, irrespective of whether non-limiting language such as” without limitation” are used with reference thereto.

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