NEW INSTALLATION: TERMS AND CONDITIONS
1.1. The parties to this agreement are –
1.1.1. Airvent Airconditioning and Ventilation Cape (Pty) Ltd (Registration Number 2007/025744/07); and
1.1.2. the Customer, details of whom are set out on the Quotation.
1.2. The parties agree as set out below.
2. INTERPRETATION AND DEFINITIONS
2.1. In this agreement, unless inconsistent with the context, the following words and expressions shall bear the meanings assigned thereto and cognate words and expressions shall bear corresponding meanings:
2.1.1. “Agreement” means the agreement reached between the Parties set out herein and any other annexures hereto;
2.1.2. “Airvent” means Airvent Airconditioning and Ventilation Cape (Pty) Ltd, Registration number 2007/025744/07, a private company duly registered in accordance with the laws of the Republic of South Africa, of 11 Tee Jay Street, Brackenfell, 7560;
2.1.3. “Business Day” means any day other than a Saturday, Sunday or public holiday in the Republic of South Africa;
2.1.4. “Consumer” means a Customer who constitutes a “consumer” in terms of the CPA, being: (i) a natural person; or (ii) a juristic person, whose asset value or annual turnover at the time of signature of this Agreement is less than R 2,000,000.00 (two million Rand);
2.1.5. “CPA” means the Consumer Protection Act, No. 68 of 2008;
2.1.6. “the Customer” means the customer whose details appear on the Quotation;
2.1.7. “Equipment” means the airconditioning equipment to be installed in the premises of the Customer as listed on the Quotation;
2.1.8. “Fee” means the fee payable to Airvent by the Customer for the installation of the Equipment as set out in the Quotation and further described in clause 7 hereof;
2.1.9. “Manufacturer” means the manufacturer of the Equipment;
2.1.10. “Manufacturer Warranty” means the warranty provided by the Manufacturer of the Equipment specifying that any replacement parts provided in terms of defective parts will be provided free of charge (labour excluded) for the duration of the Manufacture Warranty Period (and provided Equipment is serviced yearly);
2.1.11. “Manufacturer Warranty Period” means the period for which the manufacturer warranty is valid, as advised by Airvent;
2.1.12. “Prime Rate” means the publicly quoted basic rate of interest per annum from time to time (as certified by any officer of the hereinafter mentioned bank, whose appointment and authority it shall not be necessary to prove and which certification shall be final and binding on the parties) at which Standard Bank lends money in South African Rand on unsecured overdraft to first class corporate borrowers in general on the basis of such interest being compounded monthly in arrear and calculated on a 365 (three hundred and sixty five) day year factor, irrespective of whether or not the year is a leap year;
2.1.13. “Quotation” means the written quotation provided by Airvent to the Customer setting out the Fee and payment terms for the specific Equipment and installation thereof; and
2.1.14. “Signature Date” means the date on which this Agreement is signed by the Party signing last in time.
2.2. In this Agreement, words importing the singular shall include the plural, and vice versa, and words importing the masculine gender shall include the feminine and neuter genders, and vice versa, and words importing persons shall include partnerships, trusts and bodies corporate, and vice versa.
2.3. The headings to the paragraphs to this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
2.4. Each of the provisions contained in this Agreement shall be construed as independent of every other such provision to the effect that if any provisions of this agreement shall be determined to be illegal, invalid and/or unenforceable then such determination shall not affect any other provisions of this agreement all of which shall remain in full force and effect.
2.5. The parties acknowledge and agree that they have had equal opportunity to take legal advice and to negotiate and amend this agreement and the “contra proferentum-rule” (and any other rule of interpretation that provides that this agreement shall be interpreted against the party responsible for the drafting or preparation of this Agreement) shall not apply.
2.6. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive clause in the body of the Agreement, notwithstanding that it is only contained in the interpretation clause.
3. CONSUMER PROTECTION ACT
3.1. In respect of Customers who are “Consumers” for purposes of the CPA, Customers’ attention is specifically drawn to clauses underlined in the text which:
3.1.1. may limit the risk or liability of Airvent; and/or
3.1.2. may create risk or liability for the Customer; and/or
3.1.3. may compel the Customer to indemnify Airvent; and/or
3.1.4. seems as an acknowledgement by the Customer of a fact.
4. DELIVERY AND INSTALLATION OF EQUIPMENT
4.1. Airvent shall deliver and install the Equipment to the Customer at the address nominated by the Customer therefor on the front page.
4.2. Airvent shall use its reasonable endeavours to meet the stipulated dates and times for delivery and installation of the Equipment, but shall not be liable in any manner whatsoever to the Customer for any loss arising from any failure or delay in delivery and/or installation of the Equipment resulting from any cause outside the control of Airvent unless such failure or delay is directly attributable to the gross negligence of Airvent.
4.3. Unless the Customer proves otherwise and without limiting the rights of the Customer pursuant to the CPA, if applicable, signature by the Customer on any acceptance certificate provided by Airvent and/or its service providers upon the installation of the Equipment at the Customer’s premises or any other written form of acceptance shall be deemed to be an acknowledgement by the Customer that it has fully inspected and approved the installation of the Equipment, including all of the components of the Equipment, and that the Equipment and components thereof have been received and installed to the full satisfaction of the Customer.
4.4. Subject to the Customer’s rights to have defective products returned, repaired or monies paid in respect thereof refunded pursuant to the CPA, insofar as the CPA is applicable to the Agreement and subject to Section 61 of the CPA, the Customer shall have no claim against Airvent of whatsoever nature should, after such acceptance by the Customer, it transpire that the Equipment and/or any component thereof is unacceptable to the Customer for any reason.
5. DUTIES OF THE CUSTOMER
5.1. The Customer shall, at its own cost and expense, ensure that:
5.1.1. the installation area/s, electrical outlet/s, connection requirements and access way/s are suitable for the installation, passage and electrical connection of the Equipment;
5.1.2. a dedicated electrical supply point (external isolator) as required by law and compliant with council requirements is installed within 1 (one) meter of each condensing (outdoor) unit, unless Airvent is specifically required by the Customer to perform this installation on the Customer’s behalf;
5.1.3. any unsatisfactory operation of the Equipment is reported immediately to Airvent;
5.1.4. all Equipment is serviced timeously;
5.1.5. if the premises where the Equipment is to be installed is a construction site (building under construction and/or renovation) an appropriate condensate (drain) point is installed by a third party (plumber) within half a meter (0.5m) of each evaporating (indoor) unit;
5.1.6. the ceiling of the premises is equipped with a trap door in order to provide Airvent access in the event that/where indoor air-conditioning unit/s and/or fan/s requires repair and needs to be removed from the premises.
6. RISK, OWNERSHIP AND MAINTENANCE OF EQUIPMENT
6.1. Ownership of the Equipment shall remain with Airvent until such time as the full Fee has been paid by the Customer.
6.2. Risk in and to the Equipment shall pass to the Customer on delivery and installation at the premises of the Customer.
6.3. The Customer shall use the Equipment with care and subject to any instructions issued by the Manufacturer or Airvent from time to time.
6.4. The Customer shall maintain the Equipment in a good state of repair, fair wear and tear excepted. The Customer shall make good at its own expense any damage caused to the Equipment from whatsoever cause arising, including, without limiting the generality of the aforegoing, any damage arising from the negligence of the Customer or its personnel.
6.5. The Customer acknowledges and agrees that the Manufacturer Warranty shall only apply if the Equipment is serviced and/or repaired at such intervals and for such period as is recommended by Airvent, and only if such services and repairs are rendered by Airvent.
7. FEE AND PAYMENT TERMS
7.1. The Fee payable to Airvent shall be the Fee set out on the Quotation and accepted by the Customer.
7.2. The Customer shall be liable to make payment of the Fee as follows:
7.2.1. a deposit of 50% (fifty percent) on acceptance of the Quotation;
7.2.2. the balance within 7 (seven) days of installation of the Equipment, or on 30 (thirty) days’ credit, provided the Customer’s credit application was approved of by Airvent; or
7.2.3. as otherwise specified on the Quotation.
7.3. All payments shall be made to the bank account of Airvent as set out on the front page without deduction, set-off or withholding of any kind.
7.4. Unless otherwise stated, the Fee is exclusive of VAT and other statutory levies, taxes and costs and the Customer shall be liable to pay VAT and all rates, taxes and levies as may be imposed on Airvent in the installation of the Equipment.
7.5. If the Customer fails to make due and timeous payment of the Fee or any other amount due to Airvent, Airvent shall be entitled without prejudice to any other right it may have by law or in terms of this Agreement to charge interest at the Prime Rate plus 2% (two percent) on any arrear amount from the due date of payment until the date of final payment.
7.6. Unless specifically stated, the Customer hereby acknowledges and agrees that the following costs are not included in the Quotation, namely:
7.6.1. all painting or builders work;
7.6.2. any damage incurred to internal conduits, electrical cabling, or any other hidden cables, piping etc. that are recessed into walls, unless clearly specified by the Customer in writing prior to commencement of work;
7.6.3. mechanical drawings for council approval as well as mechanical certification;
7.6.4. concrete core drilling (unless specified). Should it be discovered that concrete drilling is required during the installation this will be quoted for separately;
7.6.5. services, maintenance and repairs;
7.6.6. any additional work required if Airvent have quoted specifically to install the electrical isolator and the existing electrical installation in the building is not council compliant or if there is not sufficient electrical capacity available.
8. LIMITATION OF LIABILITY
8.1. Airvent shall not be liable for any indirect, special or consequential damages (including but not limited to) loss of business, loss of profits, anticipated savings, loss of use, business interruption etc., howsoever arising during or as a result of the installation of Equipment at the premises of the Customer.
8.2. In addition to the above, Airvent shall not be liable for any loss, liability, damages, whether direct, indirect or consequential of whatsoever nature and howsoever arising which is caused by or attributed to:
8.2.1. the negligence of the Customer in the use or maintenance of the Equipment;
8.2.2. failure by the Customer to comply with any of its obligations set out in clause 5;
8.2.3. failure by the Customer to adhere to any reasonable instructions of Airvent in respect of the installation, use or maintenance of the Equipment;
8.2.4. failure/delay by the Customer to allow Airvent access to perform any or all of the services required to maintain the Manufacturer’s Warranty and/or Extended Warranty, as the case may be.
8.3. Airvent shall not be liable for any loss or damage of whatsoever nature, including consequential loss or damage and loss of profit arising out of or as a result of a force majeure event as set out in clause 11.
8.4. Airvent shall not be liable for any losses or damages (including consequential damages) caused as a result of the invalidity of the Manufacturer Warranty due to failure/delay to have the Equipment serviced as required.
9. WARRANTY AND GUARANTEE
9.1. The Customer acknowledges having examined the installation of the Equipment and all components thereof or caused the Equipment and components to be examined and satisfied itself as to its good condition and service ability and agrees that save for any warranties implied in the CPA, to the extent that the CPA applies to this Agreement, and to Section 61 of the CPA, and save for any express warranties set out in the Manufacturer Warranty, no warranty as to the condition, quality or model of the Equipment or as to its fitness for any purpose has been given, expressly or tacitly, and any implied warranty is hereby expressly excluded.
9.2. Airvent guarantees the workmanship:
9.2.1. for a period of 3 (three) months in respect of servicing; and
9.2.2. for a period of 6 (six) months in respect of repairs; and
9.2.3. for a period of 12 (twelve) months in respect of new installations.
9.3. Airvent warrants that:
9.3.1. it has the skills, expertise and experience necessary to render the Services; and,
9.3.2. it has all resources and systems necessary to be able to comply with its obligations in terms of the Agreement.
9.4. The Customer acknowledges and agrees that the Manufacturer Warranty shall only apply if the Equipment is serviced and/or repaired at such intervals and for such period as is recommended by Airvent.
10. CANCELLATION OF ORDER
10.1. In the event that a Customer should cancel an order prior to delivery and installation, Airvent may impose a reasonable cancellation fee which fee will depend on the nature of the order, the length of notice of cancellation prior to delivery, the reasonable potential to find alternative clients for the order and the reason for cancellation.
10.2. No refunds will be given on deposits paid by the Customer in the event of cancellation by the Customer of already ordered/custom made special order goods.
10.3. Airvent may cancel any order received in respect of an accepted Quotation, which has not yet been executed, or has only been partially executed, if the Customer commits a breach of any of the terms of this Agreement and/or of any accepted Quotation (including any warranty, representation or undertaking) and fails to remedy such breach after having been given 7 (seven) calendar days written notice to remedy the breach.
11. FORCE MAJEURE
11.1. If Airvent is prevented or restricted directly or indirectly from carrying out all or any of its obligations under the Agreement by reason of an event of force majeure, then Airvent shall be relieved of its obligations hereunder during the period that such event continues (and for so long as Airvent is so prevented from fulfilling its obligations, then the corresponding obligations of the Customer shall be suspended to the corresponding extent), and Airvent shall not be liable for any delay and/or failure in the performance of its obligations under the Agreement during such period, provided that if the force majeure event continues for a period longer than 14 (fourteen) Business Days, either party may cancel this Agreement.
11.2. An event of force majeure shall mean any event or circumstance which is not within the reasonable control of Airvent including vis major, casus fortuitus, any act of God, strike, theft, fire, explosion, riot, insurrection or other civil disorder, war (whether declared or not) or military operations, interruption or failure in power supply, the downtime of any communications line and/or unavailability of any telecommunications facility or infrastructure, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority, any court order, export control and shortage of transport facilities.
12. BREACH AND TERMINATION
12.1. An “event of default” shall have occurred if any of the following events, each of which are considered severable and distinct from the others, takes place, namely:
12.1.1. a breach of any term of this Agreement by the Customer, including but not limited to failing to pay in full any amount payable on the due date for payment where the Airvent has notified the Customer thereof in writing and despite such notification the Customer fails to remedy such breach within 7 (seven) Business Days after notice was sent;
12.1.2. the Customer commits an act which would be an act of insolvency as defined in the Insolvency Act No.24 1936;
12.1.3. any asset(s) of the Customer are attached under writ of execution;
12.1.4. the liquidation of the Customer, whether voluntary or compulsory and in either case whether provisionally, or finally;
12.1.5. the Customer enters into any compromise, composition, business rescue, or arrangement with all or any class of their creditors, or attempts to do so;
12.1.6. Upon the occurrence of an event of default, without prejudice to any other rights which may thereupon be available to it in terms of this Agreement or at law, Airvent shall have the right to claim specific performance or terminate this Agreement and to claim and recover immediate payment of any amount outstanding under this Agreement (whether or not such amounts are then due and payable) together with interest accrued and costs with a claim for damages.
13. NOTICES AND DOMICILIA
13.1. Each of the parties chooses domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from this Agreement at the address set out in clause 2 of this Agreement in the case of Airvent, and in case of the Customer as set out on the front page.
13.2. Each of the parties shall be entitled from time to time, by written notice to the other to vary its domicilium to any other address which is not a post office box or poste restante and which is in the Republic of South Africa.
13.3. Any notice given and any payment made by a party to any of the others (“the addressee”) which:
13.3.1. is delivered by hand during the normal business hours of the addressee at the addressee’s domicilium for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee at the time of delivery;
13.3.2. is posted by prepaid registered post (or its equivalent) to the addressee at the addressee’s domicilium for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee on the fifth day after the date of posting;
13.3.3. is transmitted by telefax or e-mail to the addressee shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee within 2 (two) hours of transmission.
13.4. Where, in terms of this agreement any communication is required to be in writing, the term “writing” shall include communications by e-mail or telefax. Communications by e-mail, or telefax shall, unless the contrary is proved by the addressee, be deemed to have been received by the addressee one hour after the time of transmission.
13.5. Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by one of the parties from another including by way of facsimile transmission or electronic mail shall be adequate written notice or communication to such party.
14.1. Any dispute, question or difference arising at any time between the parties to this Agreement out of or in regard to any matters arising out of, or the rights and duties of any of the parties hereto, or the interpretation of, or the termination of, or any other matter arising out of the termination or, or the rectification of this agreement shall be submitted to and decided by arbitration by notice given by any party to the other in terms of this clause.
14.2. Such arbitration shall be held in Stellenbosch and in accordance with the rules of the Arbitration Foundation of South Africa or its successor(s) from time to time.
14.3. There shall be a number of 1 (one) arbitrator being independent and suitably qualified as may be agreed between the parties in writing and, failing such agreement, the arbitrator shall be appointed by the Arbitration Foundation of South Africa or its successor(s).
14.4. Nothing herein contained shall be deemed to prevent or prohibit any party from applying to court for a temporary interdict or other relief of an urgent and temporary nature, pending the decision or award of the arbitrator.
14.5. The provisions of this clause 14 are severable from the rest of this Agreement and will remain in effect notwithstanding any termination or cancellation of this agreement.
15.1. No alteration, cancellation or addition hereto shall be of any force or effect unless reduced to writing and signed by all parties to this Agreement or their duly authorised representatives.
15.2. This document contains the entire agreement between the parties and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
15.3. No indulgence, leniency or extension of time which Airvent may grant or show to the Customer, shall in any way prejudice Airvent or preclude Airvent from exercising any of its rights in the future.
Each party shall bear its own costs incurred in connection with the preparation of this Agreement and all attendances incidental thereto.