SERVICE: 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 including the Schedule 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. “Commencement Date” means the date on which the Services to be provided in terms hereof shall commence, as set out in the Schedule;
2.1.5. “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);
2.1.6. “CPA” means the Consumer Protection Act, No. 68 of 2008;
2.1.7. “the Customer” means the customer whose details appear on the Quotation;
2.1.8. “Equipment” means the equipment in respect of which the Services are to be performed, as listed in the Schedule;
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. “the Schedule” means the Schedule containing specific details pertaining to this Agreement to which these Terms and Conditions are attached;
2.1.14. “Service Fee” means the fee payable to Airvent for Services rendered as provided in clause 7 herein;
2.1.15. “Service Period” means a service period of 1 (one), 2 (two) or 3 (three) years as indicated in the Schedule;
2.1.16. “Services” means services to be provided by Airvent to the Customer in terms of this Agreement as indicated in the Schedule;
2.1.17. “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. COMMENCEMENT AND DURATION
3.1. Notwithstanding the Signature Date hereof, this Agreement shall commence on the Commencement Date and shall continue in force for the Service Period, subject to provisions for earlier termination set out in clause 11 of this Agreement.
4. CONSUMER PROTECTION ACT
4.1. In the event that the Customer is a “Consumer” for the purposes of the CPA, the Customer’s attention is specifically drawn to clauses underlined in the text which:
4.1.1. may limit the risk or liability of Airvent; and/or
4.1.2. may create risk or liability for the Customer; and/or
4.1.3. may compel the Customer to indemnify Airvent; and/or
4.1.4. seems as an acknowledgement by the Customer of a fact.
5.1. Airvent shall service the Equipment by performing the Services for such Service Period and in such intervals as is indicated in the Schedule.
5.2. Services shall be carried out on the site upon which the Equipment is installed and being operated, unless circumstances require the Equipment to be removed in part or in whole for major overhaul or resetting of the installation as may be determined by Airvent in its sole discretion.
5.3. The Customer specifically acknowledges and agrees that the Manufacturer Warranty shall only apply if the necessary service and maintenance requirements of the Manufacturer and/or Airvent as advised by Airvent are complied with. Failure to comply with such service/maintenance requirements for the relevant period of the Manufacturer Warranty Period shall render the Manufacturer Warranty null and void.
5.4. The costs of removal of Equipment in terms of clause 5.2 above and/or repairs required due to involuntary stoppage will be charged in addition to the Service Fee, unless the Manufacturer Warranty Period is still applicable.
5.5. If a fault is found in the Equipment during servicing, Airvent shall continue with the service to such extent as the fault allows. Airvent will provide a separate quote to repair the fault and if approved by the Customer and the fault repaired, the service will be completed. Should the Customer not accept such quote, the service will be forfeited.
5.6. Should the Customer unit require R22 or R410A refrigerant, this will be quoted for separately by Airvent.
6. DUTIES OF THE CUSTOMER
6.1. For the duration of this Agreement, the Customer undertakes to:
6.1.1. Report immediately to Airvent any unsatisfactory operation of Equipment;
6.1.2. Accept the decision of Airvent as final as to the means and methods to be employed for the Service/s to be rendered herein;
6.1.3. Allow maintenance/servicing of the Equipment by only Airvent’s authorised engineers/representatives or suitably qualified persons authorised in writing;
6.1.4. Make available to Airvent all information which is reasonably required by Airvent to enable to Airvent to render the Services;
6.1.5. Allow and where necessary procure and ensure access to the premises where the Equipment is installed in order to enable Airvent to render the Services;
6.1.6. Ensure that the Customer’s staff comply with all relevant and reasonable directives of Airvent;
6.1.7. Maintain the Equipment in a good state of repair, fair wear and tear excepted;
6.1.8. Provide a waterpoint for all major services; and
6.1.9. Provide access to each indoor air conditioning unit and/or fan that is situated in the ceiling.
7. FEES AND PAYMENT TERMS
7.1. The Service Fees payable to Airvent are set out in the Schedule.
7.2. The Customer shall be liable to make payment to Airvent as follows:
7.2.1. a deposit of 50% (fifty percent) of the Service Fee prior to the commencement of Services;
7.2.2. the balance of the Service Fee within 7 (seven) Business Days of date of invoice; or
7.2.3. on monthly payment terms approved by Airvent and provided a debit order is signed by the Customer in favour of Airvent; or
7.2.4. on 30 (thirty) day credit, provided the Customer’s credit application is approved by Airvent.
7.3. All payments due to Airvent shall be made electronically to the Airvent bank account as set out in the Schedule and be made without deduction, set-off or withholding of any kind.
7.4. Unless otherwise stated, all Service Fees are 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 rendering the Services, from time to time, in addition to the Service Fees.
7.5. If the Customer fails to make due and timeous payment, Airvent shall be entitled without prejudice to any other right it may have by law or in terms of this Agreement to:
7.5.1. Suspend the provision of Services in respect of which payment has not been made from the due date until the date on which payment is received; and
7.5.2. Charge interest at the Prime Rate plus 2% (two percent) or any arrear amount from the due date until the date of final payment.
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.
8.2. In addition to the above, Airvent shall not be liable for any loss, liability, damages, whether direct, indirect or consequential or expense 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 6;
8.2.3. Failure by the Customer to allow Airvent to perform any or all of the Services required to maintain the Manufacturer’s Warranty, as the case may be;
8.2.4. Any delay by the Customer in allowing Airvent to provide such Services;
8.2.5. Suspension of the provision of Services by Airvent as a result of non-payment by the Customer as required in terms of clause 7.5.
9. WARRANTY AND GUARANTEE
9.1. Save as set out herein or in the Manufacturer’s Warranty and subject to any warranties implied in the CPA (to the extent that the CPA applies to this Agreement) Airvent does not make any representations nor give any warranty or guarantee of any nature whatsoever in respect of the Services to be provided herein, unless expressly given in writing.
9.2. Airvent warrants that:
9.2.1. it has the skills, expertise and experience necessary to render the Services; and,
9.2.2. it has all resources and systems necessary to be able to comply with its obligations in terms of the Agreement.
9.3. Airvent guarantees the workmanship:
9.3.1. for a period of 3 (three) months in respect of servicing; and
9.3.2. for a period of 6 (six) months in respect of repairs; and
9.3.3. for a period of 12 (twelve) months in respect of new installations.
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. FORCE MAJEURE
10.1. 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.
10.2. 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.
11. BREACH AND TERMINATION
11.1. 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:
11.1.1. 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 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;
11.1.2. the Customer commits an act which would be an act of insolvency as defined in the Insolvency Act No.24 1936;
11.1.3. any asset(s) of the Customer are attached under writ of execution;
11.1.4. the liquidation of the Customer, whether voluntary or compulsory and in either case whether provisionally, or finally;
11.1.5. the Customer enters into any compromise, composition, business rescue, or arrangement with all or any class of their creditors, or attempts to do so;
11.2. 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.
12. NOTICES AND DOMICILIA
12.1. 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 Quotation.
12.2. 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.
12.3. Any notice given and any payment made by a party to any of the others (“the addressee”) which:
12.3.1. 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;
12.3.2. 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;
12.3.3. 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.
12.4. 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.
12.5. 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.
13.1. 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.
13.2. 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.
13.3. 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).
13.4. The parties irrevocably agree that the decision of the arbitrator shall be final and binding on the parties to the arbitration and shall not be subject to appeal. A decision, which becomes final and binding in terms of this clause 13, may be made an order of court at the instance of any party to the arbitration.
13.5. 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 arbitrators.
13.6. The provisions of this clause 13 are severable from the rest of this Agreement and will remain in effect notwithstanding any termination or cancellation of this agreement.
14.1. 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.
14.2. 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.
14.3. 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.