Terms and Conditions of Sale
Air Conditioning SA (a division of Environmental Control Engineering (Pty) Ltd,No. 5 Naaf Street,Strydom Park, Randburg,Johannesburg,South Africa.
Tel: 011 791 2950
Fax: 011 791 2955
Registered in South Africa. Registered Number 1991/006085/07
“Seller” means Air Conditioning SA – a division of Environmental Control Engineering (Pty) Ltd – Registered in South Africa with company number 1991/006085/07 and shall be construed where applicable to include all employees, agents and subcontractors of that company;
“Buyer” means the person, partnership or company purchasing the Goods from the Seller;
“Goods” means the plant, machinery, materials, items and labour to be supplied by the Seller subject to this Conditions;
“Site” means such place to which the Buyer shall request the Seller to make delivery.
“Manufacturers” mean the company / supplier such as LG and DAIKIN who manufacture the air conditioning units.
2. Governing Conditions
2.1 All orders, however made, are accepted only upon these Conditions which shall override any terms or conditions incorporated or referred to by the Buyer in writing, orally or otherwise. No variation of these Conditions shall be incorporated into the contract between the Seller and the Buyer unless expressly accepted in writing by a director of the Seller.
2.2 No failure by the Seller to object to any terms or conditions incorporated or referred to by the Buyer in writing, orally or otherwise shall be deemed a waiver of these Conditions or an acceptance of the Buyer’s terms and conditions.
2.3 The Buyer acknowledges that these Conditions together with the express terms of the contract constitute and form the entire terms of this contract to the exclusion of any antecedent statement or representation whether oral, written or implied or whether contained in any advertisement particulars or other matters issued or in any correspondence entered into by the Seller. The Buyer further acknowledges that it has not entered into this contract in reliance upon any such statement or representation, other than the written specifications given by the Seller.
3. Placing Orders
3.1 Placing an order presumes knowledge and acceptance of these Conditions. Upon placing an order the Buyer shall receive an acknowledgement of the order in writing and/or through the online order system designated by Seller, if any; which does not constitute a binding contract until the Seller accepts the Buyer’s order by written confirmation and/or through such online system, as the case may be.
3.2 The Seller reserves the right to reject cancellation by the Buyer of an accepted order or any portion thereof. Cancellation of an accepted order needs to be approved in writing or through the online system designated by Seller, as the case may be by the Seller and the Buyer may be charged cancellation charges. Goods already delivered cannot be returned or exchanged and will be invoiced.
3.3. If any changes are made to an original order, the price, discount on or delivery date of that order are subject to change.
3.4 The Manufacturers have a policy of continuous technical improvement and accordingly reserve the right to make minor modifications to the technical specification and design of the Goods. Catalogues and similar publications are only sent by way of information and any technical information provided is an approximate guide. The Seller has no liability for any deviations from or mistakes in such information or for any errors of interpretation.
4. Price and Payment
4.1 The Seller’s quotation, unless previously withdrawn or revised in writing or through the online system designated by Seller, as the case may be, is valid for a period of 30 days (after which time it shall automatically expire) and is subject to the Seller’s acceptance of the Buyer’s order.
4.2 The Seller reserves the right to amend their prices during the financial year.
4.3 The Seller’s quotation includes only such goods, accessories and work as are specified thereon and (without limitation to the foregoing) does not include the cost of lighting, power, heat and water required and/or used during the installation and testing of the Goods at the Site, or any insurance or overtime working by the Seller.
4.4 All amounts stated in these Conditions to be payable by the Buyer are exclusive of Value Added Tax or any similar tax properly chargeable in respect of supplies under these Conditions and any other tax or duty and Buyer will pay all such Value Added Tax and other applicable taxes together with those amounts.
4.5 Each payment made by the Buyer must be calculated and made without, and free and clear of any deduction for set-off or counterclaim and any withholding for or on account of any tax or any other deduction.
4.6 Unless otherwise agreed in writing, the Buyer shall pay the invoice amount of the Goods and any other costs, charges or expenses provided for by these Conditions including Value Added Tax at the then current rate within 3 days from the date of the Seller’s invoice in immediately available funds, but the Seller reserves the right to require payment before delivery.
5.1 Failure by the Seller to make delivery on any particular date shall not entitle the Buyer either to cancel the order or the delivery or to repudiate this contract or to claim for any expenses, loss of profit, or any other consequential loss or damage whatsoever.
5.2 If the contract provides for the Seller to deliver the Goods, delivery shall be deemed to take place when the Goods arrive at the agreed destination or are ready for dispatch by the Seller to the order of the Buyer.
5.3 The Buyer undertakes that the Site will be safe at all times for the Seller and its vehicles carrying out delivery. The Buyer is responsible, at its own cost, for the provision of such labour and apparatus as is necessary for the offloading and positioning of the Goods on Site and shall give the Seller every assistance in effecting delivery.
5.4 If the contract provides for the Goods to be collected by or on behalf of the Buyer, the Seller shall give the Buyer reasonable notice in writing and/or orally of when and where Goods will be ready for collection.
5.5 The Seller may deliver the Goods in installments and each such installment shall be deemed to be the subject of a separate contract and no damage, non-delivery or shortage in relation to any such installment shall entitle the Buyer to any remedies in relation to any other installment or contract. If payment of any installment is not made in accordance with clause 4, the Buyer shall be liable to the Seller for any costs incurred in connection with manufactured or partly manufactured Goods acquired by the Seller for the Buyer, in addition to the other rights and remedies available to the Seller.
6.1 Risk shall pass to the Buyer on delivery of the Goods.
6.2 If delivery does not take place as a result of any act or omission of the Buyer or if the Buyer fails to collect the Goods as set out in clause 5, then delivery shall be deemed to have taken place and risk shall pass to the Buyer, who shall indemnify the Seller in full against any expense, cost or loss incurred by the Seller including, without limitation, storage and transport costs.
6.3 The Buyer shall examine any Goods delivered upon delivery. If the Goods or any part thereof are received in a damaged condition or are not received, the Seller will accept no responsibility for such damage and or loss unless the Buyer advises the Seller in writing of the damage or loss within 3 working days from the earlier date of actual physical delivery of the Goods or the date of installation of the Goods (save where the damage is a latent defect in the Goods in which case clause 12 shall apply). The Buyer must then afford the Seller reasonable opportunity to inspect any damage or verify any loss and shall immediately return the damaged Goods to Seller.
6.4 The Seller’s sole responsibility upon any damage or loss is to repair or replace the Goods which prove to be lost or defective (or at the Seller’s option the defective part(s)), as soon as is reasonably practicable, provided that they are returned to the Seller by the Buyer. Whether the remedy is repair or replacement shall be at the option of the Seller and such repair or replacement shall be free of charge. Subject to the provisions of clause 12 the Seller shall have no further liability to the Buyer.
6.5 If the Buyer shall fail to comply with clause 6.3, the Goods shall be deemed to be in accordance with the contract and the Buyer shall be bound to accept delivery and shall make payment without any deduction in accordance with these Conditions.
6.6 The Seller will not be liable for any claims resulting from loss or damage to the Goods occurring after delivery.
7. Force Majeure
7.1 If the Seller is prevented from performing the contract by any cause beyond its reasonable control, however arising, then it may by written notice to the Buyer terminate the contract.
7.2 In such event, the Buyer shall pay to the Seller all reasonable costs incurred by the Seller at the date of such notice in relation to its partial and or attempted performance of its obligations hereunder but, subject thereto, neither the Seller nor the Buyer shall be under any liability whatsoever to the other in connection with the contract.
If the Seller is unable, for any reason, to supply the total demand for Goods of the contract description, the Seller may allocate its available supply of such Goods among any and all Buyers on such basis as the Seller may deem fair and practical without liability for any failure of performance which may result. The Buyer shall not be entitled to reject such Goods for short delivery.
9. Works and Specification
9.1 Where existing equipment is to be used in connection with the Goods, the Buyer shall be fully and solely responsible for it.
9.2 Any adaptation of the standard specification of the Goods shall be made upon the full and sole liability of the Buyer. Where the standard specification of the Goods is adapted, whether by the Seller at the request of the Buyer, or by the Buyer itself, the Buyer agrees to indemnify (and shall keep so indemnified) the Seller in full against any claim resulting from any such variation (whether or not arising out of the negligence of the Seller, its servants, agents or subcontractors). In the event of any adaptation made by the Seller upon request of the Buyer, the Buyer shall make such payment in respect thereof as the Seller may reasonably demand.
9.3 The Buyer shall be responsible for ensuring that the Goods are sufficient and suitable for the Buyer’s purposes (whether such Goods have been adapted from their standard specification or not) and the Seller shall have no liability to the Buyer in the event that the Goods are not sufficient and suitable for the Buyer’s purposes.
9.4 Unless otherwise expressly agreed in writing, the Seller shall not be responsible for any errors, omissions or defects in any goods, equipment, machines, parts, drawings, designs, specifications, test results, reports or other information supplied to the Seller by the Buyer or the Buyer’s employees, agents, sub-contractors or representatives and the Buyer agrees to indemnify and keep indemnified the Seller against all claims and liabilities incurred by the Seller resulting from such errors, omissions or defects.
It is the responsibility of the Buyer to install and commission the Goods and to ensure its employees, agents and subcontractors or any other persons used by the Buyer to install and commission the Goods are fully trained to do so and that the terms of any instructions or manuals provided with the Goods are followed.
11. Health, Safety and Environmental
11.1 The Buyer shall ensure that all Goods shall be used strictly in accordance with any relevant information, instructions or advice which the Seller or the manufacturer of the Goods may make available with or in connection with the Goods.
11.2 The Buyer shall be responsible for all costs, charges, and expenses arising from or in connection with the decommissioning, recovery, recycling, and disposal of all or part of the Goods and shall not seek to recover such expenses or contribution from the Seller.
11.3 The Buyer is responsible for obtaining and complying with all relevant licenses, permissions, permits and consents from appropriate regulatory bodies and for complying with any other lawful authority in connection with the storage, installation, operation, use, maintenance, repair, transportation, decommissioning, recovery and eventual disposal of the Goods.
11.4 Where the Buyer sells all or part of the Goods to another party, the Buyer shall enter into a similar covenant with that party.
12. Warranties and Liability
12.1 This warranty is given on condition that the maintenance of the Goods has been carried out in accordance with the manufacturers’ instructions by a dealer / installer / maintenance company authorized by the air conditioning manufacturer.
12.2 Subject to clause 17.1 and unless otherwise agreed in writing, the Goods are guaranteed under manufacturers’ warranty for a period of 1 year upon delivery. This warranty is limited to the repair or replacement ex factory of the parts found defective. Unless otherwise agreed in writing, the Seller shall not be liable for repayment of replacement costs nor for any incidental, consequential or special damages.
12.3 To claim under the warranty, the Buyer shall submit to the Seller adequate proof that the Goods are defective, as required by the Seller. Unless otherwise agreed in writing, claims with regard to the Goods will only be accepted if they are notified within 12 months after delivery of the Goods.
12.4 The warranty referred to in clause 12.2 does not apply if:
(a) the Goods have been modified by the Buyer;
(b) the Goods have been incorrectly installed by the Buyer;
(c) defects in the Goods have been caused by the act, neglect, omission or default of the Buyer or any third party, fair wear and tear or abnormal working conditions;
(d) any remedial work in respect of the Goods has been carried out by third parties instructed by the Buyer without the prior written approval of the Manufacturer including, but not limited to, servicing, alteration and repair of the Goods;
(e) if the installation and operation instructions (if any) and any instructions issued by the manufacturer, are not followed.
12.5 The Seller only acts in its capacity as seller and not as an installer or consultant and the Seller is not responsible for advice given by its representatives concerning the installation of the Goods, save in relation to all or any part of the Goods which the Seller has installed with the written agreement of an authorized representative of the Seller (excluding any agent or subcontractor of the Seller) to the installation and to the terms of such installation for claims.
12.6 The Seller shall not be liable to the Buyer:
(a) for any damage to persons or property, however arising;
(b) for defects, in or in any way connected with the Goods, caused by the act, neglect, omission or default of the Buyer or any third party, fair wear and tear or abnormal working conditions;
(c) for any remedial work in respect of the Goods, carried out by third parties instructed by the Buyer without the prior written approval of the Seller including, but not limited to, servicing, alteration and repair of the Goods;
(d) for claims if the Seller’s installation and operation instructions (if any) and any instructions issued by the manufacturer, are not followed. The Seller reserves the right to charge for remedial works in these circumstances;
(e) possible defects in manufacturing the Goods or the conception of the raw materials used;
(f) for any other defects in the Goods not falling within paragraphs (a) to (e) of this clause, unless notified to the Seller by the earlier of 14 days of delivery of the Goods or installation of the Goods or occurrence of a malfunction by a latent defect; and
(g) for any special, indirect, consequential or economic loss (howsoever arising) including, but not limited to, loss of profit, loss of production, loss of business.
12.7 The Seller’s aggregate liability to the Buyer in respect of any occurrence or series of occurrences attributable to the same cause, whether for negligence, breach of contract, misrepresentation or otherwise, shall in no circumstances exceed the price paid by the Buyer to the Seller in respect of the Goods in question.
12.8 The Buyer’s remedy in respect of any claim for which the Seller is liable in terms hereof shall be limited to, at the sole option of the Seller, repair or replacement of the item in question or refund of the purchase price (if paid).
12.9 The Seller shall not be liable to the Buyer (including, but without limitation, in negligence) or be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control.
12.10 The Buyer shall indemnify the Seller against all claims (including the cost of any legal proceedings) for the death of or injury to any person or for the damage to or loss of any property made by any person against the Seller either under any statute or at common law which may arise out of or be in any way connected with the execution of the contracted works or the installation, operation or use of the Goods except where the same is due to the negligence, omission or default of the Seller.
13. Personal Data
We may use your personal data for the purposes of fulfilling your order, providing goods and services to you, managing our relationship with you, for our internal accounting and processes and for legal or regulatory purposes.
14.1 The invalidity or unenforceability for any reason of any terms of these Conditions shall not prejudice or affect the validity or enforceability of the remainder.
14.2 The Buyer shall not be entitled, without the prior consent in writing of the Seller, to assign its rights under the contract.
14.3 Any notice required or permitted to be given under these Conditions shall be in writing and shall be sent by recorded delivery 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 notice. In proving service it shall be sufficient to prove that the notice was properly addressed and posted.
14.4 No waiver by the Seller of any of the terms of these Conditions shall release the Buyer from full performance of the remaining terms, and no waiver by the Seller of any breach of the terms of these Conditions shall be a waiver of any subsequent breach of the same or any other term of this Conditions. No failure to exercise, nor delay or omission by the Seller in exercising, any right, power or remedy conferred on it under these Conditions or provided by law shall except with the express written consent of that party affect that right, power or remedy; or operate as a waiver of it.
14.5 If any order is made by two or more Buyers jointly, the obligations of those Buyers under the contract shall be joint and several.
14.6 This Contract shall be governed by and construed in accordance with the laws of South Africa and any dispute shall be referred to the exclusive jurisdiction of the South African Courts.
14.7 The Seller and the Buyer do not intend that any provision of these Conditions shall be enforceable by any person who is not a party to the contract.
14.8 We reserve the right, at our sole discretion, to change, modify or otherwise alter these terms and conditions at any time. Such modifications shall become effective immediately