ELECTROLEE CC — STANDARD TERMS & CONDITIONS

  1. Parties and Introduction

This document records the standard terms and conditions on which Electrolee cc, a close corporation duly registered under the company laws of South Africa (“Electrolee”), supplies Goods and Services to its customers. Electrolee manufactures and supplies electronic agricultural monitoring equipment and related products, and may install, repair, calibrate or service such equipment. “Customer” means the person, company, close corporation, trust or partnership that orders Goods or Services from Electrolee. Electrolee and the Customer are referred to together as “the parties” and individually as “a party”.

  • Purpose and Application

These terms and conditions apply to every Quotation issued, and every Order accepted, by Electrolee, to every Agreement concluded between Electrolee and a Customer for the supply of Goods or Services, and to all subcontractors engaged by Electrolee in fulfilling an Agreement. Their purpose is to record the basis on which Electrolee contracts with its Customers, including how an Agreement is formed, the price and payment of Goods and Services, the warranties and guarantees Electrolee offers, the parties’ respective liabilities, and how a dispute between them is to be resolved.

  • Definitions

In this Agreement, unless the context indicates otherwise, the following words and expressions bear the meanings assigned to them below, and cognate expressions bear corresponding meanings:

  • “Agreement” means these terms and conditions, together with the Quotation or Order accepted by Electrolee in terms of clause 5;
    • “Business Day” means any day other than a Saturday, Sunday or public holiday in South Africa;
    • “Condition Precedent” means a condition that must be fulfilled before the Agreement, or a right or obligation under it, comes into force;
    • “CPA” means the Consumer Protection Act 68 of 2008;
    • “Deposit” means the deposit amount stated in the Quotation or pro forma invoice issued by Electrolee, which the Customer must pay for an Order to be accepted in terms of clause 5;
    • “Goods” means the products, equipment, components, parts and accessories manufactured, supplied, repaired or serviced by Electrolee from time to time;
    • “NCA” means the National Credit Act 34 of 2005;
    • “Order” means a written order for Goods or Services placed by the Customer, whether pursuant to a Quotation or otherwise;
    • “POPIA” means the Protection of Personal Information Act 4 of 2013;
    • “Quotation” means a written quotation issued by Electrolee to a Customer for Goods or Services;
    • “Services” means installation, repair, calibration, technical support or other services supplied by Electrolee; and
    • “Tax Invoice” means a tax invoice as defined in the Value-Added Tax Act 89 of 1991, issued by Electrolee to the Customer.
  • Interpretation
    • Clause headings are for convenience only and do not affect interpretation.
    • Words importing one gender include the others; the singular includes the plural and vice versa; and a reference to a natural person includes a juristic person and vice versa.
    • A reference to a statute includes that statute as amended, re-enacted or replaced from time to time.
    • The words “including”, “in particular” and similar expressions are not words of limitation.
    • A reference to a day means a calendar day unless it is expressly described as a Business Day, and if any date for performance falls on a day that is not a Business Day, that date is extended to the next Business Day.
    • The parties agree that the rule of interpretation construing an agreement against its drafter does not apply, as each party has satisfied itself as to the Agreement’s terms and has had the opportunity to obtain legal advice on them.
  • Conditions Precedent and Formation
    • An Order is subject to the Condition Precedent that the Customer pays the Deposit, and that the Deposit is received by Electrolee in cleared funds.
    • No Agreement comes into existence, and no Order is binding on Electrolee, until that Condition Precedent is fulfilled.
    • By paying the Deposit, the Customer confirms that it has read, understood and accepts these terms and conditions, as published on Electrolee’s website at the time of payment, and is bound by them without the need for any signature.
    • Once fulfilled, the Agreement is treated as concluded in Pretoria, South Africa. Save for the Condition Precedent recorded in this clause, and save as expressly provided in clause 15 (Breach and Cancellation), the Agreement is not subject to any further condition.
  • Products, Services, Quotations and Orders
    • A Quotation is valid for 30 days from its date or until Electrolee issues a new price list, whichever occurs first, and is subject to the availability of the Goods or Services and correction of bona fide errors.
    • Once an Order has been accepted, Electrolee may, within 7 days of a sudden and material increase in its input costs, including currency fluctuations, amend the Quotation accordingly, failing which the quoted price stands.
    • It is the Customer’s responsibility to satisfy itself that the Goods or Services ordered are suitable for their intended application, and the Customer confirms that all necessary technical information has been discussed with Electrolee before the Order is placed.
    • An Order, and any variation to it, must be confirmed in writing, including by email, to be binding, and may not be revoked by the Customer once accepted.
    • Electrolee may provide alternative Goods of equivalent or better specification, quality and function, at the prevailing price, if the Goods ordered are superseded, discontinued or unavailable, provided it gives the Customer reasonable notice and does not substitute Goods that are incompatible with machinery or application.
    • Electrolee may split delivery or performance into the quantities and on the dates it determines, and all delivery, installation, performance and repair times communicated to the Customer are estimates only and not binding on Electrolee.
  • Delivery, Risk and Ownership
    • Delivery takes place at Electrolee’s place of business unless otherwise agreed. Any dispute as to whether delivery was faulty, incomplete or defective must be raised within 7 Days of delivery, failing which delivery is deemed to have been accepted as complete and in good order;
    • Risk in the Goods passes to the Customer on delivery.
    • All Goods remain the property of Electrolee until paid for in full, and Electrolee will only dispatch Goods by courier, or release them for collection, once the full purchase price has been received in cleared funds.
    • Where Electrolee engages a third party to transport the Goods, it does so on the Customer’s behalf and at the Customer’s risk and cost. At the request and expense of the customer, Electrolee will take out transport insurance on the products so delivered.
  • Repairs and Evaluation Goods
    • The Customer must return any defective movable Goods to Electrolee’s premises at its own cost, in suitable packaging, and bears the risk of the Goods for the duration of the repair.
    • If an item handed in for repair remains uncollected 30 days after Electrolee has given the Customer written notice that the repairs are complete, Electrolee may give a further 7 days’ written notice of its intention to sell the item, and, if it remains uncollected, may sell it at a fair value, applying the proceeds first to the cost of the repairs and any storage charges, interest and legal costs and accounting to the Customer for any surplus.
    • All repairs carry a workmanship warranty of 6 months or any longer warranty in terms of the CPA.
  • Intellectual Property
    • The Customer acknowledges Electrolee’s copyright, trademarks and other intellectual property in its products, software, documentation and marketing material, and may not copy, reverse-engineer or reproduce any of it without Electrolee’s prior written consent.
    • Without limiting any other remedy available to Electrolee, including an interdict, a Customer who infringes this clause must pay Electrolee, as pre-estimated liquidated damages, 10 times the list price of the product or material infringed, which the parties agree is a genuine pre-estimate of Electrolee’s likely loss and the cost of enforcement, without Electrolee having to prove its actual loss. Any subsequent claim for damages shall take this amount into consideration.
  • Invoicing and Payment Terms
    • The amount reflected in a Tax Invoice is due and payable, without deduction or set-off, unconditionally, with the Deposit payable on Order and the balance payable before the Goods are dispatched or collected, and proof of payment must be provided on request.
    • The Customer has no right to withhold payment, and no extension of the payment period applies unless agreed in writing by a duly authorised representative of Electrolee.
    • Once an Order has been accepted on payment of the Deposit, production will start and expenses incurred. Should the Customer change its order and such change is accepted by Electrolee, the Customer agrees to pay all additional costs resulting from its own acts or omissions, including suspension of work, changed requirements, or a failure or delay in providing information needed for work to proceed on schedule.
    • The amount due and payable to Electrolee may be proven by a certificate signed by any manager or representative of Electrolee, or by an independent auditor, whose authority need not be proven, and that certificate is prima facie proof of the Customer’s indebtedness.
  • No Credit and Interest
    • Electrolee does not extend credit or lend money to the Customer under this Agreement. The Customer orders and pays for Goods and Services in advance, and Electrolee dispatches Goods only once they have been paid for in full.
    • This Agreement is not a credit agreement under the NCA, and any account or credit facility with Electrolee is governed solely by Electrolee’s separate agent or account holder documents and not by this Agreement.
    • Interest at 2% per month is payable on any amount past its due date to Electrolee, calculated daily.
  • Separate Agreements and No Suretyship

These terms and conditions are separate from, and do not replace or amend, any agreement concluded between Electrolee and its agents or account holders, which remains governed by its own terms. No person is required to sign as surety, or to bind himself or herself personally, for the Customer’s obligations under this Agreement.

  1. Warranties and Guarantees
    1. New Goods are guaranteed for ____ months from delivery;
    1. Services are guaranteed for _____ months against faulty workmanship, and parts for _____ months. Save to the extent the CPA applies to the transaction and cannot lawfully be excluded, all other guarantees and warranties, including common law guarantees, are excluded.
    1. After a guarantee claim, Electrolee must be given 30 days from receipt of that notice to investigate and, where applicable, rectify the defect.
    1. Save where the Customer is a consumer entitled by the CPA to elect between replacement and refund, Electrolee’s liability is restricted, at its discretion, to repair.
    1. where a product replacement part must be imported, Electrolee will use reasonable efforts to source a replacement within 8 weeks and, where reasonably possible during peak planting or harvest periods, will offer a temporary replacement unit pending resolution.
    1. A guarantee is void if the Goods are tampered with, or they are used or stored outside the manufacturer’s specifications.
  2. Limitation of Liability
    1. Electrolee is not liable to the Customer for any indirect, special or consequential loss of any nature, including loss of profit, loss of yield, loss of production or downtime, howsoever arising and whether in contract, delict or otherwise, regardless of whether that loss was caused by the negligence, including the gross negligence, or wilful misconduct of Electrolee or its employees, save to the extent the CPA applies to the transaction and cannot lawfully be excluded
    1. Electrolee is further not liable to the Customer for any other loss or damage arising from the Customer’s misuse, abuse, neglect, incorrect installation or calibration, or use of the Goods otherwise than in accordance with Electrolee’s written instructions.
    1. Without derogating from this clause, and to the maximum extent permitted by law, Electrolee’s aggregate liability to the Customer arising out of or in connection with the Agreement, however arising, is limited to the total amount paid by the Customer for the specific Goods or Services giving rise to the claim.
    1. The Customer indemnifies Electrolee against any claim, cost or expense arising from Electrolee engaging a third party to transport Goods on the Customer’s behalf in terms of clause 7.
    1. The Customer indemnifies Electrolee against any loss or damage reasonably incurred by Electrolee in the lawful exercise of its rights under the Breach and Cancellation clause, save to the extent caused by the gross negligence, wilful misconduct or unlawful conduct of Electrolee or its representatives.
  3. Breach and Cancellation
    1. If the Customer fails to pay any amount when due, or breaches any other term of this Agreement and fails to remedy that breach within 10 Business Days of written notice to do so, Electrolee may, without prejudice to any other remedy available to it:
      1. institute action against the Customer for the amount due together with interest, at the Customer’s expense;
      1. cancel the Agreement, claim damages and recover any Goods that remain Electrolee’s property under clause 7. In the event of cancellation, the Customer is liable for the difference between the selling price and the value of any Goods recovered plus the reasonable cost of recovery.
      1. suspend further supply to the Customer with immediate effect.
    1. Electrolee may also cancel an Order, without first affording the Customer an opportunity to remedy, if the Customer, or any director, member or owner of the Customer, is provisionally or finally sequestrated, liquidated, or placed under business rescue or if production is made impossible due to something beyond Electrolee’s reasonable control.
    1. Electrolee may, at its sole discretion, institute proceedings for payment of an undisputed debt in the Magistrate’s Court having jurisdiction or the Gauteng Division of the High Court, Pretoria, notwithstanding the amount of the claim.
    1. The Customer is liable for Electrolee’s legal costs on the attorney-and-client scale, and for any tracing, collection or valuation costs, incurred in recovering amounts owed or enforcing the Agreement, and agrees that Electrolee will not be required to furnish security for costs.
  4. Disputes and Dispute Resolution
    1. Any dispute arising from or relating to the Agreement, other than a claim for payment of an undisputed debt or an application for urgent interdictory relief, must be referred to arbitration in accordance with the rules of the Arbitration foundation of South Africa (AFSA) in Pretoria, before a single arbitrator appointed by agreement or, failing agreement, by the AFSA.
    1. The arbitrator decides costs, and the arbitration is to be conducted on the papers where appropriate;
    1. the arbitrator’s decision is final and binding, without prejudice to either party’s right to approach a competent court for urgent interdictory relief, or to enforce the arbitrator’s award.
  5. Domicile and Notices
    1. The Customer chooses, as its address for the giving or service of any notice or legal process (domicilium citandi et executandi), the address recorded in the Order or Quotation accepted by Electrolee, unless it notifies Electrolee in writing of a different address in South Africa.
    1. A notice is valid if delivered by hand, sent by prepaid registered post, or emailed to the address most recently recorded in writing by the Customer, and is deemed received 5 days after posting, 24 hours after emailing, or on hand delivery
    1. The Customer must inform Electrolee in writing within 7 days of any change of its address or contact details.
  6. Personal Information
    1. Electrolee processes the Customer’s personal information in accordance with POPIA and its privacy policy, available on request, for purposes of concluding and administering an Agreement, processing payments, arranging delivery of Goods, and complying with its legal obligations, including by disclosing it to couriers, banks and payment service providers to the extent necessary for those purposes.
    1. The Customer may exercise any right of access, correction or objection available to it under POPIA by contacting Electrolee’s Information Officer at [insert contact details].
  7. General
    1. No indulgence, extension of time or relaxation granted by Electrolee affects its rights under this Agreement or constitutes a waiver of them, and Electrolee is not estopped from exercising any right because it has previously failed to do so.
    1. Unless a specific price has been quoted and accepted, the Customer agrees to Electrolee’s standard rates for labour, call-out and related Services current when they are rendered, a copy of which is available on request.
    1. Each provision of this Agreement is severable, and if any provision is found invalid or unenforceable, the remaining provisions continue in force.
    1. An Order is subject to cancellation by Electrolee due to any circumstance beyond its reasonable control, including an inability to secure labour, power, materials or supplies, war, civil disturbance, riot, a state of emergency, strike, lockout or other labour dispute, fire, flood or drought, in which event Electrolee is released from any related contractual damages or penalty.
    1. This Agreement, and its interpretation, is governed by South African law.
    1. This Agreement, comprising these terms and conditions together with the Quotation or Order accepted by Electrolee, constitutes the entire agreement between the parties in respect of its subject matter, and supersedes all prior agreements, representations and understandings between them, whether written or oral;
    1. No addition to, variation of, or agreed cancellation of this Agreement is effective unless reduced to writing and agreed to by the Customer and a duly authorised representative of Electrolee. Electrolee may update these terms and conditions on its website from time to time, and the version published when the Deposit is paid applies to that Order.
    1. The person who places the Order or pays the Deposit on behalf of the Customer warrants his or her authority to bind the Customer to the terms of this Agreement.