Terms & Conditions
SHAKS SOLAR ENERGY (PTY)LTD TERMS AND CONDITIONS OF SALE
In these Terms and Conditions of Sale, SHAKS SOLAR ENERGY(PTY)LTD is herein referred to as the “Seller” and the customer or person or entity purchasing goods (“Goods”) and/or licensing software and/or firmware which are preloaded, or to be loaded into Goods (“Software”) from Seller is referred to as the “Buyer.” “Seller Affiliate” is herein referred to as a company which is directly or indirectly controlled by the ultimate parent company of Seller and which manufacture, assemble or sell Goods and/or license Software to Seller. ”Contract” is herein referred to these Terms and Conditions of Sale, any price list or schedule, quotation, acknowledgment or invoice from Seller relevant to the sale and license of the Goods and all documents incorporated by specific reference herein or therein.
The Contract constitutes the complete and exclusive statement of the terms of the agreement governing the sale of Goods by Seller to Buyer and any contrary terms and conditions from Buyer shall not apply, unless otherwise agreed in writing by Seller. Seller reserves the right in its sole discretion to refuse Buyer’s order
The Contract shall become effective only on the date of Seller’s acknowledgement order of Buyer’s order. If the details of the Goods described in Seller’s quotation differ from those set out in Seller’s order acknowledgement, the latter shall apply.
No alteration or variation to the Contract shall apply until agreed in writing by both parties. However, Seller reserves the right to make minor modifications and/or improvements to the Goods before delivery, provided that the performance of the Goods is not adversely affected and that neither the price nor the delivery date is affected.
Unless otherwise specified in writing by Seller, the price specified by Seller for the Goods shall remain in effect for specified (7)days after the date of Seller’s quotation.
All prices are exclusive of taxes, including value added tax and any similar and other taxes, duties, levies or other like charges arising outside Seller’s country in connection with the sale of Goods and Software.
Prices (a) are for Goods delivered EXW (Ex works) Seller’s shipping point, exclusive of transportation, handling, packing and insurance, which are to be borne by Buyer. If the Goods are to be packed by Seller, packing materials are non-returnable.
Any current or future tax or governmental charge (or increase in same) affecting Seller’s costs of production, sale, or delivery or shipment, or which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of Goods, shall be for Buyer’s account and shall be added to the price.
TERMS OF PAYMENT:
Unless otherwise specified by Seller, terms are:
Should the Sellers payment claim become endangered because of the Buyer’s lack of ability to perform such obligation to Seller then Seller shall be entitled to withhold any outstanding deliveries unless the Buyer either has made advance payment as requested by the Seller or provided for any other satisfactory security acceptable to Seller.
SHIPMENT AND DELIVERY:
Buyer, at its option and expense, may inspect and observe the testing by Seller of the Goods for compliance with Seller’s standard test procedures prior to shipment, which inspection and testing shall be conducted at Seller’s plant at such reasonable time as is specified by Seller. Any rejection of the Goods must be made promptly by Buyer before shipment. Tests shall be deemed to be satisfactorily completed and the test fully met when the Goods meet Seller’s criteria for such procedures
While Seller will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all delivery dates are approximate and not guaranteed. Seller reserves the right to make partial deliveries.
If the delivery of the Goods is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. Upon placing the Goods into store, delivery shall be deemed to be complete, risk in the Goods shall pass to Buyer and Buyer shall pay Seller accordingly.
Unless otherwise stated in the Contract, the goods are EX-WORKS.
Buyer shall inspect Goods delivered to it by Seller immediately upon receipt. Claims for shortfalls in quantity, for incorrect delivery and for obvious defects cannot be made more than 24Hours after delivery to Buyer.
DOCUMENTATION AND SOFTWARE:
Notwithstanding any other provision herein to the contrary, Seller or applicable third party licensor to Seller shall retain all rights of ownership and title in its respective Software and documentation supplied with the relevant Goods (Documentation), including without limitation all rights of ownership and title in its respective copies of such Software and Documentation. Except as otherwise provided herein, Buyer is hereby granted a non-exclusive, non-transferable royalty free license to use the Software incorporated into the Goods and Documentation solely for purposes of Buyer properly utilizing such Goods purchased from Seller. All other Software and Documentation shall be furnished to, and used by, Buyer only after execution of Seller’s (or the licensor’s) applicable standard license agreement, the terms of which are incorporated herein by reference.
Except as otherwise provided with respect to warranty defects as per the warranty policy, advance written permission to return Goods must be obtained from Seller. Such Goods must be current, unused, catalogued Goods and must be shipped, properly packed, transportation prepaid, to Seller within 7 days. Returns made without proper written permission will not be accepted by Seller. Permission to return Goods is subject to Seller’s sole discretion. Seller will at its discretion opt to replace returned Goods with new Goods or issue a credit equal to the billing price or current price, whichever is lower, from which will be deducted an inspection and repacking charge and the cost of any reconditioning. Seller reserves the right to inspect Goods prior to authorizing return.
Good to be refunded must be processed and Shaks Solar Energy(Pty) Ltd notified that the Buyer wishes to return the goods for any reason whatsoever,within 24 hours after the sale and shall be subjected to being returned in good conditioned, without and damages and with the proper packaging.
Refunds shall be subject to the goods being inspected and tested,and is not limited to a repayment period of 7 working days.
LIABILITY FOR DEFECTS:
Subject to the limitations of Shaks Solar Energy Warranty policy, Seller warrants that the Software will execute the programming instructions provided by Seller and that the Goods manufactured by Seller or Seller’s Affiliate will be free from defects in material and workmanship and meet Seller’s specifications at the time of delivery under normal use and regular service and maintenance for a period of one year from the date of delivery of the Goods by Seller, unless otherwise specified by Seller in writing. Seller does not warrant that the operation of the Software shall be uninterrupted or error free. Consumables, including, without limitation, glass parts and electrodes, membranes, liquid junctions, electrolytes and reagents, o rings, plastic tubes, elastomers, etc. are warranted to be free from defects in material and workmanship under normal use and service for a period of ninety (90) days from the date of shipment by Seller. If within thirty (30) days after Buyer’s discovery of any warranty defects within the warranty period, Buyer notifies Seller thereof in writing, Seller shall, at its option and as Buyer’s exclusive remedy, repair, correct or replace FCA Seller’s Country or refund the purchase price for, that portion of the Goods found by Seller to be defective. Failure by Buyer to give such written notice within the applicable time period shall be deemed an absolute and unconditional waiver of Buyer’s claim for such defects. Goods repaired or replaced during the warranty period shall be covered by the foregoing warranty for the remainder of the original warranty period or ninety (90) days from the date of delivery of the Goods repaired or replaced, whichever is longer.
This warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, negligence (other than Seller’s), unauthorized modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, improper installation, repair, handling, maintenance or application or any other cause not the fault of Seller. To the extent that Buyer or its agents has supplied specifications, information, representation of operating conditions or other data to Seller in the selection or design of the Goods and the preparation of Seller’s quotation, and in the event that actual operating conditions or other conditions differ from those represented by Buyer, any warranties or other provisions contained herein which are affected by such conditions shall be null and void.
The foregoing constitutes Seller’s sole warranty and Buyer’s exclusive remedy for breach thereof. No representations, warranties or conditions of any kind, express or implied, shall apply as to satisfactory quality, merchantability, fitness for any particular purpose or any other matter with respect to any of the Goods. Please read Shaks Solar Energy Warranty Policy
LIMITATION OF LIABILITY:
Notwithstanding any other provision of the Contract, except to the extent prohibited by applicable law, Seller’s and Seller Affiliates’ total liability for any and all damages, claims or causes of action howsoever arising (including, without limitation, damage, claims or causes of action by virtue of tort, by breach of contract, warranty, representation, statutory duty, negligence, strict liability or infringement of Intellectual Property Rights) shall not exceed a sum equal to the price paid by Buyer for the specific Goods provided by Seller. Notwithstanding the foregoing or any other provision of the Contract, Seller and Seller Affiliates shall not be liable in any circumstances (including breach of warranty or representation) for any loss of profits, loss of contracts, increased costs, loss of revenue, loss of use, loss of data and loss or damage to property or for any other incidental, consequential or indirect loss.
PATENTS AND COPYRIGHTS:
Subject to the limitations of Section 8, Seller warrants that the Goods sold, except as are made specifically for Buyer according to Buyer’s specifications, do not infringe any valid patent or copyright in existence as of the date of shipment in any member state of the European Union. This warranty is given upon the condition that Buyer promptly notify Seller of any claim or suit involving Buyer in which such infringement is alleged and cooperate fully with Seller and permit Seller to control completely the defense, settlement or compromise of any such allegation of infringement. Seller’s warranty as to use patents only applies to infringement arising solely out of the inherent operation according to Seller’s specifications and instructions (i) of such Goods, or (ii) of any combination of Goods acquired from Seller in a system designed by Seller. In the event such Goods are held to infringe such a patent or copyright in such suit, and the use of such Goods is enjoined, or in the case of a compromise or settlement by Seller, Seller shall have the right, at its option and expense, to procure for Buyer the right to continue using such Goods, or replace them with non-infringing Goods, or modify same to become non-infringing, or grant Buyer a credit for the depreciated value of such Goods and accept return of them. In the event of the foregoing, Seller may also, at its option, cancel the agreement as to future deliveries of such Goods, without liability.
The Contract (other than Buyer’s obligation to pay all sums due to Seller in accordance with the Agreement) shall be suspended, without liability, in the event and to the extent that its performance is prevented or delayed due to any circumstance beyond the reasonable control of the party affected, including but not limited to: Act of God, war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, sabotage; governmental decisions or actions (including but not limited to prohibition of exports or re-exports or the failure to grant or the revocation of applicable export licenses), or labour trouble, strike, lockout. Seller shall have no obligation to supply hardware, software or technology or to provide services in the absence of government permits or fulfilment of statutory conditions of exemption from such permits within the framework of import and export control (in particular, according to the regulations applicable in the Republic of South Africa and the jurisdiction in which Seller has its registered office or from which components of the Goods are supplied) and the underlying circumstances could not be foreseen by Seller and are outside of Seller’s sphere of influence. In the event of revocation of issued government permits or in the event of a change in the applicable statutory import and export control regulations such that Seller is prevented
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