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TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS

1. ACCEPTANCE

1.1. A BINDING CONTRACT WILL COME INTO EFFECT WHEN BOTH PARTIES TO THE CONTRACT HAVE SIGNED THE

CONTRACT/ORDER AND THE CONTRACT/ORDER SHALL INCLUDE THE TERMS AND CONDITIONS/ QUALIFICATIONS SET OUT IN THIS DOCUMENT.

2. CANCELATION

2.1. ORDERS PLACED ON AND ACCEPTED BY THE SUPPLIER MAY BE CANCELLED BY THE PURCHASER IN PART OR IN WHOLE

WITH THE SUPPLIER’S WRITTEN CONSENT AND MAY BE SUBJECT TO A CANCELLATION FEE.

2.2. THE PURCHASER MAY RETURN GOODS SUPPLIED BY THE SUPPLIER WITHIN 7 (SEVEN) DAYS WITH THE PRIOR WRITTEN

PERMISSION OF THE SUPPLIER, FOR CREDIT. WHERE SUCH PERMISSION IS GIVEN, THE GOODS TO BE RETURNED SHALL BE

RETURNED IN THE ORIGINAL CONDITION AND PACKAGING IN WHICH THEY WERE SUPPLIED AND A HANDLING CHARGE OF

10% OF THE PRICE OF SUCH GOODS MAY AT THE SUPPLIERS DISCRETION BE DEDUCTED FROM ANY CREDIT TO BE GIVEN OR

REFUND TO BE MADE TO THE PURCHASER. THE ABOVE DOES NOT INCLUDE DEFECTIVE GOODS WHICH ARE DEALT WITH

3. CESSION, ASSIGNMENT & DISPOSAL

3.1. THE PURCHASER IS NOT ENTITLED TO CEDE ASSIGN OR DISPOSE OF ANY UNPAID GOODS WITHOUT THE PRIOR WRITTEN

CONSENT OF THE SUPPLIER, NOR SHALL THE PURCHASER ALLOW ANY SUCH GOODS TO BECOME ENCUMBERED IN ANY

MANNER PRIOR TO THE FULL PAYMENT THEREOF AND SHALL ADVISE THIRD PARTIES OF THE RIGHTS OF THE SUPPLIER IN

AND TO SUCH GOODS.

4. CONSEQUENTIAL DAMAGES

4.1. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, INDEMNITY, WARRANTY, DELICT (INCLUDING

NEGLIGENCE), STRICT LIABILITY OR OTHER CAUSE ARISING, SHALL CREATE ENERGY, ITS EMPLOYEES, CONTRACTORS,

AGENTS OR SUBCONTRACTORS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES

WHETHER FORESEEABLE OR NOT INCLUDING, BUT NOT BEING LIMITED TO, LOSS OF PROFIT OR REVENUES, LOSS OF USE OF

THE GOODS OR PRODUCTS OR ANY ASSOCIATED EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF CAPITAL,

COST OF SUBSTITUTE GOODS OR PRODUCTS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWNTIME COST, OR

CLAIMS OF CUSTOMERS OF THE PURCHASER FOR SUCH DAMAGES.

4.2. SHOULD THE GOODS OR PRODUCTS OR SERVICES BEING PROVIDED BY CREATE ENERGY IN TERMS OF THESE CONDITIONS BE

PROVIDED, SOLD OR OTHERWISE MADE AVAILABLE BY THE PURCHASER TO ANY THIRD PARTY, THEN THE PURCHASER

SHALL OBTAIN FROM THAT THIRD PARTY A PROVISION AFFORDING CREATE ENERGY THE PROTECTION OF THIS CLAUSE VISÀ-

VIS THAT THIRD PARTY.

5. DEFECTS

5.1. THE GOODS SHALL BE SUPPLIED FREE OF ANY DEFECTS (LATENT OR PATENT) IN MATERIAL OR WORKMANSHIP AND SHALL

BE FIT FOR THE PURPOSE DESIGNED OR MANUFACTURED. IF THE GOODS MANIFEST ANY DEFECTS (WHETHER PATENT OR

LATENT),THE SUPPLIER SHALL FACILITATE THE REPAIR OR REPLACEMENT OF SUCH GOODS FROM THE ORIGINAL

EQUIPMENT MANUFACTURER (OEM)

5.2. IN NO EVENT SHALL CREATE ENERGY, ITS EMPLOYEES, CONTRACTORS, AGENTS OR SUBCONTRACTORS BE LIABLE FOR ANY LOSS OR DAMAGE WHATSOEVER ARISING FROM ITS FAILURE TO DISCOVER OR REPAIR LATENT DEFECTS OR DEFECTS INHERENT IN THE DESIGN OF GOODS OR PRODUCTS PROVIDED OR SERVICED BY CREATE ENERGY IN TERMS HEREOF (UNLESS SUCH DISCOVERY OR REPAIR IS NORMALLY DISCOVERABLE BY TESTS EXPRESSLY SPECIFIED IN THE SCOPE OF WORK UNDER THESE CONDITIONS) OR CAUSED BY THE USE OF GOODS OR PRODUCTS BY THE PURCHASER AGAINST THE ADVICE OF CREATE ENERGY.

5.3. THE PURCHASER MAY NOT ALTER SUCH GOODS OR PRODUCTS AT ALL OR CONTRARY TO THE INSTRUCTIONS OF CREATE ENERGY, OR AFTER THOSE GOODS OR PRODUCTS HAVE LEFT THE CONTROL OF CREATE ENERGY.

5.4. IF CREATE ENERGY FURNISHES THE PURCHASER WITH ADVICE OR OTHER ASSISTANCE WHICH CONCERNS ANY PRODUCT SERVICED OR SUPPLIED HEREUNDER OR ANY SYSTEM OR EQUIPMENT IN WHICH ANY SUCH PRODUCT MAY BE INSTALLED AND WHICH IS NOT REQUIRED PURSUANT TO THIS AGREEMENT, THE FURNISHING OF SUCH ADVICE OR ASSISTANCE WILL NOT SUBJECT CREATE ENERGY, ITS EMPLOYEES, CONTRACTORS, AGENTS OR SUBCONTRACTORS TO ANY LIABILITY, WHETHER IN CONTRACT, INDEMNITY, WARRANTY, DELICT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER CAUSE ARISING.

6. DELIVERY

6.1. THE SUPPLIER ACKNOWLEDGES THAT TIME IS OF THE ESSENCE AND THAT ALL REASONABLE EFFORTS WITHIN THE

SUPPLIERS CONTROL WILL BE MADE TO ENSURE TIMEOUS DELIVERY OF GOOD OR SERVICES ORDERED BY THE

PURCHASER. ANY DELIVERY DATE INDICATED BY THE SUPPLIER FOR THE DELIVERY OF ANY GOODS PURCHASED SHALL

NOT BE BINDING UPON THE SUPPLIER BUT SHALL BE REGARDED AS THE ESTIMATED DATE FOR DELIVERY THEREOF. THE

PURCHASER’S SOLE REMEDY IN RESPECT OF ANY BREACH BY THE SUPPLIER OF ITS OBLIGATIONS TO DELIVER TIMEOUSLY, SHALL BE WRITTEN NOTIFICATION OF CANCELLATION OF ANY ORDER OR THE BALANCE OF ANY ORDER AS THE CASE MAY BE, IF THE GOODS ORDERED OR THE BALANCE OF THE GOODS ORDERED ARE NOT DELIVERED WITHIN 21 (TWENTY-ONE) CALENDAR DAYS AFTER THE ESTIMATED DATE FOR DELIVERY THEREOF.

6.2. IF DELIVERY CANNOT BE MADE DUE TO THE PURCHASER NOT BEING IN A POSITION TO RECEIVE THE GOODS, ANY PRICE INCREASE INCURRED AS A RESULT OF THE DELAY IN DELIVERY SHALL BE FOR THE ACCOUNT OF THE PURCHASER, SAVE IN CIRCUMSTANCES WHERE THE PURCHASER NOTIFIED THE SUPPLIER PRIOR TO SUCH DELIVERY.

7. FORCE MAJEURE

7.1. THE SUPPLIER RESERVES THE RIGHT TO SUSPEND DELIVERIES UNDER OR TO CANCEL ANY ORDER PLACED UPON IT BY THE PURCHASER IN THE EVENT OF:

7.1.1. WAR, FORCE MAJEURE, RIOTS, CIVIL COMMOTION, ACCIDENTS, INABILITY TO OBTAIN SUPPLIES AND/OR UNFORSEEN CIRCUMSTANCES OF ANY KIND AFFECTING THE SUPPLIER’S ABILITY TO DELIVER

7.1.2. THE PURCHASER’S DEFAULT IN PAYMENT OF ANY AMOUNT OWING BY IT TO THE SUPPLIER. THESE REMEDIES SHALL BE WITHOUT PREJUDICE TO THE SUPPLIER’S RIGHT TO OBTAIN PAYMENT IN RESPECT OF GOODS DELIVERED TO THE PURCHASER PRIOR TO SUCH SUSPENSION OR CANCELLATION.

8. INSPECTION & TESTS

8.1. STANDARD FACTORY ACCEPTANCE TESTING WILL BE PERFORMED ON ALL GOODS BY CREATE ENERGY.

8.2. IF TESTS OTHER THAN THESE ARE REQUIRED, THEN THESE WILL BE FOR THE PURCHASER’S ACCOUNT.

9. INTELLECTUAL PROPERTY RIGHTS

9.1. NEITHER PARTY SHALL ACQUIRE ANY RIGHT, TITLE AND INTEREST (WITHOUT THE PRIOR WRITTEN CONSENT OF THE

OTHER) ENTITLING IT TO USE THE TRADEMARKS, TRADE NAMES, BRAND NAMES, LOGOS, DESIGNS, BRANDING, SIGNAGE

AND/OR IDENTIFYING INSIGNIA OF THE OTHER.

9.2. THE PARTIES UNDERTAKE IN FAVOUR OF ONE ANOTHER NOT TO PERFORM ANY ACT, WHICH WOULD INJURE THE

REPUTATION OR GOODWILL ATTACHING TO THEIR RESPECTIVE NAMES OR TRADEMARKS OR WHICH WOULD PREJUDICE

THEIR RIGHTS IN AND TO SUCH NAMES AND TRADEMARKS.

9.3. EXCEPT AS NECESSARY TO DELIVER THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT, ON EXPIRY OR TERMINATION OF THIS AGREEMENT THE PARTIES WILL CEASE TO USE IN ANY WAY WHATSOEVER AND SHALL RETURN TO THE OTHER ANY TRADEMARKS, TRADE NAMES, BRAND NAMES, LOGOS, DESIGNS, BRANDING, SIGNAGE AND/OR IDENTIFYING INSIGNIA.

10. LIABILITY

10.1. CREATE ENERGY WILL NOT BE LIABLE FOR ANY LIQUIDATED DAMAGES OR PENALTIES FOR DELAY.

10.2. SAVE AS OTHERWISE EXPLICITLY STATED IN THE CONDITIONS, IN NO EVENT, WHETHER AS A RESULT OF BREACH OF

CONTRACT, INDEMNITY, WARRANTY, DELICT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER CAUSE

ARISING, SHALL CREATE ENERGY TOTAL LIABILITY TO THE PURCHASER OR ITS INSURERS FOR ANY LOSS OR DAMAGE

ARISING OUT OF, OR RESULTING FROM THESE CONDITIONS, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM THE GOODS OR PRODUCTS OR SERVICES FURNISHED HEREUNDER, EXCEED 5% (FIVE PERCENT) OF THE TOTAL CONTRACT PRICE.

10.3. FURTHERMORE, ANY LIABILITY OR OBLIGATION OF THE PURCHASER OF WHATSOEVER NATURE (WHETHER IN TERMS OF THESE CONDITIONS OR OTHERWISE) SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD.

11. PACKAGING

11.1. CREATE ENERGY SHALL ADEQUATELY AND SECURELY PACK ALL GOODS IN ACCORDANCE WITH CREATE ENERGY STANDARD PRACTICES SO AS TO PREVENT LOSS OR DAMAGE IN TRANSIT.

11.2. SHOULD THE PURCHASER REQUIRE SPECIAL PACKAGING FOR THE GOODS, THE PURCHASER WILL ACCORDINGLY INFORM CREATE ENERGY. THE PURCHASER WILL BE LIABLE FOR THE COST OF ANY ADDITIONAL SPECIAL PACKAGING

PAYMENT TERMS

12.1. COD ACCOUNTS REQUIRE 100% DEPOSIT UPON ORDER PLACEMENT

 

13. TITLE & RISK

13.1. ALL RISK IN AND TO GOODS PURCHASED FROM THE SUPPLIER SHALL PASS TO THE PURCHASER UPON SIGNED RECEIPT THEREOF FROM THE SUPPLIER OR THE SUPPLIERS DESIGNATED AGENT. WHERE A PURCHASER PROVIDES THEIR OWN AGENT FOR COLLECTION OF GOODS, RISK PASSES TO THE PURCHASER UPON RELEASE FROM THE SUPPLIER OR ITS AGENT.

13.2. OWNERSHIP OF THE EQUIPMENT OFFERED ONLY REVERTS TO THE CUSTOMER ON FULL ACCOUNT SETTLEMENT FOR SUCH GOODS DELIVERED.

14. VALIDITY

14.1. ANY OFFER OF SALE MADE BY CREATE ENERGY IS OPEN FOR ACCEPTANCE FOR 14 (FOURTEEN) DAYS AFTER RECEIPT OF THE OFFER BY THE PURCHASER PROVIDED THAT NO ACCEPTANCE SHALL BE BINDING ON CREATE ENERGY UNLESS ISSUED IN WRITING BY THE PURCHASER AND RECEIVED BY CREATE ENERGY WITHIN THE AFOREMENTIONED PERIODS, WHICHEVER IS APPLICABLE.

14.2. IN THE EVENT OF A CONTRADICTION BETWEEN THE CONDITIONS OF TENDER/QUOTATION AND THESE CONDITIONS, THE CONDITIONS OF TENDER/QUOTATION SHALL PREVAIL. IN THE EVENT THAT THE CONDITIONS OF TENDER ARE SILENT ON ANY ASPECT, THESE CONDITIONS SHALL PREVAIL.

15. VARIATIONS

15.1. CREATE ENERGY SHALL NOT BE OBLIGED TO ACCEPT ANY VARIATIONS, MODIFICATIONS, ALTERATIONS OR ADDITIONS TO ANY ORDER IF SUCH VARIATIONS, MODIFICATIONS, ALTERATIONS OR ADDITIONS ARE REQUESTED AFTER THE DATE OF ACCEPTANCE OF THE ORDER BY THE PURCHASER.

15.2. NO VARIATIONS, MODIFICATIONS, ALTERATIONS OR ADDITIONS TO ANY ORDER SHALL BE OF ANY FORCE OR EFFECT UNLESS AGREED TO IN WRITING BY THE PARTIES.

15.3. SUBJECT TO THIS CLAUSE, IN THE EVENT OF VARIATION OR SUSPENSION OF WORK AS A RESULT OF THE PURCHASER’S INSTRUCTIONS OR LACK OF INSTRUCTIONS, CREATE ENERGY SHALL BE ENTITLED TO EXTEND THE DELIVERY DATE AND INCREASE THE CONTRACT PRICE BY A SUM OF MONEY REASONABLY SUFFICIENT TO COVER ALL ADDITIONAL EXPENSES INCURRED OR SUSTAINED BY CREATE ENERGY AS A DIRECT OR INDIRECT CONSEQUENCE OF SUCH VARIATION OR SUSPENSION.

16. WARRANTY

16.1. ALL GOODS SUPPLIED TO THE PURCHASER SHALL CARRY THE ORIGINAL EQUIPMENT MANUFACTURER (OEM) OR

IMPORTERS GUARANTEE AND ALL OTHER GUARANTEES AND WARRANTIES, EXPRESS, IMPLIED OR TACIT, SHALL BE OF NO FORCE OR EFFECT. SHOULD THE PURCHASER MISUSE, NEGLECT, ALTER OR USE THE GOODS IN AN UNAUTHORISED MANNER, SUCH OEM GUARANTEE SHALL BE VOID AND OF NO FURTHER FORCE OR EFFECT. THE DETERMINATION OF USE IN AN UNAUTHORISED MANNER SHALL BE DETERMINED BY THE SUPPLIER AND/OR AGENT FOR THE OEM.

16.2. WARRANTY AND SERVICE CALL OUTS WILL ONLY BE CARRIED OUT FOR CUSTOMERS WHOSE ACCOUNTS ARE IN GOOD STANDING WITH CREATE ENERGY.

16.3. ALL PRODUCTS SUPPLIED BY CREATE ENERGY CARRY THE ORIGINAL PURCHASE WARRANTY/GUARANTEE OFFERED BY THE ORIGINAL EQUIPMENT MANUFACTURER (OEM) / IMPORTER OF THAT PRODUCT. CREATE ENERGY AGREES TO FACILITATE THE CLAIM ANY PURCHASER MAY HAVE AGAINST AN OEM SUPPLIER OF CREATE ENERGY ON DEFECTIVE GOODS AS FOLLOWS:

16.3.1. AS ALL SMALL UNITS UP TO 3KVA ARE OF THE PLUG-IN TYPE THE WARRANTY WILL BE BASED ON A CARRY IN BASIS. THE UPS IS GENERALLY COVERED BY A ONE YEAR – 12 MONTH OEM GUARANTEE THAT COVERS THE MACHINE

AGAINST FAILURE DUE TO POOR WORKMANSHIP OR FAULTY COMPONENTS EXCEPT FOR FAIR WEAR AND

TEAR THE OEM COVERS PARTS ONLY BUT CREATE ENERGY WILL GUARANTEE THE COST OF LABOUR TO REPAIR IN THE

CREATE ENERGY WORKSHOP. ANY COSTS FOR TRAVEL TO AND FROM OR TIME ON A CLIENT’S SITE ARE FOR THE COST

OF THE ORIGINAL PURCHASER.

16.3.2. AS >5KVA UPS UNITS ARE “HARD WIRED” TO AN ELECTRICAL DISTRIBUTION BOARD AND TYPICALLY ARE TOO LARGE TO MOVE WITH THEIR LARGE SETS OF BATTERIES ONCE INSTALLED, THEY WILL BE GUARANTEED ON AN “ON SITE” BASIS AS FOLLOWS:

16.3.2.1. THE UPS IS GENERALLY COVERED BY A ONE YEAR – 12 MONTH OEM WARRANTY THAT COVERS THE MACHINE

AGAINST FAILURE DUE TO POOR WORKMANSHIP OR FAULTY COMPONENTS EXCEPT FOR FAIR WEAR AND

TEAR. THE OEM COVERS PARTS ONLY.

16.3.2.1.1. FOR UPS UNITS SUPPLIED DIRECTLY FROM CREATE ENERGY TO END USER CUSTOMERS, ANY COSTS FOR ONSITE LABOUR AND TRAVEL TO AND FROM THE SITE ARE INCLUDED IN CREATE ENERGY ONE YEAR – 12 MONTH SUPPLY WARRANTY. SPARE PARTS ARE SUPPLIED AS PER OEM WARRANTIES.

16.3.2.1.2. FOR UPS UNITS SUPPLIED DIRECTLY FROM CREATE ENERGY TO DEALERS WHO ARE RESELLING THE PRODUCT, SPARE PARTS ARE SUPPLIED AS PER OEM WARRANTIES AND ONSITE LABOUR COSTS ARE INCLUDED IN CREATE ENERGY ONE YEAR SERVICE WARRANTY. ANY TRAVEL TO AND FROM THE SITE ARE FOR THE DEALERS ACCOUNT.

16.3.2.1.3. FOR UPS UNITS SUPPLIED DIRECTLY FROM CREATE ENERGY TO DISTRIBUTORS WHO ARE RESELLING THE PRODUCT, SPARE PARTS ARE SUPPLIED AS PER OEM WARRANTIES AND WORKSHOP LABOUR COSTS ARE INCLUDED IN CREATE ENERGY ONE YEAR SERVICE WARRANTY. ANY COSTS FOR ONSITE LABOUR AND TRAVEL TO AND FROM THE SITE ARE FOR THE DISTRIBUTOR’S ACCOUNT.

16.4. EXTENDED WARRANTY CONTRACTS CAN BE NEGOTIATED WITH CREATE ENERGY DIRECTLY TO SUIT THE APPLICATION.

16.5. CREATE ENERGY WILL NOT HONOR OR FACILITATE A CLAIM AGAINST AN OEM FOR WARRANTY IF THE MACHINE HAS BEEN ABUSED, OVERLOADED, NOT INSTALLED AS PER CORRECT ELECTRICAL STANDARDS, OR INSTALLED IN A HOSTILE ENVIRONMENT, I.E. NO ADEQUATE VENTILATION OR INCORRECT APPLICATION.

16.6. WARRANTIES ARE IMMEDIATELY VOID ON BREACH OF THE OEM WARRANTY SEAL ON GOODS.

17. ARBITRATION

17.1. ANY PARTY CLAIMING ANY QUESTION OR DISPUTE ON ANY MATTER ARISING OUT OF, OR IN CONNECTION WITH, THE ORDER INCLUDING ANY QUESTION REGARDING ITS EXISTENCE, VALIDITY OR TERMINATION (DISPUTE) MUST GIVE THE OTHER PARTY A NOTICE SETTING OUT BRIEF DETAILS OF THE DISPUTE.

17.2. THE PARTIES SHALL USE ALL REASONABLE ENDEAVORS TO RESOLVE THAT DISPUTE AMICABLY AS SOON AS POSSIBLE.

17.3. IF THE PARTIES CANNOT RESOLVE THE DISPUTE WITHIN 14 CALENDAR DAYS OF THE NOTICE, THE DISPUTE SHALL BE REFERRED FOR RESOLUTION BY WAY OF MEDIATION IN ACCORDANCE WITH THE CURRENT RULES OF THE ARBITRATION FOUNDATION OF SOUTHERN AFRICA (“AFSA”).

17.4. IN THE EVENT OF THE MEDIATION FAILING IN TERMS OF THE RULES OF AFSA, THE MATTER MUST, WITHIN 15 (FIFTEEN) BUSINESS DAYS THEREAFTER, BE REFERRED TO ARBITRATION.

17.5. SUCH ARBITRATION SHALL BE HELD IN JOHANNESBURG WITH PROCEEDINGS IN THE ENGLISH LANGUAGE UNLESS OTHERWISE AGREED TO AND SHALL BE HELD IN A SUMMARY MANNER WITH A VIEW TO IT BEING COMPLETED AS SOON AS POSSIBLE.

17.6. THE ARBITRATOR SHALL HAVE THE POWERS CONFERRED UPON AN ARBITRATOR UNDER THE RULES.

17.7. THE DECISION OF THE ARBITRATOR SHALL, IN THE ABSENCE OF MANIFEST ERROR, BE FINAL AND BINDING ON THE PARTIES, AND MAY BE MADE AN ORDER OF ANY COURT OF COMPETENT JURISDICTION.

17.8. EACH OF THE PARTIES HEREBY SUBMITS ITSELF TO THE JOHANNESBURG HIGH COURT, JHB, SHOULD ANY OTHER PARTY WISH TO MAKE THE ARBITRATOR'S DECISION AN ORDER OF COURT.

18. APPLICABLE LAW

18.1. THE GENERAL CONDITIONS AND EACH CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE REPUBLIC OF SOUTH AFRICA.

 

I, AN AUTHORISED SIGNATORY OF THE APPLICANT HAVE READ AND UNDERSTAND THE ABOVE TERMS AND

CONDITIONS:

 

                                                                                                                                                                                                            

SIGNATURE                                                                                                                                         TODAY’S DATE

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CREATE IT SOLUTIONS CCT/A CREATE ENERGY

TERMS & CONDITIONS OF TRADE

I/We agree that should this Application be granted, the following terms and conditions will apply:

THESE TERMS OF TRADE SUPERSEDE ANY TERMS AND CONDITIONS CONTAINED IN ANY ORDER PLACED UPON CREATE ENERGY (THE SUPPLIER) BY THE APPLICANT (PURCHASER). THESE TERMS OF TRADE CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE SUPPLIER AND THE APPLICANT UNLESS SUPPLEMENTED OR AMENDED AND REDUCED TO WRITING AND SIGNED BY AUTHORISED REPRESENTATIVES OF BOTH THE SUPPLIER AND THE APPLICANT.

THE SUPPLIER ACKNOWLEDGES THAT TIME IS OF THE ESSENCE AND THAT ALL REASONABLE EFFORTS WITHIN THE SUPPLIERS CONTROL WILL BE MADE TO ENSURE TIMEOUS DELIVERY OF GOOD OR SERVICES ORDERED BY THE APPLICANT. ANY DELIVERY DATE INDICATED BY THE SUPPLIER FOR THE DELIVERY OF ANY GOODS PURCHASED BY THE APPLICANT SHALL NOT BE BINDING UPON THE SUPPLIER BUT SHALL BE REGARDED AS THE ESTIMATED DATE FOR DELIVERY THEREOF. THE APPLICANT’S SOLE REMEDY IN RESPECT OF ANY BREACH BY THE SUPPLIER OF ITS OBLIGATIONS TO DELIVER TIMEOUSLY, SHALL BE WRITTEN NOTIFICATION OF CANCELLATION OF ANY ORDER OR THE BALANCE OF ANY ORDER AS THE CASE MAY BE, IF THE GOODS ORDERED OR THE BALANCE OF THE GOODS ORDERED ARE NOT DELIVERED WITHIN 21 (TWENTY-ONE) CALENDAR DAYS AFTER THE ESTIMATED DATE FOR DELIVERY THEREOF.

ALL RISK IN AND TO GOODS PURCHASED FROM THE SUPPLIER SHALL PASS TO THE APPLICANT UPON SIGNED RECEIPT THEREOF FROM THE SUPPLIER OR THE SUPPLIERS DESIGNATED AGENT. WHERE AN APPLICANT PROVIDES THEIR OWN AGENT FOR COLLECTION/DELIVERY OF GOODS, RISK PASSES TO THE APPLICANT UPON RELEASE FROM THE SUPPLIER OR ITS AGENT.

THE APPLICANT MAY RETURN GOODS SUPPLIED BY THE SUPPLIER WITHIN 7 (SEVEN) DAYS WITH THE PRIOR WRITTEN

PERMISSION OF THE SUPPLIER, FOR CREDIT. WHERE SUCH PERMISSION IS GIVEN, THE GOODS TO BE RETURNED SHALL BE

RETURNED IN THE ORIGINAL CONDITION AND PACKAGING IN WHICH THEY WERE SUPPLIED AND A HANDLING CHARGE OF 10% OF THE PRICE OF SUCH GOODS MAY AT THE SUPPLIERS DISCRETION BE DEDUCTED FROM ANY CREDIT TO BE GIVEN OR REFUND TO BE MADE TO THE APPLICANT. THE ABOVE DOES NOT INCLUDE DEFECTIVE GOODS WHICH ARE DEALT WITH BELOW.

THE GOODS SHALL BE SUPPLIED FREE OF ANY DEFECTS (LATENT OR PATENT) IN MATERIAL OR WORKMANSHIP AND SHALL BE FIT FOR THE PURPOSE DESIGNED OR MANUFACTURED. IF THE GOODS MANIFEST ANY DEFECTS (WHETHER PATENT OR LATENT),THE SUPPLIER SHALL FACILITATE THE REPAIR OR REPLACEMENT OF SUCH GOODS FROM THE ORIGINAL EQUIPMENT MANUFACTURER.

ALL GOODS SUPPLIED TO THE APPLICANT SHALL CARRY THE ORIGINAL EQUIPMENT MANUFACTURER (OEM) OR IMPORTERS GUARANTEE AND ALL OTHER GUARANTEES AND WARRANTIES, EXPRESS, IMPLIED OR TACIT, SHALL BE OF NO FORCE OR EFFECT. SHOULD THE APPLICANT MISUSE, NEGLECT, ALTER OR USE THE GOODS IN AN UNAUTHORISED MANNER, SUCH OEM GUARANTEE SHALL BE VOID AND OF NO FURTHER FORCE OR EFFECT. THE DETERMINATION OF USE IN AN UNAUTHORISED MANNER SHALL BE DETERMINED BY THE SUPPLIER AND/OR AGENT FOR THE OEM.

THE SUPPLIER RESERVES THE RIGHT TO SUSPEND DELIVERIES UNDER OR TO CANCEL ANY ORDER PLACED UPON IT BY THE APPLICANT IN THE EVENT OF:

• WAR, FORCE MAJEURE, RIOTS, CIVIL COMMOTION, ACCIDENTS, INABILITY TO OBTAIN SUPPLIES AND/OR UNFORSEEN

CIRCUMSTANCES OF ANY KIND AFFECTING THE SUPPLIER’S ABILITY TO DELIVER

• THE APPLICANT’S DEFAULT IN PAYMENT OF ANY AMOUNT OWING BY IT TO THE SUPPLIER.

• THESE REMEDIES SHALL BE WITHOUT PREJUDICE TO THE SUPPLIER’S RIGHT TO OBTAIN PAYMENT IN RESPECT OF GOODS DELIVERED TO THE APPLICANT PRIOR TO SUCH SUSPENSION OR CANCELLATION.

THE APPLICANT IS NOT ENTITLED TO SELL OR DISPOSE OF ANY UNPAID GOODS WITHOUT THE PRIOR WRITTEN CONSENT OF THE SUPPLIER, NOR SHALL THE APPLICANT ALLOW ANY SUCH GOODS TO BECOME ENCUMBERED IN ANY MANNER PRIOR TO THE FULL PAYMENT THEREOF AND SHALL ADVISE THIRD PARTIES OF THE RIGHTS OF THE SUPPLIER IN AND TO SUCH GOODS.

THE APPLICANT WILL BE REQUIRED UPON REQUEST TO SUPPLY WITHOUT DELAY SUCH INFORMATION AS THE SUPPLIER DEEMS NECESSARY ON AN ANNUAL BASIS TO REASSESS THE APPLICANT’S CREDIT STATUS, WHICH ASSESSMENT OR FAILURE BY THE APPLICANT TO SUPPLY THE NECESSARY INFORMATION MAY RESULT IN THE REVOCATION, REDUCTION AND/OR EXTENSION OF THE APPLICANTS 30 DAY ACCOUNT.

ANY REQUEST FOR AN INCREASE IN CREDIT LIMITS OR EXTENDED REPAYMENT TERMS WILL BE DEEMED A NEW CREDIT APPLICATION.

ONCE AN APPLICANT HAS REACHED ITS CREDIT LIMIT, ALL FURTHER GOODS OR SERVICES SUPPLIED WILL BE CASH ON DELIVERY (COD) UNTIL SUCH TIME AS THE APPLICANTS ACCOUNT BALANCE FALLS BELOW THE APPROVED CREDIT LIMIT.

IF DELIVERY CANNOT BE MADE DUE TO THE APPLICANT NOT BEING IN A POSITION TO RECEIVE THE GOODS, AND PRICE INCREASE INCURRED AS A RESULT OF THE DELAY IN DELIVERY SHALL BE FOR THE ACCOUNT OF THE APPLICANT, SAVE IN CIRCUMSTANCES WHERE THE APPLICANT NOTIFIED THE SUPPLIER PRIOR TO SUCH DELIVERY.

OWNERSHIP OF ALL GOODS SUPPLIED AND PACKAGING RELATIVE THERETO REMAINS VESTED IN THE SUPPLIER UNTIL THE APPLICANT SHALL HAVE MADE PAYMENT IN FULL IN RESPECT OF SUCH GOODS TO THE SUPPLIER.

IF THE APPLICANT FAILS TO MAKE PAYMENT OF ANY AMOUNT OWING BY IT TO THE SUPPLIER ON THE DUE DATE FOR THE PAYMENT THEREOF OR FAILS TO FULFIL ANY OTHER OF THESE TERMS OF TRADE, THE SUPPLIER SHALL BE ENTITLED WITHOUT PREJUDICE TO ANY OTHER RIGHTS WHICH IT MAY HAVE IN LAW:-

• TO SUSPEND FURTHER DELIVERIES OF GOODS ORDERED BY THE APPLICANT;

• TO DEMAND PAYMENT FORTHWITH OF ALL AMOUNTS OWING BY THE APPLICANT TO THE SUPPLIER;

• TO CLAIM INTEREST ON AMOUNTS OVER 60DAYS AT A RATE OF TWO PERCENT (2%) PER CALENDAR MONTH, WHICH INTEREST SHALL BE RECKONED FROM THE DUE DATE OF ANY OVERDUE PAYMENT UNTIL THE DATE OF PAYMENT.

IN ADDITION TO THE AFOREGOING, AS MAY BE APPROPRIATE, TO CLAIM RETURN FROM THE APPLICANT OF THE GOODS SOLD TO THE APPLICANT BY THE SUPPLIER FOR WHICH PAYMENT IS OVERDUE AND WHICH ARE STILL IN THE POSSESSION OF THE APPLICANT.

ORDERS PLACED ON AND ACCEPTED BY THE SUPPLIER MAY BE CANCELLED BY THE APPLICANT IN PART OR IN WHOLE WITH THE SUPPLIER’S WRITTEN CONSENT AND MAY BE SUBJECT TO A CANCELLATION FEE.

A CERTIFICATE SIGNED BY A DULY AUTHORISED DIRECTOR OF THE SUPPLIER STATING THE AMOUNT THEN OWING BY THE APPLICANT TO THE SUPPLIER AND CERTIFYING THAT SUCH AMOUNT IS THEN DUE AND UNPAID SHALL BE PRIMA FACIE PROOF OF THE CONTENTS THEREOF AND THE AMOUNTDUE BY THE APPLICANT FOR PURPOSES OF LEGAL PROCEEDINGS.

IF THE SUPPLIER INCURS ANY LEGAL OR OTHER COSTS IN ENFORCING ANY OF ITS RIGHTS AGAINST THE APPLICANT, THE APPLICANT SHALL BE LIABLE FOR THE PAYMENT OF ALL SUCH REASONABLE LEGAL COSTS.

THE PARTIES CONSENTS TO THE JURISDICTION OF THE MAGISTRATE’S COURT, NOTWITHSTANDING THAT THE AMOUNT OF THE CLAIM MAY EXCEED THE JURISDICTION OF SUCH COURT. NOTWITHSTANDING WHICH, EITHER PARTY MAY PROSECUTE SUCH CLAIM IN ANY COURT OF COMPETENT JURISDICTION.

SAVE FOR GROSS NEGLIGENCE OF THE SUPPLIER, ITS EMPLOYEES, CONTRACTORS, AGENTS OR SUBCONTRACTORS, THE SUPPLIER SHALL NOT BE LIABLE FOR ANY DIRECT OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR LOSS OF PROFIT OR SPECIAL DAMAGES OF ANY NATURE, WHETHER IN THE CONTEMPLATION OF THE PARTIES OR NOT, WHICH THE APPLICANT OR ANY THIRD PARTY MAY SUFFER ARISING FROM THE USE, OPERATION, AND INSTALLATION OR FROM ANY CAUSE WHATSOEVER IN RESPECT OF THE GOODS SUPPLIED BY THE SUPPLIER TO THE APPLICANT.

CREATE ENERGY SHALL BE ENTITLED AT ANY TIME TO ADD TO, VARY, SUPPLEMENT OR AMEND THE TERMS AND CONDITIONS REFERRED TO IN HEREIN BY WRITTEN NOTICE TO THE APPLICANT.

 

I, AN AUTHORISED SIGNATORY OF THE APPLICANT HAVE READ AND UNDERSTAND THE ABOVE TERMS AND CONDITIONS:

 

                                                                                                                                                                                                                

SIGNATURE                                                                                                                                         TODAY’S DATE

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THESE ARE THE BASIC TERMS & CONDITIONS OF WARRANTY FOR

PLUG N PLAY & HARD WIRED UPS PRODUCTS

ALL PRODUCTS SUPPLIED BY CREATE ENERGY CARRY THE ORIGINAL PURCHASE WARRANTY/GUARANTEE OFFERED BY THE ORIGINAL EQUIPMENT MANUFACTURER (OEM) / IMPORTER OF THAT PRODUCT. CREATE ENERGY AGREES TO FACILITATE THE CLAIM ANY PURCHASER MAY HAVE AGAINST AN OEM SUPPLIER OF CREATE ENERGY ON DEFECTIVE GOODS.

PLUG N PLAY UPS units

AS ALL SMALL UNITS UP TO 3KVA ARE OF THE PLUG-IN TYPE THE WARRANTY WILL BE BASED ON A CARRY IN BASIS.

THE UPS IS GENERALLY COVERED BY A ONE YEAR – 12 MONTH OEM GUARANTEE THAT COVERS THE MACHINE AGAINST

FAILURE DUE TO POOR WORKMANSHIP OR FAULTY COMPONENTS EXCEPT FOR FAIR WEAR AND TEAR. THE OEM

COVERS PARTS ONLY BUT CREATE ENERGY WILL GUARANTEE THE COST OF LABOUR TO REPAIR IN THE CREATE ENERGY WORKSHOP. ANY COSTS FOR TRAVEL TO AND FROM OR ON A CLIENT’S SITE ARE FOR THE COST OF THE ORIGINAL PURCHASER.

HARD WIRED UPS units 5kVA and above

AS >5KVA UPS UNITS ARE “HARD WIRED” TO AN ELECTRICAL DISTRIBUTION BOARD AND TYPICALLY ARE TOO LARGE TO

MOVE WITH THEIR LARGE SETS OF BATTERIES ONCE INSTALLED, THEY WILL BE GUARANTEED ON AN “ON SITE” BASIS AS

FOLLOWS:

THE UPS IS GENERALLY COVERED BY A ONE YEAR – 12 MONTH OEM WARRANTY THAT COVERS THE MACHINE AGAINST FAILURE DUE TO POOR WORKMANSHIP OR FAULTY COMPONENTS EXCEPT FOR FAIR WEAR AND TEAR. THE OEM COVERS PARTS ONLY.

FOR UPS UNITS SUPPLIED DIRECTLY FROM CREATE ENERGY TO END USER CUSTOMERS, ANY COSTS FOR ONSITE LABOUR AND TRAVEL TO AND FROM THE SITE ARE INCLUDED IN CREATE ENERGY ONE YEAR – 12 MONTH SUPPLY WARRANTY. SPARE

PARTS ARE SUPPLIED AS PER OEM WARRANTIES.

FOR UPS UNITS SUPPLIED DIRECTLY FROM CREATE ENERGY TO DEALERS WHO ARE RESELLING THE PRODUCT, SPARE PARTS ARE SUPPLIED AS PER OEM WARRANTIES AND ONSITE LABOUR COSTS ARE INCLUDED IN CREATE ENERGY ONE YEAR SERVICE WARRANTY. ANY TRAVEL TO AND FROM THE SITE ARE FOR THE DEALERS ACCOUNT.

FOR UPS UNITS SUPPLIED DIRECTLY FROM CREATE ENERGY TO DISTRIBUTORS WHO ARE RESELLING THE PRODUCT, SPARE PARTS ARE SUPPLIED AS PER OEM WARRANTIES AND WORKSHOP LABOUR COSTS ARE INCLUDED IN CREATE ENERGY ONE YEAR SERVICE WARRANTY. ANY COSTS FOR ONSITE LABOUR AND TRAVEL TO AND FROM THE SITE ARE FOR THE DISTRIBUTOR’S ACCOUNT.

EXTENDED WARRANTY CONTRACTS CAN BE NEGOTIATED TO SUIT THE APPLICATION.

Please Note:

CREATE ENERGY will not honor or facilitate a claim against an OEM for warranty if the machine has been abused, overloaded, not installed as per correct electrical standards, or installed in a hostile environment, i.e. no adequate ventilation or incorrect application.

Warranties are immediately void on breach of the OEM UPS warranty seal on small product.

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Create Energy or its elected subcontractors will not be held liable for any indirect or consequential damages or loss whatsoever by any party of this contract or any third party, whether for the original contract and/or warranty or any extended maintenance period thereafter.

Goods remain the property of Create IT Solutions CC until 100% payment is received

Please Note: Create Energy a division of Create It Solutions CC will not take responsibility for undersized / oversized equipment if the sizing of the equipment was specified by the purchaser, client or their electrical contractor / electrician

We will not be held liable for equipment not being the right size or rating.