STANDARD TERMS AND CONDITIONS FOR THE SUPPLY AND 

INSTALLATION OF SOLAR GOODS AND SERVICES

REPOWER SA (PTY) LIMITED

(Reg No. 2021/774522/07)

11 Begin St, Krugersdorp North, South Africa

Email address: info@repower-sa.com

Telephone No: 010 824 4086

(the “Installer”)

&

THE CUSTOMER

PLEASE READ THESE TERMS AND CONDITIONS BEFORE USING ANY OF OUR SERVICES. YOUR CONTINUED USE OF OUR SERVICES INDICATES THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THE TERMS AND CONDITIONS LISTED HEREIN. To the extent that these terms and conditions or any Goods or Services provided hereunder are governed by the Consumer Protection Act 2008 (“CPA”), the Customer is hereby notified that a number of provisions contained herein limit and exclude liability, obligations and legal responsibilities of the Installer.

1.    DEFINITIONS AND INTERPRETATION

1.1.    “Agreement” means all the terms and conditions recorded in this document together with any applicable Job Card(s), the Installer’s quotes and proposals for the Customer, the Installer’s invoice(s) sent to the Customer and any annexures and addendums;

1.2.    “Confidential Information” means all information disclosed by a Party (the “Discloser”) that may reasonably be regarded as confidential being information not in the public domain whether such information is oral or written, recorded or stored by electronic magnetic, electro-magnetic or other form or process, or otherwise in a machine readable form, translated from the original form, recompiled, made into a compilation, wholly or partially copied, modified, updated or otherwise altered, originated or obtained by, or coming into the possession, custody, control or knowledge of the Discloser, including but without being limited to :- telephone conversations and personal correspondence conducted in confidence, operations, business, and affairs of the Discloser, technical data, research and development information; and any other materials of whatsoever nature and whatsoever description and which the Discloser has an interest in being kept confidential;

1.3.    “Customer” means the person, whether natural or juristic, who engages the Installer in terms of this Agreement for the delivery of Goods and/or rendering of Services to it, and whose details shall appear in the relevant Job Card;

1.4.    “Effective Date” means irrespective of the date of signature hereof, the date prescribed under clause 2.1 below;

1.5.    “Force Majeure Event” means an event or situation beyond the reasonable control of either Party and against which no precautions can reasonably be taken, to the extent that such event or situation prevents, delays, inhibits and/or frustrates a Party’s ability to perform its obligations, other than the payment of money, under this Agreement,  including a natural disaster, an act of public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil disorder, sabotage, riot, strikes, lock-outs or other labour disputes, pandemic, blockade, embargo, sanctions, epidemics, failure of electricity, internet, water or fuel supply, act of any government or other authority, compliance with law, regulations or demands of any government or governmental agency, limitations imposed by exchange control or foreign investment or other similar regulations;

1.6.    “Goods” means the goods to be sold, delivered and installed by the Installer to the Customer as components of the System in accordance with the Job Card(s), and include but are not limited to inverters, solar panels and solar accessories, and materials required for rendering of the Services;

1.7.    “Installer” means Repower (Pty) Ltd (Registration Number: 2021/774522/07), a private company duly incorporated in terms of the company laws of the Republic of South Africa;

1.8.    “Intellectual Property Rights” means patents (including any rights in or to (or any rights in and to), inventions); trademarks, service marks, logos, trade names and business names (including rights in goodwill attached thereto); design rights; rights in or to (or rights in and to) internet domain names and website addresses; semi-conductor topography rights; copyright (including future copyright); database rights; rights in and to Confidential Information (including trade secrets); and all other intellectual property rights, in each case subsisting at any time in any part of the world (whether registered or unregistered) and any: (a) pending applications or rights to apply for registrations of any of these rights that are capable of registration in any country or jurisdiction; and (b) similar or analogous rights to any of these rights in any jurisdiction;

1.9.    “Job Card” means official orders issued in writing by the Installer and signed by the Customer for the supply of Goods and Services in which is detailed inter alia the:- (i) proposed Goods and Services  to be rendered; (ii)  designs and concepts of the System(s); (iii) estimated time frames for performance; and (iv) the Price;

1.10.  “Parties” means the Customer and Installer collectively and “Party” shall refer to any one of them; 

1.11.  “Personal Information” has the meaning ascribed to in the POPIA;

1.12.  “POPIA” means the Protection of Personal Information Act 4 of 2013, as amended from time to time, together with any regulations issued from time to time in terms thereof;

1.13.  “Premises” means the physical address nominated by the Customer at which Goods are to be delivered and Services are to be rendered in order to install the System;

1.14.  “Price” means the consideration agreed between the Parties and specified in the quotation that shall be payable by the Customer to the Installer for the provision of Goods and or Services, and is based upon the information and specifications provided by the Customer to the Installer;

1.15.  “Processing” has the meaning ascribed to in the POPIA; 

1.16.  “Services” means the services to be rendered by the Installer to the Customer in accordance with the Job Card(s), including:- (i) the supply, testing and/or commissioning of certain Goods; (ii) installation of System(s); (iii) consultation services in relation thereto; (iv) free wi-fi dongle and monitoring software application setup on all Systems; and (v) lifetime after-sales System-guidance support by the Installer;

1.17.  “Supplier” shall have the meaning ascribed to it at clause 5 below;

1.18.  “System” means the configuration of Goods installed by the Installer so as to constitute a solar power system, whether such system is 5kW, 8kW, or 10kW; 

1.19.  Reference to “days” shall be a reference to calendar days unless otherwise specified;

1.20.  A reference to an enactment is a reference to that enactment as at the date of signature hereof and as amended or re-enacted from time to time;

1.21.  The rule of interpretation that a written agreement shall be interpreted against the Party responsible for the drafting or preparation of that agreement shall not apply;

1.22.  The eiusdem generis rule shall not apply and accordingly, whenever a provision is followed by the word “including” and specific examples, such examples shall not be construed so as to limit the ambit of the provision concerned.

2.    COMMENCEMENT, DURATION AND DEPOSIT

2.1.    This Agreement shall commence and be in full force and effect from the date that the Customer requests a quotation from the Installer, and shall endure indefinitely until termination by either Party in terms of this Agreement. By requesting a quote from the Installer or in the event that the Installer otherwise carries out any actions under the Customer’s instruction, the Customer acknowledges that it shall be deemed to have read, understood, and accepted each of the provisions of this Agreement, the provisions of the Installer’s privacy policy accessible at https://repower-sa.com/solar-article/ and https://repower-sa.com//,  and any other legal notices published by the Installer on its websites, which shall be fully binding on the Customer.

2.2.    The Installer shall not secure any Goods and/or Services until such time as:-

2.2.1.    the Customer signs a quotation issued by the Installer in order to schedule a site visit at the Premises; and

2.2.2.    at the site visit, the Installer issues an official Job Card to the Customer, and the Customer signs the Job Card for the Goods and/or Services or any one or part thereof; and

2.2.3.    the Installer shall issue an invoice within 10 (ten) calendar days after the signed Job Card is received, in terms of which the Customer shall pay an up-front deposit of 20% (Twenty Percent) of the Price in terms of clause 4 below. This applies to 5kW, 8kW, and 10kW Systems.

2.3.    The balance of the Price shall be payable in terms of clause 4 below.

2.4.    The Installer is entitled to terminate this Agreement or a Job Card for whatsoever reason upon 7 (Seven) working days’ written notice to the Customer.

3.    JOB CARDS 

3.1.    Job Cards may contain details of the Goods ordered (including the specification), the Services to be rendered, the System, and confirmation of the Price, and will be generated by the Installer at a site visit to the Premises.

3.2.    The Customer must sign the Job Card and provide the signed original to the Installer to appoint the Installer and to confirm an order for the Goods and Services. The Installer will provide the Customer with a signed copy of the Job Card for its records.

3.3.    Save as otherwise prescribed in terms of this Agreement, no amendment to a Job Card will be valid unless agreed to in writing by both Parties and incorporated in a revised and duly issued Job Card. 

3.4.    Job Cards may be cancelled by written notice by the Customer to the Installer at any time provided that the Customer shall pay the Installer for costs reasonably incurred up to the date of cancellation. The Customer shall procure that all commercially reasonable and practical steps are taken and all reasonable assistance is given (including the taking of any actions reasonably requested by the Installer) to mitigate any losses, which in the absence of mitigation might give rise to or increase a loss in respect of any claim under this clause. 

4.    PRICE AND PAYMENT 

4.1.    All Prices quoted remain valid for 14 (Fourteen) calendar days from the date of issue of the quotation.

4.2.    In the event that the Customer does not appoint the Installer for whatsoever reason within 14 (fourteen) calendar from the date of the Premises visit, the Installer shall be entitled to charge a callout fee of R850.00 to the Customer, payable in full within 7 (seven) calendar days of the date of the relevant invoice.

4.3.    The Customer shall pay:-

4.3.1.   an up-front deposit of 20% (twenty percent) of the Price within 7 (seven) calendar days of receipt of the invoice at clause 2.2.3 above; and

4.3.2.   60% (sixty percent) of the Price within 24 (twenty-four) hours of delivery of the Goods to the Premises; and

4.3.3.   the balance, being the remaining 20% (twenty percent) of the Price, within 7 (seven) calendar days of completion of the installation of the System. “Completion” shall be deemed to have taken place at the point in time that the Installer or its authorised agent, employee or representative issues a Delivery and Installation Note containing inter alia, the Job Card number, the date of delivery and installation, the Goods delivered and the System installed.

4.4.    In the event of cancellation by the customer, the customer shall be liable to pay 15% of the total owed amount as stated in the customer’s invoice. This provision remains applicable if the customer alters their scheduled installation date with more than fourteen (14) calendar days’ notice following the initial deposit. The installer reserves the right to deduct the 15% cancellation fee from the customer’s initial 20% deposit and refund the remaining 5%. Should the customer fail to remit the agreed-upon invoice amount after making the deposit, this provision shall similarly apply.

4.5.    The Customer acknowledges, agrees and understands that the Installer will not issue the Certificate of Compliance (“COC”) or schedule set-up of the dongles until the full balance has been paid per clause 4.3.3 above, and received as cleared funds in the Installer’s nominated bank account. The Customer acknowledges that the COC issued by the Installer is strictly in respect of the installed System, and that this is separate and distinct from any other COC in respect of any non-System related electrical installations in place at the Premises, for which the Installer accepts no liability (for example, any non-System-related installations that run through the Distribution Board (DB) on power supplied by Eskom Holdings SOC Limited or a similar body). 

4.6.    All payments shall be made by EFT into the account nominated in writing by the Installer. There is a real risk that emails may be intercepted by unauthorised external third parties. The Installer will not advise you of any change in banking details via email. The Customer must be on guard for any suspicious emails that ostensibly come from the Installer. Prior to making payment, the Customer is urged to contact the Installer by telephone using the contact  numbers listed on its website to verbally confirm that the account details provided are accurate. The Installer does not accept liability where monies are lost or diverted through fraudulent third-party interception. 

4.7.    If, after completion of the Installation of the System, the Customer requests any additional Goods or Services not set out in the Job Card, and provided that the Customer has paid in full for the initial System installation per the Job Card, such additional Goods and Services will be quoted for separately. 

4.8.    All Prices are compiled based on the information and specifications provided by the Customer. In the event of any errors or inaccuracies in the information provided by the Customer, the Installer reserves the right to adjust or increase the quoted Prices accordingly. The Customer acknowledges that it is responsible for providing accurate and complete information to ensure accurate invoicing and Pricing.

4.9.    Unless expressly stated to the contrary in the quote or Job Card: 

4.9.1.    the Price shall be inclusive of Value-Added Tax (“VAT”) at the rate prescribed under the Value Added Tax Act, No 89 of 1991 and any regulations thereto from time to time (currently 15% (fifteen percent)), and shall include standard packaging, delivery, and installation. The Customer shall be liable for these costs; 

4.9.2.    save as otherwise provided in this Agreement, no additional charges of whatever nature shall be recoverable from the Customer unless the Installer has, prior to the execution of the Job Card, obtained the Customer’s agreement in writing on such additional charges. 

4.10.    In the event that there is an increase in any input costs for the Installer directly related to providing the Services or Goods, including but not limited to socio-economic environment, as well as costs pertaining to labour, fuel, vehicle maintenance and support, whether as a result of legislation, sectoral determination, collective or any other agreement or otherwise, the Installer shall be entitled to increase the Price commensurately to cover the increased cost of such additional input cost.

4.11.  Unreasonable delay in payments by the Customer may result in material Price increases. Upon occurrence of a delayed payment, provided such delay is not due to the invoice being disputed sincerely, honestly and in good faith as set out at clause 4.12 below, the Installer shall provide written notice to the Customer, specifying the potential price increase and its effective date. The Price increases shall be calculated based on prevailing market rates or other applicable factors. The Customer shall be responsible for paying the adjusted amount, including the original invoiced amount plus any applicable material Price increases resulting from the delayed payment.

4.12.  In the event the Customer disputes the whole or a portion of an invoice issued by the Installer sincerely, honestly and in good faith, the Customer shall promptly notify the Installer in writing of the disputed portion of the invoice within 2 (two) calendar days of receipt of the invoice. The notice shall specify the disputed items or charges and provide a detailed explanation. The Customer shall pay the undisputed portion of the invoice within the normal payment terms, whilst the Parties engage in good faith negotiations to resolve the dispute within 5 (five) calendar days of the dispute notification. Pending resolution, the Customer may withhold payment of the disputed portion, and upon resolution, the invoice shall be adjusted, and any agreed-upon amount shall be paid within 5 (five) calendar days.

4.13.  In the event that the Installer does not receive notification of a dispute in terms of clause 4.12, then the Customer is deemed to have accepted the invoice and the correctness of the contents of the invoice in respect to the entire contents of the invoice.

4.14.  All payments to the Installer shall be paid promptly without deferment, free of exchange and without any deduction or set-off of whatsoever nature. 

4.15.  The Installer shall, in its sole and absolute discretion be entitled to appropriate any and all payments made by the Customer towards the payment of any debt or obligation of whatsoever nature owed by the Customer to the Installer, irrespective of when or how such obligation or debt arose.

4.16.  Failure by the Customer to pay any fees timeously may result in cancellation of Job Card and/or forfeiture of the deposit and/or an increase in the Price. 

5.    THIRD-PARTY SUPPLIERS AND DEFECTIVE GOODS

5.1.    The Customer expressly acknowledges and accepts that the Goods, including but not limited to peripheral products and/or third-party support contracts, and the accessories thereto, if any, are procured from third-party manufacturers (the “Suppliers”), and the Customer acknowledges and accepts that the Installer is not the manufacturer thereof. To the fullest extent permitted by law, the Installer therefore makes no warranties in respect of the Goods or any accessories thereto, and any warranties that may subsist in the Goods or its accessories are made solely by such third-party Manufacturers, who shall be solely liable therefore.

5.2.     The policies and procedures of the Suppliers with regard to returns, exchanges, refunds and cancellations, shall apply.

5.3.    Defective Goods

5.3.1.    Goods that are defective may be returned, provided that:- (i) the Customer requests a return within 30 (thirty) calendar days from the date of delivery and installation; (ii) the Goods are in the same condition as they were received, unused and in its original packaging (if applicable); (iii) the Customer presents proof of purchase to the Installer; (iv) the defect was present in the Goods at the time of installation, and did not arise thereafter by reason of:- (a) any fault on the part of the customer, including the Customer’s misuse of the Goods (“misuse” includes but is not limited to use in contravention of the Supplier’s or Installer’s guidelines or instructions and/or faulty repair or maintenance or unauthorized modification by anyone other than the Installer or any person authorised by the Installer or its Suppliers); or (b) accident, abuse, liquid spill or submersion, neglect, extreme environment (including extreme temperature or humidity), extreme physical or electrical stress or interference, fluctuation or surges of electrical power, lightning, static electricity, fire, acts of God or other external causes, dust damage, water damage, or short circuit. 

5.3.2.    The Installer shall arrange to collect the alleged defective Goods at its own risk and expense and send same to its Suppliers for further evaluation (risk to the Goods shall remain with the Customer until collected by the Installer). During this period of evaluation, the Installer shall provide temporary replacement Goods to the Customer. 

5.3.3.    If the valuation reveals to the Supplier’s reasonable satisfaction that the Goods:-

5.3.3.1.    are not defective, the Customer shall re-imburse the Installer for all fees incurred in collection, evaluation, provision of substitute Goods, and delivery.

5.3.3.2.    are defective, the Installer shall notify the Customer, and if the defect was found:-

(a)          not to have been due to any of the circumstances set out in clause 5.3.1(iv) above, then the Customer shall be entitled to elect to request repair or replacement of the Goods, or refund for the Goods at the Installer’s expense;

(b)          to have been due to any of the circumstances set out in clause 5.3.1(iv) above, then the Customer shall not be entitled to replacement or repair of, or refund for, the Goods at the Installer’s expense. Any repair or replacement in these circumstances shall be at the Customer’s full expense, and further, the Customer shall re-imburse the Installer for all costs associated with the provision of the substitute Goods. 

5.4.    Defective System and System-Related Issues

5.4.1.    If, within a period of 5 (five) years from the date of installation of the System, the installed System appears not to function properly, the Customer shall notify the Installer in writing to request a callout by the Installer to inspect the System. If the inspection reveals that the System:-

5.4.1.1.    is defective, the Installer shall repair same at its own expense and the Customer shall not be charged a callout fee;

5.4.1.2.    is not defective, the Installer shall be entitled to charge a callout fee, as well as any additional expenses for labour and materials as may be applicable.

5.4.2.    Upon expiry of the forementioned 5 (five) year period, all callouts shall be charged for in full.

5.5.    To the maximum extent permissible by law, the Installer shall not be liable in any way whatsoever for any failures, defects or shortcomings of any nature that may at any point in time arise in, or from the use of, such Goods and Services or from any events listed at clause 5.3.1(iv) above, and the Customer indemnifies and holds the Installer harmless from and against any loss, damages, claims, actions or expenses thereby incurred.

5.6.    Without derogating from the subclauses above in this clause, third party warranties may vary from product to product, and it is the responsibility of the Customer to consult the applicable product documentation for specific warranty information. In addition, the Customer acknowledges that certain Installer’s or Suppliers’ warranties may limit or void the remedies they offer if:- (i) unauthorised persons perform support services on the Goods; or (ii) the Customer does not have a valid COC in place in respect of all non-System related installations already in place at the Premises.

5.7.    The Installer shall not be liable towards the Customer or any other person for any loss or damage of any nature whatsoever and howsoever arising, including but not limited to special, indirect or consequential damages, whether based upon inter alia lost goodwill, loss of profits, loss of revenue, loss of investments, difficulties or on account of any cause whatsoever, except to the extent such loss is due to the wilful misconduct or gross negligence of the Installer, and then only in respect of direct damages. The Customer indemnifies the Installer, its associated companies, its personnel, officers, employees, agents or subcontractors or their employees, and holds them harmless from any and all such claims, demands, liabilities, suits, losses, costs or expenses.

6.    OWNERSHIP AND RISK IN AND TO THE GOODS 

6.1.    Risk in and to the Goods shall pass to the Customer upon the physical delivery and the installation thereof at the Customer’s Premises. Ownership shall remain with the Installer until such time as the Customer has made full payment of the Price, at which point ownership will pass to the Customer. The Customer acknowledges that if it fails to make due payment, the Installer may repossess the Goods, and the Customer shall be liable for all costs associated with the initial delivery, installation, as well as de-installation, collection and repossession of such Goods, together with any damages thereby incurred.

7.    WHOLE AGREEMENT 

7.1.    The Agreement is the sole record of the agreement between the Parties and may only be varied or waived:- (i) if amendments are desired by the Customer, in a written, signed document between the Customer and the Installer; or (ii) if amendments are desired by the Installer, in terms of clause 21.3 below.

7.2.    Wherever there is a conflict between the provisions of this Agreement and/or any other alleged agreement between the Parties, then the provisions of this Agreement shall supersede those of such other agreement.

7.3.    No undertaking, representation, term, or condition relating to the subject matter of this Agreement not incorporated in this Agreementand/or any Job Card shall be binding on either of the Parties. 

7.4.    The Parties agree that the Installer is an independent contracting party and that the Agreement does not constitute a contract of agency, representation, employment, or partnership between the Customer and the Installer. The Installer shall not incur any liability whatsoever for or on behalf of the Customer. 

8.    WARRANTIES 

8.1.    The Customer warrants that all information provided to the Installer, including specifications, quantities, delivery addresses, and any other relevant details, is accurate, complete, and up-to-date.

8.2.    The Customer warrants that it will respect and not infringe upon the Installer’s or any other party’s Intellectual Property Rights, and that it will not use, reproduce, modify, or distribute the Installer’s intellectual property without prior written consent, and hereby indemnifies and holds harmless the Installer against any loss, damages or expense sustained by the Installer as a consequence of any breach of this warranty. 

8.3.    The Installer warrants that (a) the Services will be rendered in an efficient, workmanlike, prompt, professional and safe manner, in accordance with good industry practice and (b) the Installer shall exercise that degree of skill, care and diligence which could reasonably and ordinarily be expected from a skilled and experienced operator complying with all applicable laws, engaged in the same or a similar type of undertaking.

9.    CUSTOMER’S GENERAL OBLIGATIONS

The Customer shall 

9.1.    provide the Installer with accurate, complete, and up-to-date information necessary for the purposes of quoting Prices and the provision of Goods or Services. This includes, but is not limited to, specifications, quantities, delivery addresses, and any other relevant details required for the execution of the Agreement;

9.2.    make timely payments to the Installer in accordance with this Agreement and specified payment due dates. The Customer shall ensure that all payments are made in the correct currency, into the correct bank account, and in the manner agreed upon between the Parties;

9.3.    cooperate with the Installer, providing any necessary assistance, information, or access required for the Installer to fulfill their obligations under the Agreement. The Customer shall maintain open and timely communication with the Installer to address any concerns, issues, or changes that may arise;

9.4.      comply with all applicable laws including relevant statutes, ordinances, by-laws and regulations having any bearing on the Agreement and will obtain all necessary licenses, permits and approvals that it requires to perform its obligations.

10.   WIFI

10.1.  The Customer understands and acknowledges that the dongle will only connect to WiFi with a 2.4GHz bandwidth.  The Customer must ensure that the inverter(s) can be installed sufficiently close to a WiFi signal or other internet service signal.  This includes the Customer’s responsibility to provide a WiFi range extender to accommodate the possible loss of signal. Should the dongle(s) fail for whatsoever reason to connect, or should the inverter’s data not connect to the Customer’s Wifi or other internet service signal, the Installer shall accept no liability therefor. 

11.   INSTALLATION AND DELAYS

11.1.  The Installer endeavours to meet the agreed installation date(s) as specified in the Job Card or invoice. However, the Customer understand and acknowledges that the installation date(s) shall not be deemed as material terms of the Agreement and may be subject to variation. The agreed-upon installation time is an estimate based on the information available at the time of entering into the Agreement. The Installer shall make reasonable efforts to promptly notify the Customer of any anticipated delays or changes to the installation schedule, and the Installer will take all reasonable steps to mitigate any delays and complete the installation within a reasonable timeframe, subject to unforeseen circumstances or factors beyond its control, including but not limited to loadshedding or other event of Force Majeure.

11.2.  The Customer shall, at their sole expense, be responsible for providing all necessary power required for the on-site installation by the Installer. 

11.3.  The Installer, its agents, employees and representatives will exercise reasonable care and caution during the installation of all Goods and shall make all make commercially reasonable efforts to prevent any damage to the Customer’s Premises. However, the Installer shall not be held liable for any damage caused to the Customer’s property during the installation process, unless such damage is proven to be caused by the wilful misconduct or gross negligence of the Installer or its agents, employees and representatives. The Customer assumes the responsibility for adequately protecting their property and possessions during the installation process.

11.4.  The Installer reserves the right to increase the Price commensurately with any supplementary input expenses that may be incurred as a result of installation delays due to unfavourable Premises conditions caused by any act or omission of the Customer. 

11.5.  In the event that the Installer fails to adhere to the proposed installation date(s), such failure shall neither entitle the Customer to cancel the Job Card nor this Agreement, nor will the Customer be relieved from the strict performance of its obligations under the Agreement. The Customer agrees to provide reasonable flexibility and cooperation to the Installer to reschedule the installation without unreasonable delay. The Customer understands and acknowledges that any delays in the installation process shall not constitute a breach of the agreement by the Installer, and the Customer shall not be entitled to any compensation or remedies solely based on such delays, except as otherwise provided for in the Agreement.

12.   INDEMNITY

12.1.  The Customer acknowledges and understands that the System is designed by the Installer according to the information provided to it by the Customer. The Installer shall not be liable in any manner whatsoever if the System fails to accommodate the Customer’s exact needs, and the Customer hereby indemnifies the Installer, its officers, directors, employees, agents, and affiliates, and holds them harmless against any loss arising from such failure.

12.2.  The Customer agrees to indemnify and hold the Installer, its officers, directors, employees, agents, and affiliates, harmless from any claims, losses, damages, liabilities, or expenses (including indirect, special and consequential damages, reasonable attorney’s fees and costs) arising out of or related to the Customer’s breach of its obligations under the Agreement. This indemnification applies to any third-party claims as well.

12.3.  The Installer shall promptly notify the Customer in writing of any claim or action for which indemnification is sought and the Customer shall provide all necessary cooperation and assistance in the defense of such claim or action. The Installer reserves the right to control the defense and settlement of any such claim or action, with the Customer’s reasonable cooperation.

12.4.  These indemnities shall survive termination of this Agreement or any Job Card.

13.   NOT ADVICE

13.1.  The Installer’s Goods, Services and Systems are not intended to constitute legal or financial advice or advice of any other kind. The accuracy, completeness, adequacy or currency of the Installer’s Goods, Services and Systems and any other information provided is not warranted or guaranteed. The Customer’s use of the Installer’s Goods, Services and Systems or any other information provided by the Installer is at the Customer’s own risk.

14.   PRIVACY AND PROTECTION OF PERSONAL INFORMATION

14.1.  The Installer takes all reasonable measures to protect the Customer’s privacy. For more information, please refer to the Installer’s Privacy Policy available at https://repower-sa.com/solar-article/ and https://repower-sa.com/ which is incorporated by reference.

14.2.  The Parties shall at all times during the performance of their obligations in terms of these this Agreement and after termination ensure that (a) no Personal Information collected from any person during the supply of the Goods/Service is sold, disclosed, commercially exploited, or used in any way other than as expressly authorised by the other Party and (b) ensure that it Processes Personal Information for only the express purpose for which it was obtained. 

14.3.  The Customer consents to the collection and processing of its Personal Information (including personal information contained in electronic communications) by the Installer for the purposes of implementing this Agreement and facilitating the supply of Goods and/or Services. The Customer authorises the Installer  to take all commercially-reasonable measures to confirm the Customer’s identity and to examine the Customer’s background with respect its ability to meet its obligations to the Installer. Reasonable measures will include but are not limited to the following: (i) on an ongoing basis, to request and obtain the Customer’s Personal Information, which may be available from credit bureaus to assess Customer’s credit history and credit rating; (ii) with credit bureaus, to provide and receive, on a regular basis, credit information concerning the Customer.

15.   INTELLECTUAL PROPERTY RIGHTS 

15.1.  For the purpose of this clause, “Improvements” means enhancements, developments, adaptations and/or modifications made to the pre-existing Intellectual Property owned by the Installer prior to the commencement date of this Agreement.

15.2.  Any and all Intellectual Property Rights owned, developed, or acquired by a Party prior to this Agreement coming into effect shall remain the sole and exclusive property of the Party who is the lawful proprietor thereof and any and all rights of the Parties in terms of this Agreement shall be subject to the other Party’s Intellectual Property Rights. Unless otherwise specifically authorised in this Agreement or in writing by a Party and then only to the extent so authorised, the other Party shall have no right to use the Party’s Intellectual Property Rights in any manner.

15.3.  Any intellectual property made, created, or discovered by the Customer in the course and scope of this Agreement in connection with or relating to the business of the Installer, or any Improvements to the intellectual property of the Installer, shall be deemed to belong, and is hereby irrevocably assigned, to the Installer.

15.4.  In respect of the Improvements contemplated at clause 15.3 above, the Customer hereby undertakes to assist the Installer in taking assignment of and applying for the registration, where relevant, of such inventions, designs, trade marks, copyrighted works, or other intellectual property in the name of the Installer only. 

15.5.  To the extent that there are any components of the Customer’s Intellectual Property Rights included in the Services, Goods or Systems, the Customer herewith unconditionally and irrevocably, grants to the Installer, a royalty-free, worldwide, perpetual, non-exclusive, non-transferable license to use such Intellectual Property solely in connection with such Services, Goods, or Systems.

16.   CONFIDENTIALITY

16.1.  Each Party agrees to treat as strictly confidential the Confidential Information of the other Party and not to divulge any information relating thereto to any third party, agent or employee without the prior written consent of the other Party, save as is required by law. 

16.2.  The Parties must ensure that all their employees and/or representatives having access to the Personal Information are bound by appropriate and enforceable obligations of confidentiality. The Parties will limit access to Personal Information, to persons who have executed the appropriate confidentiality agreements, or persons who, by virtue of their office, are obliged to confidentiality

16.3.  The provisions of this clause will survive the termination of this Agreement. 

17.   BREACH

17.1.  In the event of either Party breaching any of its obligations under the Agreement, and such Party failing to remedy such breach within a period of ten (10) days of receipt of written  notice from the aggrieved Party calling upon it to do so, the aggrieved Party shall be entitled without further notice to (a) cancel the Agreement and/or cancel the Job Card and (b) claim specific performance, in either event without prejudice to the aggrieved Party’s rights to claim damages or to enforce any other remedy to which it may be entitled whether in terms of the Agreement or in law. 

17.2.  In addition either Party shall be entitled to cancel the Agreement and/ or any Job Card forthwith if: (a) the other Party is either provisionally or finally wound-up/sequestrated or seeks to make a compromise with its creditors; or (b) the other Party applies for deregistration or is deregistered in terms of sections 81 to 83 of the Companies Act, No. 71 of 2008 or section 26 of the Close Corporations Act 69 of 1984; or (c) any business rescue proceedings are commenced in respect of the other Party in terms of Chapter 6 of the Companies Act No. 71 of 2008; or (d) the other Party is provisionally or finally liquidated, is placed under judicial management or becomes financially distressed; or (e) the other Party commits a breach of the Agreement which cannot be rectified; or (f) during the course of the Agreement, the other Party contravenes the provisions of any applicable law. 

17.3.  The Customer shall be liable for any and all legal costs incurred by the Installer in enforcing its rights under this Agreement, including, but not limited to collection commission and fees and disbursements, as well as legal costs on an attorney-own client scale, in respect to any claims that the Installer may have against the Customer or in the case of any unsuccessful claims by the Customer against the Installer.

18.   FORCE MAJEURE

18.1.  Should any Party be prevented by reason of a Force Majeure Event from performing its obligations in terms hereof (excluding the obligation of a Party to make payment), then such failure shall not be regarded as a breach of its obligations in terms hereof provided that: (a) the Party hereto subject to a Force Majeure Event shall give prompt written notice to the other Party hereto of the nature and estimated duration of the Force Majeure Event concerned; (b) the Parties hereto shall co-operate and collaborate together and use all reasonable efforts to overcome the Force Majeure Event concerned and/or nullify its effect; and (c) any suspension of performance within the provisions of the above shall be limited to the period during which such inability shall exist and the period of this Agreement shall be interrupted by the period of such suspension. 

18.2.  If the aforementioned inability substantially or permanently prevents the continued performance by either Party of its obligations in terms of this Agreement for a period exceeding 10 (Ten) consecutive calendar days, then either Party shall be entitled, by giving notice in writing, to terminate this Agreement without penalty in respect of any of its obligations still to be performed hereunder. This shall be without prejudice to the rights and obligations accruing to the Parties prior to the Force Majeure Event.

19.   DOMICILIUM CITANDI ET EXECUTANDI 

19.1.  The Customer nominates as its domicilium citandi et executandi its registered address (if a juristic entity), or the physical address or its Premises as stipulated on any applicable Job Card or invoice (if a juristic entity or natural person), for service upon it of all processes in connection with any claim arising from the Agreement. The Installer nominates as its domicilium citandi et executandi its address as stipulated on the first page of this Agreement for service upon it of all processes in connection with any claim arising out of the Agreement. 

19.2.  All notices and communications under the Agreement shall be given in English and in writing. For the purposes of the Agreement, “writing” means e-mails that have been acknowledged by the recipient with proof of transmission or letters sent by courier with proof of delivery. Oral agreements, notices or instructions are not binding on either Party. 

19.3.  Either Party may change such address on written notice to the other party provided that the new domicilium is within the Republic of South Africa and consists of, or includes, a physical address at which process can be served. 

19.4.  Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by either Party shall be an adequate written notice or communication, notwithstanding that it was not sent to or delivered at the Party’s chosen domicilium.

20.   CESSION AND SUB-CONTRACTING 

20.1.  The Customer shall not, without the prior written consent of the Installer, (a) sub-contract any of its obligations or (b) cede or assign any of its rights or obligations in terms of this Agreement. 

20.2.  The Installer shall be entitled, without prior consent of the Customer, to (a) sub-contract any of its obligations or (b) cede or assign any of its rights or obligations in terms of this Agreement. Notwithstanding any such consent, the Installer shall at all times be liable for the acts or omissions of its employees, agents, sub-contractors, cessionaries, assigns or any other associated party utilised by it, as if they had been acts or omissions of the Installer. 

21.   GENERAL

21.1.  This Agreement and any disputes arising in relation thereto shall be governed by the laws of the Republic of South Africa. 

21.2.  The Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court of South Africa.

21.3.  The Agreement is the sole record of the agreement between the Parties and no other warranty, undertaking, variation or waiver is valid, unless amended according to the remainder of this clause. The Installer may, at its sole discretion, modify this Agreement at any time. To the extent that the terms of an active Job Card conflict with such modified terms of this Agreement, the terms of the Job Card shall prevail. For the purposes of this clause, an “active Job Card” means a Job Card that has already been issued by the Customer and signed by the Installer. Any new quote or Job Card issued thereafter shall be governed by the modified terms of this Agreement. By continuing to use the Installer’s Services and/or order the Goods, the Customer agrees to such modifications. This Agreement was last modified on 12 June 2023.

21.4.  No failure or neglect by a Party to exercise any rights hereunder or to insist upon strict compliance with or performance of another Party’s obligations under the Agreement, shall constitute a waiver of the provisions of the Agreement and a Party may at any time require strict compliance with the provisions of the Agreement. 

21.5.  No indulgences or extensions of time or latitude which one of the Parties may allow to the other Party shall constitute a waiver by that Party of any of its rights, and it shall not thereby be prevented from exercising any of its rights which may have arisen in the past or may arise in the future. 

21.6.  Each of the provisions of the Agreement shall be considered as separate terms and conditions. In the event that the Agreement is affected by any legislation or any amendment thereto, or if the provisions herein contained are by virtue of such legislation or otherwise held to be illegal, invalid or unenforceable, then any such provisions shall be ineffective only to the extent of the illegality, invalidity or unenforceability and each of the remaining provisions hereof shall remain in full force and effect as if such illegal, invalid or unenforceable provision was not a part hereof.

21.7.  The Customer acknowledges and confirms that it has read and fully understood the provisions set forth in this Agreement. By engaging in any business transaction with the Installer, the Customer explicitly signifies its understanding and acceptance of the provisions specified herein.

21.8.  By using ordering the Goods and Services, the Customer warrant that it has the appropriate and necessary authority to do so and to bind any person which it purports to be authorised to represent, to the terms set out herein. Any person who, on behalf of the Customer, signs an official Job Card warrants that they have the appropriate and necessary authority to do so and to bind the Customer to the terms set out herein, and the Customer shall be liable to the Installer to the fullest extent of this Agreement.