CBI :energy – Customer Services Agreement
1. SERVICE SCHEDULE
|Customer ID:||CBI Solution Provider ID:Representative Name:|
|Company Name:||Company Registration Number:|
|Customer Contact Name:(authorised representative for contracting via this Agreement)||Customer Contact Number:||Customer Contact Email:|
|Customer Technical Contact Name:(authorised representative for acceptance and Commissioning)||Customer Technical Contact Number:||Customer Technical Contact Email:|
|Street Name and Number:||Same as physical address [ ]|
|Complex Name and Number:||P.O. Box / Private Bag:|
|Street Code:||Postal Code:|
|Service Contract Details:|
|Commencement Date:||DD MMMM YYYY|
|Service Type:Building Energy Management Solution (on-premise + Cloud) [ ]Cloud-direct Building Energy Management Solution [ ]Managed Smart Metering System (Cloud only) [ ]|
|Service Level:||Essential||Enterprise||Other |
(defined in separate annex)
|Term||2 years||3 years||4 years|
|If paying by debit order the Customer hereby authorises Circuit Breaker Industries (Pty) Ltd to debit the Customer’s account specified herein, or at any other bank or branch to which the Customer subsequently transfers its account, with all amounts due by the Customer in terms of this Agreement.||Authorised signatory for Debit OrderName: Signature:|
(Debit Order standard instruction)
EQUIPMENT, SERVICES AND CHARGES
|Site (location of the premises where the Equipment will be installed and covered in terms of this Agreement):|
|Address: (Street Number, Street Name or Erf Number/Portion)||Complex/Park Name:Building Name/Number:|
|Town/City/Local Municipality:||Site Contact Name:|
|Province:||Site Contact Number:|
|Street Code:||Site Contact Email:|
|Service Definition Document version:|
|Equipment Costs and Subscriptions – Building Energy Management Solution|
|Quantity||Price||Total Cost per Item||Total per Device Monthly Subs|
|Total Equipment Cost||Total Monthly Subscriptions|
|Charges per month for Term:|
|Subscriptions OnlyOr 50% (fifty percent) Upfront + Subs Or 12 (twelve) Month Terms + Subs Or 24 (twenty four) Month Terms + Subs|
|Total per month:||R|
|Total costs for Equipment (paid on site Commissioning):|
|Total per month:||R|
|Equipment Costs and Subscriptions – Managed Smart Metering system|
|Quantity||Price||Total Cost per Item||Total per Device Monthly Subs|
|Total Equipment Cost||Total Monthly Subscriptions|
|Installation Services Fee:||R|
This schedule above is used by CBI to generate the Sales Order (defined below in clause 3.18) that will be used as a basis to issue an invoice to the Customer for the Customer’s account.
Note: All other electrical or networking equipment, cabling, ducting, distribution boards, wiring accessories and materials not listed above are excluded.
Residual value payable for early termination as provided in terms of clause 4.3:
Equipment: Residual value of the Equipment calculated by taking the Total Equipment Cost specified under the Equipment, Services and Charges Schedule above and deducting the value of payments made against that Equipment, where this is a 0 (zero) value where the 100% (one hundred percent) Upfront option was taken, and pro-rated if paid under 50% (fifty percent) Upfront or 24 (twenty four) Month Terms.
2. PARTIES, INTERPRETATION
2.1. This Agreement (as defined below) is entered into by and between Circuit Breaker Industries (Pty) Ltd, t/a CBI-Electric: Low Voltage (Registration Number 1943/015747/07) (VAT number 4120117488), a private company with limited liability incorporated in accordance with the laws of South Africa with chosen domicilium at 1/3 Tripswitch Drive, Tunney Industrial, Elandsfontein, Johannesburg, Gauteng Province, RSA, and the Customer.
2.2. This Agreement shall govern all transactions between the Customer and CBI in respect of the Services and the Equipment and will also include the terms and conditions contained on the Services Schedule as well as the terms and conditions contained on the Website as amended from time to time. This Agreement may be amended according to the prescripts of clauses 18 and 25(on the Website).
2.3. In this Agreement:
2.3.1. clause headings are for reference purposes only and shall not influence the interpretation of this Agreement;
2.3.2. A reference to:
22.214.171.124. one gender shall include the other genders;
126.96.36.199. natural persons include juristic persons and vice versa;
188.8.131.52. the singular shall include the plural and vice versa;
184.108.40.206. days, months or years shall be construed as Gregorian calendar days, months or years
220.127.116.11. “writing” or “signed” shall include any form of electronic communication, or electronic signature;
2.3.3. if any provision in a definition is a substantive provision conferring rights or imposing obligations on a Party, effect shall be given to it as if it were a substantive provision in the body of the Agreement;
2.3.4. where figures are referred to in numerals and in words, if there is any conflict, the words shall prevail;
2.3.5. in the event of a conflict between the main body of this Agreement (clauses 1 to 17) and the Website (clauses 18 to 28), the main body shall prevail;
2.3.6. expressions defined in this Agreement shall bear the same meanings in on the Website, un-less the contrary appears therefrom;
2.3.7. durations shall be reckoned exclusively of the first and inclusively of the last day;
2.3.8. when any number of days is prescribed and the last day of such period falls on a day that is not a Business Day (as defined below), the last day shall be the next succeeding day which is a Business Day;
2.3.9. any reference to a Party shall include a reference to that Party’s assigns expressly permitted under this Agreement and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be;
2.3.10. any reference to an enactment in this Agreement is to that enactment as at the Signature Date (as defined below) and as amended or re-enacted from time to time;
2.3.11. the use of the words “include”, “including” and “in particular” followed by a specific example or examples shall be construed as being by way of example or emphasis only, and shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example or examples; and
2.3.12. any reference to any other agreement or document shall be construed as a reference to such other agreement or document as amended, varied, novated or supplemented from time to time.
Unless inconsistent with the context, the following (and any other) capitalised words and expressions shall bear the following (or wherever else so herein defined) meanings and cognate expressions shall bear corresponding meanings:
|3.1. “Agreement”||means this CBI :energy Customer Services Agreement contained in the Services Schedule (clause 1), the terms and conditions contained in clauses 2 to 17, and those contained on the Website in clauses 18 to 28.|
|3.2. “Business Day”||means any day other than a Saturday, Sunday or official public holiday in South Africa.|
|3.3. “Business Hours”||means the time between 08:30 and 16:30 on Business Days.|
|3.4. “CBI :energy”||means the division of Circuit Breaker Industries Pty Ltd that develops and takes to market and supports the energy monitoring, metering and management solution, which includes the Equipment and Platform.|
|3.5. “Charges”||means the fees, disbursements and other charges levied by CBI for the Services, which includes Equipment, as agreed to in the Service Schedule.|
|3.6. “Commencement Date”||means, notwithstanding Signature Date, the date on which Services commence|
|3.7. “Commissioning”||means the acceptance by the authorised representative of the Customer Contact or Customer Technical Contact that the Equipment and Service has been correctly installed, configured and activated and has been signed for as accepted in the CBI :energy field services application|
|3.8. “Customer”||means any person or entity who procures access to and/or use of the CBI :energy solution and receives Services from CBI in the Territory, listed on the Service Schedule.|
|3.9. “Devices”||Means the hardware devices bought to market by CBI for use in the energy management and monitoring systems that are installed into the low voltage electrical network and provide monitoring and/or control of electrical loads.|
|3.10. “Email”||means electronic mail|
|3.11. “Equipment”||means any hardware Devices or other tangible item of equipment that may be supplied directly by CBI or by its appointed Solution Provider, or forming part of the CBI :energy solution.|
|3.12. “Intellectual Property or IP”||means all intellectual property rights, whether registered or unregistered in any jurisdiction, including without limitation know-how, copyright, registered trademarks and applications therefor, registered designs and applications therefor, patents and applications therefor, and goodwill.|
|3.13. “Party”||means either CBI or the Customer and “Parties” means both.|
|3.14. “Personal Information”||means information relating to an identifiable, natural or juristic person, including but not limited to, information relating to race, gender, sex, marital status, nationality, ethnic or social origin, colour, sexual orientation, age, physical or mental health, religion, belief, disability, language, birth, education, identity number, telephone number, email, postal or street address, biometric information and financial, criminal or employment history as well as correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence.|
|3.15. “Platform”||means the software systems implemented by CBI and provided for the use of the Customer through user interfaces exposed to the Customer via the Internet (“Cloud Platform”) or via a local area data network (“Edge Platform”), using the authentication and authorisation credentials provided by CBI|
|3.16. “POPIA”||means the Protection of Personal Information Act, 4 of 2013.|
|3.17. “Process”||means under POPIA, any operation or activity, whether automated or not, concerning Personal Information, including: collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation, use, dissemination by means of transmission, distribution or making available in any other form, merging, linking, as well as restriction, degradation, erasure or destruction of information and “Processing” shall be construed accordingly.|
|3.18. “RSA”||means the Republic of South Africa.|
|3.19. “Sales Order”||means a binding order issued by the Customer to procure from CBI the Equipment and Services specified in the Services Schedule on the terms provided for in this Agreement|
|3.20. “Services”||means the processing of telemetry data generated by the Devices in such a way as to generate analytics dashboards, reports, notification events, logged data and other visualisation elements related to the delivery of energy management capabilities for the Customer, and the generation of action instruction data that is created by the Platform to cause the removal or application of electrical power to loads connected to Devices in the low voltage electrical network, along with the management capabilities intended to monitor, assure and maintain these functions. It shall also include the supply of Equipment, whether by CBI or its appointed Solution Provider.|
|3.21. “Services Schedule”||means the table contained in clause 1 hereof, listing inter alia, the Customer’s details, the Charges, the Territory, and Equipment.|
|3.22. “Signature Date”||means subject to the provisions of clause 17, the date upon which this Agreement is signed by the Customer.|
|3.23. “Site”||means the Customer’s site or sites where the Equipment will be installed and the Services rendered to.|
|3.24. “Solution Provider”||means a Third Party that has been suitably trained and certified by CBI and selected to provide any portion or component of the Services.|
|3.25. “Term”||means the period that the Services will be provided, as stated in the Service Schedule.|
|3.26. “Territory”||means the geographical area stipulated in the Service Schedule.|
|3.27. “Third Party”||means a natural or juristic person other than the Parties.|
|3.28. VAT||means value added tax levied under the Value Added Tax Act, 89 of 1991.|
|3.29. The “Website”||the content including the further terms and conditions available atwww.cbi.energy/customer-legal, forming part of this Agreement (clauses 18to 28).|
4. TERM AND TERMINATION
4.1. This Agreement shall come into force on the Signature Date and shall continue for the Term or any mutually agreed extension (“Renewal Period”) of the Term.
4.2. The Customer shall not be entitled to terminate the Agreement prior to expiry of the Term or any Renewal Period.
4.3. Subject to clause 4.2, should the Agreement be terminated prior to the expiry of the Term or a Renewal Period, for any reason other than a breach of contract by CBI, the Customer will be liable for payment of the residual value of the Charges applicable at that point in time, as set out in the Termination Schedule included in the Service Schedule, as well as any additional residual value for Equipment that is added during the Term and/or the Renewal Period.
5. CHARGES AND PAYMENT
5.1. The Customer shall pay CBI the Charges for rendering the Service. The Services shall only be rendered by CBI on receipt and acceptance from the Customer of a Sales Order.
5.2. Except for any Services that may be provided in terms of clause 5.7 which are charged on a time and material basis at CBI’s latest published rates and which will become due and owing on presentation of invoice, the Customer shall pay to CBI without set-off or deduction the Charges as selected on the Service Schedule, invoiced in advance on the Commencement Date and thereafter within 30 (thirty) days from date of issue of each statement.
5.3. CBI shall electronically send tax invoices and statements to the Customer for the Charges and any other amounts due under this Agreement.
5.4. The Charges shall cover:
5.4.1. the subscription to the Service;
5.4.2. the cost of the Equipment;
5.4.3. the installation and other professional services used to survey, plan, install and commission the Solution
5.5. Unless otherwise agreed to in writing beforehand, all payments shall be made by debit order into CBI’s nominated bank account.
5.6. Charges, as set out in Service Schedule exclude VAT, which shall also be paid by the Customer.
5.7. If CBI provides additional Services not covered in the Service Schedule, CBI shall charge, and the Customer shall pay for them at CBI’s then latest published rates. Furthermore, the Charges does not include any other instruments, cabling and peripheral equipment if not listed in the Service Schedule.
5.8. Any late payment of amounts that are properly due and payable by either Party to the other Party under this Agreement shall attract interest at 2 % (two percent) above the prime interest rate quoted by The Standard Bank of South Africa Limited from time to time, compounded monthly in arrears, from due date to date of payment.
5.9. CBI shall be entitled to adjust the Charges after the Term, on an annual basis. The adjustment shall be in line with any change in the Consumer Price Index (“CPI for services”) as published by Statistics South Africa in publication P0141 or its replacement from time to time, using as base month the month 3 (three) months before the month in which the Commencement Date falls.
5.10. Notwithstanding the provisions of clause 5.9, CBI will adjust the aforesaid Charges (even before the Term or any Renewal Period has elapsed) if any augmentations are made to the Equipment or Services in the Service Schedule. Charges will not be reduced if the Equipment or any augmentation thereto is reduced during the Term or any Renewal Period.
6. PROVISION OF THE SERVICES
6.1. CBI undertakes to:
6.1.1. provide the Services in accordance with the Agreement, timeously and in a manner consistent with best industry practice.
6.1.2. maintain the professional ability, trained personnel and infrastructure to provide the Services;
6.1.3. render the Services subject to all legal and statutory requirements and further subject to the terms and conditions of any licenses issued to CBI; and
6.1.4. conduct its employment relationships in accordance with the principles of fair practice and to comply with all applicable labour legislation.
6.2. CBI shall if reasonably possible and on the Customers’ written instruction, provide or instruct a Solution Provider to provide the Service on a per call basis outside Business Hours under circumstances as set out in clause 5.7 chargeable at CBI’s then latest published rates.
6.3. The Services are to be provided on the basis that the Customer shall:
6.3.1. not utilise the Services, for any unlawful purpose;
6.3.2. comply with all relevant legislation and regulations and all instructions issued by any governmental authority or by CBI regarding the use of the Equipment; and
6.3.3. not act or omit to act, or allow any person to do so, in any way likely to damage, disrupt or interfere with the Equipment or Services or to injure or damage any person or property or to cause the quality of the Services or the Equipment to be impaired or interrupted in any manner whatsoever.
7.1. CBI shall provide the Equipment to the Customer, and ownership in the Equipment shall only pass to the Customer on payment in full thereof.
7.2. All risk in and to the Equipment shall however pass to the Customer upon delivery thereof.
The Equipment including any software incorporated in the Equipment and all Intellectual Property rights in and to the Equipment, including any software incorporated into it, will not become the property of the Customer, but will remain vested in CBI and/or its licensors.
7.4. The Customer will not be entitled to give up possession of the Equipment, in whole or in part to any Third Party and will not be entitled to remove and re-install the Equipment at a different location without CBI’s written consent, but such removal or re-installation of Equipment shall only be done by CBI or its Solution Provider.
7.5. CBI or its Solution Providers will install the Equipment at such time as agreed with the Customer subject to the safety and security policies of the Customer. Time is not of the essence in the rendering of the Services, except as may be otherwise agreed in writing by the Parties.
7.6. CBI’s representatives, employees, agents and sub-contractors may at all reasonable times and on prior arrangement with the Customer enter the Site to inspect the Equipment, carry out necessary repairs, replace Equipment, or to perform any other lawful function in the bona fide interest of CBI in respect of the Equipment and the Services.
7.7. Should delivery of any Equipment not be accepted by the Customer or CBI and/or the Service Provider not being able to render the Service as a result of acts and omissions beyond the control of CBI and/or the Service Provider, consignee or party nominated by the Customer to accept delivery, then CBI shall, in its sole discretion: be entitled to store the Equipment and any part thereof at no risk to CBI and at the expense of the Customer.
7.8. CBI or its Solution Provider may at their sole discretion stop or delay the installation of Equipment if doing so would cause potential safety and other risks to any person, property or if the Site is or would become non-compliant with any relevant codes or regulations.
7.9. The Customer shall immediately upon installation check the Equipment. On signature of the proof of delivery, the Customer is deemed to have received the Equipment without shortage or defect and the Customer shall have no claim against CBI or the Service Provider for non-delivery of, or shortages in the Equipment. Should the Customer fail to sign the proof of delivery prior to CBI or the Service Provider leaving the Site, the signature of a representative of CBI or the Service Provider shall be prima facie proof that the Equipment were delivered without defect or shortage.
8.1. The Customer shall for the duration of the Term and any Renewal Period have a non-exclusive, non-transferrable and non-sublicensable right to use the Edge Platform and the Cloud Platform subject to the terms and conditions herein.
8.2. After expiration of the Term or any Renewal Period, or earlier cancellation/termination of this Agreement for whatever reason, the Customer shall cease to use or attempt to use the Edge Platform and the Cloud Platform, as further agreed to herein.
9. EXCLUSIONS TO THE SERVICE
9.1. Except if and to the extent the Service Schedule expressly provides otherwise, the Services provided for the Charges in clause 5 shall exclude any service or supply:
9.1.1. related to equipment not supplied by CBI;
9.1.2. resulting from the Equipment being connected to or supported by or run with any software or equipment not supplied or approved by CBI;
9.1.3. resulting from the relocation, modification or alteration of the Equipment or the addition or removal of accessories, attachments or other devices, effected without CBI’s prior written consent;
9.1.4. resulting from failure to adhere to instructions and warnings in the user manual, malicious damage, neglect, accident, transportation, misuse or use other than that for which the Equipment is designed;
9.1.5. resulting from Force Majeure (defined on Website), hardware failures resulting from water ingress, surges in or failure of the electricity supply, air conditioning or humidity control or mechanical damage;
9.1.6. relating to cables external to the Equipment;
9.1.7. required to protect the Equipment against interference caused by radio waves, induction or any other source;
9.1.8. due to any requirement of a Third Party.
9.1.9. relating to the Service if the incident is due to the failure of anything not listed in Service Schedule at Signature Date or added to the Service Schedule thereafter;
9.1.10. of Equipment located in an unsuitable place as instructed by the Customer;
9.1.11. relating to attempts to service or refurbish the Equipment.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. CBI retains all right, title and interest in and to the Intellectual Property rights in the Services, Equipment and all related parts, drawings, specifications, manuals, documents and data. CBI hereby grants to the Customer a temporary, non-transferable license to use the Services and Equipment solely for the purposes of this Agreement.
10.2. Except as expressly provided in clause 10.1, the Customer shall not have any right directly or indirectly to copy, reverse engineer or manufacture the Equipment, or to license, lease, dispose of, distribute, disclose or otherwise exploit any IPR whatsoever of CBI and its licensors, or any part thereof, or allow others to do so.
10.3. Should the Customer become aware of any threatened or actual infringement of any IP of CBI and its licencors, then the Customer shall forthwith inform CBI accordingly and shall provide such cooperation and assistance as CBI may reasonably require in the enforcement of its rights against any person.
11. DATA PROTECTION / PERSONAL INFORMATION
11.1. In performing its obligations under this Agreement, CBI shall:
11.1.1. comply with the provisions of POPIA, other prevailing privacy and data protection legislation and the Processing of Personal Information;
11.1.2. not Process Personal Information for any purpose other than to perform its obligations under this Agreement;
11.1.3. only act on the instructions of the Customer in Processing the Personal Information (and for avoidance of doubt, this Agreement shall constitute such instructions);
11.1.4. not disclose or otherwise make available the Personal Information to any Third Party other than authorised staff or sub-contractors who require access to such Personal Information strictly on a need to know basis, in order for CBI to carry out its obligations pursuant to this Agreement and ensure that such staff and any other persons that have access to the Personal Information are bound by appropriate and legally binding confidentiality and non-use obligations in relation to the Personal Information;
11.1.5. take appropriate, reasonable technical and organisational measures to ensure that the integrity and confidentiality of the Personal Information in its possession or under its control remains secure and that such Personal Information is protected against accidental loss, destruction, damage, unlawful access or Processing;
11.1.6. immediately notify the Customer in case of possible infringement of POPIA, the terms of this clause or other irregularities by CBI, its staff or any Third Party acting on behalf of CBI in relation to the Customer’s Personal Information; and
11.1.7. At the Customer’s option, return or destroy the Personal Information once it is no longer required for the purposes of performing obligations under this Agreement or any directly related purpose.
12. CANCELLATION AND BREACH
12.1. Notwithstanding anything else contained in this Agreement and without prejudice to any other remedies which each Party may have, either Party has the right at any time, and by giving written notice to the other, to, without penalty or liability, cancel this Agreement with immediate effect in the event that the other Party commits an act of insolvency or is placed under curatorship, provisional or final liquidation or sequestration, business rescue, or other similar disability.
12.2. CBI may cancel this Agreement with immediate effect and without liability in the event that the Customer without written permission markets, sells, resells or distributes any of the Equipment or Services.
12.3. If the Customer breaches any material provision or term of this Agreement, including a breach of clause 7.8, and fails to remedy such breach within 10 (ten) Business Days of receipt of written notice requiring it to do so from CBI, then CBI shall be entitled to cancel this Agreement.
12.4. The right to cancel the Agreement is without prejudice, and in addition to any other remedy available to CBI under law or under this Agreement, including the right to temporarily cease the supply of Services to the Customer, to claim specific performance, or to obtain an interdict, or to claim damages.
13. EFFECT OF BREACH
13.1. Always subject to the provisions of clause 12.3, CBI may on breach by the Customer of any of its obligations under this Agreement, including the non-payment of Charges due by the Customer, and without giving notice thereof or cancelling this Agreement, immediately cease to supply the Services to the Customer, where the Services may be curtailed in a staggered manner as described in the Service Definition document.
13.2. In this event, CBI (in its sole and unfettered discretion) may allow the Customer to use the Equipment, on the specific provision that the Equipment shall no longer generate telemetry data or respond to action instructions delivered via the data network, and will no longer connect to any data network unless reset to factory conditions and be re-commissioned by a Solution Provider.
13.3. If the Customer does not remedy its breach and request the Service Provider to reset and re-commission the Equipment as foreseen above within a period of 5 (five) Business Days after CBI has stopped the Services, CBI shall be entitled, but not obliged to either cancel this Agreement, or enforce specific performance hereof.
13.4. On cancellation of this Agreement, CBI shall cease to render the Services and shall be entitled to claim as genuine pre-estimated damages the relevant amount stipulated in clause 1 hereof read together with clause 4.3. CBI may always claim the actual damages suffered by it, in lieu of the amount referred to above.
14. LIMITATION OF LIABILITY & INDEMNITY
14.1. Neither Party shall be liable to the other Party for any loss of profit, loss of use, interruption or reduction of operation, loss of data (including the recovery thereof), loss of production, loss of contracts or for any indirect or consequential damage that may be suffered by the other Party even if advised of the possibility of such damages and regardless of the form in which any action is brought.
14.2. CBI’s aggregate liability to the Customer for any claim or claims for damages, out of or in connection with any cause arising from this Agreement, whether in contract or delict or any other cause of action, up to the full contract price for the Services as the Service Schedule, and will in any event not exceed R 500 000.00 (five hundred thousand rand).
14.3. Nothing contained in clause 14.1 above shall limit either Party’s liability to the other in respect of:
14.3.1. death or injury of any person, or damage to property;
14.3.2. infringement of Intellectual Property rights;
14.3.3. breach of confidentiality or data protection; or
14.3.4. intentional, fraudulent or criminal acts.
14.4. Subject to clauses 14.1, 14.2 and 14.3 above, each Party (the “Indemnifying Party”) agrees to defend, indemnify and hold the other Party, its directors, employees, agents and other members of its group of companies, as that term is defined in the Companies Act 71 of 2008, (each an “Indemnified Party”) harmless from any and all claims, damage, cost, liability and expense including reasonable attorney’s fees caused by, relating to or arising from:
14.4.1. the acts or omissions of the Indemnifying Party, its directors, employees or agents;
14.4.2. any alleged delict, or breach of any contractual right of a Third Party, or infringement of any Intellectual Property Right of a Third Party, or confidentiality obligations, or rights of privacy and publicity resulting from, relating to or arising out of the acts or omissions of the Indemnifying Party, except where any such claim relates to or arises out of any material furnished by the Indemnified Party.
14.5. The Parties will co-operate in the defence of any matter arising from an indemnity under clause 14.4. A Party has the right to participate in the conduct of the defence with legal counsel chosen by it.
15. EXCLUSION OF WARRANTY AND REPRESENTATIONS
15.1. Save for those warranties expressly set out herein, the Parties make no representations or warranties whatsoever, whether express or implied.
15.2. The Services are provided without any warranty whatsoever. In particular, CBI does not warrant, represent or undertake that the Customer’s use of the Services will be uninterrupted or error-free.
15.3. CBI disclaims all warranties, express, implied, or statutory, to the Customer as to any matter whatsoever, including all implied warranties of merchantability, fitness for a particular purpose and non-infringement of Third Party rights of the Services and /or the Equipment.
15.4. No oral or written information or advice given by CBI or its employees or representatives shall create a warranty or in any way increase the scope of CBI’s obligations.
16. NOTICES AND DOMICILIUM
16.1. For the purposes of giving of legal notices and the serving of legal process, the Parties choose their respective physical addresses (domicilia citandi et executandi) as set out in clause 1 and clause 2.1 hereof.
16.2. Any notice addressed to a Party shall be in writing and delivered by hand during Business Hours to its physical address or sent by Email.
16.3. Any notice shall be deemed to be received (unless the contrary is proved):
16.3.1. if hand delivered, on the Business Day of delivery; or
16.3.2. if sent by Email during Business Hours, be presumed to have been received on the date of successful transmission of the Email. Any Email sent after Business Hours or on a day which is not a Business Day will be presumed to have been received on the following Business Day.
16.4. A Party may by written notice to the other Party change its domicilium address to another address which is not exclusively a post office box or poste restante. The change will become effective on the 5th (fifth) day following deemed receipt of the notice.
16.5. Any notice actually received by a Party will be deemed to have been given validly, even though the notice had not been delivered to an address stated in this clause.
Despite the provisions of clause 18.104.22.168, this Agreement may only be signed by the Customer by means of the CBI installations management field services application, or the Web form providing that same functionality.
18. PART OF AGREEMENT & AMENDMENT
18.1. The terms and conditions contained below in clauses 18 to 28 form part of the CBI :energy Customer Services Agreement (the “Agreement”) as signed and agreed to by the Customer in clauses 1 to 17, and should be read together therewith.
18.2. The Agreement was/will be signed electronically, and the terms and conditions contained on this Website may be amended by CBI from time to time.
18.3. This Website and its contents will however be version controlled and dated so that the version contained hereon at Signature Date will be prevailing, ruling and applicable to this Agreement.
18.4. The capitalised terms used in the following clauses have been defined in clause 3 of the Agreement.
19. FORCE MAJEURE
19.1. Failure to comply with any of the terms and conditions of this Agreement if occasioned by or resulting from an act of nature or 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 strife, riot, strikes, blockade, embargo, sanctions, epidemics, act of any government or other authority, compliance with government orders, demands or regulations (including without limitation in respect of any permit, licence or authorisation), as well as shortages, interruptions, fluctuations or the unavailability of electrical power, water supply or means of communication or any circumstances of like or different nature beyond the reasonable control of the Party so failing (“Force Majeure”), will not be deemed to be a breach of this Agreement, nor will it subject either Party to any liability to the other.
19.2. Notwithstanding the provisions of clause 19.1, the inability to make payment of any amount due and payable under this Agreement shall not constitute Force Majeure.
19.3. Should a Party’s performance of an obligation become temporarily impossible owing to Force Majeure, that Party shall:
19.3.1. as soon as reasonably possible after the Force Majeure sets in notify the other Party in writing of the incidence of Force Majeure;
19.3.2. be released from performance of the affected obligation for so long as the Force Majeure prevails;
19.3.3. use its best endeavours to recommence performance of the affected obligation, to whatever extent reasonably possible, without delay; and
19.3.4. co-operate with the other Party in implementing such contingency measures as the other Party may reasonably require.
19.4. Should the circumstances of Force Majeure continue for longer than 10 (ten) Business Days, either Party shall be entitled to terminate this Agreement, with immediate effect by written notice
20. DISPUTE RESOLUTION, GOVERNING LAW
20.1. Subject to CBI’s right in each instance to elect to institute action for payment of the Charges and any other amounts due under this Agreement in any court of competent jurisdiction, in the event of any disagreement or claim (“Dispute”) arising out of or relating to this Agreement (including without limitation, as to its existence or validity), the senior executives of the Parties or their delegates designated in writing shall endeavour to settle the Dispute through bona fide negotiations within 10 (ten) Business Days of the Dispute being referred to them by written notice from either Party.
20.2. Should the Parties be unable to settle the Dispute by the means and within the timeframe stated above, either Party may refer the Dispute for final decision by arbitration in accordance with the latest rules for the conduct of arbitrations (“Rules”) of the Association of Arbitrators (Southern Africa) NPC (https://www.arbitrators.co.za), by one or more arbitrator/s appointed in accordance with the Rules.
20.3. Unless otherwise agreed in writing the arbitration shall be held in Pretoria in the RSA and conducted in the English language. Only the Parties and their legal representatives or persons agreed to shall attend the arbitration proceedings.
20.4. The decision of the arbitrator/s may be made an order of court. For these purposes and those of clause 21 the Parties irrevocably submit to the non-exclusive jurisdiction of the Gauteng Divisions of the High Court of South Africa, in Johannesburg and Pretoria.
20.5. This Agreement shall in all respects be governed by the law of the RSA, without regard to its conflict of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 shall be excluded.
20.6. This clause 20 is severable from the rest of this Agreement and shall survive the expiry or termination thereof for whatsoever reason.
21. URGENT RELIEF
The provisions of clause 20 shall not preclude any Party from access to a competent court of law for relief in the form of an interdict, including a mandatory interdict or an order for specific performance.
22. VALIDITY, SEVERABILITY
If any provision of this Agreement is found or held to be invalid or unenforceable, the validity of all the other provisions hereof will not be affected thereby and the Parties agree to meet and review the matter and if any valid and enforceable means is reasonably available to achieve the same objective as the invalid or unenforceable provision, to adopt such means by way of variation of this Agreement.
23. CONTRA PROFERENTEM
The rule of construction that in the event of any uncertainty in any provision in any agreement, such agreement shall, in construing/interpreting the uncertainty, be construed or interpreted against the drafter of such agreement, shall not be applicable to this Agreement.
24. WHOLE AGREEMENT
The terms contained in this Agreement in clauses 1 to 28 constitute the entire agreement between the Parties with respect to the subject matter thereof, superseding all contemporaneous oral agreements and prior oral communications, agreements, and understanding of the Parties.
25.1. No variation of or addition to clauses 2 to 17 of this Agreement will be of any force or effect unless reduced to writing and signed by the Parties.
25.2. The Website (clauses 18 to 28) may however unilaterally be amended by CBI, subject to the provisions of clauses 18.2 and 18.3.
26. WAIVER AND INDULGENCE
No waiver on the part of a Party of any rights arising from a breach of any provision of this Agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.
27. CESSION AND DELEGATION
27.1. A Party cannot validly cede any right or delegate any obligation arising under this Agreement this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
27.2. Notwithstanding the above, CBI may by written notice to the Customer cede and delegate this Agreement to any other company controlled by Reunert Limited 1913/004355/06.
Any legal costs incurred by a Party arising out of or in connection with a breach by the other Party, shall be borne by the Party in breach on a scale as between attorney and client.