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AZD Distributors

Terms and Conditions of Sale & Supply

STANDARD TERMS AND CONDITIONS OF SALE

Except as otherwise agreed in writing, all transactions, quotations, offers to contract and contracts, whether written or oral, for the supply of the Products and/or services (“Products”) by WHGroup (Pty) Ltd, shall be subject to these standard terms and conditions of sale. These terms and conditions are subject to the CPA and the Credit Act.

1. DEFINITIONS

1. “AZD” shall mean WHGroup (Pty) Ltd;

   1. “CPA” shall mean the Consumer Protection Act 68 of 2008;

   2. “Client” shall mean the ultimate end user of the Product;

   3. “Credit Act” shall mean the National Credit Act 34 of 2005;

   4. “Custom Made Luminaire and/or Product” shall mean any luminaire that is not listed as a product on the WHGroup (Pty) Ltd, website or Standard Pricelist, or any listed product that was modified in any way;

   5. “Customer” shall mean the person, natural or otherwise, who purchases the Products from WHGroup (Pty) Ltd, under

these terms and conditions, and includes but is not limited to WHGroup (Pty) Ltd, authorized Distributors;

1. “Customer documents” shall mean any documentation or previous discussions, whether in writing or otherwise, between WHGroup (Pty) Ltd, and the Customer relating to the sale of Products;

   1. “Distributor” shall mean an authorized and approved Distributor of WHGroup (Pty) Ltd, according to WHGroup (Pty) Ltd’s standard documentation who purchase the Products from WHGroup (Pty) Ltd, under these terms and conditions;

   2. “MCA” shall mean the Magistrate’s Court Act 32 of 1944;

   3. “Product” or “Products” shall mean all items, including services, presently being sold or supplied by WHGroup (Pty) Ltd, as per WHGroup (Pty) Ltd, standard pricelist or quotation;

2. PURCHASE & PRICING

• The Customer shall be bound by these standard terms and conditions of sale in all transactions for the purchase of Products. Any similar agreement between the Customer and AZD, supersedes the clauses

  • of these terms and conditions, to the extent of any conflict.

  • The Customer shall inform its Clients that the Products are sold subject to these standard terms and conditions of sale and the Customer shall be deemed to have so informed its Clients in respect of all sales of the Products by the Customer to its Clients. Customer shall retain proof of each instance of such disclosure, which will be presented to AZD on demand.

  • Due to market and currency fluctuations prices of the Products may, from time to time, vary without notice. Prices are therefore not fixed and binding upon AZD until expressly confirmed in writing to the Customer.

3. ORDERS

AZD reserves the right to reasonably decline any order and/or to suspend delivery and/or to decline to supply

the Products to the Customer.

4. PAYMENT TERMS & RESERVATION OF OWNERSHIP

• Products shall only be sold and delivered on a “cash on order” basis.

  • The Products shall at all relevant times remain the property of AZD until such time as the full purchase

price, interest and cost, if any, has been paid in full, and reflects in the AZD bank account.

• AZD, in its sole discretion, reserves the right to sell and deliver goods to the Customer on credit, albeit incidental credit or otherwise, subject to terms and conditions that the parties may agree to, which is to be reduced to writing and signed by both the Customer and AZD.

  • All overdue amounts shall attract compound interest at the rate of 2 % per month, calculated from date of delivery of the goods to date of payment in full and capitalized on a monthly basis.

5. DELIVERY

• AZD delivers all orders free of charge to Customers within South Africa only if the total value of the ordered Products exceeds R10,000.00 (Ten Thousand Rand only) excluding Value Added Tax.

  • Although AZD will endeavor to deliver the Products according to the Customer’s requirements, AZD will not be bound to such delivery requirements of the Customer and accordingly AZD shall not be liable in any manner whatsoever for failure or delay in delivery.

  • AZD shall at its discretion be entitled to effect and invoice for part deliveries.

• When effecting delivery at the Customer’s premises, or such other premises as nominated by the Customer, the Customer shall be responsible for receiving, unloading and checking the Products in the presence of the AZD representative making delivery.

  • In the event of short delivery, the Customer shall forthwith upon delivery endorse AZD’s copy of the delivery note specifying details of the short delivery and thereafter within 3 (three) days of such delivery the Customer shall lodge a claim with AZD in respect of such short delivery.

  • In the event that the Products are delivered in a damaged or defective state, the Customer shall forthwith upon delivery endorse AZD’S copy of the delivery note detailing the damage or defects to the Products

and the Customer shall within 3 (three) days of such delivery notify AZD of such damage or defects in the Products delivered.

• On compliance by the Customer with 5.5 and 5.6, and provided AZD agrees with the information supplied by the Customer, AZD will either make up the shortfall in the Products, or replace the damaged or defective Products as the case may be.

  • Notwithstanding the provisions of 5.5, 5.6 and 5.7, AZD shall not be liable to the Customer for any loss or damage occasioned by reason of the circumstances in 5.5 and / or 5.6.

  • Delivery of the Products at the place of delivery nominated by the Customer shall constitute good delivery. Any acknowledgement of receipt by the Customer or any authorized representative or employee, whether direct or indirect, in writing or otherwise shall serve to also confirm delivery.

  • If the Products are delivered to a carrier for delivery to the Customer, delivery to the Customer shall be deemed to have been duly affected on delivery to the carrier.

  • For purposes of this clause, “AZD” shall include any carrier, courier, agent or independent contractor

who may affect delivery on behalf of AZD.

• AZD hereby reserves the right to charge a reasonable handling fee for the return of any Product due to

any reason other than the fact that the Product failed, is defective, hazardous or unsafe as defined in the CPA.

6. TRANSFER OF RISK AND INSURANCE

• All risk of loss and/or damage to the goods shall immediately transfer to the Customer upon delivery thereof, notwithstanding that ownership in the Products remain vested in AZD.

  • Delivery shall be affected ex works, as contemplated in the 2010 edition of the International Chamber of Commerce’s Commercial Terms (“Incoterms®”).

  • AZD will only procure insurance at the written request of the Customer and upon such terms as the

parties may agree upon in writing.

7. WARRANTY

• AZD assures that all products (excluding protection units, drivers, batteries and/or add-on modules) which are branded AZD and were manufactured by AZD, are integrally warranted for a period of 1 (one) year, 3 (three) years, or 5 (five) years as stipulated on an AZD quote, spec sheet or price list, from invoice date, or until the product has reached its “End-of-life” (“EOL”) due to unplanned and/or unforeseen circumstances, and provided they are used complying with the aim and environment the specific product has been developed for, and subject to all terms & conditions as stipulated hereunder. If not specified to the contrary, Custom Made Products are warranted for a maximum of 1 (one) year from invoice date, subject to conditions contained herein.

  • The warranty period referred to in 7.1 is subject to the daily working hours and/or daily operating hours of the Product not exceeding 12 hours per day. In the instance where a product is utilized for daily periods exceeding 12 continuous hours, the warranty period may be, at the sole discretion of AZD be shortened and/or adjusted accordingly to accommodate the extended working hours.

  • This warranty is delivered by AZD exclusively to the Distributor/Customer whom the invoice is issued to.

This warranty is not transferable to any other entity.

• AZD warrants that each product will be free from defects in materials and workmanship subject to the conditions as stated herein.

  • The Distributor/Customer acknowledges that if the product is to be installed in a corrosive environment, notably seaside or chemical site, and the set IP rating of the product is not high enough, the Distributor/Customer must inform AZD before production commences. AZD will then prescribe

necessary precautions and manufacture and/or supply a product that is specified and suitable for said conditions. This warranty specifically excludes all corrosion or seaside wear & tear if the product was not specifically specified in the client’s purchase order for corrosion, chemical or seaside environments.

• The warranty supplied hereunder consists of repairing or replacing of products which may be proved to be defective in materials or workmanship. The option to repair or replace products under this warranty is solely at the discretion of AZD.

  • LED luminaires shall not be considered defective solely as a result of the failure of individual LED components if the number of inoperable components is less than 10% of the total number of LED components in the LED luminaire.

  • If a defective product is from a product range that reached its EOL due to circumstances out of the control of AZD (see 7.1), it is within AZD’S sole discretion to either replace the product free of charge with a similar product, or to quote the Distributor/Customer for a similar product.

  • In order to obtain a repair or product replacement under this warranty, a written notice must be sent/delivered to AZD by e-mail to the address warren@azd.co.za, within 10 working days starting from the discovery of the product failure/defect (See 7.16 for full details). Failure to notify AZD of the product failure/defect as stipulated here, will/may nullify any warranty claims regarding the specific product.

  • The warranty supplied hereunder is subject to the Distributor/Customer complying to all of the following conditions:

    • Products are used complying with technical specifications (available on the product specification sheet, and/or included with supplied products, and/or stated on supplied product as per QR code, and/or as published on www.azd.co.za);

    • Products have been installed by qualified personnel and according to mounting and/or installation instructions (available on the product specification sheet, and/or included with supplied products, and/or stated on supplied product as per QR code, and/or as published on www.azd.co.za);

    • AZD may request the Distributor/Customer to provide a certificate of compliance (COC) regarding the installation, as issued by qualified and authorized personnel; failure to supply such certificate on request may nullify this warranty;

    • Distributor/Customer has regularly settled invoices at due dates, as per payment agreements;

    • No modification or change have been effected to the product without prior and written authorization by AZD;

    • Faulty/defective products must be kept by Distributor/Customer as is (without tampering, opening of enclosed units, etc) in order to allow AZD to do all necessary analysis to establish the cause of failure;

  • AZD also warrants the luminous performances of its products. During the warranty period the luminous flux will at least be maintained at a level that corresponds to the L70 value, subject to all other conditions contained herein.

  • In case a product was diagnosed with production defects and/or component failures, which are covered by this warranty, AZD can proceed at its own unobjectionable discretion to repair and/or replace product with an equal or equivalent product taking into consideration electric consumption or lighting performances.

  • The AZD Warranty does not cover:

    • Any batteries installed or supplied as a component of an emergency lighting product, or batteries supplied as part or add-on or component of any AZD product supplied. All batteries supplied are warranted as per respective battery data or battery supplier specification sheets.

    • Defects of product caused by unexpected and unpredictable events, such as, by way of non-limiting example, accidental case and/or force major, vandalism acts, public riots, fires, intense atmospheric phenomenon and any other event which may influence the product or component failure;

    • Defects of products caused by lightning and/or electrical supply conditions exceeding limits, including spikes, overvoltage/under-voltage and ripple current control systems that are beyond the specified limits of the product and those defined by relevant supply, or contrary to industry standards relating to acceptable input power;

    • Defects caused by tampering or previously repaired or Distributor/Customer-repaired without written authorization of AZD. This includes, but are not limited to when the not-accessible/sealed parts,

e.g. optical compartments, of the product has been opened by the Distributor/Customer without AZD’s

prior and written authorization;

• Any failed or dysfunctional Printed Circuit Board (PCB) and/or any electronic component that was installed on the manufactured PCB as a sub-component of or on the Product if this electronic component and or PCB failed or became dysfunctional during any period after 3 (three) years from invoice date, subject and conditional to operational hours as stipulated in 7.2.

  • Defects of products if the product has been exposed to ambient temperatures outside of the values as specified on the technical instructions and/or specification sheets;

• Collateral cost for repair of failure and/or defect, product removal and assembling costs, labour, transport for failed fitting or any other cost for repair of the product and/or defect. This collateral cost will always be the responsibility of the Distributor/Customer. All additional costs (e.g. dismounting), freight for defect parts or products, reinstallation, transportation time, tools for lifting and scaffolding or other costs resulting from a breakdown of installation and/or costs in relation with consequential, special, incidental or pure financial damages such as loss of revenue/profits, damage to property, stoppage of work, idle assets, loss of production, etc. are not subject to this warranty, and is specifically excluded, and AZD cannot be held liable for any such loss or damage which may arise to entities, persons or properties;

  • All parts subject to normal wear and tear because of use throughout the time;

  • Improper or incorrect use or installation;

  • Any product that was installed without properly connecting the earth wire as per installation instruction and/or specification sheets.

  • Any product sourced from another supplier, or supplied to AZD by another supplier or third party, in order to fulfill a Distributor/Customer’s order, and/or any product supplied to the Distributor/Customer which does not carry the AZD brand name. Products not manufactured by AZD, and sourced for the Distributor/Customer from external sources and/or suppliers, will be subject to the warranty, if any, as supplied by the external source or supplier. AZD will never be liable for any other warranty on a product sourced from a third party other than the warranty as supplied by the third party.

  • No additional demand, different from this warranty, may be asked from AZD in relation to the defective product. No compensation or other charges may be expected or debited. No freight for storage of defective product may be asked or debited.

  • If a product was repaired by AZD under this warranty the original warranty period will not be effected. No new warranty period other than the original period from invoice date is applicable even if and when a product is repaired within this period under this warranty.

  • In order to activate a warranty, the Distributor/Customer must follow the following procedure:

    • A written notice must be sent to AZD by e-mail to the address warren@azd.co.za, within 10 working days starting from the discovery of each product failure/defect.

    • This notice must include the following information:

      • Product type (code and/or type of fitting);

      • Copy of applicable invoice or Invoice number & date;

      • Date & time of malfunctioning or defect occurring;

      • Quantity of faulty and/or defective fittings;

      • Description of Installation place;

      • On AZD request the electrical certificate of compliance.

  • The Distributor/Customer agrees that the warranty process is as follows:

    • The Distributor/Customer informs AZD of product failure/defect as per 7.16.

    • The Distributor/Customer sends or delivers the faulty products to AZD.

    • Within 1 Working day: AZD informs the Distributor/Customer that the product/s were received.

    • AZD examines the products and determine reason for failure/defect.

    • Within 3 (three) working days of receiving the faulty products, AZD will send a report to the Distributor/Customer, explaining reason for failure/defect, and stating the planned action regarding repair or replacement, and also stating the lead time it will take to repair or replace the applicable product/s.

    • Please note that AZD is, and never will be, under any liability to replace faulty products before the

faulty products in question were received back by AZD, in order to determine the cause of the defect.

• If the reason for the product defect is not covered by this warranty, AZD will quote the Distributor/Customer for applicable repairs. Please note that the Distributor/Customer has maximum 21 (twenty one) working days from the time the quote was send to the Distributor/Customer, to accept or decline the quote. If AZD has not received instruction back from the Distributor/Customer within

the allotted time, AZD reserves the right to dispose of the faulty products in any such way as AZD may see fit, as storage space is limited.

• This warranty is the only and exclusive form of warranty between AZD and Distributor/Customer for

the supplied product.

8. INDEMNITY

• Without derogating from the generality of any of the provisions herein AZD shall not at any time be liable for any claims of whatsoever nature and howsoever arising for direct or consequential loss or damage

which may be sustained by the Customer or any of the Customer’s Clients in connection with the use of the Products and the Customer hereby indemnifies AZD against all such claims.

• The Products are sold subject to AZD’s specifications and recommendations. Failure to adhere to these may result in damage, injury or harm.

9. INTELECTUAL PROPERTY

• The Customer acquires no right or license in respect of AZD’s intellectual property rights incidental to

and/or associated with, its products, trademarks, genetics, formulae, designs, layouts or manufacturing process.

• The Customer is prohibited from any unauthorized use of AZD’s intellectual property. The Customer shall not do anything to infringe any rights owned or licensed by AZD, including but not limited to, any form of intellectual property right in respect of the Products.

10. EXCHANGE RATE AND IMPORT/EXPORT TRANSACTIONS

1. In respect of any transaction where AZD quotes in Rands and the exchange rate applies AZD will be paid the Rand equivalent of the quoted price irrespective of the exchange rate ruling at the date of payment.

   1. In respect of import/export sales, the Customer shall be responsible for obtaining all the necessary government approvals and all the requisite permits and AZD will endeavor to assist the Customer in this regard insofar as this may be necessary.

   2. If any authorization or permit referred to in 10.2 is refused or revoked, the Customer shall make good to AZD all expenses or losses AZD may have incurred in assisting the Customer to secure such authorization or permits; provided that loss of profit will be excluded unless the refusal or revocation is due to fault on the Customer’s part.

11. INDULGENCE

No indulgence which AZD may grant to the Customer shall in any way be deemed to affect, prejudice or derogate from the rights of AZD, nor shall such indulgence constitute a waiver or novation of any of the rights of AZD who shall not thereby be precluded from exercising any rights against the Customer which may have arisen in the past, or which may arise in the future.

12. BREACH

1. Should the Customer fail to make any payment to AZD under any contract, or should the Customer be in breach of any of the provisions of these standard terms and conditions of sale and fail to remedy such breach within seven days after receiving a written demand that it be remedied, AZD shall be entitled, without prejudice to any alternative or additional right of action or remedy available to AZD to cancel

any contract with the Customer with immediate effect.

1. AZD shall be entitled to immediately repossess all Products supplied to the Customer and not yet paid for.

13. LEGAL COSTS

In the event that any legal action is taken, or any amount remains outstanding and AZD instructs attorneys to

recover such unpaid costs, the Customer shall be liable for all legal costs incurred by AZD.

14. APPLICABLE LAW

1. All transactions shall be governed in all respects by, and shall be construed according to the laws of the Republic of South Africa.

   1. The Customer agrees and consents in terms of Section 45 of the MCA to the jurisdiction of a Magistrate’s Court having jurisdiction in respect of the Customer or the claim in terms of Section 28 of the MCA in respect of any proceedings or claims or action being instituted against the Customer by AZD in terms hereof or

otherwise, notwithstanding that the amount of such claim may exceed the jurisdiction of such Magistrate’s Court, provided that AZD may in its discretion be entitled to bring such proceedings in any other court of competent jurisdiction, the Customer agreeing and submitting itself to the jurisdiction of the South Gauteng Division of the High Court of South Africa or any other division of the High Court of South Africa chosen by AZD in the event of AZD exercising its rights in terms hereof.