Terms & Conditions

General Terms and Conditions

IMPORTANT: These General Terms and Conditions include warranty disclaimers and other provisions that limit the Provider’s liability towards the Customer, or which may require the Customer to indemnify the Provider or assume a risk or liability. Any such terms will be in BOLD.

These General Terms and Conditions must be read together with the Privacy Policy which may be accessed at [●] (“Privacy Policy”). Please read the Privacy Policy to understand the types of personal data the Provider collects, where the Provider collects it from, with whom the Provider may need to share it, how long the Provider retains it for, and how the Customer can request access to and/or deletion of its personal data.

1.          PARTIES

• The Parties to this Agreement are:
  • the Provider; and
  • the Customer.

The Parties agree as set out below.

2.          DEFINITIONS AND INTERPRETATION

• In this Agreement, unless the context indicates otherwise, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:
  • “Act of Insolvency” in relation to a Party means any of the following: (a) the Party is placed into administration or business rescue; (b) a scheme of arrangement is entered regarding the Party; (c) an application is made to a court for the business rescue or winding up of that Party and such application is not stayed or dismissed within 20 days after it is made; (d) the Party resolves that it be placed in business rescue or voluntarily wound up; (e) a winding up order is made regarding the Party whether provisionally or finally; (f) a receiver, manager, provisional liquidator or liquidator is appointed to the Party; (g) the Party notifies the other Party or any creditor of the Party that it is or is deemed under any law to be insolvent or unable to pay its debts as and when they fall due; (h) any act by that Party which would be construed as being an act of insolvency in terms of the provisions of the Insolvency Act, 1936, had such act been committed by a natural person; or (i) anything analogous to any of the above occurs under the laws of any relevant jurisdiction;
  • “Additional Installation Materials” any additional structures or materials to be installed on the Rooftop, where additional installation materials are required;
  • “Initiation Fee” the initiation fee set out in Contract Details;
  • “Agreement” the terms and conditions of the solar subscription agreement set out in this Schedule 2, including the Contract Details and all Schedules hereto;
  • “Applicable Law” to the extent applicable to either Party in performing its obligations or exercising its rights under the Agreement:
    • any constitution, statute, regulation, codes, ordinance, treaty, decree, rules, proclamation or subordinated legislation or other legislative measure, including all national and provincial statutes and legislation and all municipal by-laws, as well as the common law and customary law and any judgment, decision, order or rule of any court or tribunal with relevant jurisdiction, in each case having the force of law in South Africa; and
    • any present or future directive, requirement, instruction, request, order, regulation, condition of or limitation in any necessary Consent to be obtained from any Government Authority, or direction or rule of a Government Authority which is legally binding or, if not legally binding, would customarily be complied with in South Africa, specifically including any code in respect of electricity generation, distribution or transmission;
  • “Battery” the battery and components used in the Solar System;
  • “Call Out Fee” any call out fee as described in the Contract Details;
  • “Change in Law” an Applicable Law is promulgated, adopted, amended, modified, nullified, suspended, repealed, found unconstitutional or unlawful, or changed or affected in any material respect by any Government Authority or the imposition by any Government Authority of any condition in connection with the issuance, renewal or modification of any consent, licence, authorisation;
  • “Connection Point” the connection point located between the municipal meter and the distribution board located at the Premises;
  • “Consents” all consents, permits, clearances, authorisations, approvals, rulings, exemptions, registrations, filings, decisions and/or licences, required to be issued by or made with any Government Authority in connection with the performance of any of the Works and/or the operation and maintenance of the Solar System;
  • “Consumed” Solar Energy consumed by the Customer as measured by the Inverter, including Solar Energy consumed in charging the Battery, and “Consumption” shall bear the corresponding meaning;
  • “Contract Details” the Contract Details forming part of this Agreement and agreed between the Parties;
  • “Customer” the party specified as the Customer in the Contract Details;
  • “De-Installation Fee” the amount payable by the Customer to the Provider for the de-installation and removal of the Solar System (as escalated) as detailed in the Contract Details, following termination of this Agreement and where the Customer has not elected to purchase the Solar System in terms of clause 20;
  • “Dispose” means assign, transfer or otherwise dispose of or grant or permit or suffer the grant of any legal or equitable interest (either in whole or in part) whether by sale, lease, declaration or creation of a trust or otherwise and any references herein to “Disposal” shall be construed accordingly;
  • “Encumbrance” any mortgage, pledge, lien, deed of cession, assignment, hypothecation or security interest or any other agreement or arrangement having the effect of conferring security whether by contract or operation of law, including any arrangement under which money or claims to, or the benefit of, a bank or other account may be applied, set-off or made subject to a combination of accounts so as to effect discharge of any sum owed or payable to any person and “Encumber” shall have the corresponding meaning;
  • “Government Authority” any, national, provincial, municipal, regional or local government, administrative, judicial or regulatory entity enforcing, established by or operating under any Applicable Law;
  • “Grid Failure” any event, including but not limited to, any interruption, failure, outage, voltage surge or curtailment of the national electrical grid that affects the Connection Point and consequently the ability to deliver the electrical energy generated by the Solar System;
  • “Independent Expert“, in the event that the dispute is a technical dispute, an electrical or solar power engineer with professional experience agreed to between the Parties and failing agreement nominated (at the request of either Party) by the President for the time being of the South African Institute of Electrical Engineers;
  • “Inverter” the inverter or such other device or system as may be installed by the Provider as part of the Solar System for purposes of monitoring and measuring Solar Energy generated and Consumed;
  • “Monthly Fee” the amount payable by the Customer to the Provider on a monthly basis as set out in the Contract Details.
  • “Operations Date” the date that the Solar System is commissioned and is capable of being operated safely under all anticipated or likely operational conditions as notified by the Provider to the Customer in accordance with clauses 3 and 7.5;
  • “Parties” the parties to this Agreement as set out in clause 1.1 and “Party” means either of them, as the case may be;
  • “Premises” the premises at which the relevant Works are to be carried out and where the Solar System will be installed, including the Rooftop (if applicable);
  • “Prime Rate” the publicly quoted basic rate of interest, compounded monthly in arrears and calculated on a 365 day year irrespective of whether or not the year is a leap year, from time to time published by the Provider’s bank as being its prime overdraft rate, as certified by any representative of that bank whose appointment and designation it will not be necessary to prove;
  • “Purchase Option” has the meaning given to that term in clause 20;
  • “Purchase Price” the amount payable by the Customer to the Provider to purchase the Solar System in terms of the Purchase Option as set out in the Contract Details.
  • “Relocation Event” the relocation of the Solar System, starting at the shutdown of the Solar System pursuant to such relocation, and ending at the commission and commercial operation of the Solar System when such relocated Solar System is reinstalled at a new location and commissioned;
  • “Required Documents” certified copies of the applicable documents listed in Schedule 1 (Required Documents) and such other documents as the Provider may reasonably request in writing, which the Customer must deliver to the Provider as soon as possible after the Signature Date;
  • “Rooftop” the rooftop of the Premises;
  • “Provider” the party specified as the Provider in the Contract Details;
  • “Sign“, “Signed” or “Signature” the Customer’s express acknowledgement of the acceptance of the Agreement and the Contract Details hereto, which is appended by an electronic communication in the form of the Customer’s ticking the corresponding field at the end of the Agreement or Contract Details. “Electronic communication” has the meaning assigned to it in the Electronic Communications and Transactions Act 25 of 2002 (“ECTA“);
  • “Signature Date” the date of Signature of this Agreement by the Customer;
  • “Solar Energy” the electrical energy (expressed in kWh) generated by the Solar System for consumption, as measured by the Inverter;
  • “Solar Software” the software forming part of the Inverter installed and managed by the Provider in respect of the Solar System;
  • “Solar System” the system to be installed at the Premises to generate Solar Energy, and store electrical power;
  • “Term” the period commencing on the Signature Date and terminating in accordance with the Agreement;
  • “Termination Date” the date upon which this Agreement has been terminated in accordance with the provisions of the Agreement;
  • “Utility” any licensed third party (excluding the Provider) supplying electrical energy to the Premises in terms of a separate electrical energy supply agreement;
  • “VAT” value added tax imposed under the Value Added Tax Act 89 of 1991; and
  • “Works” the works and services and other activities to be performed by the Provider, including, but not limited to:
    • installing, commissioning, owning, maintaining, repairing, removing and replacing the Solar System or making any additions to the Solar System or installing complementary technologies on or about the location of the Solar System;
    • installing, using and maintaining inverters necessary to interconnect the Solar System to the Connection Point; and
    • taking any other action reasonably necessary in connection with the construction, installation, operation, maintenance, removal or repair of the Solar System,

and which specifically excludes any maintenance, repair or replacement of any meters, inverters, electric lines or other electrical components not installed by or on behalf of the Provider.

• In this Agreement:
  • clause headings and the heading of the Agreement are for convenience only and are not to be used in its interpretation; and
  • a Party includes a reference to that Party’s successors in title and assigns allowed at law;
• Any reference in this Agreement to:
  • “days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;
  • “laws” means all constitutions; statutes; regulations; by-laws; codes; ordinances; decrees; rules; judicial, arbitral, administrative, ministerial, departmental or regulatory judgements, orders, decisions, rulings, or awards; policies; voluntary restraints; guidelines; directives; compliance notices; abatement notices; agreements with, requirements of, or instructions by any Governmental Body; and the common law, and “law” shall have a similar meaning;
  • “months” means calendar months; and
  • “person” means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality.
• The words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.
• The word “written” means a written document (whether hardcopy or electronic) and includes e-mail, and “writing” shall have a corresponding meaning.
• Any substantive provision, conferring rights or imposing obligations on a Party and appearing in any of the definitions in this clause 2 or elsewhere in this Agreement, shall be given effect to as if it were a substantive provision in the body of the Agreement.
• A reference to any statutory enactment shall be construed as a reference to that enactment as at the Signature Date and as amended or substituted from time to time.
• Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day.
• If the due date for performance of any obligation in terms of this Agreement is a day which is not a business day, then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately preceding business day.
• The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply.
• No provision of this Agreement shall (unless otherwise stated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a Party to this Agreement.
• Any reference in this Agreement to “this Agreement” or any other agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or document, as amended, varied, novated or supplemented from time to time.
• In this Agreement the words “clause” or “clauses” and “schedule” or “schedules” refer to clauses of and schedules to this Agreement.

3.          DURATION

This Agreement shall commence on the Signature Date and shall endure indefinitely until terminated in accordance with the terms of this Agreement.

4.          CONSUMER PROTECTION ACT / ECTA

• To the extent that this Agreement is governed by the provisions of the Consumer Protection Act No. 68 of 2008 (“CPA”) and/or ECTA, the Customer agrees that it understands and confirms that it has read and understood this Agreement, all necessary clauses of this Agreement have been explained to it by the Provider, it has been advised of all rights in terms of the Agreement and that it Signs this Agreement freely and voluntarily.
• If the provisions of the CPA and/or ECTA apply in respect of any of the services rendered in terms of this Agreement, the provisions of the CPA and/or ECTA will prevail over any provision contained in this Agreement that may be contrary to such provisions, provided that the Provider expressly acknowledges that this clause will only apply in relation to aspects of this Agreement to which the CPA and/or ECTA will apply in law.

5.          ACCESS RIGHTS

• Access to the Premises
  • The Customer grants the Provider and its representatives, contractors/sub-contractors rights of access to the Premises (which includes the Rooftop (if applicable)) as required for the completion of the Works and any other purpose set out in this Agreement and enforcing its rights and performing its obligations under the Agreement. The Provider shall minimise any disruption to activities occurring on the Premises to the extent possible.
  • The Customer shall ensure that the Provider and/or its representatives, contractors/sub-contractors are granted and permitted access to the Premises for purposes of dismantling and removing the Solar System from the Premises in accordance with the Provider’s obligations to do so under this Agreement and in accordance with its rights under law. If the Customer fails to do so, the Provider shall be entitled to pursue any rights and/or remedy available to it under this Agreement or otherwise in law.
  • The Provider will give the Customer reasonable notice before any entry at the Premises but the Customer agrees to permit access to the Premises 7 days a week for emergency purposes, as reasonably determined by Provider.
  • Where applicable, if the Customer requires the consent of a body corporate, the Customer shall obtain the body corporate’s written consent to enter into this Agreement and grant the Access Rights (“Body Corporate’s Consent“).

5.2.            Space, Storage and Installation

• The Customer shall ensure that there is adequate and appropriate space allocated within the Premises to accommodate the Provider’s electronic system required for the operation of the Solar System.
• The Provider shall have the right to locate transmission lines and communications cables in and if necessary across the Premises, taking reasonable care not to damage the Premises. The Provider will lay any cables in a neat and tidy manner.
• The Provider shall be provided with storage space on the Premises convenient to the Premises for materials and tools used during the performance of the Works, provided that the Provider shall be responsible for providing shelter and security for stored items during construction and installation.
• The Provider shall be provided with water, drainage and electrical connections on the Premises as required to perform its obligations under this Agreement.

6.          CONDITIONS FOR INSTALLATION

6.1.            Assessment

• As soon as reasonably possible after the Signature Date, the Provider shall have the right to assess the suitability of the Premises for the installation of the Solar System and the Provider may:
  • inspect the physical condition of the Premises, the Rooftop and any structures on which the Solar System will be located;
  • apply for any legislative authorisations necessary for the construction and installation of the Solar System (whether as principal or as the Customer’s agent);
  • execute all necessary agreements with the Utility for interconnection of the Solar System to the Connection Point (whether as principal or as the Customer’s agent); and
  • make any other investigation or determination necessary for the construction and maintenance of the Solar System.
• The Customer must provide the following to the Provider on the Signature Date, or as soon thereafter as requested:
  • the Required Documents; and
  • all existing reports regarding the design, specification and/or condition of the Premises and all improvements thereon.
• The Customer must cooperate with and support the Provider with any applications identified in clauses 1.1.2and 6.1.1.3, including providing reasonable assistance in the preparation of such applications, so as to expedite their consideration by the appropriate Government Authority, provided that such applications are in compliance with all applicable legal requirements.
• The Provider is entitled to conduct a credit check on the Customer, it being recorded that the Customer authorises permits the Provider to conduct such credit check.

6.2.            Initiation Fee

• The Customer shall pay a once off Initiation Fee in accordance with clause 1.
• After receipt of the Initiation Fee, the Provider will commence with the performance of the Works as soon as is practically possible.

7.          INSTALLATION OF THE SOLAR SYSTEM

7.1.            Commencement of Installation

• The Provider shall only commence the installation of the Solar System if and once:
  • following the site inspection of the Premises, the Provider, in its sole discretion, determines that the Premises is suitable for the installation of the Solar System;
  • the Provider has received the Required Documents;
  • the Customer has paid the Initiation Fee in accordance with clause 1;
  • to the extent applicable, the Customer has paid the Additional Installation Fee in accordance with clause 2;
  • the Provider, in its sole discretion, is satisfied with the results of the credit check conducted in respect of the Customer;
  • the Customer has confirmed that it shall insure the Solar System in accordance with clause 28;
  • to the extent required, the Customer has provided copies of the documents referred to in clause 1.4; and
  • the relevant Consents have been obtained for the installation of the Solar System.
• In the event that the conditions set out in clause 1.1 are not satisfied within 60 days after the Signature Date, the Provider shall have the right, in its discretion, to cease installation of the Solar System. If the Provider gives the Customer notice of such non-satisfaction of the conditions set out in clause 7.1.1, this Agreement shall terminate effective as of the delivery of such notice without any further liability of the Parties to each other, but without prejudice to any claims, rights or obligations of the Parties that accrued prior to the date of termination.
• To the extent that the Rooftop at the Premises is such that it requires the installation of the Additional Installation Materials, the Customer will be liable to pay the Additional Installation Fee on presentation of the relevant invoice.

7.2.            Solar System

• Subject to clause 1, the Provider will design and install the Solar System at the Premises.
• The Solar System shall have the specifications set out in Contract Details.
• The Solar System is designed in accordance with prevailing industry standards, considering the technical parameters of the Premises and the information provided by the Customer in respect of its current electricity consumption.
• The Provider has the right to modify the design of the Solar System, including the selection of the components in the Solar System, as the Provider, in its sole discretion, may determine and shall advise the Customer of any such changes within a reasonable period.

7.3.            Operations Date

• The Provider shall use all reasonable commercial endeavours to ensure that the Operations Date is achieved within 30 days after the Signature Date. If the Provider is unable to achieve the Operations Date within such period, the Provider shall, as soon as reasonably possible, notify the Customer of the delay and the proposed new date to take into account the extent of such delay.
• The Parties agree that if the Operations Date is not achieved within the abovementioned period (as may be extended), the Provider shall have no liability to the Customer and shall be subject to no penalty for any inability to perform any of its obligations under this Agreement and will not be in default because of such non-performance.

7.4.            Installation, Integration and Commissioning

• The Provider is responsible for the system integration of the Solar System, including performing the procurement, installation, commissioning, and testing of the Solar System, including obtaining the electrical certificate of compliance and relevant Small-Scale Embedded Generation applications where applicable, and all work required to connect the Solar System to the Connection Point. The Provider may subcontract any or all parts of the Works in its sole discretion.
• The Customer acknowledges and agrees that the registration of the Solar System may be jeopardised due to any non-compliance by the Customer with any applicable tariff/meter requirements imposed on it. The Customer shall remain responsible in respect of its compliance with any such requirements and no liability shall attach to the Provider in respect thereof or to the extent that the Customer refuses and/or elects not to change its tariff/meter in accordance with any such requirements.

• Completion

The Provider will notify the Customer upon the completion of the installation of the Solar System on the Operations Date. The Customer may be requested to complete written acknowledgement of such completion.

8.          SOLAR SYSTEM

8.1.            Solar System Output

The Customer acknowledges that it is aware and fully understands that various factors may adversely affect the performance of the Solar System, including, without limitation, the following factors:

• shadows and shade cast over the solar panels;
• adverse weather conditions;
• the change in seasons;
• any damage or degradation of the solar panels;
• the positioning and direction of the Rooftop on the Premises;
• the geographic location of the Premises; and
• the use of the Solar System for purposes other than its intended design and not in accordance with the operating guidelines provided by the Provider from time to time.

8.2.            Battery output

The Customer acknowledges that it is aware and fully understands that various factors may adversely affect the performance of the Battery, including without limitation, the following factors:

• any damage or degradation of components of the Battery;
• the positioning of the Battery on the Premises; and
• the use of the Battery for purposes other than its intended design and not in accordance with the operating guidelines provided by the Provider to the Customer from time to time.

8.3.            No Guarantee

The Provider shall use its reasonable endeavours to ensure that the Solar System performs as would be reasonably expected. However, due to the external factors (including those referred to in clause 8.1 and clause 8.2), the Provider does not give any explicit or implied guarantees or warranties or make any representations in respect the performance of the Solar System.

8.4.            Restoration

• The Customer acknowledges that it is aware and fully understands the potential effects that the installation and removal of the Solar System may have on the Premises, including the impairment and discolouration of the Rooftop and/or walls on which the components of the Solar System are installed, holes drilled into walls and/or the Rooftop to install and erect roof structures and other components of the Solar System and other minor changes in appearance to the Premises pursuant to the performance of the Works.
• The Customer acknowledges and agrees that the Provider shall not be responsible for any restoration of the Premises upon removal of the Solar System beyond what is necessary to fix or fill holes drilled during the installation and that the Provider shall not be obliged to repaint, repair or restore any part of the Premises unless structural damage to the Premises has been cause by a negligent act or wilful act or omission by the Provider.

9.          CUSTOMER’S OBLIGATIONS

9.1.      Protection of the Solar System

• During the Term, the Customer shall secure the Solar System at its own cost and undertakes to provide or procure the provision of such measures and personnel which may be required from time to time for this purpose.
• The Customer will be liable to restore and make good any damage to the Solar System as a result of the failure on its part to carry out its obligation to secure the Solar System as contemplated in clause 1.1 or as a result of the collapse of a building, fire, explosion or accident which is not covered by insurance in terms of clause 28.

9.2.      Maintenance of the Premises

• The Customer shall:
  • keep the Solar System in good condition and unobstructed, fair wear and tear excepted;
  • keep trees, bushes and hedges trimmed so that the Solar System receives as much sunlight as it did on the Operations Date;
  • refrain from planting any trees, bushes and hedges that may shade the Solar System;
  • ensure that the Premises is not modified in any way that shades the Solar System; and
  • maintain the Premises and/or the Rooftop (if applicable).

9.2.2.            The Customer is liable for any damage to the Solar System arising because of the Customer not complying with the provisions of this clause.

• No Alterations to the Solar System
  • The Customer shall not make or authorise its contractors to make any modifications, improvements, revisions or additions to the Solar System or take any other action that could void any warranty in respect of any part of the Solar System without the Provider’s prior written consent.
  • The Customer shall not, and shall not authorise its contractors to, in any way tamper with the Solar System and the Customer shall only use contractors specifically approved by the Provider in relation to any maintenance or repairs of any part of the Solar System.
  • The Customer is liable for any loss or damage caused to the Solar System because of the Customer or its contractors affecting any repairs or undertaking general maintenance on the Premises and/or Rooftop (as applicable). As soon as reasonably practical after the Customer becomes aware of any damage to the Solar System resulting from any maintenance or repairs carried out on the Premises and/or Rooftop (as applicable) by the Customer, the Customer shall inform that Provider in writing of any such damage.
  • The Customer is solely liable for any damage to, or any repair or replacement of, the Solar System arising because of the Customer not complying with the provisions of this clause.

9.4.            Third Party Supplier Account

• The Customer is and remains responsible for the payment of all municipal and other charges in respect of all electric current supplied by the relevant Utility and consumed in or on the Premises, as metered from time to time by the Utility, including any deposit and connecting fees which may be payable.
• The Customer is responsible for any Consents required to be obtained to connect the Solar System to the Connection Point in accordance with law.

10.       INSPECTION, REPAIR AND MAINTENANCE

10.1.         Maintenance

• The Provider may shut down the Solar System at any time, without prior notice, to perform required emergency repairs to the Solar System. At other times, the Provider shall give reasonable notice of a shutdown as may be reasonable in the circumstances. The Provider shall not have any obligation to reimburse the Customer for costs of purchasing electrical energy from a Utility that would have been produced by the Solar System but for such shutdown.
• The Provider is entitled to carry out replacement or make good and repair, as the case may be, at its own cost, the Solar System (or any part thereof) which may become damaged, faulty or defective from time to time during the Term and the Customer shall have no claim against the Provider in respect of any losses which it may suffer by reason of any such alteration, repair or replacement.
• If the Solar System requires repairs for which the Customer is responsible, the Customer shall be liable to compensate the Provider for diagnosing and correcting the problem at the Provider or the Provider’s contractors’ then current standard rates and for any lost income of the Provider that others would have been generated if no such damage had existed.
• The Provider may, in its discretion, charge the Customer the Call Out Fee if the Customer requires the Provider to repair the Solar System and it transpires that the Solar System is functioning as reasonably expected.

10.2.         Shutdown

• In addition to the right of the Provider to shut down the Solar System for general maintenance as provided in clause 1, the Provider is entitled, at its discretion, to shut down the Solar System if the Provider believes the Premises conditions or activities of persons on the Premises, which are not under the control of the Provider, may interfere with the safe operation of the Solar System.
• The Customer and the Provider shall cooperate and coordinate their respective efforts to restore the Premises conditions to not interfere with the safe operation of the Solar System and to reduce, to the extent practicable, the duration of the shutdown.
• If a shutdown pursuant to this clause 2 continues for 30 days or longer, the Provider may terminate this Agreement in accordance with clause 21.2 for a Customer Event of Default.

10.3.         Operation

• The Provider may outsource to a third-party operator the performance of operations, equipment status control, preventive and corrective maintenance installation and maintenance of the Solar System, and controlling the performance of maintenance in an efficient and safe manner such that the safe and reliable Solar System operation is optimised (the “Maintenance Services“).
• The Parties record that the Provider may, to the extent applicable, appoint an operator to perform the Maintenance Services in respect of the Solar System in terms of a written agreement regulating the Maintenance Services to be concluded between the operator and the Provider.

11.       SOLAR SYSTEM RELOCATION

11.1.         Customer Request

• The Customer may request to move the Solar System to another location on the Premises or to another premise owned or leased by the Customer, but any such relocation shall be subject to the written approval of the Provider in its sole discretion and shall be treated as a Relocation Event.
• In the event that the Customer submits a written request to the Provider requesting its consent to the removal of the Solar System as contemplated in clause 1.1 and the Provider grants such consent (which shall not be unreasonably withheld):
  • the Customer shall be entitled to nominate an alternative premises at which the Solar System shall be installed, provided such premises is within a predetermined radius of the Premises as agreed with the Provider and complies with the Provider’s quality criteria (or the Customer accepts the associated site risks and Signs a suitable waiver) (“Alternative Premises“);
  • the Provider and/or its appointed contractors shall remove the Solar System from the Premises and re-install the Solar System at the Alternative Premises, within a reasonable period of time after receiving such written request from the Customer in accordance with clause 1.1 and granting its consent in terms thereof; and
  • the Customer shall bear the costs of removal and re-installation of the Solar System as contemplated in this clause 11.
• The Parties agree that the Provider’s consent shall cause this Agreement to be amended automatically to reflect the new premises and building on which the relocated Solar System will be installed and all references to Premises shall be deemed references to the new premises and building on which the Solar System is installed.

11.2.         Interconnection Deactivated

If an interconnection with the national electrical grid to which the Solar System is connected becomes deactivated for reasons (including inter alia as a result of any Grid Failure) that are not (i) a Force Majeure Event; or (ii) caused by or related to any unexcused action or inaction of the Provider, and the Grid Failure or deactivation persists pursuant to this clause 11.2 continues for 180 consecutive days or longer, the Provider may terminate this Agreement as a result of a Customer Event of Default in accordance with clause 21.2.

12.       OWNERSHIP

• The Parties agree that Provider is, and shall always remain, the legal owner of the Solar System and the Solar Software and any other materials provided by the Provider for the performance of the Works.
• Any asset belonging to the Provider required for the Solar System (including the Solar Software) that is lawfully constructed, erected, used, placed, installed or affixed to the Premises, remains the property of the Provider (is considered to be removable) and does not accede or attach to the Premises or is deemed to be a part of, or a fixture to, the Premises or any other immovable property of the Customer notwithstanding the fact that such an asset may be of a fixed or permanent nature.
• An asset belonging to the Provider in terms of clause 2:
  • may not be attached or taken in execution under any process of law, or be the subject of any insolvency or liquidation proceedings, instituted against the owner of the Premises, the tenant or the occupier of the Premises;
  • may not be subjected to a hypothec or lien; and
  • may only be validly disposed of or otherwise dealt with in terms of a written agreement with the Customer.
• The Customer may not Encumber the Solar System, or any part of the Solar System (including the Solar Software) without the Provider’s prior written consent.

13.       DISPOSAL OF THE PREMISES

• Should the Customer wish to Dispose of the Premises or any portion thereof, the Customer shall give prior written notice to the Provider informing the Provider of the proposed Disposal.
• The Customer undertakes to include in any document in terms of which it Disposes or otherwise deal with the Premises to a third party, either (a) a notice drawing such person’s attention to and making such transaction subject to the assignment by the Customer of this Agreement to the third party purchaser and such third party agreeing to be bound by the provisions of this Agreement; or (b) notifying the third party that the Solar System will be removed from the Premises.
• In the event that the Customer does not comply with the provisions of this clause 13 and the Solar System is not being relocated in accordance with this Agreement, the Provider shall be entitled to terminate this Agreement as a result of a Customer Event of Default in accordance with the provisions of clause 2.1.4.
• In the event that this Agreement is, for whatsoever reason, not assigned to any such third party purchaser of the Premises upon a Disposal, then subject to clause 11, the Provider shall be entitled to terminate this Agreement as a result of a Customer Event of Default in accordance with the provisions of clause 2.1.4.

14.       POINT OF DELIVERY AND MEASUREMENT OF SOLAR ENERGY AND CONSUMPTION

14.1.         Solar Energy

Subject to the terms and conditions of this Agreement, the Provider agrees to make Solar Energy generated by the Solar System available to the Customer for its consumption. The Customer shall take title to the Solar Energy at the Connection Point, and risk of loss will pass from the Provider to the Customer at the Connection Point.

14.2.         Lost Energy Production Revenue

• The Customer remains liable under this Agreement if the Solar System or part thereof is prevented from generating electrical energy, wholly or in part, due to any of the following events (“Lost Energy Production Event“):
  • a Relocation Event;
  • someone other than the Provider or its approved subcontractors installed, removed, re-installed or repaired the Solar System;
  • destruction or damage to the Solar System or the Solar System’s ‘s ability to safely produce electrical energy not caused by the Provider or its subcontractors while servicing the Solar System;
  • in the event that the Premises is closed or non-operational as a result of an event that is (i) not a Force Majeure Event; or (ii) not caused by or related to any unexcused action or inaction of the Provider;
  • in the event that the Provider shuts down the Solar System for repairs for which the Customer is responsible;
  • a failure by the Customer to comply with its obligations in clause 2.1;
  • any modifications, improvements, revisions or additions to the Solar System by any party other than the Provider;
  • a Grid Failure;
  • a negligent act or wilful act or omission of the Customer, its employees, agents or subcontractors;
  • shading from plants or foliage that is new growth or is not kept trimmed to its appearance on the date the Solar System was installed;
  • the occurrence of the events listed in clause 2; and/or
  • in the event that the Customer has not fulfilled its obligations under clause 1.1 and there is a theft of the Solar System.
• The amount which the Customer is liable to pay for the period that the Lost Energy Production Event persists will be based on the Monthly Fee that would have been otherwise been during that period.

14.3.         Metering

Solar Energy generated by the Solar System and Consumed by the Customer will be measured by the Inverter, it being recorded that the Provider initially intends to use an inverter but reserves the right to install and use such other device or system as it deems fit.

15.       FEES

15.1.         Initiation Fee

• The Customer shall pay the once off Initiation Fee on the Signature Date.
• If the Initiation Fee has been paid by the Customer in accordance with this Agreement and the Provider elects to terminate this Agreement prior to the installation of the Solar System, the Provider shall refund the Initiation Fee to the Customer.

15.2.         Additional Installation Fee

The Customer may be liable to pay an additional installation fee to the Provider for the installation of any Additional Installation Materials (if applicable), as may be agreed between the Parties.

15.3.         Monthly Fee

• The Customer is liable to pay the Monthly Fee to the Provider in advance for the duration of the Term, irrespective of Solar Energy Consumed by the Customer.
• Upon reasonable notice to the Customer, the Provider shall be entitled to replace the mechanism for the calculation of the Monthly Fee as contemplated in clause 3.1 with an energy rate multiplied by the Solar Energy Consumed or estimated to be Consumed, which shall be invoiced in advance. Should the Customer object to such a replacement within 30 days of the Provider’s notice, the mechanism for the calculation of the Monthly Fee as contemplated in clause 15.3.1 will continue.

16.       INVOICING AND ELECTRONIC PAYMENTS

16.1.         Invoice

The Provider shall provide the Customer a tax invoice in respect of any amounts payable by the Customer under this Agreement.

16.2.         Electronic Payments

• Unless otherwise agreed between the Parties, all amounts invoiced to the Customer under this Agreement, including any VAT, must be paid within 7 days of the date of invoice.
• Payment may be made via Visa and MasterCard credit cards, or such other cards as may be advised by the Provider from time to time.
• The Provider may use payment systems owned and operated by third parties (“Payment System Providers”) to facilitate the collection of the Monthly Fee and other fees and other amounts payable by the Client under the Agreement. None of these Payment System Providers is the Provider’s employee, subcontractor, agent, intermediary or representative, or otherwise controlled by the Provider.
• Interest charged on late payments

Should any payment under or arising from this Agreement fail to be made by the Customer on the relevant due date then, without prejudice to any of the other rights or remedies as may accrue to the Provider upon such failure, such amounts will bear interest at the Prime Rate plus 2%, reckoned from the due date for payment to the date of receipt of actual payment (both dates inclusive) and such interest will be compounded monthly in arrears.

• Failure to Pay
  • If the Customer fails to pay any amount owing to the Provider under this Agreement on the relevant due date, the Provider is entitled to immediately suspend performance of all or any of its obligations under this Agreement, including immediately disconnecting the Solar System physically or through the Solar Software.
  • Upon receipt by the Provider of outstanding payment referred to in clause 2.5.1, the Provider shall resume performance of all of its obligations under this Agreement.
  • The Provider reserves the right at any time to collect any/all outstanding amount/s due under this Agreement (or any part or content thereof) without notice due to non-payment of rental charges and other fees on the Customer’s account(s).
  • A failure by the Customer to pay the Provider any amount owing under this Agreement which constitutes a Customer Event of Default entitles the Provider to terminate this Agreement and as soon as possible thereafter, to dismantle and remove the Solar System from the Premises in accordance with its obligations contemplated in clause 2 at the cost of the Customer.

17.       CREDITS AND REBATES AND NET METERING

17.1.          Credits and Rebates

All renewable energy credits, carbon off-set credits, utility rebates or credit, tax credits, incentive or any other similar benefit received because of the Solar System (whether existing now of in the future) shall be for the benefit of the Provider. The Provider shall have the right to use and enjoy all such benefits, whether they exist now or in the future. The Customer agrees that it shall fully co-operate with the Provider, which may include the completion and lodging of various forms, so that the Provider may claim any renewable energy credits, rebates, carbon offset credits, tax credits or any other benefits from the Solar System.

17.2.          Net Metering

• The Customer agrees that the Provider shall be entitled to sell any Solar Energy generated in excess of the demand requirements of the Customer to a third party, to the extent permitted by Applicable Laws.
• The Parties will use all reasonable efforts to provide the benefits of net metering to the national electrical grid. This includes, inter alia, the installation of necessary cables and equipment on the Premises, and the execution of any necessary agreements with third parties (including with a Government Authority or Utility). The Parties will endeavour to implement net metering in a way that allows the Provider to directly receive all the tariff(s) for the electricity sold under net metering.
• The Customer will use all reasonable efforts to assist with the execution of any necessary agreements with third parties as may be required, including inter alia assigning its rights against the Utility for receiving any credits to the Customers benefit, and use all efforts to enable a direct payment to the benefit of the Provider.

18.       FORCE MAJEURE

18.1.      Force Majeure

• An Event of Force Majeure means any act, event or occurrence or combination thereof which is beyond the control of either Party including, without limitation (“Force Majeure Event“):
  • natural phenomena, such as storms, fires, hurricanes, floods, lightning and earthquakes;
  • explosions or fires arising from lightning or other causes unrelated to the acts or omissions of the Party seeking to be excused from performance;
  • acts of war or public disorders, civil disturbances, riots, insurrection, sabotage, epidemic, terrorist acts, or rebellion;
  • the expropriation or compulsory acquisition of any material assets of either Party, or any other act, omission or default of any Government Authority of South Africa; or
  • any action or failure to act without justifiable cause by any Government Authority of South Africa (including any action or failure to act by any duly authorised agent of any such Government Authority);
  • ionising radiation or contamination, radio activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive assembly or nuclear component;
  • the erection of any building by any third party (other than the Customer) that shades the Solar System;
  • an epidemic or pandemic;
  • strikes at national level or industrial disputes at a national level, or strikes or industrial disputes by labour not employed by the affected Party; and
  • power or voltage surge caused by someone other than the Provider.
• Force Majeure Events shall not include equipment failures or acts or omissions of agents, suppliers or subcontractors, except to the extent such acts or omissions arise from a Force Majeure Event. Changes in prices for electricity shall not constitute Force Majeure Events.

18.2.         Responsibilities of the Parties during an Event of Force Majeure

The Parties shall use all reasonable endeavours to: (i) prevent, minimise and mitigate the effect of any delay occasioned by any Event of Force Majeure including recourse to alternate sources of services, equipment and materials and construction equipment; and (ii) to ensure resumption of normal performance of this Agreement after the termination of any Event of Force Majeure and must otherwise perform their obligations under this Agreement to the best of their ability.

18.3.         Consequences of an Event of Force Majeure

• Except as provided in clause 1.2, the affected Party is excused from performance and is not construed to be in default in respect of any obligation in terms of the Agreement for so long as failure to perform such obligation is due to an Event of Force Majeure.
• The Term shall be automatically extended by any period during which the Provider is prevented from performing its material obligations under this Agreement as a result of an Event of Force Majeure.

18.4.         Payment Not Excused

Notwithstanding that an Event of Force Majeure otherwise exists, the provisions of this clause 18 do not excuse a failure of either Party to make any payment of money in accordance with its obligations under this Agreement. The Customer remains liable for any amounts which are due and payable until the date of Event of Force Majeure.

18.5.         Extended Force Majeure

If the Event of Force Majeure Event for more than a period of 90 consecutive days, either Party shall have the right to terminate this Agreement by giving written notice to the other Party, in which case the Customer shall pay to the Provider any amounts which are due and payable until the date of Event of Force Majeure, and thereafter, subject to the Parties’ rights upon termination as contained clause 21.3, no Party shall have any further rights against the other for any loss of claims unless, subject to the Parties’ rights upon termination set out in clause 21.3, the cause of such action arose prior to the occurrence of the Event of Force Majeure.

19.       CHANGE IN LAW

19.1.         Responsibilities of the Parties due to a Change in Law

• If either Party claims a Change in Law has occurred, it must advise the other Party in writing of the: (i) date of such Change in Law; (ii) nature and expected effect of such Change in Law; and (iii) actions to be taken in order to comply with requirements of this clause 19.
• The Parties must use all reasonable endeavours to: (i) prevent and reduce to a minimum and mitigate the effect of any delay occasioned by any Change in Law; and (ii) to ensure normal performance of this Agreement despite the Change in Law and must otherwise perform their obligations as herein agreed to the maximum of their ability.
• The Customer agrees to an adjustment in the then applicable Monthly Fee as shall place the Provider in the same overall economic position it would have been but for such Change in Law and said adjustment will remain in effect for as long as the costs arising from the Change in Law continue to be incurred by the Provider.
• In the event of a Change in Law specified in clause 1 the affected Party shall not be liable for any inability to perform any of its obligations under this Agreement and will not be in default as a result of such non-performance.

19.2.         Prevention of Performance

• Where there is a Change in Law that prevents either Party from performing any of its obligations in terms of this Agreement, at the request of the Provider, the Parties shall negotiate in good faith alternative contractual terms which reasonably allow for the consequences of the Change in Law in accordance with the provisions of this clause 2.1.
• If the Parties are unable to agree upon the any alternative contractual terms by no later than 45 days (or such longer date as the Parties may agree in writing) from the date on which the Provider delivered the notice to the Customer, the matter shall be referred at the request of either Party for resolution in accordance with clause 30.

20.       OPTION TO PURCHASE

• Subject to clause 6, the Customer has the option at any time during the Term following the third anniversary of the Signature Date to purchase the Solar System (and all its component parts, but specifically excluding the Solar Software) from the Provider (“Purchase Option“). The option may be exercised by the Customer at any time during the Term by the Customer giving written notice thereof to the Provider.
• If the Purchase Option is exercised, the purchase price of the Solar System shall be the Purchase Price at the proposed date of purchase.
• Within 30 days of receipt of Customer’s notice, the Provider will specify the Purchase Price along with supporting calculations. The Customer agrees to confirm or retract its notice to exercise the Purchase Option within 15 days of receipt of the notice from the Provider specifying the Purchase Option.
• In the event that the Customer does not notify the Provider that it confirms that it wishes to proceed with the Purchase option within the time specified in clause 3, the provisions of the Agreement will be applicable and binding as if the Customer had not exercised the Purchase Option.
• If the Customer confirms the exercise of the Purchase Option, a sale will automatically come into force and effect in terms of which the Customer purchases from the Provider and the Provider sells to the Customer the Solar System on the following terms and conditions:
  • the resultant sale of the Solar System shall be on an “as is” basis with the Provider providing no explicit or implied warranties in connection with the Solar System other than those which may apply by operation of law;
  • the Customer shall make payment of the Purchase Price in Rand free of any deductions, set-off or other withholding whatsoever, by way of electronic transfer of immediately available and freely transferable funds into such bank account as may be nominated in writing by the Provider;
  • the Provider shall deliver to the Customer the Solar System by such means of constructive delivery;
  • the Provider shall deliver to the Customer an invoice for the Purchase Price and all records of the Solar System operations (including any manuals) and maintenance including any known defects and, to the extent permitted, shall transfer any remaining manufacturer warranties on the Solar System or part thereof to the Customer; and
  • ownership of and all risk in and all benefit shall transfer to the Customer upon payment of the Purchase Price to the Provider, it being specifically recorded that ownership of the Solar Software remains with the Provider or the relevant licensor and does not transfer to the Customer).
• If the Customer elects to purchase the Solar System in terms of this clause 20, the Customer may appoint the Provider to continue maintaining the Solar System. The Parties will enter into a separate maintenance agreement in this regard as soon as reasonably possible after the Customer elects to exercise the Purchase Option.

21.       TERMINATION

21.1.         Termination by the Customer on notice

Subject to clause 22, the Customer is entitled to terminate this Agreement at any time on 20 days’ prior written notice to the Provider.

21.2.         Customer Events of Default

• Without prejudice to any of the Provider’s other rights and remedies under this Agreement or in law, the Provider is entitled, upon written notice to the Customer, to immediately terminate this Agreement and repossess any and all goods supplied or delivered to the Customer in terms of this Agreement upon the occurrence of any one or more the following events (each of the following events is a “Customer Event of Default“):
  • the Customer fails to make payment of any amount under this Agreement on the due date therefor and fails to make such payment within 15 days of written demand by the Provider for such payment;
  • the Customer does not have title to or a leasehold or other interest in the Premises or the full right, power and authority to grant the access to the Provider as contained in clause 1;
  • the occurrence of an Act of Insolvency by the Customer;
  • the Customer breaches the obligations contained in clause 13 and fails to remedy such breach within 10 days of written demand by the Provider ;
  • a shutdown referred to in clause 2 continues for 30 consecutive days (provided that the shutdown is not caused by an act or omission of the Provider);
  • a Grid Failure pursuant to clause 2 that continues for 180 days or longer; and
  • the Customer is in breach of any of its material obligations under this Agreement (other than any such breach referred to in clauses 2.1.1or 21.2.1.3), and fails to remedy such breach within 15 days after notice from the Provider to the Customer requesting such breach to be remedied.

21.3.         Termination upon Prolonged Event of Force Majeure

If a Party has the right to terminate this Agreement pursuant to clause 18.5, it may give notice to the other Party specifying the date on which the Party giving such notice proposes to terminate this Agreement, which date must not be less than 15 days after the date of such notice. Upon the occurrence of such date, this clause 21.3applies and this Agreement terminates unless the Parties have agreed to extend such date.

22.       CONSEQUENCES OF TERMINATION

22.1.  Consequences of termination by Customer on notice

• In the event of an early termination of this Agreement by the Customer in accordance with clause 1, the Customer is liable to pay to the Provider, within 10 days of the Termination Date, the De-Installation Fee stipulated in the Contract Details and any and all other amounts previously accrued under this Agreement and then owed by the Customer to the Provider.
• Nothing in this clause 1 shall limit the Provider’s rights to claim, prove and recover damages in excess of the De- Installation Fee by reason of any such breach or action by the Customer.
• In the event of such termination, the Provider shall, at the cost of the Customer and as soon as reasonably possible but in any event no later than 90 days after the Termination Date, dismantle and remove the Solar System and the roof structures from the Premises.

22.2.  Consequences of Termination for Customer Event of Default

• In the event of a termination of this Agreement due to a Customer Event of Default (or any purported early cancellation by the Customer under law), the Customer is liable to pay to the Provider, within 10 days of the Termination Date, the De-Installation Fee stipulated in the Contract Details and any and all other amounts previously accrued under this Agreement and then owed by the Customer to the Provider.
• Nothing in this clause 2 shall limit the Provider’s rights to claim, prove and recover damages in excess of the De- Installation Fee by reason of any such breach or action by the Customer.
• In the event of such termination, the Provider shall, at the cost of the Customer and as soon as reasonably possible but in any event no later than 90 days after the Termination Date, dismantle and remove the Solar System and the roof structures from the Premises.

22.3.  Consequences of termination upon Prolonged Event of Force Majeure

• In the event of a termination of this Agreement pursuant to clause 5, the Customer shall pay the Provider all amounts due to the Provider up until the Termination Date.
• Provided that the Customer has not elected to purchase the Solar System pursuant to clause 20, the Provider shall as soon as reasonably possible after the Termination Date but in any event no later than 90 days thereafter, dismantle and remove the Solar System and the roof structures from the Premises. The Customer shall be liable for 50% of the reasonable costs incurred by the Provider in dismantling and removing the Solar System from the Premises, including in respect of the removal of the roof structures (and any other support structures as applicable).

22.4.  No Release

In the event of a termination of this Agreement, the Parties shall not be released from any claims, rights, payment or other obligation arising under this Agreement which accrued prior to the termination of this Agreement unless specifically otherwise agreed in writing by the Parties.

23.       LIMITATION OF LIABILITY

• The total uninsured liability of the Provider to the Customer under or in connection with this Agreement, whether based on breach of contract or otherwise, must not exceed the aggregate of Monthly Fee paid by the Customer to the Provider under this Agreement in the immediately preceding 12 month period.
• In no event shall the Provider, its directors, officers, employees or agents be liable for any incidental, consequential, indirect or special damages, including punitive damages or attorneys’ fees, whether foreseeable or unforeseeable, based on claims of the Customer or its clients (including, but not limited to, claims for loss of business, goodwill, profits, loss of income or use of goods or impairment of other assets), arising out of breach of any express or implied warranty, breach of contract, misrepresentation, negligence or otherwise in connection with or arising out of the agreement, except in the case of personal injury or property damage where and only to the extent that any Applicable Law requires such liability.
• The Customer shall have no claim whatsoever against the Provider in respect of any breach of any of the warranties or representations contained in this Agreement if and to the extent that:
  • such breach or claim occurs because of any law not in force at the Signature Date which takes effect retrospectively; or
  • such breach or claim would not have arisen but for any voluntary act or omission on the part of the Customer or any person connected with it otherwise than in the ordinary course of business.
• Any action by the Customer in terms of this Agreement must be commenced within 1 year after the cause of action has arisen.

24.       EXCLUSIONS AND CUSTOMER LIABILITY

• The Provider shall not be liable for any loss or damage caused, or for any repair, replacement or correction required to any part of the Solar System, as a result of any of the following:
  • any power or voltage surge caused by someone other than the Provider;
  • someone other than the Provider or its approved subcontractors installing, removing, re-installing or repairing the Solar System;
  • destruction or damage to the Solar System or its ability to produce power safely (unless such destruction or damage is caused by a breach of this Agreement by the Provider or its subcontractors while servicing the Solar System);
  • any modifications, improvements, revisions or additions to the Solar System by any party other than the Provider or its approved sub-contractors;
  • any Grid Failure not caused by or related to the Provider;
  • any system failure or lost production, that is not caused by a Solar System defect or breakdown, nor caused by the Provider.
• The Provider shall not be liable for damages resulting from unsuitable or improper use of the Solar System by the Customer or by third parties, and/or any other disregard of installation and operating instructions of the Solar System by the Customer or by third parties.
• While the Provider shall take all reasonable steps to ensure that the Solar System is supplied in accordance with the Customer’s specifications, the Provider does not warrant that the Solar System will be fit for the specific purpose for which the Customer intends to use it, and the Customer accordingly absolves the Provider from any liability whatsoever as a result of the Solar System not being fit for the purpose for which the Customer intends to use it.

25.       INDEMNIFICATION

• The Customer indemnifies, defends and holds harmless the Provider, its shareholders, directors, officers, employees and representatives and its affiliates, agents, contractors or licensees and their respective directors, officers and employees (herein referred to as the “Provider Parties”), from and against all claims made against or suffered by any of the Provider Parties for any loss of or damage to property or death or injury to persons (except for workers’ compensation claims), resulting from any negligent act or omission of the Customer or any of the Customers’ shareholders, directors, officers, employees and representatives and its affiliates, agents, contractors or licensees and their respective directors, officers and employees that arises out of or is in any manner connected with the performance of this Agreement.
• The Customer indemnifies, defends and holds harmless the Provider Parties from and against all claims, damages, penalties, fines, costs, liabilities, losses, expenses and fees made against or suffered by any of the Provider Parties resulting from, arising out of, or relating to:
  • any breach of or non-compliance by the Customer with any of its obligations contained in this Agreement; or
  • any breach of or non-compliance by the Customer with any laws, including, without limitation, non-compliance by the Customer with the tariff/meter requirements imposed by any governmental, municipal or other authority, or any election by the Customer not to change its tariff/meter in line with any such requirements.

26.       CONFIDENTIAL INFORMATION

• Subject to clause 2, each Party undertakes to keep confidential and not to disclose to any third party, save as may be required in law (including by the rules of any recognised securities exchange on which the shares of either of the Parties may be listed, or become listed where applicable) or permitted in terms of this Agreement, the nature, content or existence of this Agreement and/or any communications, whether written, pictorial or oral, and all other material relating to the matters contained in this Agreement or their participants, commercial and technical information, trade secrets, agreements (whether in writing or not, or in electronic format), or which can be obtained by examination, testing, visual inspection or analysis, including, without limitation, business or financial data, know-how, formulae, processes, designs, sketches, plans, drawings, specifications, sample reports, models, studies, findings, computer software, inventions or ideas, analyses, concepts, compilations, studies and other material prepared by or in possession of or under the control of any Party, as well as that which contain or otherwise reflect or are generated from any such information as is specified in this definition.
• This clause shall not apply to any disclosure made by a Party to its professional advisors or consultants, provided that they have agreed to the same confidentiality undertakings, or to any judicial or arbitral tribunal or officer, in connection with any matter relating this Agreement or arising out of it.

27.       PROCESSING OF PERSONAL INFORMATION

• For the purpose of this clause, ‘Personal Information’ shall have the meaning assigned in the Protection of Personal Information Act 4 of 2013 (as amended) (“POPIA”).
• For the purpose of this Agreement either Party may need to collect, use, store, or Process Personal Information of the other Party and accordingly each Party hereby authorises the other Party to Process Personal Information of the other:
  • in compliance with POPIA; and
  • as is necessary to give effect to this Agreement.
• Both Parties shall comply with security and data protection obligations required in terms of POPIA and shall implement and maintain technical and organisational security measures and procedures to safeguard against the unauthorised or unlawful disclosure, access or processing of the other Party’s Personal Information.
• The Provider may store your Personal Information for the duration of the business relationship with the Customer and thereafter for such longer period as is required or permissible in law.

28.       RISK AND INSURANCE

• All risk in and to the Solar System shall pass to the Customer on installation at the Premises and revert to the Provider when returned in terms of this Agreement.
• From the Signature Date until the expiry of the Term, the Parties must maintain the required insurances to protect their interests in the Solar System.
• With effect from the Signature Date, the Customer shall, at its sole cost, insure the Premises or procure that the Premises is insured by the owner of the Premises, whether by third party insurance or through homeowners’ insurance, for its full replacement value against all insurable risks, including fire, theft storm damage, wind hail damage, lightning, earthquake, impact, power surge and public liability insurance.
• With effect from the Signature Date, the Party stated in the Contract Details as the “Insuring Party” shall, at its cost, insure the Solar System with a reputable third-party insurance provider, for its full replacement value against all insurable risks, fire, theft storm damage, wind hail damage, lightning, earthquake, impact, power surge and public liability insurance.
• With effect from the Operations Date, the Insuring Party shall, at its cost, insure the Solar System to its full replacement value against all insurable risks, including fire, theft storm damage, wind hail damage, lightning, earthquake, impact, power surge and public liability insurance.
• Any repairs because of accidental damage to the Solar System, not covered by the Customer’s own insurance, will be at the Customer’s sole cost.
• The Parties must ensure payment when due of all premiums, commissions, charges, taxes and other expenses necessary to procure and maintain in force each insurance policy it is responsible to procure and maintain.
• Where the Customer is the Insuring Party, the Customer shall:
  • ensure and procure that the Provider’s interest in the Solar System is noted on the relevant insurance policy at all relevant times;
  • immediately inform the Provider in writing of any changes to, or cancellation of, the insurance policy; and
  • provide written proof of the requisite insurance cover to the Provider at any time during the existence of this Agreement at the request of the Provider.

29.       WARRANTIES

29.1.         General Warranties

• Each of the Parties warrants to and in favour of the other that:
  • it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into this Agreement;
  • this Agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms;
  • the execution of this Agreement and the performance of its obligations hereunder does not and shall not: (i) contravene any law or regulation to which that Party is subject; (ii) contravene any provision of that Party’s constitutional documents; or (iii) conflict with or constitute a breach of any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it;
  • to the best of its knowledge and belief, it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all of its obligations in terms of this Agreement;
  • it is entering into this Agreement as principal (and not as agent or in any other capacity);
  • the natural person who Signs this Agreement on its behalf is validly and duly authorised to do so and no other party is acting as a fiduciary for it; and
  • it is not relying upon any statement or representation by or on behalf of any other Party, except those expressly set forth in this Agreement.
• Each of the representations and warranties given by the Parties in terms of clause 1 shall:
  • be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement;
  • continue and remain in force notwithstanding the completion of any or all the transactions contemplated in this Agreement; and
  • prima facie be deemed to be material and to be a material representation inducing the other Party to enter into this Agreement.

29.2.         Customer Warranties

• The Customer warrants to and in favour of the Provider that:
  • the Premises (including the Rooftop (if applicable)) is not subject to any Encumbrance of whatsoever nature that will prevent the Provider from being able to carry out the Works;
  • the Premises is not subject to any servitude or restrictive condition, save as has already been disclosed to the Provider in writing;
  • the Customer is lawfully in possession of the Premises and has the right to use the Premises in the manner in which it currently does and no person has hired or has any other present or future right to occupy the Premises;
  • the Customer has the full right, power and authority to grant the Access Rights set out in clause 1 and such grant of the Access Rights does not violate any Applicable Law or other governmental restriction applicable to the Customer or the Premises and is not inconsistent with and will not result in a breach or default under any agreement by which the Customer is bound or that affects the Premises. If the Customer does not own the Premises, the Customer has obtained all required consents from the owner of the Premises to grant the Access Rights and enter into and perform its obligations under this Agreement;
  • the Customer is not aware of any fact or circumstance which would prevent the Provider from carrying out the Works in terms of this Agreement;
  • the Customer has provided to the Provider complete and correct records of its electric usage at the Premises;
  • the Customer has provided to the Provider, the Customer’s complete and correct records of the physical condition of the Premises. If it is discovered that the actual Premises conditions upon which all or part of the Solar System is to be installed, are materially different from the information presented by the Customer then if practicable the rates payable by the Customer hereunder shall be adjusted to compensate the Provider for the cost of design and construction changes and delays incurred to adapt the Solar System to the unknown conditions; and
  • the financial statements the Customer has provided to the Provider present fairly in all material respects the financial condition and results of operations of the Customer.
• The Customer warrants that it shall fully comply with all directions for the use of the Solar System and the Customer agrees that it shall indemnify and hold the Provider harmless from all claims (including, without limitation, attorneys’ fees) of personal injury or property damage resulting from any negligence, recklessness or wilful misconduct on the part of the Customer or from any failure of the Customer to comply with the terms of this warranty.

30.       DISPUTE RESOLUTION

30.1.          Notice of disputes

When any dispute arises between the Parties, either Party may give written notice to the other Party that a dispute exists (“dispute Notice“). The dispute Notice must include full particulars of the nature of the dispute.

30.2.          Negotiation

• Upon a Party receiving a dispute Notice, the Parties agree to attempt to resolve such dispute promptly, equitably and in a good faith manner. To this end, each of the Provider and the Customer must designate in writing to the other Party from time to time a representative who is authorised to resolve any dispute in connection with this Agreement and, unless otherwise expressly provided herein, to exercise the authority of such Party to reach such an agreement.
• If any dispute is not resolved between the Parties pursuant to this clause 2 within 5 business days from the dispute Notice, then either Party may, after giving written notification to the other Party (“Arbitration Notice“), refer the dispute to be settled exclusively and finally by arbitration in accordance with clause 30.4, unless the dispute is first submitted as a technical or financial dispute, as described in clause 30.3.

30.3.      Technical or Financial disputes

• If (i) the Parties cannot resolve a dispute pursuant to the procedures set out in clause 2; and (ii) the dispute is technical or financial in nature, then a Party may require, by sending a written notice within 5 business days after the expiration of the 5 business day period stipulated in clause 30.2.2, that such dispute be submitted to the relevant Independent Expert.
• The decision of the Independent Expert regarding a dispute will be final and binding on the Parties.
• Save as otherwise provided for in this Agreement, all fees and costs of the Independent Expert must be borne or reimbursed by the losing Party as determined by the Independent Expert’s decision.
• The Independent Expert, as the case may be, shall not be an arbitrator, but shall render its decision as an expert. The law relating to arbitration shall not apply to the Independent Expert or to their determination or to the procedure by which they reach their determination.

30.4.      Arbitration

• Subject to clause 3, in the event of there being any dispute or difference between the Parties arising out of this Agreement, the said dispute or difference shall on written demand by either Party be submitted to arbitration in Johannesburg in accordance with the Arbitration of Foundation of South Africa (“AFSA“) rules, which arbitration shall be administered by AFSA.
• Should AFSA, as an institution, not be operating at that time or not be accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last applied by AFSA) before an arbitrator appointed by agreement between the parties to the dispute or failing agreement within 10 business days of the demand for arbitration, then any party to the dispute shall be entitled to forthwith call upon the chairperson of the Johannesburg Council to nominate the arbitrator, provided that the person so nominated shall be an advocate of not less than 10 years standing as such. The person so nominated shall be the duly appointed arbitrator in respect of the dispute. In the event of the attorneys of the parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the parties to the dispute.
• The decision of the arbitrator shall be final and binding on the Parties.
• Nothing herein contained shall be deemed to prevent or prohibit a party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.
• Any arbitration in terms of this clause 30 (including any appeal proceedings) shall be conducted in camera and the Parties shall treat as confidential details of the dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration.

30.5.      Survival

• This clause 30 will continue to be binding on the Parties notwithstanding any termination or cancellation of the Agreement.
• The Parties agree that the written demand by a party to the dispute in terms of clause 1 that the dispute or difference be submitted to arbitration, is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 1969.

31.       NOTICES AND DOMICILIA

• The Parties select as their respective domicilia citandi et executandi the physical addresses, and for the purposes of giving or sending any notice or invoice provided for or required under this Agreement, the said physical addresses as well as the email addresses specified in the Contract Details, provided that a Party may change its domicilium or its address for the purposes of notices to any other physical address or email address by written notice to the other Party to that effect. Such change of address will be effective 5 business days after receipt of the notice of the change.
• All notices to be given in terms of this Agreement will:
  • be delivered in writing;
  • if delivered by hand during business hours, be presumed to have been received on the date of delivery. Any notice delivered 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; and
  • if sent by email, 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.
• Notwithstanding the above, any notice given in writing, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause 30.

32.       BENEFIT OF THE AGREEMENT

This Agreement will also be for the benefit of and be binding upon the successors in title and permitted assigns of the Parties or either of them.

33.       APPLICABLE LAW AND JURISDICTION

• This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.
• Subject to clause 30, the Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court of South Africa, KwaZulu-Natal Division, Durban in any dispute arising from or in connection with this Agreement.

34.       GENERAL

• This Agreement constitutes the whole agreement between the Parties relating to the subject matter hereof.
• This Agreement supersedes and replaces all agreements between the Parties (and other persons, as may be applicable) and undertakings given to or on behalf of the Parties (and other persons, as may be applicable) in relation to the subject matter hereof.
• No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded in this Agreement.
• No addition to, variation or consensual cancellation of this Agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this Agreement shall be of any force or effect unless in writing and signed by or on behalf of each of the Parties.
• Any illegal, unlawful or unenforceable provision of this Agreement will be severed and the remaining provisions of this Agreement continue in force. The Parties agree that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.
• No indulgence by a Party to another Party, or failure strictly to enforce the terms of this Agreement, is to be construed as a waiver or be capable of founding an estoppel.
• The Parties undertake at all times to do all such things, to perform all such acts and to take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of this Agreement.
• The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

34.9.      Assignment and sub-contracting

• Neither this Agreement nor any part, share or interest herein nor any rights or obligations under this Agreement may be ceded, delegated or assigned by the Customer without the prior written consent of the Provider, save as otherwise provided herein.
• The Provider may, without the consent of the Customer, assign, delegate or cede this Agreement and any part, share or interest herein or any rights or obligations hereunder for any other reason including for the purpose of obtaining financing in relation to the Works.
• The Provider may sub-contract the whole or any portion of the Works to a third-party contractor without the consent of the Customer.

35.       SIGNATURE

• By clicking “I Accept”, this Agreement will be considered Signed by the Customer on the dates indicated in the Contract Details.
• By clicking “I Accept”, the Customer acknowledges that such an acceptance will serve as a Signature and will have the same legal effect, validity or enforceability as a handwritten signature. The Customer must not click “I Accept” if they do not wish to be bound by the terms and conditions of this Agreement and the Contract Details.