MAINSU ONLINE CONDITIONS OF SALE

MAINSU STANDARD CONDITIONS OF SALE

Rev10 Date: 01 October 2023

Unless otherwise agreed in writing, the following terms and conditions shall apply to the tender:

1. GENERAL

In the document, the following words shall, unless inconsistent with the context, have the meanings respectively assigned to them:

“Company” shall mean Mainsu (Proprietary) Limited;

“Customer” shall mean any addressee who is a party to the tender;

“Price” shall mean the amount set out in the tender for the work, subject to such variation as may be made in terms of the tender;

“Tender” shall mean any official and written offer made by the Company to undertake Goods referred to in the Company’s offer, and, in addition shall mean any order placed by the Customer on the Company;

“Work” shall mean the supply of the Goods and/or the work to be executed in terms of the tender/purchase order/sale;

“Goods” shall mean the product(s) and/or service(s) to be supplied in accordance with the terms of the tender;

“S.A.” shall mean the Republic of South Africa;

 “Works” shall mean whichever premises at which the work is conducted.

2. ACCEPTANCE
   • Unless otherwise stated or previously withdrawn, the tender is open for acceptance for a period as specified in the written tender, subject to stock, availability of key components and subject to prior sale
   • Acceptance of the tender is subject to written confirmation by the Company and/or once any required payment(s) as per tender has been received by the Company (funds reflect in the Company’s account).
   • Confirmation of the tender is conditional upon sufficient information being supplied to the Company to enable it to proceed in terms of the tender forthwith.

3. DRAWINGS AND BROCURES
   • All drawings, brochures, descriptive matter, weights, dimensions, specifications contained in our catalogues, pamphlets, price lists and other advertising matter are approximate and by way of identification only.
   • Drawings submitted for approval to the Customer shall remain the property of the Company, shall be treated as strictly confidential and the information therein shall not be divulged to third parties by the Customer without the prior written consent of the Company.
   • All drawings shall be returned to the Company immediately upon request.
   • All drawings etc. referred to in 3.1 above are supplied merely as a guide and shall not be binding in the event of the tender being confirmed by the Company.

4. TESTS, INSPECTIONS AND PERFORMANCE
   • Goods are typically inspected and where practicable submitted to our Suppliers’ standard tests at the Suppliers’ works before dispatch.
   • Pre-delivery inspection (“PDI”), for petrol and duel fuel Goods, is typically excluded form Tender but could be performed at additional cost.
   • Should the Customer request any additional test of the Goods, then the costs thereof will be for the Customer’s account unless the price is specifically stated to include such additional costs.
   • The Customer will be given at least five (5) working day’s notice of the date on which a test referred to in 4.2 is to be conducted. In the event of the Customer failing to attend any such test, it will proceed in his absence and shall be deemed to have been made in his presence to have been carried out to the satisfaction of the Customer and shall be due fulfillment by the Company of all its obligations in the regard.
   • For Diesel Power plant, the normal overloads and temperature rises permitted by the British Standard Institute and/or ISO represent the limiting overloads and permissible temperature rises to be applied to the Goods.
   • Emergency Standby Power Rating (ESP) is applicable to emergency power applications where power is supplied for the duration of normal power interruption. No sustained overload capability is available for this rating. This rating is applicable to installations served by a reliable normal utility source. This rating is only applicable to variable loads with an average power output of 70% of the standby rating over 24 hours of operation for a maximum of 200 hours of operation per year. The standby rating is only applicable to emergency and standby applications where the generator set serves as the back up to the normal utility source. In installations where operation will likely exceed these limits, the prime power rating should be applied. No sustained utility parallel operation is permitted with this rating. For applications requiring sustained utility parallel operation, the prime power or base load rating must be utilized. Refer to Fuel Stop Power in accordance with ISO3046, AS2789, DIN6271 and BS5514 as well as emergency stand by power (ESP) per ISO 8528.
   • Prime Power Rating (PRP) is applicable when supplying electric power in lieu of commercially purchased power. The number of allowable operating hours per year is unlimited for variable load applications but is limited for constant load applications as described under Limited Running Time Prime Power. In variable load applications the average power output should not exceed 70% of the Prime Power Rating over 24 hours of operation. A 10% overload capability is available for a period of 1 hour within a 12–hour period of operation, but not to exceed 25 hours per year. Refer to Prime Power in accordance with ISO8528 and Over Load Power in accordance with ISO3046, AS2789, DIN6271 and BS5514.
   • The Company accepts no liability for the capacity, performance, sufficiency, or suitability of the Goods for the Customer’s requirements, unless the Company was informed of those requirements in writing, was entirely responsible for the selection of the Goods to meet such requirements and specifically guarantees the Goods.
   • For Generator sets, any AMF/ATS supplied is sized according to the generator not the mains incoming, unless specified in writing otherwise.

5. GUARANTEES
   • Any warranty, condition or liability implied by law is excluded.
   • Installation, commissioning and usage are to be undertaken by suitably qualified personnel, otherwise the warranty is null & void.
   • The limited warranty for Goods will cover the parts required to repair the Goods, after any warrantee claim has been approved via the relevant warrantee claims process.
   • The Company is liable only for defects, which appear under the normal conditions of operation provided for in the order and under proper use of the Goods as per relevant manual(s).
   • The Company’s liability does not cover defects which are caused by faulty transportation, storage, lack/improper maintenance, misuse, incorrect installation/commissioning nor any work or attempted/faulty repair done by the Customer or non-approved personnel, or by alterations carried out without the Company’s written permission.
   • Goods must be returned the Company for any warranty related issues. Should this not be possible, then a technician can be dispatched to site at cost. A call-out, labour, travelling and any other relevant fees will be charged, prior to dispatching a technician.
   • The Company's liability does not cover normal wear and tear or deterioration.
   • Electrical and/or electronic components typically carry very limited or no warrantee from OEM or supplier.
   • The Company shall in no case be liable for loss of the Customer’s profit or any direct or consequential loss or damage arising from defects/faulty/lack of performance of Goods, workmanship supplied by the Customer or a design/specification stipulated or specified by the Customer, or by reason of the Company’s failure to discover, report, repair or modify latent defects or defects inherent in the design of the Goods, whether arising from the negligence of the Company, its agents or employees, or from any other cause.
   • The Company’s liability in respect to Goods provided, of any defect in or failure of the Goods supplied, for any loss, injury or damage attributable thereto, is limited at the Company’s discretion to making good by replacement or repair any defects, which under proper use appear therein and arise solely from faulty design, materials or workmanship within a period of six (6) to sixty (60) calendar months after the Goods have been first dispatched or for a period of 200 to 2000 hours operation, whichever occurs first, depending on the Goods and the application of the Goods, provided that defective Goods are promptly returned to the Company’s works (packed in the original or suitable packaging, if requested, and at the Customer’s expense) and on the condition that the Customer has taken appropriate care of the Goods during the term of its exploitation, such to be evidenced by Customer providing a Service/Maintenance Log that would demonstrate due level and frequency of service and maintenance, by approved personnel and as required by operation manual and / or other documentation, as well as proof of registration for warranty purposes, as might be required. All risks for the duration of repair remain with the Customer. At the termination of the Warrantee Period all liability, whether arising from any negligence on the part of the Company or its agents or employees, or from any cause, shall cease even if such defects are latent defects.
   • The Customer will at its own expense arrange for any dismantling and reassembly of equipment other than the Goods to the extent that the is necessary to allow the Company to remedy a defect.
   • The Customer is entitled only to the benefit of any guarantee given to the Company in respect of on Goods sourced by the Company.
   • In order for the warranty to remain valid, the following Goods care needs to be conformed:
     • Maintenance of the Goods is imperative and it is solely the responsibility of the Customer to schedule, taking care to schedule any required maintenance well in advance.
     • The Goods need to be serviced as per the service/maintenance schedule supplied and only by personnel approved by the OEM of the goods and/or the Company.
     • Only genuine parts are to be used for servicing and any repairs of the Goods.
     • Proof of purchase and maintenance is required to log a warranty claim. A warranty claim form must be submitted with pictures and/or revenant supporting documentation for the Goods supplied as might be required by the Company (e.g. for generator sets proof of installation of a surge protection on the mains incoming, Certificate of Compliance, etc).
     • Installation/delivery hand-over of the Goods must be performed by suitably qualified personnel approved by the OEM of the goods and/or the Company.
     • The Goods should be started and run at least once a month to keep the relevant components well lubricated and the battery(ies) charged.
   • Warranty does not cover negligence or abuse of the Goods. Consistent overloading/abuse of the Goods places additional strain on the Goods outside of normal operating conditions and can cause the Goods to malfunction/break down. Examples of what are NOT covered for:
     • For generator sets, should the generator or transfer switch be installed and/or connected up incorrectly and this causes damage to the Goods in any way,
     • Flat batteries,
     • No fuel / airlocks resulting from running out of fuel.
     • Electrical breaker down / off
     • Electrical Installation issues (Including ATS, Manual Switch or communications cable).
     • Emergency STOP button pushed in.
     • Overloading of the Goods.
     • Insufficient ventilation resulting in overheating,
     • Imbalanced phases (3-phase installations).
   • Any and all claims under the relevant Good’s warrantee will not be entertained unless the claimant:
     • Lodges the claim via claim in writing to the Company within 5 working days after the alleged defect in question became apparent,
     • At the same time, submit full particulars of the claim and the reasons thereof starting is such particulars the procurement date and place and relevant particulars (i.e. original invoice, model number, serial number etc of the relevant Goods),
     • Unless otherwise requested by the Company, return of alleged defective parts to the Company, carriage paid.

6. PROPERTY IN THE GOODS
   • Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these conditions, the property in the Goods shall not pass to the Customer until their full price and any other sums owing by the Customer to the Company, whether under the same or under any other contract, have been paid.
   • The Customer shall, if so required by the Company, assign to the Company the Customer’s right to recover the price of the Goods from any sub-purchaser or take steps to recover the same for the benefit of the Company and account to the Company therefore.
   • Should the proceeds of such sub-sales exceed the amount payable by the Customer to the Company under condition 6(1), the Company will refund or credit the difference to the Customer.
   • The Company shall be entitled to exercise all and any of its rights under the condition notwithstanding that any period of credit provided for by the contract has not expired at the time when it elects to do so.

7. RISK
   • In general, unless specifically agreed in writing, risk in Goods shall pass to the Customer as per current International Commercial Terms (“Incoterms”) specified ion the Tender.

8. DELIVERY
   • The tender is Ex Works (Mainsu/relevant supplier of Goods) current International Commercial Terms (“Incoterms”), unless clearly otherwise stated.
   • Every effort will be made by the Company to ensure that the Goods are ready for dispatch on or before the promised date of delivery, given in good faith, included in the tender. However, the Company cannot accept any liability in the regard unless the Company has given written guarantee of delivery specifying agreed liquidated damages and a proven loss has actually been incurred by the Customer. Should the Customer supply any free issue items and these have an adverse effect on the promised delivery date, then the new delivery dates(s) will be given by notice in writing to the Customer and where methods of costs price adjustment are included in the tender, the end date for calculation of these adjustments may be amended by the Company to reflect the above new delivery dates. All free issue items shall be clearly marked with the Company’s relative works order number and shall be accompanied by full detailed packing slips or advice notes to permit complete check of receipts.
   • The Customer shall not be entitled to cancel or repudiate the contract or refuse to accept delivery or claim damages due to late delivery and shall accept delivery when tendered. Time shall not be deemed to be of the essence of any contract unless the Company has agreed to it over the signature of the Managing Director.
   • Unless specifically stated, the tendered price for Goods does not include delivery/insurance/off-loading/hand-over/installation/commissioning/testing or any maintenance charges. These could be made available upon request at additional cost, as might it be required.
   • Where the price specifically includes delivery charges, in the case of delivery within S.A. such delivery charges include the cost of delivery by any method of transport nominated by the Company.
   • Any delivery note or waybill (copy or original) signed by the Customer shall be conclusive proof that delivery of the Goods was made to the Customer.
   • Any time given for delivery shall merely be an estimate. The Company shall not be held responsible/liable for any delays for any reason whatsoever, which will also not entitle the Customer to cancel the Tender or claim any damages. It is specifically agreed that in respect of the Tender time is no of the essence.
   • The Company does not perform deliveries, these Goods are outsourced to sub-contractors and are any associated costs are at show on the Tender at request.

9. STORAGE
   • If within seven (7) days after notification by the Company to the Customer that the Goods are ready for dispatch and the Customer fails to collect the Goods, or to provide the Company with forwarding instructions sufficient to enable the Company to dispatch the Goods, the Customer shall be deemed to have taken delivery of such Goods.
   • Failing collection of the Goods or receipt of such forwarding instructions within fourteen (14) days after the date of notification to the Customer that the Goods are ready for dispatch, the Company reserves the right to either remove the Goods to a place of storage selected by the Company or charge appropriate storage fees at the risk and expense of the Customer.
   • For Goods delivered to the Works for Strip and Quote assessment and/or any repair/service:
     • the Goods need to be collected within 5 working days after the service/repairs had been done or the final invoice send or from date of receipt at Mainsu, whichever soonest. An interest bearing storage fee of R25.00 (excl VAT) per day will be charged, after expiry of the 5 days.
     • For rejected Tenders, the Goods will be returned in a dismantled condition and S&Q labor rates will apply, the Goods can be returned in an assembled condition, at an additional charges.
     • The Goods could be sold to defray expenses, should the Goods not be collected within 30 working days from date received at our workshop.
   • Failing collection of the Goods or receipt of such forwarding instructions within fourteen (30) days after the date of notification to the Customer that the Goods are ready for dispatch, the Company reserves the right to sell the Goods to defray expenses or discarded or placed outside the Works at the risk and expense of the Customer.

10. CUSTOMER PROTECTION ACT 68 OF 2008
    • The Customer specifically acknowledges, confirms and warrants that, due to the nature of the Goods sold, the Customer has made itself acquainted with all aspects of the Goods, not restricted to but including the dimensions, weight, nature, capacity, output, specifications, operation, any installation and/or commissioning requirements, servicing requirements, noise emissions, electrical capacity, connection requirements and operational requirements. The customer warrants that the Goods purchased are specifically suitable for the purpose they are purchased.
    • Transport or removal of Goods from the Company’s premises shall be at the Customer’s cost.
    • The Customer warrants that all specifications, requirements and information provided to the Company in respect of any request to supply the Goods was true, accurate, complete and provided all Material facts, and acknowledges that the Company shall not accept the return of the Goods in the event of any breach of the warranty.
    • The Customer acknowledges that, prior to delivery of the Goods sold, it shall be afforded an opportunity to properly examine and evaluate the Goods; and hereby waives all rights in the event that Proper examination and evaluation of the Goods has not been made, has been declined, or has been waived or ignored by the Customer, its representative or its agent, who accepts delivery of the Goods by or on behalf of the Customer.
    • Subject to clause 5, any Goods sought to be returned in respect of any alleged defect or fault relating thereto, shall be delivered to the Company’s premises at the risk of the Customer. Goods shall be deemed to have been received by the Company by the signature of a company representative of a document evidencing the receipt of such.
    • The Company reserves the right as per section 20 of the Consumer Protection Act to charge a handling fee on returned Goods not greater than 20% of the value of the Goods. Due to the nature of the Goods, the handling fee is used to offset the wear and tear and degradation of the Goods whilst in the Customer’s possession. The handling fee will be at the discretion of the Company.

11. INDEMNITY
    • The Customer indemnifies the Company at all times against all damages, demands, penalties, costs, claims, expenses and other liability which may arise from any infringement of copyright, patent right or any right in registered design, which may result from compliance with and/or execution of the Customer’s instructions, whether expressed or implied.

12. MAXIMUM AGGREGATE LIABILITY
    • The Company’s maximum aggregate liability pursuant to the order and/or in connection with the supply of the Goods and the services (whether such liability is to the Customer or the Customer’s group or to any third party entitled to claim under the order) however such liability may arise and whether in contract, tort, statutory liability, common law or otherwise, is limited to the cost of repair or replacement of faulty Goods provided proof of service and maintenance is supplied, excluding VAT. Any such liability will be satisfied by the Company reducing or refunding the relevant part of the order value.
    • All claims by the Customer (or any third party entitled to claim under the order) pursuant to the order and/or in connection with the supply of the Goods and services will be extinguished and absolutely barred unless suit is brought within three years of the date of dispatch, or notification of readiness for dispatch, of the Goods (or in the case of services) from the date of commencement of the services.

13. CONSEQUENTIAL DAMAGES
    • Notwithstanding any other provisions of the Order or any other agreement between the parties, the Company shall have no liability to the Customer or any third party for any consequential damages (including lost profits or lost revenues), and incidental or special damages arising out of or related to the Company's performance of the Tender or the use, maintenance, or repair of the Goods, whether in tort, contract, strict liability, indemnity or otherwise, regardless of whether the Company has been advised of the possibility of such damages. The Company's total liability to the Customer for any warranty, indemnification or other claim arising out of or related to the performance of the Tender or the use, maintenance, or repair of the Goods shall not in the aggregate exceed the total value of the Order.

14. PAYMENT

The following terms in regard payment shall apply:

• All prices quoted are typically net, unless otherwise stated.
• Any medium used for payment (e.g. the post, EFT, PayPal, etc.) shall be deemed to be the Customer’s agent and shall be used at the Customer’s sole risk.
• All payments made by the Customer will be done via Electronic Fund Transfer to the Company’s account as specified on the relevant invoice. Cash deposit or payment by Credit Card or other means may attract additional cost, at the discretion of the Company.
• All deposits paid to secure or put to works any Goods are non-refundable and non-interest bearing.
• Imported content of the Tender: our prices are based upon the current rates of freight, insurance premiums, lighterage, landing charges, port dues, customs duty, surcharge and railage at the date of tender. Should these rates vary between the date of our tender and the date upon which the charges are incurred, the Tender price(s) may be varied by the amount of increase or decrease in such charges. The effect of such variations on the price shall be determined solely at the discretion of the Company.
• Unless otherwise stated all prices in the tender are in South African Rands (ZAR) and are so quoted on the understanding that payment will be made in that currency, free from any deduction whatsoever, at such place as the Company shall indicate.
• Unless otherwise quoted in the tender, full payment of the price is due immediately after notification that the Goods are ready for dispatch. We may use credit bureau to assist us in making a decision on any credit approvals.  By confirming your agreement to proceed you are accepting that we may use your information in this way.
• Excepting where immediate delivery can be effected ex-stock or unless otherwise stated, the price quoted is subject to adjustment for variations in the rate of exchange, from the date of tender during execution of the order. The effect of such variations on the price shall be determined solely by the Company.
• The terms of payment set out herein shall be strictly adhered to and overdue accounts are subject to increase at the rate of prime lending rate +5% per month calculated on a pro-rate daily basis.
• If as a result of any cause beyond the control of the Company, the Company is not able to dispatch the Goods, payment of the price (or progress payments) shall be due upon presentation of invoices and notification by the Company that the Goods are ready for dispatch and payment shall be made in full, as if the Goods had been dispatched.
• No delay in manufacturing, transportation, starting up, using machines or the Goods from whatever cause, and no manufacturing defect in the Goods discovered after use, shall entitle the Customer to withhold any payment.
• The Company shall be entitled to suspend all operations in terms of the tender pending settlement of any outstanding payment.
• Payment for the test(s) referred to in 4.2 & 4.3 above, services and other charges incurred by the Company in connection with erectors or specialists performing work on behalf of the Company in connection with the tender at the site of premises of the Customer, as well as all storage and insurance charges incurred in connection with the tender, shall be immediately paid by the Customer, against the submission of invoices in the regard by the Company.
• Should the Company incur extra costs as a result of suspension of the work, owing to the Customer’s instructions, or lack of instructions, interruptions, delays and overtime worked at the request of the Customer, or extra modified work for which the Company had not originally undertaken responsibility, an extra charge shall be added to the price and paid for accordingly.
• Should progress of the work or completion be hindered or delayed owing to extension(s) to the tender, deviation(s) from the specification, suspension or cancellation of the work, late or defective material supplied by the Customer, lack of information or to any act, instructions or default on the part of the Customer, the Company shall be entitled to recover from the Customer all costs incurred to date together with full profit in respect of the work.
• The Company’s liability in terms of the tender is subject to the terms of the Clause and all other obligations of the Customer in terms of the tender being strictly observed.

15. FORCE MAJEURE
    • The Company shall not be liable for any failure to perform, or delay in performing, any obligation in terms of the tender as a result of any hindrance or delay by the Customer owing to extensions to the tender, deviation from the specifications, suspension of the Customer’s order, defective material supplied by the Customer, or by any act of default on the part of the Customer, or by any cause whatsoever beyond the Company’s reasonable control including, but not limited to: defects necessitating renewed manufacture or breakdown of machinery; civil commotion, riot, embargo, insurrection, sabotage or other civil unrest; strikes, lock-outs or other labor disturbances; epidemics; war, whether declared or undeclared; fire, explosion, flood, unusual inclemency of weather or other natural disasters; shortage/ unavailability of power, fuel, labor, materials, containers, or transportation facilities; accidents of navigation, breakdown or damage of vessels or other conveyances for air, land or sea; other impediments or hindrances to transportation; government restraints or other force majeure, whether occurring in the Company’s Works or in those of its subcontractors, or on the Company’s site or premises.
    • The Company shall (i) as soon as possible, inform the Customer of the occurrence of the circumstances preventing or delaying the performance of its obligations, and describe at a reasonable level of detail the circumstances causing such delay, and (ii) exert reasonable efforts to eliminate, cure or overcome any of such cases and to resume performance of its covenants with all possible speed. In such event, the Company will be excused from any further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and the Company continues to use its best efforts to recommence performance or observance whenever and to whatever extent possible without delay. In such case the Company will be under no liability for loss or damages suffered by the Customer thereby. Either Party may convene a meeting between the Parties to discuss the force majeure and its effect on any obligation under the Tender. The Parties shall seek to modify the relevant provisions in order to accommodate the circumstances caused by the force majeure
    • Should any such delay extend for more than six (6) months, either party may at its discretion, terminate the tender in which event the Company shall be entitled to payment for the Goods delivered or used and for the work done up to such date of termination.
    • The consequences of COVID-19 qualify as force majeure and deliveries may be postponed by us on the account of COVID-19. The Company also reserve the right to make partial deliveries and/or to dissolve the order in whole or in part and cannot be held liable in case of a delay of delivery or partial delivery on the account of COVID-19.

16. ARBITRATION
    • Any disputes arising in connection with the tender shall be referred to a single arbitrator appointed by mutual agreement.
    • The Arbitration Act No 42 of 1965 as amended, or any statutory re-enactment or replacement thereof, shall apply to any arbitration proceedings.
    • Notwithstanding any such dispute, the supply of Goods may be continued by the Company at its option.

17. SECURITY
    • The Customer agrees that the Company will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate's Courts or in terms of Rule 47 of the Law of the Supreme Court 59 of 1959.

18. GOVERNING LAW
    • The law of the Republic of South Africa shall govern the interpretation of the tender and all Company transactions.