Contractual Terms & Conditions
TERMS AND CONDITIONS OF GAS SUPPLY
IMPORTANT:
THESE TERMS AND CONDITIONS SHALL GOVERN AIR PRODUCTS’ SUPPLY OF GAS AND EQUIPMENT TO THE CUSTOMER UNLESS AIR PRODUCTS AND THE CUSTOMER HAVE ENTERED INTO A SEPARATE GAS SUPPLY AGREEMENT, IN WHICH EVENT THE LATTER SHALL GOVERN AIR PRODUCTS’ SUPPLY OF GAS AND EQUIPMENT TO THE CUSTOMER.
1. DEFINITIONS
1.1. “Air Products” means Air Products South Africa (Proprietary) Limited with registration number 1969/003571/07, including its successors in title and assigns;
1.2. “the Customer” means the party to whom Air Products supplies Gas and/or Equipment;
1.3. “the Equipment” means any equipment for the distribution, storage or use of the Gas;
1.4. “Rental” means the monthly rental payable by the Customer for the use of the Equipment;
1.5. “Gas” means any one or more gaseous substances whether in liquid, gaseous or solid form;
1.6. “the Premises” means the address/es nominated by the Customer from time to time for the delivery/installation of the Gas and the Equipment;
1.7. “Price” means the price stipulated by Air Products from time to time for the Gas and any other services provided by Air Products to the Customer, all of which exclude Value Added Tax (VAT);
1.8. “these Terms and Conditions” means these Terms and Conditions.
2. TERMS AND CONDITIONS
2.1. The ownership and risk in the Gas shall pass to the Customer upon date of delivery, whether such Gas is contained in the Equipment or delivered into the Equipment located at the Premises.
2.2. The Customer shall not sell or otherwise than by use dispose of the Gas.
2.3. The Customer shall comply with the safety regulations laid down in Air Products’ safety data sheets.
2.4. The Equipment is provided to the Customer by Air Products solely for purposes of use in connection with the Gas supplied by Air Products.
2.5. The Equipment is and shall at all times remain the property of Air Products. The Customer shall not, and shall not allow any person to, modify, alter, repair, move or relocate the Equipment or tamper with any identification marks on the Equipment.
2.6. Notwithstanding the above, the risk in the Equipment shall pass to the Customer on the date on which the Gas and/or Equipment is/are delivered to the Premises or the date on which Air Products notifies the Customer that the Gas and/or Equipment is/are available for collection by the Customer.
2.7. Rental will be charged on the number of each type of Equipment in the Customer’s possession or under its control which the Customer has not returned to Air Products at the end of each calendar month.
2.8. The Customer shall immediately notify Air Products in writing of any damage to or loss or destruction of the Equipment. The Customer shall pay Air Products the repair cost or current replacement cost, as specified by Air Products, for any Equipment damaged, lost or destroyed whilst in the Customer’s possession or under its control.
2.9. At all times it shall remain the Customer’s responsibility to return the Equipment to Air Products.
2.10. Time shall not be of the essence in respect of any orders.
2.11. A delivery or collection fee will be levied on each advice note raised for the delivery or collection of the Equipment, which fee may be escalated in accordance with this clause.
2.12. The Customer shall pay all amounts to Air Products within 30 days of date of Air Products’ statement.
2.13. Should Air Products call for the return of the Equipment:
2.13.1. the Customer shall be obliged to return all Equipment to Air Products; and
2.13.2. all amounts that are owed by the Customer to Air Products shall become immediately due and payable to Air Products.
3. LIABILITY AND INDEMNITY
3.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AIR PRODUCTS SHALL ONLY BE LIABLE FOR DIRECT LOSS OR DAMAGE TO PERSONS OR PROPERTY WHICH IS SHOWN TO BE CAUSED BY ANY GROSSLY NEGLIGENT OR INTENTIONAL ACT OR OMISSION OF AIR PRODUCTS OR ITS EMPLOYEES, PROVIDED THAT ITS LIABILITY SHALL IN ALL CIRCUMSTANCES BE LIMITED TO R250 000-00 IN RESPECT OF ANY ONE INCIDENT.
3.2. UNDER NO CIRCUMSTANCES SHALL AIR PRODUCTS BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY IN RESPECT OF ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF CUSTOM, GOODWILL AND/OR REPUTATION) OR ANY DIRECT DAMAGES OR LOSS NOT REFERRED TO IN CLAUSE 3.1 ABOVE, HOWSOEVER ARISING.
3.3. SUBJECT TO CLAUSE 3.1 ABOVE, THE CUSTOMER INDEMNIFIES AIR PRODUCTS AGAINST ALL CLAIMS, DAMAGES AND COSTS ARISING FROM THE CUSTOMER’S OR A THIRD PARTY’S POSSESSION OR USE OF THE GAS AND THE EQUIPMENT, WHETHER IT IS USED ON ITS OWN OR IN COMBINATION WITH ANOTHER SUBSTANCE OR OTHER EQUIPMENT.
4. GENERAL
4.1. These Terms and Conditions shall be governed by and construed in all respects in accordance with the laws of the Republic of South Africa.
4.2. Both parties consent to the jurisdiction of the Magistrate’s Court, notwithstanding that the amount claimed may exceed the jurisdiction of such Court, provided that both parties may, at their discretion, bring any action or proceedings in the High Court or any competent court with jurisdiction.
4.3. The Customer agrees to pay all legal costs incurred by Air Products on the scale as between attorney and own client, costs of counsel on brief, tracing agents’ fees and collection commission incurred by Air Products in enforcing or defending its rights under these Terms and Conditions, irrespective of whether or not legal action is instituted against the Customer.
4.4. The Customer hereby irrevocably consents to receiving documents and information, including, without being limited to, invoices, credit notes, statements and proof of delivery, from Air Products in electronic form, which the Customer will accept as being the original form of such documents and information.
4.5. The Customer consents to information being supplied to Air Products by third parties, including credit bureaux, for purposes of these Terms and Conditions and the trading relationship between the parties and consents to the furnishing and publication of credit and trading information pertaining to it by Air Products to such third parties.
4.6. These Terms and Conditions constitute the whole agreement between Air Products and the Customer relating to the subject matter hereof. These Terms and Conditions shall take precedence over any terms and conditions contained in the documents of the Customer.
4.7. No waiver, amendment, alteration, addition, variation or consensual cancellation of these Terms and Conditions will be of any force or effect unless reduced to writing and signed by the Customer and Air Products, represented by a Director or a Senior Manager duly authorised thereto by Air Products.
4.8. No extension of time, waiver or relaxation of any of the provisions of these Terms and Conditions shall operate as an estoppel against any party in respect of its rights under these Terms and Conditions, nor shall it operate so as to preclude such party from thereafter exercising its rights strictly in accordance with these Terms and Conditions.
4.9. Each provision of these Terms and Conditions is severable, the one from the other. If any provision is found to be defective, unlawful or unenforceable for any reason, the remaining provisions shall continue to be of full force and effect.
4.10. The rule of construction that the agreement be interpreted against the party responsible for drafting thereof shall not apply to these Terms and Conditions.
4.11. A certificate signed by any manager of Air Products (whose authority, appointment and signature it shall not be necessary to prove) that certifies any indebtedness by the Customer to Air Products or any other fact, shall constitute prima facie proof of such indebtedness or any other such fact.