These Terms and Conditions apply to the Client’s purchase of Equipment and Services from Cold Watch. These Terms and Conditions shall apply unless the Client and Cold Watch have signed a separate purchase agreement with different terms and conditions which expressly control.
DEFINITIONS
- Equipment ‐ means Cold Watch hardware and software consisting of GSM gateway device(s) and their installed SIM card(s), batteries, external and internal power supplies and measurement sensors as set out on the quotation.
- Services ‐ means the electronic monitoring, sensing and control services made available through the Cold Watch Gateway, Android mobile application and/or IOS mobile application as provided by Cold Watch, including all software and equipment necessary to provide the services.
- Client ‐ means the party specified as the client on Cold Watch’s quotation to which these terms are linked or referenced.
- Cold Watch ‐ means Cold Watch Africa (Pty) Ltd, a service provider company duly incorporated in the Republic of South Africa with registration number 2014/133410/07.
ORDERS
All orders must be in writing and are accepted subject to these Terms and Conditions. The Client puts forward no terms or conditions, and no representations, warranties, guarantees, or other statements not contained in Cold Watch's quotation or order confirmation nor otherwise expressly agreed in writing by Cold Watch shall be binding on Cold Watch.
VALIDITY OF QUOTATION AND PRICES
Unless previously withdrawn, Cold Watch's quotation is open for acceptance within the period stated therein or, when no period is so stated, within 30 (thirty) days after its date.
Prices are firm for delivery within the period stated in Cold Watch's quotation. They are (a) inclusive of Value Added Tax (VAT) and (b) any similar and other taxes, duties, levies or other like charges arising outside the Republic of South Africa in connection with the performance of the Agreement.
Prices are in South African Rand (ZAR) and payments shall be made in South African Rand.
Prices are for equipment delivered EXW (Ex works) Cold Watch’s shipping point, exclusive of freight, insurance and handling unless otherwise stated in the Cold Watch's order confirmation.
PAYMENT TERMS
- A deposit of 50% (fifty percent) of the equipment price is required to confirm the order. Cold Watch will issue a tax invoice.
- Full settlement of the remaining equipment price shall be 7 (seven) working days from the invoice date.
- Payment for Services is monthly or annually as elected by the Client and according to the payment terms stated in the Service Subscription Agreement.
- The following method of payment is acceptable: Electronic Transfers. Cold Watch (Pty) Ltd | www.coldwatch.co.za | 087 702 7192 11 Vivaldi Close, Sonstraal Heights, Durbanville 7550, South Africa.
The provision of Services is subject to the signing of Cold Watch’s Service Subscription Agreement.
Delivery period
All periods stated for delivery or completion are to be treated as estimates only. Suppose Cold Watch is delayed in or prevented from performing any of its obligations due to the acts or omissions of the Client or its agents (including but not limited to failure to provide specifications and/or fully dimensioned working drawings and/or such other information as Cold Watch reasonably requires to proceed expeditiously with its obligations). In that case, the delivery/completion period shall be adjusted accordingly.
Delivery, risk and title
Claims for shortfalls in quantity or incorrect delivery shall be void if made more than 14 days after receipt by the Client. Title to use of equipment and risk of loss passes from Cold Watch to the Client upon shipment from Cold Watch's facilities and delivery of equipment to a common carrier.
The SIM card(s) shall always remain Cold Watch's property.
All software is owned by Cold Watch, which shall retain exclusive rights, titles, and ownership of the software.
The Client is granted a limited, personal, non‐exclusive license, without the right to sublicense, to use the software only with the specific Cold Watch manufactured hardware that such software is intended to operate with or, if not for use with particular Cold Watch manufactured hardware, then for the use intended by the equipment specification.
Limited warranty
Cold Watch warrants that Cold Watch‐branded equipment will be free from defects in materials and workmanship for 1 (one) year from the date of shipment concerning hardware and will materially conform to their published specifications for 1 (one) year pertaining to software. Cold Watch does not warrant that the software or any portion thereof is error-free. Cold Watch will have no warranty obligation with respect to
equipment subjected to abuse, misuse, negligence, or accident. If any software or firmware incorporated in any equipment fails to conform to the warranty outlined in this section, Cold Watch shall provide a bug fix or software patch correcting such non‐conformance within a reasonable period after Cold Watch receives from the Client (i) notice of such non‐conformance, and (ii) sufficient information regarding such non‐conformance to permit Cold Watch to create such bug fix or software patch. Suppose any hardware component of any equipment fails to conform to the warranty in this section. In that case, Cold Watch shall, at its option, refund the equipment price less any discounts or repair or replace non‐conforming equipment with conforming equipment having substantially identical form, fit, and function and deliver the repaired or replacement equipment to a carrier for land shipment to Client within a reasonable period after Cold Watch receives from the Client (i) notice of such non‐conformance, and (ii) the non‐conforming equipment provided; however, if, in its opinion, Cold Watch cannot repair or replace on commercially reasonable terms it may choose to refund the equipment price.
Repair parts and replacement equipment may be reconditioned or new. All replacement equipment and parts become the property of Cold Watch. Repaired or replacement equipment shall be subject to the warranty, if any remains, originally applicable to the equipment repaired or replaced. Equipment returned under this warranty must be unmodified.
Cold Watch reserves the right to repair or replace equipment at its own and complete discretion. Equipment returned under this Warranty must be unmodified and in original packaging. Cold Watch reserves the right to refuse warranty repairs or replacements for any equipment that is damaged or not in its original form.
As a condition to Cold Watch's obligations under the immediately preceding paragraphs, the Client shall return equipment to be examined and replaced to Cold Watch's facilities. The Client acknowledges and agrees that replacement equipment may be repaired, refurbished, or tested and found to comply. The Client shall bear the risk of loss for such return shipment and shall bear all shipping costs. Cold Watch shall deliver replacements for equipment determined by Cold Watch to be correctly returned, bear the risk of loss and such costs of shipment of repaired equipment or replacements, and credit the Client's reasonable costs of shipping such returned equipment against future purchases.
Cold Watch's sole obligation under the warranty described or set forth here shall be to repair or replace non‐conforming equipment as outlined in the immediately preceding paragraph or to refund the documented equipment price for non‐conforming equipment to the Client. Cold Watch's warranty obligations shall run solely to the Client, and Cold Watch shall have no obligation to the Client's customers or other users of the
equipment.
Cold Watch (Pty) Ltd | www.coldwatch.co.za | 087 702 7192 11 Vivaldi Close, Sonstraal Heights, Durbanville 7550, South Africa LIMITATION OF WARRANTY AND REMEDIES THE WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY APPLICABLE TO EQUIPMENT PURCHASED BY CLIENT. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. YOU ACKNOWLEDGE AND AGREE THAT THE EQUIPMENT AND SERVICES FURNISHED BY COLD WATCH ARE NOT GUARANTEED TO BE UNINTERRUPTED OR ERROR-FREE.
ADDITIONALLY, YOU AGREE THAT WE ARE NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY; BY WIRELESS CARRIERS, DATA CENTERS, BUILDINGS, ACCIDENTS, HILLS, NETWORK CONGESTION, TUNNELS, TOWERS, WEATHER OR OTHER THINGS WE DON'T CONTROL; OR BY ANY ACT OF GOD.
FURTHERMORE, COLD WATCH SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY AND WARRANTIES, IMPLIED OR EXPRESSED, FOR USES REQUIRING FAIL‐SAFE PERFORMANCE IN WHICH FAILURE OF EQUIPMENT COULD LEAD TO DEATH, SERIOUS PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE SUCH AS, BUT NOT LIMITED TO, LIFE SUPPORT OR MEDICAL DEVICES OR NUCLEAR APPLICATIONS. EQUIPMENT IS NOT DESIGNED FOR AND SHOULD NOT BE USED IN ANY OF THESE APPLICATIONS. IF YOU NEVERTHELESS CHOOSE TO USE THE EQUIPMENT, SOFTWARE, AND SERVICES IN SUCH ACTIVITIES, YOU MUST NOT RELY ON THEM AS YOUR SOLE OR PRIMARY SOURCE OF MONITORING.
COLD WATCH'S TOTAL AGGREGATE LIABILITY, WHETHER IN AGREEMENT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED THE EQUIPMENT PRICE PAID BY THE CLIENT FOR THE EQUIPMENT. UNDER NO CIRCUMSTANCES SHALL COLD WATCH BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. THE PRICE STATED FOR THE EQUIPMENT IS A CONSIDERATION IN LIMITING COLD WATCH'S LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY THE CLIENT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.