CONDITIONS OF SALE
These Conditions of Sale apply to all quotes given by
Irritech Agencies International (Pty) Ltd ("Irritech")
and to all orders placed and confirmed using the Contract Order Form:
1 Quotes and Contract Order Forms
1.1 The Customer may, from time to time, request written quotes from Irritech and submit Contract Order Forms to Irritech. These Conditions of Sale apply to all quotes given by Irritech, all orders placed by the Customer (through the Contract Order Form) and all orders accepted by Irritech (also through the Contract Order Form).
1.2 Quotes are valid for 30 days unless Irritech agrees, in writing, to a shorter or longer validity period.
1.3 A quote given by Irritech only becomes a binding contract when –
1.3.1 The Customer completes, signs and returns to Irritech the Contract Order Form; and
1.3.2 Irritech counter-signs the Contract Order Form.
1.4 From the time that Irritech counter-signs the Contract Order Form the contract may not be cancelled without Irritech’s consent.
2 The products
The products supplied by Irritech include –
2.1 Designed and built irrigation systems, including all the components and parts required to make up the system (“projects”); and / or
2.2 Parts, spares and consumables (“parts and consumables”).
(“together referred to as “the products”).
3.1 All prices quoted exclude the following, unless otherwise agreed in writing:
3.1.4 Importing charges;
3.1.5 Demurrage; and
3.1.6 Customs duties.
3.2 Unless otherwise agreed in writing, Irritech is responsible for freight and transport and these items will be added to the price quoted, as a separate line item in the quotation .
3.3 All prices quoted are also free of any taxes, excise or duties that may be applied retrospectively by any authority. In this case, Irritech shall be entitled to recover the tax, excise or duty from the Customer and the Customer will be obliged to make payment within 30 days of invoice or written demand.
4 Commencement and completion dates
4.1 Irritech assembles its products from components produced by original equipment manufacturers.
4.2 The commencement and completion dates indicated in the quote and in the Contract Order Form are target dates. Irritech will attempt to begin work on the estimated commencement date and finish work on the estimated completion date, but the Customer understands and accepts that work may be delayed by factors beyond the control of Irritech. These factors include delays in the factories which supply Irritech, transportation delays and delays related to importing. In these circumstances, the Customer will be informed of any delay and will be notified of a new estimated commencement and completion dates.
I understand and accept that commencement and completion dates are target dates and may be delayed. Initial below:
5 Customer-supplied services and resources
5.1 The Customer is responsible, at the Customer’s cost and risk, for having the site area cleared and available and for supplying, installing or constructing, as the case may be, the Customer-supplied services and resources indicated in item 7 of the Contract Order Form.
5.2 Without limiting the generality of clause 5.1, the Customer is responsible for ensuring that the Customer-supplied services and resources are supplied, installed and constructed–
5.2.1 In accordance with industry standard practice; and
5.2.2 On or before the availability date or dates indicated in item 7 of the Contract Order Form.
5.3 The Customer is also responsible for undertaking a proper handover of the Customer-supplied services and resources and must point out any aspects of these services and resources which require special attention.
5.4 Where the Customer-supplied services and resources require the use of qualified service providers, such as qualified electricians or plumbers, then the Customer is responsible for ensuring that his or its service providers are appropriately qualified and experienced.
5.5 The Customer will have the site area cleared and available and will, if required, provide water, electricity, fuel and other essential services prior to the arrival of Irritech’s employees or contractors.
6.1 Importing products into countries outside the Republic of South Africa holds inherent risks, which include delays and additional or unanticipated costs.
6.2 If Irritech is required to export products outside the Republic of South Africa, the Customer bears all the risks associated with importing the products into the country specified by the Customer.
6.3 Without limiting the generality of clause 6.1, this means that that the Customer is responsible for –
6.3.1 Clearance arrangements, including but not limited to liaison between agents and Irritech’s appointed transporter;
6.3.2 Appointing import agents;
6.3.3 Any delay at any border between the Republic of South Africa and the country specified by the Customer; and
6.3.4 Demurrage and any other costs associated with delay at borders as contemplated in clause 6.3.2.
7 Delivery and risk
7.1 Delivery will take place at the location indicated on item 9 of the Contract Order Form.
7.2 If delivery is to be at one of Irritech’s stores, then delivery will be made by making the products available at the store for collection by the Customer’s transporter.
7.3 If delivery is to be at another address specified by the Customer in item 9 of the Contract Order Form and –
7.3.1 if Irritech has agreed to arrange transport at its cost in terms of item 10 of the Contract Order Form, then delivery will take place when the products are delivered to the address specified by the Customer in item 9 of the Contract Order Form; or
7.3.2 if the Customer is to arrange transport at its cost in terms of item 10 of the Contract Order Form, then delivery will take place at the Irritech store specified in item 9 of the Contract Order Form.
7.4 Risk of loss, damage or theft of the products passes to the Customer on delivery.
8 Failure to take delivery
8.1 If the Customer fails to take delivery or to make the arrangements necessary for delivery as specified in clause 12.2, then -
8.1.1 the price will immediately become payable;
8.1.2 the Customer will be liable for any additional labour, living and transport costs incurred by Irritech; and
8.1.3 the Customer will be liable for the actual cost of any storage, bond warehouse charges or other related costs incurred by Irritech; and
8.1.4 the risk of loss or damage to the products will immediately pass to the Customer regardless.
9.1 Unless indicated to the contrary at item 10 of the Contract Order Form –
9.1.1 Irritech is responsible for transporting the products to the delivery address, at Irritech’s risk; and
9.1.2 Irritech shall arrange and pay for adequate insurance for the product.
9.2 If it is agreed in writing that the Customer is responsible for transporting the products to the delivery address then:
9.2.1 The Customer is responsible for transporting the products to the delivery address, at the Customer’s risk;
9.2.2 The Customer shall arrange and pay for adequate insurance for the product;
9.2.3 The Customer is responsible for ensuring that the products are available at the delivery address on or before the commencement date; and
9.2.4 If the delivery address is outside the Republic of South Africa then, unless otherwise agreed in writing, Irritech shall add VAT on invoices in the Republic and VAT shall be payable by the Customer along with payment of the relevant invoice and in terms of this contract .
10.1 Unless otherwise agreed in writing in the Contract Order Form or the quotation, payment must be made as follows:
10.1.1 30% of the price is payable on signature of the Contract Order Form by Irritech (work will not begin until this payment has been received);
10.1.2 55% of the price is payable on or before delivery of the products; and
10.1.3 15% of the price is payable when the project is commissioned.
10.2 Payment is due on presentation of invoice in all cases unless otherwise agreed in writing.
10.3 For third party finance, written bank security or confirmation of full availability of finance from the relevant financial institution is required prior to dispatch of goods. In other words ALL bank requirements for finance must be met before goods are dispatched.
10.4 Interest at the prime rate of interest charged by Irritech’s bankers from time to time, plus 2%, shall be payable on any outstanding amount, from due date to the date of payment. Interest shall be compounded monthly in arrears.
I understand and accept that payment must be made into the specified bank account. Payment to any other bank account is not proper payment by the Customer. Initial below:
10.6 Irritech is not obliged to continue to supply the Customer with products or services if the Customer is in default on any payment due to Irritech.
11 Consequences of delay
11.1 If the estimated commencement date specified in item 5 of the Contract Order Form is delayed as a result of any delay –
11.1.1 In obtaining third party finance;
11.1.2 Associated with importing the products, including but not limited to clearing;
11.1.3 In supplying the Customer-supplied services or resources specified in item 7 of the Contract Order Form;
11.1.4 Failure by the Customer to have the site ready for the commencement of work as contemplated in item 5.1; or
11.1.5 Any other cause for which the Customer is responsible,
(“together referred to as “Customer delay”) then the remaining provisions of this clause 11 shall apply.
11.2 If Customer delay occurs, then –
11.2.1 The estimated commencement and completion dates specified in items 5 and 6 of the Contract Order Form will be extended proportionately;
11.2.2 The Customer will be liable for any additional costs or damages incurred, including but not limited to reasonable storage costs and demurrage; and
11.2.3 If delivery is delayed and Irritech has already incurred expenditure in purchasing products or other supplies in terms of this contract, then the portions of the price specified in clauses 10.1.2 and 10.1.3 shall become payable on or before the estimated commencement date regardless of the fact that delivery has not yet taken place.
I understand and accept that delay in supplying services and resources for which the Customer is responsible may result in a delays and additional costs or damages for which the Customer is liable. Initial below:
11.3 All projects that include a commissioning service on completion, make provision for that commissioning within the time period of the project. Where partial installation by the customer is delayed, or there are delays in the readiness of the site, and these delays cause the delay of the date on which commissioning is possible by more than 60 days after the Estimated Completion Date as set out in the contract order, Irritech reserves the right to credit the customer with the commissioning cost, and re-quote a fee for commissioning at a later date once the site is ready. In these circumstances, the full quoted price, less the commissioning cost, will be immediately payable .
12 Inclusions and exclusions
12.1 Unless otherwise specified in the quotation or Contract Order Form, Irritech is responsible for the following at its own cost (if applicable to the project) -
12.1.1 Initial pegging out of buried pipe line routes, pivot centre points & pump position;
12.1.2 The provision of formers for concrete pivot centres (this must be arranged in advance with Irritech);
12.1.3 The supply of reinforcing steel & foundation bolts for pivot centres;
12.1.4 The erection of pivots (specialist sub-contractors may be utilized, in which case advance notice of names, contact numbers & references etc. will be given);
12.1.5 The mechanical fitting of quoted pumps, suction & delivery pipe work;
12.1.6 The supply of electric pump starter panels (where quoted for) for fitment at the Customer’s cost by the Customer’s certified electrician in terms of the applicable law);
12.1.7 The commissioning of pumps and centre pivots; and
12.1.8 Limited demonstration & advice on correct equipment operation.
12.2 In addition to the Customer-supplied resources and services specified in item 7 of the Contract Order Form, the Customer is also responsible for providing the following at his or its own cost (unless otherwise specified in the quote or Contract Order Form) -
12.2.1 Labour for off-loading products, components and material on site. In this regard-
184.108.40.206 Between four and six strong labourers are required; and
220.127.116.11 Irritech will make reasonable efforts to notify the Customer of the arrival date and time;
12.2.2 A tractor & long trailer with fuel & operator to ferry material into positions inaccessible to freight transport vehicles;
12.2.3 Temporary rent-free accommodation for sub-contractors and/or their staff/labour; and
12.2.4 The throwing of concrete slabs, the construction of pump houses and similar works.
13.1 The products will remain the property of Irritech until the price, plus interest (if any), has been fully paid.
13.2 Until the purchase price, plus interest (if any) has been paid, the Customer will not be entitled to sell or dispose of the products or the vehicle or vehicles on which the products are installed without the prior written consent of Irritech.
14 Commissioning and inspection
14.1 Irritech will commission any projects supplied to the Customer. This means that the products will be tested to ensure that they are in working order.
14.2 Irritech will provide the Customer with reasonable notice that the project is or will be ready for inspection and commissioning at a specified date and time. The Customer is required to make a representative available for this purpose. If the Customer fails to make a representative available, then Irritech shall be entitled to proceed with the commissioning of the project in the Customer’s absence and shall provide the Customer with written confirmation that the project has been commissioned.
14.3 If the Customer fails to provide Irritech with written notice of any visible defect in a project within 24 hours of commissioning, then the Customer will be deemed to have agreed that the project was delivered and installed entirely as agreed and the Customer will have no claim against Irritech in this regard.
I understand and accept that the Customer must participate in the inspection and commissioning of the products, failing which the products will be deemed have been properly delivered and installed. Initial below:
15 Use and operation
15.1 The Customer must –
15.1.1 Ensure that the products are operated only by persons who have been trained in the correct use of equipment & materials (Most specialised equipment should be provided with an owners/operation manual, with which it is the Customer’s responsibility to familiarize him or herself, as well as employees or operators); and
15.1.2 Exercise reasonable care and supervision in the operation of the products.
16 Drawings, specifications, etc
16.1 Dimensions, details and statements as to capacity, power or performance, specified or contained in any manufacturers’ or supplier’s drawings, quotations, catalogues, specifications, etc. , though based on wide experience and carefully given, are not intended as a contractual obligation unless this is specifically stated in the quotation of Irritech, and accordingly the Customer shall have no right of cancellation nor any claim whatsoever against Irritech arising there from.
16.2 Unless otherwise stated, Illustrations, drawings, catalogues, capacities, weights, measurements, performance data and other particulars given are to be taken as approximate only. They are not warranted. Deviations there from shall not invalidate the contract or confer any right of cancellation or recession on the Customer or be made the basis of any claim of any nature against Irritech.
16.3 Unless otherwise agreed, Irritech reserves the right to change construction or design or to substitute items of equal or better performance if in Irritech’s sole discretion such change is to benefit of both parties and in accordance with the spirit of the contract.
Quotations, drawings and descriptive matters supplied by Irritech remain Irritech’s property and are copyright and are to be treated as confidential and are returnable to Irritech on request. These must not be communicated to any third party without Irritech’s written consent.
18 Permits and licences
18.1 The Customer or his or her clearing agent is responsible for obtaining or making all advanced import tariff applications, import tariff and VAT rulings or any other such pre-clearing applications or tariff reduction applications.
18.2 Irritech and its nominated transport company will comply with all reasonable requests to produce export documentation that complies with the requirements of customs or of the Customer, save that it will be misrepresent the nature and value of products being imported.
18.3 All requests and instructions are to be clear, complete and unambiguous, and it is not to be assumed that Irritech or its transporter are familiar with formats, codes, classifications layouts, correct forms and stationery, inspection procedures or any other such activities and documents that may affect the speedy clearing of loads, or imposition of correct tariffs (please also see paragraphs 6, 9 and 11 in this regard).
No claims by the Customer for shortages will be entertained by Irritech unless an opportunity is given to Irritech of verifying same within 10 days of receipt of goods by the Customer.
20 Return of goods
20.1 Irritech sells, and the Customer purchases, a complete irrigation scheme, covering the area specified and at the water application rate specified (“the contractual goals”). In order to reduce logistical costs Irritech may deliver materials and products to the site which are in excess of those required to meet the contractual goals. For this reason, , all products or materials delivered to the site which are surplus to the requirements of the project remain the property of Irritech and Irritech may remove those surplus products or materials at its cost without providing a credit or otherwise compensating the Customer.
20.2 Goods returned without Irritech’s consent will not be accepted for credit. Irritech is not obliged in any way to consent to such returns, nor refund monies for goods returned without its express consent. Any returns accepted will be at the sole discretion of Irritech and will be subject to a handling fee of up to 15%, the final amount of which will be at the sole discretion of Irritech.
21.1 The products are either supplied by original equipment manufacturers or are assembled from products supplied by original equipment manufacturers. Irritech will not deliver products to the Customer that suffer from any visible defect, but it is not possible to determine that products and any components of the products do not have latent defects.
21.2 The Customer acknowledges and accepts that –
21.2.1 Irritech cannot be held liable for any losses or damages suffered as a result of defects, whether latent or patent; and
21.2.2 Irritech’s liability will be limited to replacing any defective products or parts.
I understand and accept that Irritech’s liability is limited to replacing any defective products or parts. Initial below:
22.1 Irritech may provide the Customer with advice regarding the appropriate products required to provide effective irrigation solutions in the Customer’s specific operating conditions. While Irritech does not guarantee the results of the installation of the recommended project (see paragraph 24), the Customer should note that opting for anything less than Irritech’s recommended products may compromise the ability of the irrigation system to function effectively. The Customer shall have no claim against Irritech in these circumstances.
22.2 In order to provide advice on appropriate products, sizes and specifications which will meet the Customer’s requirements, it is necessary for Irritech to undertake a site visit, to take measurements itself and to obtain the formal recommendations of an Irritech engineer. Irritech cannot be held responsible for advice provided other than in this manner, including but not limited to advice provided by telephone, advice provided on the basis of the Customer’s measurements and advice provided on the spot .
23.1 Incorrect use of the products could result in injury, death or damage to property.
23.2 Irritech will explain the main features of the products to the Customer, as well as the main steps which should be taken to ensure safety, at the time of commissioning. However, the Customer should not allow any other person to use the products or the vehicles on which the products are installed unless the Customer are satisfied that the other person has been trained in the proper and safe use of the products.
24.1 Irritech undertakes to replace any defective parts and shall remedy any defective workmanship for a period of 6 months after initial fitment.
24.2 If the Customer wants to claim under this warranty, then the Customer must –
24.2.1 Inform Irritech of the product failure as soon as possible after failure, but within five working days thereof;
24.2.2 Provide Irritech with access to the products, whilst they are still installed; and
24.2.3 Provide Irritech with access to the evidence required to assess the products and the cause of any product failure; and
24.2.4 Provide Irritech with a copy of any report or root cause analysis produced by the Customer or on the Customer’s behalf.
24.3 Any warranty supplied by Irritech lapses if –
24.3.1 The Customer does not adhere to the service intervals specified by the supplier of the goods; or
24.3.2 If the products are serviced, removed, replaced or worked on in any manner by any person other than authorised Irritech personnel; or
24.3.3 If the Customer does not use approved Irritech parts and consumables in the product or products concerned; or
24.3.4 If the products are used in a reckless or negligent manner; or
24.3.5 If the products are damaged by wear and tear or other causes associated with the harsh operating environment in which the products are used.
24.4 The Customer will only be entitled to such benefits, if any, as Irritech may receive under any guarantee or warranty that may be given to Irritech by sub-contractors or suppliers of Irritech for parts not manufactured by Irritech.
I understand and accept that the warranty or warranties lapse if I do not adhere to the warranty provisions set out in clause 24.
25.1 Irritech’s liability for any damages or losses suffered by the Customer arising from the products or the use of the products will be limited to the replacement of any defective products or the refund of the purchase price of any proven defective products.
25.2 Irritech will not, under any circumstances, be liable for consequential or economic damages (including but not limited to loss of business and loss of profits), indirect damages or for any delictual liability of any nature. This includes but is not limited to consequential crop loss.
I understand and accept that Irritech will not be liable for damages or losses suffered by the Customer beyond the replacement of defective products or refund on proven defective products. Initial below:
26 No guarantee on performance
26.1 Irritech shall not be liable for any warranty, condition, representation or agreement not contained in these Conditions of Sale or in the quotation or acceptance documents referred to above.
26.2 Performance data mentioned in the quotation is only indicative and only those figures which are specifically stated as guaranteed are warranted.
I understand and accept that Irritech does not guarantee the performance of the product unless the guarantee is provided in writing in the quote or the Contract Order Form. Initial below:
27 Acts of God
27.1 If either party is prevented from fulfilling its obligations in terms of this contract due to force majeure (including strikes, lock-outs, acts of God, fire, war or warlike acts, civil insurrection, government interference or restrictions, electricity shortages, weather conditions or other circumstances entirely beyond the control of that party) that party shall be relieved of performance of the extent that it is so prevented from doing so for the duration of the intervening circumstance.
27.2 The party wishing to claim relief on the grounds of the said circumstances shall notify the other party in writing without delay on the intervention and on the cessation thereof.
27.3 The party so prevented from fulfilling its obligations shall use its best endeavours to remove or avoid the impediment as soon as possible.
28 Applicable law and jurisdiction
28.1 This contract shall in all respects be construed and operate as a South African Contract, and in conformity with South African Law.
28.2 Furthermore, the parties hereby consent to the jurisdiction of the magistrate’s court in respect of all litigation arising out of this agreement.
29.1 The Customer chooses his or its official address, for all purposes under this agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, as set out in the Customer Details Form.
29.2 Irritech chooses its official address as the postal address, physical address, email and fax number indicated on the header of this form.
29.3 Any notice addressed to a party at its physical or postal address will be sent by prepaid registered post, or delivered by hand, or sent by telefax or email.
29.4 A notice will be presumed, unless the contrary is proved, to have been given:
29.4.1 if posted by prepaid registered post, 5 days after the date of posting thereof;
29.4.2 if hand delivered during business hours on a business day, on the day of delivery;
29.4.3 if sent by telefax or email, on the first business day following the date of sending of such telefax or email.
30.1 No agreement varying, adding to, deleting from these Conditions or from any quote shall be valid unless included on the Contract Order Form and signed by the parties. In particular, any variation to a project or to products to be supplied must be recorded and signed by both parties in item 8 of the Contract Order Form. Any variation will have the additional cost and timing implications indicated in that item.
30.2 No cancellation of an agreement between Irritech and the Customer shall be valid und unless reduced to writing and signed by or on behalf of the parties.
The Customer agrees that no indulgence given by either party to the other party will affect the terms of this agreement or any of the rights of party granting the indulgence. The indulgence will not constitute a waiver by the party granting the indulgence in respect of any of its rights. Under no circumstances will that party be estopped (or prevented) from exercising any of its rights in terms of these Conditions.
The quotation of Irritech together with these conditions, and any contract order that may exist, constitutes the sole agreement between Irritech and the Customer. All tacit or implied terms are excluded whether arising from contract or by law. The Customer shall not be entitled to rely upon any term, condition, warranty or representation unless it is contained in same quotation, these conditions, or the contract order, the Customer acknowledging that neither Irritech nor anyone on its behalf has made any representations not contained in the aforementioned documents or these conditions. This quotation and these conditions supersede all prior negotiations, representations and undertakings. The Customer waives and abandons any right to rely upon any such prior matters.