AGRIHAWK TERMS & CONDITIONS OF SALE
1. PRICING & PAYMENT
1.1 All prices stated on the Authorised Order are for the products and the software and
shall be paid by the customer in South African Rand or such other currency as is
indicated on the Authorised order.
1.2 Price quotations include VAT and are valid only for Fourteen days (14) days after the
date of quotation.
1.3. Unless specified otherwise, price quotations are quoted inclusive of delivery CIP to
the address specified on the Authorised Order, in so long as this address is located
within the borders of the Republic of South Africa.
1.4 For all price quotations which exceed R10 000 (Exclusive of V.A.T.) Multilayer
Trading 18 CC requires a deposit of 50% of the price quotation as an order confirmation.
1.5 Unless otherwise provided for in writing by AgriHawk, payment terms are strictly
Payment on Delivery for those products and the software specified on the Authorised
Order
1.6 AgriHawk shall have the continuing right to approve the Customer's credit and may
in its sole and absolute discretion, change the Customer's credit terms, and without
limiting the foregoing may at any time demand satisfactory security (such as, but not
limited to, a confirmed, irrevocable letter of credit acceptable to AgriHawk), or a
guarantee of prompt payment, prior to delivery.
1.7 For all amounts due in terms of the Authorised Order, unless paid for on delivery by
the Customer, this being the due date and excluding Installation and or Training unless
completed on the due date, shall bear interest from the due date to the date of
payment. Such interest shall be calculated at the prime rate +2% and shall be capitalised
monthly in arrears.
2. DELIVERY
2.1 AgriHawk will use all reasonable commercial endeavours to deliver the products
within the delivery time specified on the Authorised Order, this being the due date.
2.2 The due date is calculated as being the date on which the 50% deposit required by
the Authorised Order is received by AgriHawk, plus the delivery time specified on the
Authorised Order.
2.3 AgriHawk is dependent upon 3rd party manufacturers, suppliers and or service
providers in order to ensure the delivery of the products and therefore AgriHawk shall
not be liable for late or delayed delivery due to actions or inactions conducted by these
3rd party manufacturers, suppliers and or service providers.
2.4 AgriHawk will deliver the products, CIP to the address specified on the Authorised
Order using its selected method of delivery, in so long as this address is located within
the borders of the Republic of South Africa.
2.5 With regards to Customers resident outside the Republic of South Africa the delivery
terms will be EXW Modimolle, Republic of South Africa, therefore the responsibility for
insurance and freight as well as the cost thereof, is that of the customer and or his
appointed agent.
Page 2 of 7
2.6 Title and risk of loss or damage to each of the products covered by these terms shall
pass to the Customer upon delivery of the products to the address specified on the
Authorised Order by AgriHawk (except for title to software products, in which case only
title to the media shall pass).
2.7 Ownership is reserved on any products purchased by the Customer until such time
as payment is made in full to AgriHawk for such products.
2.8 Any delivery note (copy or original) signed by the Customer or its authorised agent
(i.e. courier) shall be conclusive proof that delivery was made to the Customer. The
Customer confirms that his signature, or that of his authorised agent or any other
authorised person, of the delivery note, constitutes prima facie proof that the products
and services delivered comply with the order and that he has read and understood the
terms and conditions of sale
3. BINDING CONTRACT
3.1 Signature by the Customer of the Authorised Order shall be deemed to be
acceptance of the offer on the terms and conditions recorded in the Authorised Order
and these terms shall give rise to a binding contract as between Agrrihawk and the
Customer.
3.2 The Customer may not cancel all or any part of the Authorised Order without
Multilayer Trading 18CC prior written consent, which may be withheld at AgriHawk’s
sole discretion.
3.3 Cancellation of the Authorised Order or any part thereof, by the Customer without
AgriHawk prior written consent will result in the Customer’s whole deposit or part
thereof, being forfeited to AgriHawk as a cancellation fee.
3.4 Any cancellation of an Authorised Order or part thereof, consented to in writing by
AgriHawk, shall incur a surcharge of 15% of the inclusive VAT value of the original
Authorised Order.
4. SUBSTITUTIONS & MODIFICATIONS
AgriHawk may at any time substitute or modify any of the items specified in the
Authorised Order, provided that such substitution or modification will not materially
adversely affect the overall performance of the item as stated in the relevant published
specifications.
5. INSPECTION & ACCEPTANCE
5.1 Prior to delivery, AgriHawk shall perform such test procedures or inspections, as it in
its business judgment deems appropriate to confirm that the products specified in the
Authorised Order are complete and in good order and condition.
5.2 The Customer shall inspect the products immediately upon delivery and shall notify
AgriHawk within ten (10) days of any non-conformance with the specifications. If the
Customer has not provided AgriHawk with written notice of non-conformance within
the 10-day period, the Customer will be deemed to have accepted the products and to
have waived its right to return the products.
Page 3 of 7
5.3 Should any product fail to conform to the requirements of this paragraph, AgriHawk
may, at its option, repair or replace that product, or refund the purchase price paid by
the Customer in relation to that specific product.
5.4 In no event shall any item be returned, reworked, or scrapped by the Customer
without AgriHawk’s express written authorisation.
6. WARRANTIES
6.1 Subject to the remaining provisions of this clause 6 and to clause 7 AgriHawk
warrants that the products shall be free from defects in material and workmanship
under normal use for a period of one (1) year starting from the date of delivery of the
products by AgriHawk to the Customer ("the Warranty").
6.2 Products carry the warranty in accordance with the manufacturer's product specific
warranty.
6.3 No warranties, guarantees or representations, expressed, implied or tacit whether
by law, a contract or otherwise, which are not set forth in these terms, shall be binding
on AgriHawk.
6.4 AgriHawk shall not be responsible for defects or performance problems that arise
from the operation of the products in conjunction with any software or equipment not
specifically supplied by Multilayer Trading 18 Cc and shall furthermore not be
responsible for any costs incurred by the Customer in dismantling or fitting replacement
parts or reassembling the products where it is found that the defect arose as a result of
the negligent or wilful conduct of the Customer. In order to be valid, a claim in terms of
the Warranty must be in writing, specifying the alleged defect, and supported by a copy
of the delivery note.
6.5 The Warranty shall only apply in the event and to the extent that the products are
properly and correctly installed, configured, interfaced, maintained, stored and
operated in accordance with the Manufacturer's applicable operator manual and
specifications; and the products are not modified or misused.
6.6 AgriHawk sole liability and the Customer's exclusive remedy under the Warranty
shall be limited to AgriHawk’s repair or replacement of any products that fail to conform
to the Warranty ("Non-conforming Items") or at AgriHawk’s discretion, refund of the
Customer's purchase price for any such non-conforming item, conditional on the
Customer delivering the non-conforming item to
AgriHawk’s offices together with a written, detailed and complete description of the
reason for return.
6.7 The Warranty shall not apply to software products covered by these terms, which
shall be subject to the relevant Software License Agreement included with the software.
6.8 All Warranty claims/repairs are based on a 'Carry in Basis", which means AgriHawk
will only carry the courier costs to return the goods to the customer.
6.9 Warranty repairs/replacements to products to be delivered to the Customer outside
the Republic of South Africa, will be returned or sent on a CIF Basis, and any clearing
charges, taxes and duties will be for the customer's account
Page 4 of 7
7. WARRANTY EXCLUSIONS
AgriHawk shall have no liability to the Customer, and the provisions of clause 6 shall not
apply, to the extent that any claim of infringement arises from the following - any
modification, servicing or addition made to the products by anyone other than
AgriHawk or its authorised representative; any configuration and or integration of the
products by anyone other than AgriHawk or its authorised representative; use of the
products as a part of, or in combination with, any devices or software not provided to
the Customer by AgriHawk; use of the products and the software to practice any
method or process which does not occur wholly within the scope of the products use
and specifications; or any damage the Customer may suffer as a result of the improper
use of the products
8. INSTALLATION & TRAINING
8.1 The Customer shall ensure that a nominated representatives should be available
either on the due date or on a date agreed upon by both parties, in order for the
products to be delivered by AgriHawks technician and for the customer representative
to receive training from AgriHawk‘s technician and so that the Customer Representative
is able to operate and use the products and software, as well as witness and inspect the
product.
8.2 Training will be conducted upon delivery of the Authorised Order, either on the due
date or on a date agreed upon by both parties
8.3 AgriHawk certifies that the products will be delivered by a trained technician in
accordance with the workshop manuals and procedures as stipulated by the
manufacturer and utilising, where applicable, parts sourced from or recommended by
the manufacturer.
8.4 AgriHawk shall perform such test, procedures and or inspections, as required by the
manufacturer, to confirm that the products performed correctly.
8.5 The Customer or his representative shall, on completion of delivery, inspect the
product to ensure that the product is as specified and should the Customer or his
representative not be available to inspect the product, then the Customer shall notify
AgriHawk within ten (10) days thereafter, of any non-conformance of the product.
8.6 If the Customer has not provided AgriHawk with written notice of non-conformance
within the 10-day period, the Customer will be deemed to have accepted the product
and to have waived any rights to redress.
8.7 Installation and or training fees become due and payable immediately upon
completion of installation and or training
8.8 Services are performed on an Ad-Hoc basis, charged commiserate with the time and
cost involved and conducted on a date agreed to by both parties.
9. SOFTWARE
9.1 Subject to these terms, AgriHawk grants the Customer a non-transferable and nonexclusive
right and license to use one copy of the software.
9.2 Unless otherwise agreed in writing, all software which comprises or which is
embodied in the products is supplied under the license referred to in clause 9.1.
Page 5 of 7
9.3 AgriHawk shall deliver to the Customer a copy of the software (as well as any user
documentation) simultaneously with the delivery of the products in terms of clause 2.
10. INTELLECTUAL PROPERTY
10.1 The Customer acknowledges that any product and/or software supplied in terms
hereof is subject to the proprietary rights of AgriHawk and/or its licensor. AgriHawk
and/or its licensor will retain full intellectual property rights associated with the
products and/or software and will also retain full title to the software.
10.2 The Customer will not copy or duplicate, or permit anyone else to copy or
duplicate, any part of the software, neither will the Customer create or attempt to
create, or permit anyone else to create or attempt to create, by use of reverse
engineering, the source programs or any part thereof from the object programs. The
Customer shall not directly or indirectly sell, transfer, offer, disclose, lease or license any
intellectual property in the products and/or the software to any third party, or
otherwise infringe the intellectual property rights of AgriHawk and/or its licensor.
11. DEFAULT
11.1 AgriHawk reserves the right, by written notice of default, to immediately cancel an
Authorised Order, without liability to AgriHawk, in the event of the happening of any of
the following - liquidation of the Customer or the Customer performing any act which is
regarded as an act of insolvency in terms of the Insolvency Act No. 24 of 1936; the
Customer applying for a voluntary liquidation; the Customer being placed into judicial
administration; the customer entering into a compromise or scheme of arrangement
with its creditors; if the customer fails to perform as specified herein; or if the Customer
breaches any of the terms hereof.
11.2 AgriHawk reserves the right to either demand the return of any products and/or
software which have been dispatched but not yet paid for and/or to claim all damages,
losses and liability incurred by AgriHawk directly or indirectly resulting from the
Customer's breach of these terms.
12. ASSIGNMENT
Neither these terms, the Authorised Order nor any rights or obligations herein may be
assigned by the Customer nor may the Customer delegate the performance of any of its
duties hereunder without, in either case, AgriHawk’s prior written consent, which may
be withheld in AgriHawk’s sole discretion,
13. DISPUTES
13.1 Any dispute arising under or in connection with these terms or the sale of the
products shall be finally settled by arbitration, before a single arbitrator appointed by
agreement or (in default) nominated on the application of either party in accordance
with the rules of the Arbitration Foundation of South Africa ("AFSA).
13.2 The arbitrator shall make an award in respect of the costs of the arbitration having
regard to the substantial success of each party in the outcome of the proceedings.
Page 6 of 7
13.3 The parties irrevocably agree that the decision in the arbitration proceedings shall
be final and binding on the parties: shall be carried into effect; and may be made an
order of any court of competent jurisdiction.
13.4 These terms or the Authorised Order shall not preclude either party from obtaining
interim relief on an urgent basis from a court of competent jurisdiction within the
Republic of South Africa, pending the outcome of the negotiations, mediation or
decision of the arbitrator as the case may be from time to time.
13.5 These terms and the Authorised Order shall be governed by the laws of the
Republic of South Africa and excluding its conflict of law’s provisions in the event of an
international export transaction.
14. NOTICES
Any notice required or permitted under these terms will be deemed given and served
when personally delivered, or five (5) business days after sent by reputable international
courier requiring signature for receipt, addressed to the party at its notice address being
the addresses of both parties, on the Authorised Order. Either party may change its
notice address by written notice to the other.
15. FORCE MAJEURE & LIMITATION OF LIABILITY
15.1 The customer shall not have a claim against AgriHawk for any delay or failure of
AgriHawk to carry out any of its obligations under this agreement arising from or
attributable to acts of God, war, terrorism, labour action or unrest, failure of suppliers
or contractors or any other cause whatsoever beyond the control of AgriHawk("force
majeure").
15.2 AgriHawk aggregate liability to the Customer under, or for breach of, these terms
or the Authorised Order will not exceed the amounts actually paid by the Customer to
AgriHawk under these terms or Authorised Order. Under no circumstances will
AgriHawk be liable for any consequential, direct. indirect, special, punitive or incidental
damages, whether foreseeable or unforeseeable, based on claims of the Customer
(including, but not limited to, claims for loss of data, goodwill, profits, loss of use of
money or use of products or software, interruption in use or availability of new
products); arising out of a breach or failure of expressed or implied Warranty, breach of
contract, misrepresentation, negligence, strict liability in delict or otherwise, whether
based on these terms, any commitment performed or undertaken under or in
connection with these terms or otherwise except only in the case of personal injury
where and to the extent that the applicable law requires such liability.
16. INCONSISTENT TERMS
In the event of any conflict between the printed terms in these terms, the information
on the Authorised Order and any attachments thereto: (i) any terms on the Authorised
Order shall have precedence over these terms; and (ii) any typed or written initialled by
both parties, shall have precedence over pre-printed terms.
Page 7 of 7
17. INDEPENDENT CONTRACTORS
The relationship of AgriHawk and the Customer established by these terms is that of
independent contractors, and neither party is an employee, agent, partner or joint
venture partner of the other. Neither party shall, voluntarily or involuntarily, bind nor
attempt to bind the other to any contract or to the performance of any obligation, nor
represent to third parties that it has any right to enter into any obligation on the other's
behalf.
18. NO INDULGENCE
No indulgence which AgriHawk may grant to the Customer shall constitute a waiver of
any of the rights of AgriHawk which shall not thereby be precluded from exercising any
rights against the Customer which might have arisen in the past or might arise in the
future.
19. SEVERABILITY
If any provision hereof is held to be illegal, invalid or unenforceable for any reason, such
provision shall be deemed to be pro non scrip to, but without affecting, impairing or
invalidating any of the remaining provisions of this agreement which shall continue to
be of full force and effect.
20. REGULATIONS
The customer should make himself aware of all SACAA regulations on using the products
AgriHawk provides. AgriHawk has no liability when the customer uses the product
outside or inside the regulations of the specified authority.