1. APPLICATION:

1.1.          The terms and conditions of the CONTRACT shall apply (to the exclusion of any others) to any contract for the undertaking of any repairs and/or service by ITL whether that arises out of –

1.1.1.       any offer made by ITL and accepted by the CUSTOMER; or

1.1.2.       any offer made by the CUSTOMER and accepted by ITL, including any such offer made by the CUSTOMER in response to a quotation from ITL.

The only basis upon which ITL is prepared to do business with the CUSTOMER is on the basis of the CONTRACT, notwithstanding anything to the contrary in the CUSTOMER’s enquiry, specification, acceptance and/or order.

1.2.          No alteration or variation or consensual cancellation of the CONTRACT or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of the CONTRACT shall apply, either at the time the CONTRACT is concluded or at any time afterwards, unless the alteration or variation or cancellation in question is expressly agreed to in writing and signed by an authorised representative of ITL at the time in question.

1.3.          No extension of time or waiver or relaxation of any of the provisions or terms of the CONTRACT or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of the CONTRACT, shall operate as an estoppel against ITL in respect of its rights under the CONTRACT, nor shall it operate so as to preclude ITL thereafter from exercising its rights strictly in accordance with the CONTRACT.

2. QUOTATIONS:

2.1.          Any quotation given by ITL constitutes an offer to the CUSTOMER, which shall be open for acceptance by the CUSTOMER for the period specified in the quotation, failing which it shall automatically lapse. No acceptance of a quotation by the CUSTOMER shall be valid unless an order is furnished by the CUSTOMER.

2.2.          A quotation may be revoked at any time by ITL.

2.3.          The quotation is submitted in respect of one indivisible transaction and any acceptance by the CUSTOMER of portion only of the quotation shall not be a valid acceptance of the quotation.

2.4.          The quotation is based on rates of exchange, freight charges, insurance, railage, costs of labour and materials and other charges ruling at the date of quotation. Any variations occurring subsequent to the date of the quotation in any of the aforesaid rates or charges, as the case may be, shall entitle ITL to vary the amount of the quotation accordingly.

2.5.          The quotation is based on the designs, quantities, specifications and other information supplied to the CUSTOMER by or on behalf of ITL. If the CUSTOMER requires any modification or addition to any of the aforegoing at any time after the quotation is given, ITL shall have the sole and absolute discretion to accept or reject such proposed modification or addition. Any proposed modification or addition by the CUSTOMER must be furnished to ITL in writing.

3. CONSIDERATION:.

3.1.          The consideration payable for any repairs undertaken by ITL will be –

3.1.1        if  no  quotation  has  been  given and  accepted,  ITL’s  official  list consideration ruling (where applicable) or if there is no list consideration, the fair and reasonable consideration, charged by ITL at the date on which such repairs are undertaken;

3.1.2.       if a quotation has been given and accepted, the quoted consideration.

3.1.3        if a quotation has been given, but the scope of work increased or were altered due to further discoveries made during the execution of such work, and rectification of such discoveries are deemed essential to achieve a successful repair, a revised and final quotation will be submitted, the revised and final quoted consideration.

3.2.          Any expense incurred by ITL at the instance of the CUSTOMER in modifying or otherwise altering or making additions to the design, quantities or specifications agreed in terms hereof, and any expenses arising as a result of suspension of work by ITL due to instructions given, or a failure to give instructions by the CUSTOMER, shall be added to the contract price.

3.3.          Value Added Tax will be charged unless the CUSTOMER furnishes ITL with its exemption certificate number at the time of ordering the goods or delivering the goods for repairs.

4. PAYMENTS:

4.1.          The contract price or consideration shall be paid by the CUSTOMER –

4.1.1.       In South African currency free of bank and other charges at such address in the Republic of South Africa as ITL may require;

4.1.2.       without any deduction or set-off.

4.2.          If delivery is to be made by instalments, then each instalment will be invoiced and paid for separately but otherwise in accordance with 4.1.

4.3.          Any amount not paid by the CUSTOMER on due date shall bear interest at the prime overdraft rate charged by ABSA Bank Ltd plus 5% from time to time, from the date it falls due until settlement.

4.4.          ITL reserves the right, at any time, to cancel this agreement (without prejudice to its claim for damages, if any) should it not be able to obtain satisfactory guarantees which it may require in its sole discretion, for the due and prompt payment of all moneys in terms hereof.

4.5.          The contract price or consideration is strictly net and not subject to any discounts unless otherwise agreed in writing.

4.6.          If any discount is agreed in writing it shall only be allowed if payment is received by ITL by the due date and shall only be calculated on the net price of the services themselves.

4.7           A certificate of balance signed by the Financial Manager, any Executive Committee member or Credit Controller shall be prima facie proof of indebtedness.

5. DELIVERY:

5.1.          Prior to delivery of the goods repaired or serviced, ITL and a duly authorised representative of the CUSTOMER will conduct a pre-delivery inspection of such goods.

5.2.          The CUSTOMER will nominate his representative in writing if ITL so requires.

5.3.          The CUSTOMER will during the inspection list in writing any unsafe product characteristic, failure, defect or hazard in the repairs effected or associated with their use and provide ITL with a copy of such list.

5.4.          Should the CUSTOMER fail to provide ITL with a copy of such list, the repairs and their use will prima facie be deemed to be free of any such unsafe product characteristic, failure, defect or hazard and the CUSTOMER’s said representative will sign ITL’s then standard form confirming that no list was provided.

5.5.          Should the CUSTOMER fail to inform ITL in writing of any unsafe product characteristic, failure, defect or hazard in the repairs or associated with their use within 7 (seven) days after delivery thereof, the presumption set out in clause 5.4 will become irrefutable and the CUSTOMER will indemnify ITL against all damages and loss, including, without limitation, legal fees and expenses, arising from any claims instituted against ITL by anybody claiming to have suffered harm as a result of any unsafe product characteristic, failure, defect or hazard in the repairs effected or associated with their use.

5.6.          Unless otherwise expressly agreed in writing, delivery of goods repaired (if the repairs are undertaken at ITL’s premises) shall be made to the CUSTOMER at ITL’s premises. The CUSTOMER shall be responsible for procuring and arranging for the transportation of the goods from ITL’s premises to any destination required by the CUSTOMER. Delivery shall be completed when the goods are handed to the CUSTOMER or its agent at ITL’s premises and before hooking up to the equipment. Should any damage be incurred during shunting or hooking up the truck tractor to the equipment, or after hooking up to the equipment, the total cost of the damage due to the incident will be for the account of the CUSTOMER.  The ITL gate pass, signed by the CUSTOMER and/or an employee thereof and/or the driver, will be considered official proof of delivery.

5.7.          After completion of delivery ITL shall not be responsible for the arrival of the goods at their destination or for any loss of or damage to the goods from any cause whatsoever.

5.8.          Should ITL at the CUSTOMER’s request agree to engage a carrier to transport the goods for the CUSTOMER then –

5.8.1.       ITL is authorised to engage a carrier on such terms and conditions as it deems fit;

5.8.2.       the CUSTOMER indemnifies ITL against all demands and claims which may be made against it by the carrier so engaged and all liability which ITL may incur to the carrier arising out of the transportation of the goods.

5.8.3.       the goods shall be deemed to have been delivered immediately ITL has handed the goods to the carrier in question.

5.9.          The CUSTOMER shall, as soon as reasonably possible after a request by ITL, furnish ITL with all information reasonably required in order enabling ITL to effect delivery of the goods.

5.10         Time shall not be the essence of the contract. Any delivery date indicated by ITL, whether in the quotation or otherwise, shall merely be regarded as the estimated date of delivery and shall not bind ITL to effect delivery on or near such date and shall not give rise to any claim.

5.11.        The CUSTOMER shall accept delivery whenever delivery is tendered and shall not be entitled to resile from the agreement nor to withhold or defer any payment on account of delays in effecting delivery, partial delivery on non-delivery, whether occasioned by any negligent (including grossly negligent) act or omission on the part of ITL, its servants, agents or any other persons for whom it is liable in law, or not.

5.12.        If delivery of any particular order is to be effected in consignments, ITL shall not be obliged to deliver any part of the order until the purchase price which is due in respect of the part of the order, which has already been delivered, has been paid.

5.13.        If the CUSTOMER fails to take delivery of the goods when tendered, then –

5.13.1.     the risk shall immediately pass from ITL to the CUSTOMER;

5.13.2.     the CUSTOMER shall refund to ITL on demand the reasonable costs (including storage and insurance) of keeping the goods during the period of that delay.

5.14.        If delivery is to be made in instalments then the provisions of this clause 5 shall apply to each instalment.

5.15.        ITL shall not be liable under any circumstances whatsoever for any alleged shortage in the delivery of goods or any alleged failure of goods to comply with the contract, unless written notice of the claim is received by ITL within 7 days after receipt of the goods by the CUSTOMER.

5.16         ITL reserves the right to charge a ten percent (10%) handling fee on all goods returned against orders correctly executed.

6. SERVICE AND REPAIR

6.1           Unless otherwise agreed on in writing, equipment to be serviced and/or repaired shall be presented to ITL in a clean, safe and unloaded condition. Except for equipment used solely for the transport of petrol, diesel or paraffin, all equipment used in the transportation of dangerous goods shall be presented for service and/or repair with an appropriately authorised cleanliness certificate.

6.2           ITL shall be deemed authorised to replace such parts and/or use such materials and/or to use such labour as they in their sole discretion may deem necessary to effect repairs and/or services as set out in the quote or invoice provided, and any additional instruction given. The charges will be in accordance with their scale of standard charges which are deemed to be incorporated herein and which are deemed to be fair and reasonable.

6.3           Any charges incurred, other than authorised on the job card, shall be deemed to be part of the original instructions given therein, in case of quotations the total amount can be exceeded by fifteen per cent (15%) of the aggregated value without obtaining additional authority.

6.4           Should any amount for any reason not be paid by the CUSTOMER’s insurers, the CUSTOMER shall undertake to pay such amount subject to the conditions contained herein.

6.5           Policy, goodwill and/or other warranty claims:

6.5.1        Irrespective of the success or failure of such claim mechanism, the CUSTOMER shall remain liable for the cost until finalisation of the cost allocation.

6.5.2        Should the amount of such claim be redeemed by the manufacturer or in full and/or parts thereof, ITL acknowledge same and accept that ITL shall have thirty (30) days grace within which to disburse the amount received for full payment for the manufacturer to the CUSTOMER.

7. OWNERSHIP AND COPYRIGHT:

7.1.          Ownership of any goods supplied by ITL in the course of undertaking any repair services to any goods of the CUSTOMER, shall not pass to the CUSTOMER until the contract price in respect of the entire services rendered has been paid in respect thereof.  The provisions hereof shall apply notwithstanding the accession of such items to the CUSTOMER’s goods. The provisions hereof shall apply mutatis mutandis to any work other than repairs undertaken or goods attached by ITL in respect of any chassis or other items supplied by the CUSTOMER. All vehicles and property in the possession of ITL shall be held by ITL at the CUSTOMER’s risk and shall be subject to a special and general lien and pledge as security for all moneys (whether past or present) due and/or owing to ITL from any cause whatsoever.

7.3.          ITL reserves the right to inform the owner/landlord of the premises in which the goods are or at any time may be, of the provisions of this clause. The CUSTOMER shall be obliged to advise ITL of the name and address of the landlord of any such premises and shall promptly advise ITL of any change in the name and/or the address of such landlord.

7.4.          The CUSTOMER shall inform the owner/landlord of the premises in which the goods are or at any time may be, of the provisions of this clause.

7.5.          The copyright in all documentation supplied to the CUSTOMER shall remain vested in ITL.

8. RISK:

 

Subject to 5.13.1. the risk shall pass to the CUSTOMER on delivery to the CUSTOMER or on delivery to the carrier as contemplated in clause 5.8. as the case may be

9. INSTRUCTIONS & WARNINGS

9.1.          The CUSTOMER will exercise care in the use of the goods repaired and will at its own cost and expense maintain same in proper working and roadworthy condition and order.

9.2.          The CUSTOMER warrants that:

9.2.1.       the repairs will only be operated and used by competent and properly trained, licensed and qualified persons;

9.2.2.       the repairs will only be used for the purpose for which they were intended.

9.3.          The CUSTOMER may not make any material alteration or modification to the repairs without the prior written consent of ITL, which will not unreasonably be withheld.

9.4.          The CUSTOMER warrants that no warning, instruction or sign which may have been placed by ITL on the repairs will at any time be altered, obscured, removed, concealed or otherwise interfered with.

10. EXCLUSIONS:

10.1.        If the repairs or any part of them are to be supplied in accordance with any specification, measurements or other instructions furnished by the CUSTOMER, the CUSTOMER shall not have any claim of any nature whatsoever against ITL –

10.1.1.     for any loss or damages sustained by the CUSTOMER as a result of any error, discrepancy or defect in those specifications, measurements or other instructions.

10.1.2.     if the repairs in question are not suitable for the purposes for which they are required, whether those purposes are known to ITL or not.

ITL reserves the right to only start repairs after the signed technical specifications has been received from the CUSTOMER.

10.2.        In all cases where the repairs and/or service are supplied to a specification, design or description of the CUSTOMER, the CUSTOMER indemnifies ITL against all claims at any time for any patent rights, royalties, damages, costs, expenses or other losses due to an infringement of any patent or other rights by reason of the repair and/or service or any part thereof in terms hereof by ITL.

10.3.        The CUSTOMER –

10.3.1      shall have no claim of any nature whatsoever whether for damages (including consequential loss), a remission of the purchase price, cancellation or otherwise against ITL and indemnifies ITL, its servants, agents or others on whose behalf ITL would be liable in respect of:

• any loss or damage of any nature whatsoever sustained by the CUSTOMER on the premises of ITL; or
• any damage caused to the assets of the CUSTOMER on the premises of ITL; or
• assets kept on ITL’s premises by any third parties; or
• in regard to the CUSTOMER’s business or
• sustained by any of its customers on the premises of ITL.

10.3.2.     indemnifies ITL, its servants, agents or other on whose behalf ITL would be liable against any loss or damage which they may sustain as a result of any claim by any third party for losses caused by any acts or omissions of ITL, its servants, agents or others for whom it may be liable in law including the negligent (including grossly negligent) acts or omissions. This clause constitutes also a stipulatio alteri in favour of such servants and other persons the benefits of which may be accepted by them at any time.

11. PERMITS:

 

If any permit or other consent or approval is required by ITL under any law (including any statute, ordinance, by-law or regulation) for the repair or service under the contract, then the contract shall not take effect until ITL obtains that permit, consent or approval.

 

12. SUSPENSION OF ITL’S OBLIGATIONS:

 

If any amount owed by the CUSTOMER to ITL from any cause whatever, whether under the contract or not, is not paid on due date then, without prejudice to any other right which it may have, ITL may –

12.1.        require that all amounts then owed to it by the CUSTOMER, from any cause whatsoever (and whether under the CONTRACT or not) shall immediately become due and payable;

12.2.        retain in its possession any goods of the CUSTOMER until all these amounts have been paid;

12.3.        until payment is made, suspend the carrying out of any of its then uncompleted obligations from any cause whatever and whether under the contract or not;

12.4.        terminate any credit facilities granted to the CUSTOMER, whether under this contract or not.

13. BREACH:

 

If the CUSTOMER breaches any of the terms or conditions hereof or any other agreement with ITL or fails to pay any amount payable by it on due date or commits any act of insolvency or endeavours to compromise generally with its creditors or does or causes to be done anything which may prejudice ITL’s rights hereunder or at all, or allows any judgement against it to remain unsatisfied for 7 days or is placed into provisional or final liquidation or judicial management or under provisional or final sequestration or if his estate is voluntarily surrendered, ITL shall have the right without prejudice to any other right which it may have against the CUSTOMER, to –

13.1.        treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the agreement and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of its obligations hereunder as well as under any other contract with the CUSTOMER until the CUSTOMER has remedied the breach;

13.2.        cancel this agreement and retake possession of any of the goods repaired.

14. CONDITIONS PRECEDENT:

 

Notwithstanding any other provision in the contract to the contrary ITL’s obligations to effect the repairs or service shall in all cases be subject to the following conditions precedent.

14.1.        the availability to ITL of all material and supplies required for the repair or service of the goods or their components where the goods or components in question are being repaired or serviced by ITL;

14.2.        the receipt by ITL from its own suppliers of the goods or their components, where the goods or components in question are being purchased by ITL;

14.3.        the receipt by ITL of any instructions (including all drawing and specifications) required by ITL from the CUSTOMER for the purchase of the goods.

15. PROPER LAW:

 

The validity of this agreement, its interpretation, the respective rights and obligations of the parties and all other matters arising in any way out of this agreement or its expiration or earlier termination for any reason (including matters of prescription) shall be determined in accordance with the laws of the Republic of South Africa.

 

16. JURISDICTION:

16.1.        If the CUSTOMER is a resident or carries on business in the Republic of South Africa then ITL shall be entitled to institute any proceedings against the CUSTOMER, arising out of the contract, in any Magistrate’s Court having jurisdiction over the CUSTOMER even if the cause of action in question exceeds the jurisdiction of the Court.

16.2.        If the CUSTOMER is not a resident of and does not carry on business in the Republic of South Africa, then the CUSTOMER consents and submits to the jurisdiction of the Cape of Good Hope Local Division of the Supreme Court of South Africa, and all courts of appeal there from, for all purposes arising out of the CONTRACT.

16.3.        If the CUSTOMER is a resident of or carries on business in Botswana, Swaziland or Lesotho, ITL shall be entitled to institute legal proceedings against the CUSTOMER, arising out of the contract, in any subordinate Court of the First Class of Botswana, Swaziland or Lesotho respectively, having jurisdiction over the CUSTOMER, even if the cause of action in question exceeds the jurisdiction of the Court.

17. NEGOTIABLE INSTRUMENTS:

 

Any promissory note, bill of exchange, or other negotiable instrument received by ITL from the CUSTOMER shall not be a novation of the debt for which it is given and the CUSTOMER waives presentment, notice of dishonour and protest where applicable.

 

18. NO CESSION:

 

The CUSTOMER shall not be entitled to cede or assign any rights and/or obligations, which it may have in terms of this agreement to any third party.

 

19. SECURITY FOR OBLIGATION:

 

ITL reserves the right to require satisfactory security from the CUSTOMER for the due performance of any of the CUSTOMER’s obligations hereunder including but not limited to the payment of the purchase price or consideration.

 

20. COSTS:

 

The CUSTOMER shall be liable for all costs incurred by ITL in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney/client scale whether incurred prior to or during the institution of legal proceedings or if judgement has been granted, in connection with the satisfaction or enforcement of such judgement.

21. LIABILITIES  OF PARTNERS/SIGNATORIES:

21.1.        If the CUSTOMER is a partnership, then each individual partner of the CUSTOMER shall be bound both as a partnership and jointly and severally as an individual for all the CUSTOMER’s obligations, notwithstanding that only one partner may have signed on behalf of the CUSTOMER.

21.2.        The person signing on behalf of the CUSTOMER warrants that he is duly authorised to represent and bind the CUSTOMER to this agreement.

22. INSURANCE:

 

The CUSTOMER shall at its own expense and prior to taking delivery of goods, insure the goods and thereafter keep the goods insured until such time as the goods have been paid for in full. The insurance policy shall record the interest of both ITL and the CUSTOMER. The CUSTOMER shall, if so required by ITL, cede to ITL all its rights in terms of such insurance policy.

23. DESIGN AND MANUFACTURE:

23.1.        ITL shall be entitled to claim the usual tolerances customary in the trade on all dimensions.

23.2.        If no detailed drawings or specifications are provided by the CUSTOMER, ITL shall be entitled in its sole discretion to interpret the requirements of the CUSTOMER and its decision shall be final and binding on the CUSTOMER.

23.3.        ITL reserves the right to make any reasonable change to the design or form of any goods provided that the state of performance and quality and specifications remain materially unaffected.

24. FORCE MAJEURE:

 

If vis major or force majeure or casus fortuitus or industrial action (“the interrupting circumstances”) cause delays in or failure or partial failure of performance by ITL of all or any of its obligations hereunder, this agreement, or as the case may be, the affected portion thereof shall be suspended for the period during which the interrupting circumstances specifying the nature and date of commencement thereof shall be despatched by ITL (on whom the onus shall rest) to the CUSTOMER as soon as reasonably possible after the commencement thereof. Written notice of the cessation of the interrupting circumstances shall be given by ITL within 7 days after such cessation. No party shall subsequently be obliged to comply with the obligations suspended during such period.

 

25. PAYMENT FOR WASTED COSTS:

 

If for any reason whatsoever, ITL incurs any wasted costs in respect of work undertaken or goods purchased in this contract, the CUSTOMER shall be obliged to reimburse such wasted costs whether the contract is cancelled or not. This clause shall not be interpreted to limit ITL’s right to recover damages resulting from breach and cancellation of this contract.

 

26. WARRANTIES:

26.1.        ITL hereby expressly warrants to the CUSTOMER as the owner of goods manufactured by a manufacturer for which ITL holds an accreditation as authorised repair and service provider, services supplied under this contract will be warranted to the identical terms and conditions of the original manufacturer’s warranty terms.  For service and repair work that fall outside the scope and time period of the original manufacturer’s warranty period, ITL expressly warrants to the CUSTOMER that the scope of service or repair work will be executed free from defects arising from faulty material and workmanship for a period of three months (unless expressly stated to the contrary in any quotation) from the date of invoice or from the date of delivery to the CUSTOMER whichever occurs first (this period being called in this warranty “the warranty period”).

26.2.        the above warranty is subjected to the following conditions.

26.2.1.     that ITL holds an original equipment accreditation for the products being serviced and/or repaired;

26.2.2.     that the products have been correctly operated and used under conditions which are normal for such products;

26.2.3.     that the CUSTOMER has maintained and serviced the products during the warranty period in accordance with the owner’s service and warranty manual dealing with adjustments and inspections. Should the manual not be available, the products should be maintained              according to industry best practice and regulatory requirements as applicable.

26.3.        In the case of parts ITL’s warranty is specifically limited to replacing free of cost any products or any part or parts thereof which are in ITL’s opinion defective and which shall be returned to ITL for replacement within the warranty period with transportation charges for delivery and return prepaid by the purchaser.

26.4.        ITL’s total liability is limited to (at the option of ITL) –

26.4.1.     the replacement of the products; or

26.4.2.     the supply of the equivalent products; or

26.4.3.     the payment of the  cost of replacing the products; or

26.4.4.     the payment of the cost acquiring equivalent products; or

26.4.5.     the payment of the cost of having the products repaired.

26.5.        The above warranty shall not apply to –

26.5.1.     any products which have been repaired, altered or modified in any way whatsoever by persons other than ITL or its authorised service representatives and any resultant damage due to the repair, alteration or modification;

26.5.2.     component parts or goods acquired by ITL from third parties. In this latter event ITL will where possible make available to the CUSTOMER upon request a copy of the terms of any warranty given by the manufacturer of such component parts of goods; or

26.5.3      any products which have been recalled under a warranty campaign and for which the recall period has lapsed.

26.6.        ITL undertakes no liability for defects arising directly or indirectly from –

26.6.1.     fair wear and tear;

26.6.2.     incorrect, faulty or negligent operation or maintenance by the CUSTOMER;

26.6.3.     misuse or damage caused by accident;

26.6.4.     misuse or damage caused by the CUSTOMER continuing to use the product after discovery of any defect of deficiency which has not been rectified;

26.6.5.     any cause whatsoever not attributable to ITL.

26.7.        ITL shall, unless it otherwise agrees, undertake any repairs contemplated in this warranty clause, on the premises of ITL. ITL reserves the right to instruct ITL approved service providers to perform repairs as contemplated in this warranty clause.

26.8.        Where any replacement parts are provided by ITL in terms of this warranty or any repairs are affected by ITL in terms of this warranty, those replacements parts of the repairs themselves shall not themselves be subjected to this warranty clause and are supplied voetstoots.

26.9.        Save as aforesaid, no warranties or representations of any nature whatsoever whether as to the suitability of the goods sold for any specific purpose or as to the materials forming part of the goods or as to the standard of labour in respect of such goods or (without limiting the generality of the afore going), otherwise, are or have been serviced and/or repaired by ITL and the goods are accordingly sold, serviced or repaired voetstoots and with the exclusion of all common law rights and remedies of the CUSTOMER.

26.10       Any warranties given do not cover any portion of the goods sold which were not serviced and/or repaired by ITL.

26.11.      Customers who acquire goods for the purpose of on-selling those goods, whether such customers are permitted to do so or not (and nothing herein contained shall be deemed to allow customers to on-sell goods serviced and/or repaired by ITL), shall not advertise or issue or in any other way give or make any warranties, guarantees or representations as to the goods in any form whatsoever or offer to do so, which could result in liability being imposed upon ITL.

26.12       ITL shall provide a high quality service and/or repair service and shall engage an authorised inspection body (“AIB”) and/or certification agency (“CA”) to certify that the product complies with the requirements of the relevant standards and legislation to this agreement (the “Standards”). As ITL is not an AIB and/or CA, it cannot and does not represent or warrant compliance with the Standards and the CUSTOMER agrees that ITL shall not be liable in any way whatsoever, including for any loss or damage, in any way connected with the role of the AIB and/or CA, non-compliance with the Standards or validity of the certificates issued by the AIB and/or CA.

26.13       The warranties, if any, provided herein and the obligations of ITL hereunder are in lieu of, and the CUSTOMER waives, all other warranties, guarantees, conditions or liabilities, express or implied, arising by law or otherwise. For the purposes hereof, any reference to ITL shall include its servants, agents or contractors or any other person for whose acts or omissions ITL may be liable in law. This also constitutes a stipulatio alteri in favour of such persons the benefits of which may be accepted by them at any time.

27. NOVATION

 

The terms and conditions contained in this document novates and super novates and supersedes any standard terms and conditions previously signed by the CUSTOMER with ITL and/or companies whose businesses have been incorporated with ITL.

 

28. SURVIVAL OF CERTAIN TERMS

 

Notwithstanding anything to the contrary herein contained, the provisions of this agreement which in order to give effect to their import need to survive the cancellation, termination, lapsing or invalidity of this agreement, shall remain in full force and effect despite such cancellation, termination, lapsing or invalidity.

 

29. SEVERANCE

 

If any provision of this agreement is found by any court or judicial or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this agreement which shall remain in full force and effect.

30. INDEPENDENT ADVICE

30.1         The CUSTOMER acknowledges and agrees that it has not relied in any way upon any information and/or advice given by ITL before signing this agreement and has taken all reasonable actions to satisfy itself as to the consequences of entering into this agreement.

30.2         Each of the parties hereto acknowledge that they have been free to secure independent legal and other advises as to the nature and effect of all of the provisions of this agreement and that they have either taken such independent legal and other advice or dispensed with the necessity to do so.

30.3         Further, each of the parties hereto acknowledge that all of the provisions of this Agreement and the restrictions herein contained are fair and reasonable in all the circumstances and are part of the overall intention of the parties in connection with this agreement.

 

31. HOURS OF WORK

 

ITL operates within fixed hours of work being Monday to Friday, 07h00 – 16h30, excluding weekends and public holidays..  Any work, including equipment collections, required outside these hours of work shall only be undertaken by mutual agreement and subject to prior arrangement.

32. INTERPRETATION:

 

In this contract, except where the context indicates that some other meaning is intended

the CONTRACT means: the terms and conditions of sale and repair as contained in this document

the CUSTOMER means: the person addressed in the quotation

ITL means:              ITL ENGINEERING (PTY) LTD. (Reg.No. 2005/033295/07)

the PARTIES means:  the CUSTOMER and ITL

Clause headings appear in this contract for purposes of reference and convenience only and shall not influence the proper interpretation of the subject matter.

 

33. ACCEPTANCE

 

Proof of receipt of this contract, if not contested or disputed either in part or in full and within the time period corresponding to the applicable contract payment terms, will be considered acceptance of the entire contract.

[End of Contract]