TERMS & CONDITIONS FOR GOODS AND SERVICES
1.1. Unless a contrary intention clearly appears the following terms shall have the meanings assigned to them hereunder as follows:
1.1.1. “Agreement” means this written document together with any annexures and addenda read with the Quotation as the case may be;
1.1.2. “Buyer” means any company, firm, individual, club, association, council, and/or local authority who accepts the Quotation for the Goods and/or Services;
1.1.3. “Cased Drilling” (Unconsolidated Ground) is used when the ground conditions are more stable compared to the Odex / Symmetrix method. Using this technique the drill rods are removed prior to the insertion of casings. With cased drilling, it is common practice for one to step down the size of the hole whilst drilling. The step down would normally take place when there is a change in the ground conditions;
1.1.4. “Company” means either Venter Drilling WP (Pty) Ltd or Wilderness Aquaponics (Pty) Ltd as the context may indicate;
1.1.5. “Goods’ means all types of equipment, materials and consumables, including but not limited to, water storage tanks, pumps, pipes, casings, fittings, cables & control boxes;
1.1.6. “CPA” means the Consumer Protection Act no 68 of 2008;
1.1.7. “Normal Drilling / Rock Drilling” (Consolidated Ground) means the method of drilling required for geological conditions primarily consisting of rock;
1.1.8. “Odex / Symmetrix Drilling” (Unconsolidated Ground) means that there is presence of clay, sand or loose gravel / ground. A special hammer drill bit is designed to be used inside and at the bottom of the steel casing so that the drill bit has an eccentric reamer below the steel casing. With this method the hammer pulverizes the material below the casing and then blows it back through the casing to the top of the borehole. As the hammer drives through the material, it also reacts against the interior shoulder bevelled inside the steel casing, which pulls the casing down the borehole as the hammer drill is advanced;
1.1.9. “Parties” means the Parties to this Agreement, and “Party” shall be construed accordingly;
1.1.10. “Quotation” means the written quotation as issued by the Company prior to commencement of the Services or provision of the Goods;
1.1.11. “Services’ means all types of services rendered by the Company, including but not limited to drilling, labour, borehole cleaning, servicing and maintenance; and
1.1.12. “VAT” means tax as levied by the South African Revenue Services in terms of the Value-Added Tax Act, No. 89 of 1991.
1.2. The headings to the clauses of this Agreement are for reference purposes only and shall not aid in the interpretation of the clauses to which they relate.
1.3. Any reference in this Agreement to any other Agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented.
1.4. Words importing the singular shall include the plural, and vice versa, and words importing the masculine gender shall include the feminine and neuter genders, and words importing persons shall include partnerships and bodies corporate and vice versa.
1.5. When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, a Sunday or a public holiday within the Republic of South Africa, in which case the last day shall be the next succeeding business day.
2.1. The Company provides certain Goods and Services to prospective Buyer/s and does so on the terms and conditions as contained within this Agreement.
2.2. The terms and conditions of this Agreement are deemed to have been accepted upon signature of the Quotation (which Quotation shall make express reference to this Agreement) and payment of the deposit.
2.3. This Agreement shall further be made available, at all material times, on the Company’s relevant website.
3.1. No agreement shall arise between the Company and a prospective Buyer until the Company receives a signed Quotation and such acceptance by the Buyer.
3.2. All Quotations shall –
3.2.1. be valid for 20 days from date of issue by the Company; and
3.2.2. require a R 20 000.00 deposit in order to secure the provision of the Services which deposit can be waived and/or varied by the Company in its sole discretion from time to time; and
3.2.3. specify the drilling rate per meter, which rate will be applied to the final invoice depending on the extent/nature of the drilling required (Cased, Rock or Odex Drilling)
3.3. The Buyer hereby acknowledges that –
3.3.1. Quotations are only an estimate as to costs and are subject to change given the variable geological conditions that may confront the Company upon commencement of the Services (“unforeseen circumstances”).
3.3.2. When such unforeseen circumstances arise, the Company may have to take measures in order to maintain the integrity of the borehole and does so at its own discretion subject to communicating same to the Buyer prior to commencing with any such action.
3.3.3. By accepting the Quotation, the Buyer accepts that the drilling technique to be applied is only determined after the commencement of the Services and where a non-standard drilling process is applied, the cost of drilling a borehole may increase / decrease.
4.1. It is expressly stated that prices reflected in the Quotation are subject to variance given the unique nature of the Services offered. As such, the Company will charge per meter drilled.
4.2. Such variances may be influenced by, inter alia, the following –
4.2.1. quantity of materials used;
4.2.2. depth drilled; and
4.2.3. drilling method deployed.
4.3. After the completion of the Services, the actual quantities used and meters drilled will be accurately recorded by the Company and reflected in the final invoice.
4.4. Prices include VAT were applicable.
5. DRILLING AND CONDITIONS
5.1. The type of hole drilled depends wholly on the ground formation and geological conditions as encountered during the provision of the Services.
5.2. The Company does not warrant that it will source water, nor that it is an expert (in any way) in geology and geological conditions. To this extent the Company will –
5.2.1. use its best endeavours to apply the most suitable drilling technique based on the ground conditions encountered and past experience of drilling in the area; and
5.2.2. inform the Buyer when Odex or Cased Drilling is required and will not proceed without having received confirmation from the Buyer regarding the proposed method to be used.
5.3. By accepting the Quotation, and by implication the terms of this Agreement, the Buyer accepts that the exact formation of the hole is largely unknown and therefore the meters drilled using ODEX or Cased Drilling can only be determined during the drilling process and not prior to commencement of the Services.
6. COMMUNICATION AND STANDING FEE
6.1. The Buyer undertakes to be contactable by the Company regarding any technical issues, obstacles or requests for authorisation encountered during the rendering of the Services.
6.2. Where the Company cannot reach the Buyer (or its agent) within a reasonable period either by telephone, email or SMS, the Company will be able to charge a standing fee of R 1 000.00 per hour up to a maximum of 8 hours or until 6pm, whichever is soonest.
7. DELIVERY OF THE GOODS / SERVICES
7.1. Delivery of the Goods will be effected by the Company to the Buyer at a destination of the Buyer’s choosing or at such other place as is mutually agreed upon.
7.2. Risk in the Goods shall pass on delivery however ownership shall remain expressly vested in the Company at all material times until such time as the Services are complete and or the Goods are installed and paid for in full by the client whichever is applicable.
7.3. In the event that the Company and the Buyer agree to transfer the Goods by a method other than delivery effected by the Company, then the risk of loss or damage of any kind in/of the Goods shall pass to the Buyer on collection by or on behalf of the Buyer from the Company.
7.4. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods must be notified to the Company immediately upon discovery of the said defect. The Company will not be liable for any shortages, non-delivery or damage to the Goods (even if caused by the Company’s negligence) unless same is notified in writing by the Buyer to the Company (together with all relevant details) within 24 hours of the actual delivery or collection, whichever is the soonest.
8.1. Orders accepted by the Company in accordance with the supply of Services may be cancelled no later than 30 days prior to the anticipated date of said Services being rendered and/or Goods delivered, whereby the Buyer shall be entitled to reimbursement of the deposit should it have already been paid.
8.2. Should the Buyer cancel within 30 days prior to the commencement of services to be rendered, the Buyer agrees to forfeit any deposit paid as a reasonable penalty.
9. PERFORMANCE PREVENTED OR HINDERED
The Company shall not be liable for any delay or failure in carrying out its obligations which is caused wholly or partly by reason or act of God, delay in transportation, disease, infection, fire, flood, war, accident, Government action, inability to obtain adequate labour, materials, energy or other cause beyond the Company’s control or that of its employees and/or agents.
Unless expressly agreed to by the parties in writing in advance: –
10.1. For Services rendered or Goods supplied, payment shall be made in full on presentation of the final invoice following the completion of the Services and/or delivery of the Goods, irrespective of whether water was attained or the ground conditions prove to be unsatisfactory.
10.2. Where credit has been agreed in writing, payment shall be made in full by the agreed date and interest will accrue on any sum from the agreed date at the rate of 2% above South African Reserve Business Bank base rate for the time being in force per month calculated on a daily basis but without prejudice to the Company’s rights to receive payments on the agreed due date.
11. CONSEQUENTIAL DAMAGES / INDIRECT LOSSES
11.1. The Company shall under no circumstances be liable towards the Buyer regarding any consequential damages or indirect loss(es) arising out of or in connection with the provision of the Goods and/or Services.
11.2. To this extent, the Buyer shall indemnify the Company in respect of all damage or injury occurring to any person, Company or property and against all actions, claims, demands or expenses in connection therewith for which the Company may become liable in respect of the Goods or Services Rendered.
12.1. Should any Party fail to fulfill any of the terms and conditions of this Agreement (the “defaulting party”) on the due date and remain in default for a period of 7 (seven) days after the other party (the “aggrieved party”) delivers written notice to the defaulting party specifying the breach and demanding that it be rectified, then the aggrieved party may without further notice and without prejudice to his/her/its rights:
12.1.1. claim specific performance by the defaulting party of all its obligations under the Agreement; or
12.1.2. cancel this Agreement and claim damages that may have been suffered as a result of the breach.
13.1. Governing Law
This Agreement shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.
13.2. Cession and Delegation
This Agreement is personal to the Parties. Accordingly, no Party may cede any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Company.
13.3. Whole Agreement
This document contains the entire Agreement between the Parties and no Party shall be bound by any terms, undertakings, representations, warranties, promises or the like not recorded herein.
No relaxation, indulgence or extension of time granted by any Party (the “Grantor”) to the other Party shall be construed as a waiver of any of the Grantor’s rights in terms hereof, or a novation of any of the terms of this Agreement or estop the Grantor from enforcing strict and punctual compliance with the terms of this Agreement.
This Agreement will be binding upon the Parties hereto, their estates, administrators, executors, successors-in-title or permitted assigns.
This Agreement cancels and supersedes all prior negotiations and agreements entered into between the Parties relating to the matters set forth in this Agreement.
Any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction shall, with respect to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
14. APPLICATION OF THE CPA
Should the CPA apply to this Agreement then –
14.1. The Buyer warrants that he/she/it was not induced into this Agreement via direct marketing, and therefore the Agreement is not subject to the right to cool off and it will become effective immediately upon signature of the Quotation.
14.2. The Company acknowledges that it cannot contract out of the provisions of the CPA and, to this end, should the provisions of the CPA apply in respect of any of the Services rendered, the provisions of the CPA will prevail over any provisions contained in this Agreement that may be contrary to such provisions, provided that the Company expressly acknowledges that this clause will only apply in relation to aspects of the Agreement to which the CPA will apply in law.
14.3. Further thereto and in line with Regulation 44 of the CPA, the Company hereby brings to the attention of the Buyer certain restrictive conditions by emboldening them in this Agreement.