WARRANTY POLICY OF EQUALIZER AND THE DEALER IN RESPECT OF ALL EQUALIZER PRODUCTS
This Warranty Policy details the terms and conditions of the manufacturer's warranty that is given by Equalizer in respect of machinery, devices, equipment, components and other implements that are manufactured by Equalizer and sold to customers within the borders of the Republic of South Africa by Equalizer or its authorised Dealers.
All customers intending to purchase any Equalizer Products should carefully read and familiarise themselves with the terms and conditions set out in this Warranty Policy before purchasing any Equalizer Product.
As an Equalizer Products customer, there are certain paragraphs in these Warranty Policy that require your careful consideration. To assist you, those terms where you are required to assume a risk, which may limit any of your rights, which provide for specific acknowledgements of fact or warranties required by or from you or which limit or exclude the liability of Equalizer, or indemnify Equalizer, appear in bold font below.
Any person who purchases an Equalizer Product, whether directly from Equalizer or from/through a Dealer, will be deemed to have read and understood (including the importance of) all of the provisions in this document, including without limitation, the paragraphs in bold font, and by purchasing an Equalizer Product shall be deemed to have agreed to be bound by this Warranty Policy.
Nothing in this Warranty Policy is intended to unlawfully restrict, limit or avoid any rights or obligations created in terms of the Consumer Protection Act No. 68 of 2008 (as amended), to the extent that such legislation is applicable.
1. INTERPRETATION
In this document, clause headings are used for convenience only and must not be used in its interpretation and, unless the context clearly indicates a contrary intention, the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings, -
1.1 "Affiliate" of a specific Entity ("Specified Entity") means -
1.1.1 each Entity which is directly or indirectly Controlled by the Specified Entity; and
1.1.2 each Entity which directly or indirectly Controls the Specified Entity; and
1.1.3 each Entity which is directly or indirectly Controlled by an Entity referred to in clause 1.2;
1.2 "Control" shall be construed in accordance with section 2(2) (as read with section 3(2)) of the Companies Act No. 71 of 2008 (as amended), and "Controls" and "Controlled" shall be construed accordingly;
1.3 "Dealer" - an Entity that is duly authorised by Equalizer to distribute one or more Equalizer Products directly to end user customers;
1.4 "Delivery Inspection Card" - the document that was signed by and/or on behalf of both You and the representative of Equalizer or the Dealer, as the case may be, delivering the Warranted Product –
1.4.1 confirming delivery of the Warranted Product to Your nominated delivery premises; and
1.4.2 confirming that, upon delivery, the Warranted Product was inspected jointly by You (or your nominated representative on Your behalf) and the relevant representative of Equalizer or the Dealer, as the case may be, and found to be in good working order and condition; and
1.4.3 recording the Warranty Start Date;
1.5 "Equalizer" - collectively, Equalizer AG Proprietary Limited (registration number 2000/013803/07), a private company with limited liability, duly incorporated in the Republic of South Africa;
1.6 "Equalizer Product/s" – shall have meaning ascribed to that term in clause 2.4.1 below;
1.7 "Force Majeure" - an act of God, strike, fire, riot, flood, explosion, interruption in electricity supply, war (whether declared or not), embargoes, export control, international restrictions, shortage of transport facilities, any order of international authority, any court order, any requirements of any authority or other competent local authority, or any other circumstance whatsoever which are not within the reasonable control of Equalizer;
1.8 "Invoice" – the invoice issued by Dealer or Equalizer, as the case may be, to the purchaser of a Warranted Product and in respect of which the terms of the applicable Quotation (including the Warranty Policy) are deemed to have been incorporated by reference;
1.9 "Original Purchaser" – the Person specified in the Invoice as the purchaser of the Warranted Product;
1.10 "Person" or "Entity" - includes any natural or juristic person, association, business, close corporation, company, concern, enterprise, firm, partnership, joint venture, trust, undertaking, voluntary association, body corporate, and any similar entity, in any jurisdiction;
1.11 "Quotation" – the quotation to which this Warranty Policy is attached or in which this Warranty Policy is incorporated by reference;
1.12 "Warranty Policy" - this policy document, together with any annexures, as amended or substituted from time to time; and
1.13 "Warranted Product" - the Equalizer Product detailed in the Quotation to which this Warranty Policy is attached, having the specifications detailed in the Warranted Product Specifications attached to the Quotation and accepted by You, in respect of which an Invoice is subsequently issued;
1.14 "Warranted Product Specifications" - the document attached to the Invoice, which document details the specifications approved by You and in accordance with which the Warranted Product has been manufactured by Equalizer; and
1.15 "You" - the Person specified in the Invoice that purchases the Warranted Product and is accordingly entitled to exercise the rights stipulated in this Warranty Policy in respect of the Warranted Product as at the Warranty Start Date and any Person who, by cession, acquires the right to exercise such rights at any time during the Warranty Period, and the terms "Your" and "Yourself" will bear corresponding meanings.
2. GENERAL PROVISIONS
2.1 When does Your warranty cover start and end?
2.1.1 The warranties described in this Warranty Policy are provided by Equalizer, in respect of the Warranted Product, to the Original Purchaser and any Transferee (as contemplated in clause 2.1.2) for the period –
2.1.1.1 starting on the date on which the Warranted Product is delivered to the premises nominated by the Original Purchaser in the Invoice ("Warranty Start Date"), as recorded on the Delivery Inspection Card; and
2.1.1.2 ending on the date which falls 12 (twelve calendar months) after the Warranty Start Date ("Warranty End Date"), being the "Warranty Period".
2.1.2 Should You at any time during the Warranty Period sell or transfer ownership of the Warranted Product to any other Person ("Transferee"), the rights granted to You under this Warranty Policy, including the right to request any Warranty Service (as defined in clause 2.2.2), will be transferred to the Transferee together with ownership of the Warranted Product, provided that You have given written notification to Equalizer or a Dealer of Your intention to sell or transfer ownership of the Warranted Product before the sale or transfer takes place.
2.1.3 The warranties provided in this Warranty Policy endures for the Warranty Period only. If You are a Transferee, the warranties in this Warranty Policy will continue to apply but only until the expiry of the Warranty Period.
2.2 What are You covered for under this Warranty Policy?
In terms of this Warranty Policy, -
2.2.1 Equalizer warrants that the Warranted Product, including its original constituent components ("Warranted Components"), will as at the Warranty Start Date and for the duration of the Warranty Period, conform to the Warranted Product Specifications and be free from damage, defects and errors in materials and workmanship under normal application, installation, usage and service conditions ("Product Warranty") (please note that severe rocky soil is not classified as normal operating conditions in respect of the closing and depth control wheels of planter units); and
2.2.2 if, at any time during the Warranty Period and subject to the remaining provisions of this Warranty Policy, the Warranted Product or any Warranted Component malfunctions or fails during normal use due to a manufacturing defect in factory supplied materials or factory workmanship, and provided that -
2.2.2.1 You have operated and maintained the Warranted Product in a proper manner, as directed in the operator's manual issued by Equalizer (and provided to you by Equalizer or a Dealer) in respect of, and provided to You together with, the Warranted Product ("Operator's Manual"). A copy of the Operator's Manual can be accessed at www.equalizer.co.za.
2.2.2.2 You have submitted a valid claim under the Product Warranty and made the Warranted Product or relevant Warranted Component in question available to Equalizer or an authorised Equalizer Dealer in the manner and within the timeframe set out in clause 4,
then Equalizer will, without charge, repair, replace or adjust, at its option, such malfunctioning or failing Warranted Components ("Warranty Service").
2.2.3 All Warranty Service performed under this Warranty Policy –
2.2.3.1 must be performed by a Dealer or service centre authorised by Equalizer to sell and/or service the Equalizer Products that are similar to the Warranted Product, which will use only new or remanufactured parts or components manufactured or otherwise approved by Equalizer; and
2.2.3.2 will, subject to clause 3, be performed without charge to You for parts and/or labour, however, You will be responsible, for any premium charged for overtime labour provided at Your request and for any service and/or maintenance not directly related to any defect covered under the Product Warranty.
2.3 What are Your responsibilities under this Warranty Policy?
It is Your responsibility to –
2.3.1 familiarise Yourself with this Warranty Policy and the Operator's Manual;
2.3.2 use, maintain and care for the Warranted Product in accordance with the use, maintenance, safety and operational guidelines set out in the Operator's Manual, including, without limitation, always inspecting the Warranted Product and the seed/fertiliser application before and regularly during use to ensure correct operation and adequate application accuracy and ensuring the uninterrupted and continuous application and implementation of the correct flow rate in respect of any fluid fertilizer and similar items used, as required and/or specified for the purpose for which the Warranted Product is being used; and
2.3.3 ensure that You keep the original Delivery Inspection Card in a safe place as it will serve as the strongest evidence of the Warranty Start Date for purposes of submitting Warranty Claims (as defined in 4.3). TAKE NOTE THAT NEITHER EQUALIZER NOR ANY DEALER SHALL HAVE ANY OBLIGATION WHATSOEVER UNDER THIS WARRANTY POLICY UNLESS THE DELIVERY INSPECTION CARD WAS SIGNED BY BOTH THE ORIGINAL PURCHASER AND ON BEHALF OF EQUALIZER OR THE DEALER, AS THE CASE MAY BE, AND IS PROVIDED IN SUPPORT OF ANY WARRANTY CLAIM.
2.4 Equalizer reserves the right to –
2.4.1 make changes in, additions to or continually improve the planters, implements, machinery, equipment, components and other implements that it manufactures ("Equalizer Products") or the specifications thereof without incurring the obligation to make the same or similar changes or additions to Equalizer Products previously manufactured or sold; and
2.4.2 provide post-warranty repairs, conduct recalls or extend the warranty coverage period for certain Equalizer Products, or a class of Equalizer Products, at its sole discretion and the fact that Equalizer (whether directly or through one or more of its authorised Dealers) has provided such measures to or in respect of a particular Equalizer Product or class of Equalizer Products in no way obligates Equalizer to provide similar accommodations to other owners of similar Equalizer Products (including the Warranted Product).
3. WHAT IS NOT COVERED IN THIS WARRANTY
YOU SHOULD CAREFULLY READ AND FAMILIARISE YOURSELF WITH THIS CLAUSE 3 AS IT CONTAINS A NUMBER OF EXCLUSIONS AND LIMITATIONS REGARDING THE SERVICES AND COMPONENTS FOR WHICH, AND THE CIRCUMSTANCES IN WHICH, WARRANTY SERVICE WILL NOT BE PROVIDED.
The Product Warranty does not cover any –
3.1 breakage or damage caused by –
3.1.1 misuse of the Warranted Product or any failure to implement and adhere to the instructions and guidelines (including in respect of safety, operation of the Warranted Product, etc.) provided by Equalizer, whether in terms of the Operator's Manual or otherwise, including, without limitation, using contaminated or improper oil;
3.1.2 any failure to implement the maintenance guidelines provided in the Operator's Manual or otherwise not adhering to and not undertaking reasonable and proper maintenance of the Warranted Product;
3.1.3 theft, vandalism, accidents, collisions or objects striking the Warranted Product or other acts of Force Majeure;
3.1.4 alterations or modifications of the Warranted Product or any Warranted Component, including the body, chassis, electronics or their components, or otherwise tampering with the Warranted Product or any Warranted Component, after the Warranted Product is delivered to Your nominated premises;
3.1.5 installing or using one or more parts that are not manufactured or otherwise approved by Equalizer; or
3.1.6 fair wear and tear, use and/or the environment, including, but not limited to, surface rust, deterioration, damage of paint, trim and other appearance items that result from use and/or exposure to the elements;
3.2 hydraulic leakages or failure caused by contaminated oil or incorrect pressure control of the Warranted Product;
3.3 transport or storage of the Warranted Product after it is delivered to Your nominated premises;
3.4 breakage of the hydraulic fan motor as a result of the incorrect setup of the Warranted Product or the incorrect attachment to the Warranted Product of any other item, including but not limited to a tractor or other vehicle;
3.5 parts or labour needed to maintain the Warranted Product and the replacement of parts due to normal wear and tear, including but not limited to -
3.5.1 oil, lubricant or other fluids;
3.5.2 oil and/or air filters;
3.5.3 bearings of any nature;
3.5.4 shears/tines;
3.5.5 wear plates or components which make contact with the ground;
3.5.6 cutting wheels or coulters;
3.5.7 seed plates in the vacuum seed meters; and
3.5.8 seals in the vacuum seed meters;
3.6 wear on, or damage to, tyres on the wheel sets of the Warranted Product's frame, including but not limited to, tire damage (cuts, bruises, punctures etc.) from road hazards;
3.7 zero-max gearboxes on the fertiliser meters and all parts contained therein; or
3.8 any incidental or consequential damages or injuries of any nature whatsoever, including but not limited to loss of crops, loss of profits, rental or substitute implements or other commercial loss.
4. SECURING WARRANTY SERVICE AND REMEDIATION PROCEDURE
4.1 Any claims under the Product Warranty or requests for Warranty Service must be notified to Equalizer or an authorised Dealer within the Warranty Period.
4.2 If, at any time during the Warranty Period, You want to make a claim in respect of the Product Warranty, You must, within the Warranty Period and in compliance with clause 4.1 -
4.2.1 report such defect, damage and/or error, in writing, to Equalizer or an authorised Dealer, providing a detailed description of the relevant defect, damage and/or error, including any available supporting documentation (e.g. photographs) to enable Equalizer to evaluate the defect, damage and/or error, as soon as You become aware thereof and in any event within 14 days of the defect, damage and/or error becoming known to You; and
4.2.2 present evidence of the Warranty Start Date (the original Delivery Inspection Card will serve as the strongest evidence of the Warranty Start Date).
4.3 Equalizer will, either directly or through one or more of its Dealers, and within 14 days (or such longer period as may be required by Equalizer) of receiving Your written notice in terms of clause 4.2 and the Warranted Product being made available to Equalizer in terms of clause 4.3.1 ("Warranty Claim") -
4.3.1 identify the cause of the defect, damage and/or error and determine whether same falls within the scope of the Product Warranty. For such purposes, You undertake to make the Warranted Product and/or relevant Warranted Component available to Equalizer or a Dealer or service centre nominated by Equalizer upon request by Equalizer); and
4.3.2 give You notice (whether oral or written) to the outcome of its investigation and, in the event that Equalizer concludes that the defect, damage and/or error falls within the scope of the Product Warranty, inform You of the procedure and schedule for repair, replacement or adjustment of the Warranted Product or such defect, damage and/or error.
4.4 All Warranty Claims are dealt with on merit and Equalizer will do its utmost to ensure customer satisfaction with regards to Warranty Claims, provided that the claims and requests are reasonable.
4.5 The procedure for the repair, replacement or adjustment of the Warranted Product or a defect, damage and/or error may entail either the repair of the defective Warranted Component or the replacement of the same with an equivalent non-defective component. The chosen procedure will be at Equalizer's sole and absolute discretion.
4.6 Any new Warranted Component supplied, and any Warranted Component repaired or replaced, by Equalizer under a Warranty Claim in terms of this clause 4 will be covered by the same Product Warranty as the Warranted Component that was the subject of the claim for the remainder of the Warranty Period applicable to the original Warranted Component.
4.7 In the event that Equalizer replaces any defective Warranted Component with a new component in terms of clause 4.5, Equalizer reserves the right to, in its discretion, deliver a component which differs from the original defective Warranted Component (e.g. in the event in the event that Equalizer has discontinued production of the original defective Warranted Component that is the subject of the Product Warranty claim) provided that such other component is compatible with the Warranted Product.
5. LIMITATIONS AND DISCLAIMERS
5.1 Notwithstanding anything to the contrary that may appear elsewhere in this Warranty Policy, nothing in this Warranty Policy is intended to unlawfully restrict, limit or avoid any rights or obligations created in terms of the Consumer Protection Act No. 68 of 2008 ("CPA"), to the extent that such legislation is applicable, including but not limited to, –
5.1.1 Your right to safe, good quality goods, as contemplated in section 55 of the CPA;
5.1.2 the implied warranty of quality prescribed by section 56 of the CPA; and
5.1.3 the warranty on repaired goods provided for in section 57 of the CPA.
5.2 The warranties in this Warranty Policy are the only express warranties applicable to the Warranted Product. Equalizer does not assume or authorise anyone, including, any Dealer, to assume for it any other obligation or liability in connection with the Warranted Product or the warranties in this Warranty Policy or provide any other warranty, representation or undertaking in respect of the Warranted Product.
5.3 No person, including any Equalizer employees or Dealers (or their employees), may modify or waive any part of this Warranty Policy. Any waiver or modification of this Warranty Policy will only be effective and binding on Equalizer if recorded in writing and signed by the managing director of Equalizer.
5.4 Subject to clause 5.1 and except as provided for in this Warranty Policy, there are no other warranties or representations whether express or implied in respect of the Warranted Product, including but not limited to, any implied warranty of merchantability, quality, freedom from defect or fitness for a particular purpose.
5.5 Your only remedies under this Warranty Policy, and any implied warranties, are those set out in this Warranty Policy and are limited to repair, replacement or adjustment of defective parts. This exclusive remedy will not be deemed to have failed its essential purpose so long as Equalizer, whether directly or through its Dealers, is willing and able to repair, replace or adjust defective parts in the prescribed manner. Equalizer's liability, if any, will in no event exceed the cost of correcting manufacturing defects as herein provided and upon expiration of the Product Warranty, any such liability will terminate.
5.6 To the extent that any legislation or law implies any term or warranty or prohibits provisions in a contract from excluding or modifying the application of, exercise of or liability under, that term or warranty, the liability of Equalizer and/or Your Dealer for breach of that term or warranty is limited, at the discretion of Equalizer, to
5.6.1 the repair, replacement or adjustment of the defective parts; or
5.6.2 the payment of the cost of replacing or repairing the relevant goods or of acquiring equivalent goods.
5.7 Without limiting clauses 5.4 to 5.6 (both inclusive), Equalizer and/or Your Dealer are not responsible or in any way liable to You or any third party for any –
5.7.1 incidental or consequential damages, including but not limited to, any time or income that You lose, any inconvenience You might be caused, fuel, telephone, travel, meals or lodging, the loss of personal or commercial property or any loss of revenue;
5.7.2 loss or damage that You or any third party may suffer; or
5.7.3 loss or damage caused by delay in delivery or furnishing of any products or services.