B. STANDARD TERMS AND CONDITIONS FOR THE RENTAL OF GOODS AND SERVICES
1. DEFINITIONS
The following terms shall bear the meanings ascribed to them below:
1.1 the word “Company” shall mean RENTTECH SOUTH AFRICA (PTY) LTD (2008/029015/07), or any of its subsidiary or associate companies;
1.2 the word “Customer” shall mean the natural or legal person who has an account with the Company or are applying to open a new account with the Company.
1.3 the word “Goods” shall mean the plant and/or equipment described on the hire contract.
1.4 The word “Services” shall mean the services as agreed between the parties.
2. AGREEMENT
2.1 The Company shall lease to the Customer who shall hire from the Company Goods against consideration as set out in the hire contract for the period as set out in the hire contract.
3. COMMENCEMENT AND TERMINATION
3.1 The Agreement to lease/hire shall commence on the date as set out in the hire contract and shall continue for the period as set out in the hire contract.
3.2 Should the Customer want to hire the Goods for any additional period, the Customer has to give the Company written notice thereof at least 48 (FOURTY EIGHT) hours prior to the termination of the initial period as set out in the hire contract.
3.3 The agreement may be terminated by either party by given 24 (TWENTY FOUR) continuous hours’ written notice to the other party, where after the Company shall have the right to retake possession of the Goods.
3.4 The period of hire as specified in the hire contract will be deemed to be automatically extended at the end of such period for additional periods of 24 (TWENTY FOUR) continuous hours upon the same terms and conditions and upon payment by the Customer to the owner of hire rates specified on the hire contract, where after the Goods have to be returned to the Company.
3.5 All Goods not returned on termination of the hire agreement for any reason whatsoever, including but not limited to the fact that it be lost or stolen, shall remain on hire until such time as it is returned or the replacement value is paid in full to the Company.
3.6 Any damaged Goods which are unusable shall remain on hire until such time as the agreed charge for the damage is paid in full to the Company.
4. OBLIGATIONS AND UNDERTAKINGS OF THE CUSTOMER
4.1 The Customer shall not cede or assign this agreement, not sublet, mortgage, pledge or in any way encumber the Goods, lend or part with possession thereof and shall be obliged to retain Goods on the site and save for the purpose of returning it to the Company, shall neither remove nor allow it to be removed there from without first obtaining the written consent of the Company.
4.2 The Customer shall service and maintain the Goods. Routine daily maintenance such as checking of oil levels, coolant levels, battery water levels and any other daily routine checks as indicated by the Company shall be the responsibility of the Customer. Any damages as a result of not adhering to the daily maintenance schedule will be for the Customer’s account.
4.3 During the period of hire the Customer undertakes and warrants that he/it will use or permit the Goods to be used only for the purposes for which it was hired as specified on the hire contract or where not specified, as indicated by the Company and not for work which is of a more arduous or damaging nature to the Goods.
4.4 The Customer shall be obliged to notify the Company of any defects, breakdowns or malfunctioning in the Goods immediately telephonically and thereafter in writing within 24 (TWENTY FOUR) hours when such defects or deficiencies become apparent to the Customer failing, which the Customer will continue to be responsible for the agreed hire rate specified on the hire contract for the full period of hire and any damage suffered by the Company arising from such defects or deficiencies as a result of the continued use of the Goods.
4.5 The Customer shall be liable for all expenses, including but not limited to traveling time and costs of the Company or his/its nominee, arising from the breakdown, loss or damage to the Goods occurring through the Customer’s negligence, misdirection or misuse, which shall include but not be limited to the Goods being immobilized, bogged in wet ground, rockfall subsidence and inundation.
4.6 The Customer undertakes, at all times to exercise adequate security and care in respect of the Goods. Should any Goods be stolen or go missing for whatsoever reason, the Customer shall be responsible for the rental of such Goods until returned or fully paid for by the Customer.
4.7 The Customer shall be obliged to insure the Goods against all damages and losses of whatsoever nature, and shall immediately provide proof of the insurance to the Company on request.
4.8 The Customer undertakes to notify the Company in writing within 7 (SEVEN) days of any change in ownership in the Customer’s business, or should the Customer be a company: of its share transactions whereby the majority shareholding is affected, failing which notice the Company may terminate the agreement without further notice to the Customer and retake possession of the Goods.
5. INDEMNITY
5.1 Notwithstanding anything to the contrary contained herein the Company shall not be responsible or liable to the Customer or any other person for any damages of any nature whatsoever (consequential or otherwise) arising out of:
- the Goods being faulty or in a defective state of repair;
- any acts or omission on the part of the Company’s operator while such operator is carrying out the instructions of the Customer; and
- any acts or omissions on the part of the Customer’s operator.
5.2 The Customer indemnifies and holds harmless the Company against all claims of any nature whatsoever for any loss or damage as aforesaid, including all cost relating to such claims, but this indemnity shall not extend to include an act solely attributable to the Company’s operator.
6. OBLIGATIONS AND RIGHTS OF THE COMPANY
6.1 The Company or his/its duly authorised representative shall at all times be entitled to have access to and to inspect the Goods.
6.2 The Company warrants that the Goods, as described in the hire contract, is substantially in good working order and is substantially fit for the purpose for which the Customer has indicated that the Goods will be hired.
6.3 The Company shall under no circumstances whatsoever, at any time, be liable for any claims for consequential loss or damage which may be made by the Customer or any third party whatsoever in connection with or arising out of any agreement between the parties and or the use of the Goods, save when such claims arises from an act solely and directly attributable to the Company’s operator, or where the risk of loss or damage to the Goods while it is in transit or being handled remains with the Company in terms of this agreement.
7. DELIVERY OF THE GOODS
7.1 The signature by the Customer or its representative on the daily time sheet or delivery note, where no operator is supplied, shall be deemed to be acceptance by the Customer that the Goods have performed satisfactorily or in the case of non-operated Goods are expected to perform satisfactorily.
8. PAYMENT
8.1 All amounts due by the Customer to the Company shall be paid within 30 (THIRTY) days of the date of statement.
8.2 Should any amount not be paid on the due date, the Company shall charge interest on such overdue amount at the prime interest rate as quoted by Nedbank from time to time, plus 2%.
8.3 The Customer may not raise any claim, dispute or counter-claim as a reason for deferring payment and the Customer may not withhold any payment or set off any claim or counter-claim which it may wish to raise against the amount due to the Company.
9. BREACH
9.1 If the Customer is in breach of any of the terms and conditions of this agreement, including but not limited to failure to pay statements on due date, or becomes insolvent or wound-up or sequestrated or subject to any winding up procedure, or makes any arrangements with its creditors, or if a receiver or administrator or equivalent is appointed of all or any of its assets or undertaking, or any reorganisation takes place for the purposes of amalgamation or reconstruction, or is placed under business rescue or a debt review, or dies or ceases to carry on business the Company shall be entitled forthwith, without notice to the Customer to cancel the agreement and retake possession of the Goods.
9.2 The Customer shall immediately restore and give quiet possession thereof to the Company and should she/he/it fail to do so the Company may apply ex parte to any competent Court for an order enabling the Company to obtain possession of the Goods.
9.3 Notwithstanding the cancellation of this agreement by the Company or the retaking possession by the Company of the Goods, the Company shall be entitled to recover from the Customer rental for the whole period as stipulated by the hire agreement; all loss or damages (consequential or otherwise) sustained by the Company whether in respect of damages and /or deprecation and/or repairs required to be made to the Goods; and all costs incurred by the Company in connection with obtaining possession of the Goods.
10. POLITICAL, INDUSTRIAL OR SOCIAL DISTURBANCES OR STRIKE
10.1 In the event of the Goods becoming inoperative as a consequence of political, industrial or social riot, disturbance strike or any other stoppage or interference attributable to political or industrial or social unrest or activity, the Customer shall be obliged forthwith notify the Company of such occurrences and that the Goods has become inoperative.
10.2 Only in the events as set out in 10.1 above the Customer shall have the option of returning the Goods to the Company within 24 (TWENTY FOUR) hours of such notification, in which event the agreement shall ipso facto be deemed to be terminated.
10.3 “Returning the Goods” in clause 10.2 above mean: the Customer has to physically hand over the Goods to the Company’s representatives at the Company’s premises.
10.4 Any transport charge incurred in returning the Goods to the Company shall be for the hirer’s account.
10.5 The Customer shall not be liable for any rental if the plant or equipment has become inoperative or is stopped as a consequence of any act directly attributable to the Company’s operator.
11. LANDLORD'S AND MORTGAGEE'S LIEN
11.1 The Customer shall forthwith notify the Company in writing of the name and address of every owner (other than the Lessee) and/or mortgagee of any premises on which the Goods is situated and in the event of any change in owner or mortgagee of such premises, the Customer shall give notice to the Company within 7 (SEVEN) days of the name and address of the new owners, or mortgagee. Furthermore, the Goods shall not whilst this agreement is in existence be moved to any other premises, without the prior written consent of the Company.
11.2 The Customer shall in all instances and at all times ensure to notify any existing or prospective landlord or owner or mortgagee of such premises on which the Goods is situated in writing of the Company's ownership of the Goods and deliver proof of such notices to the Company.
11.3 The Company shall be entitled to give such notice should the Customer fail for any reason to do so, and shall also be entitled to require to obtain from any such owner or mortgagee a written acknowledgement of any such notification.
11.4 The Customer shall, at his own expense, keep the Goods free from any attachment, hypothecation or other legal charge or process and shall not without the prior written consent of the Company, sell, assign, mortgage, charge, encumber or otherwise dispose of, deal with or part with possession of the Goods or any interest therein under this agreement.
11.5 The Customer shall not be authorised to create or permit any lien to arise over the Goods. However, should any lien arise, the Company may discharge such lien and recover the costs of such discharge from the Customer, together with interest thereon at the rate as prescribed in clause 8.2 of such disbursement by the Company to the date the reimbursement is received from the Customer.
11.6 The Customer acknowledges and agrees that the Goods is movable property and shall so remain notwithstanding the means used to erect it or install it on any premises, and the Customer also agrees that there is no intention, nor was there any intention, that the Goods should accede to or become permanently attached to any premises, whatsoever.
12. LEGAL ASPECTS
12.1 All agreements between the parties shall be governed by and construed in accordance with the laws of the Republic of South Africa and the parties hereto irrevocably submit to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg.
12.2 Notwithstanding the aforegoing, the Customer hereby agrees in terms of section 45 of the Magistrates' Courts Act No. 32 of 1944, as amended, that the Company shall at its discretion, be entitled to institute any legal proceedings which may arise out of or in connection with any agreement between the parties in any Magistrates' Court having jurisdiction in respect of such proceedings in terms of section 28 of that Act, notwithstanding the fact that the value of the claim or the matter in dispute may otherwise exceed the jurisdiction of such Magistrates' Court.
12.3 Should the Company institute legal proceedings for whatsoever reason, the Customer agrees to pay all costs occasioned as a result thereof, on the scale as between attorney and client, including collections commission and tracer’s fees if applicable.
12.4 In the event of any cheque or bill being dishonoured on presentation, or in the event of any amount which is payable to the Company becoming overdue, the entire balance payable by the Customer to the Company shall immediately become due and payable, notwithstanding any prior credit arrangements or arrangements for payment in instalments.
12.5 For the purpose of any legal proceedings, a Certificate of Balance signed by any manager of the Company, whose authority it shall not be necessary to prove, indicating the balance due, owing and payable by the Customer to the Company shall be prima facie proof of such indebtedness.
13. GENERAL
13.1 This agreement may be executed in any number of identical counterparts, all of which when taken together shall constitute one agreement. Any single counterpart or a set of counterparts taken together which, in either case, are executed by the parties shall constitute a full original of this agreement for all purposes.
13.2 These Standard Terms and Conditions of Hire of Goods and Services (“the Standard Terms and Conditions”) constitute the sole record of the Terms and Conditions applicable between the parties. Neither party shall be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded in these Terms and Conditions. The Terms and Conditions supersede and replace all prior commitments, undertakings or representations, whether oral or written, between the parties in respect of the subject matter thereof.
13.3 No addition to, variation, novation or agreed cancellation of any provision of these Standard Terms and Conditions shall be binding upon the parties unless reduced to writing and signed by or on behalf of the parties.
13.4 No indulgence or extension of time which either party may grant to the other shall constitute a waiver of or, whether by estoppel or otherwise, limit any of the existing or future rights of the grantor in terms hereof, save in the event and to the extent that the grantor has signed a written document expressly waiving or limiting such right.
13.5 Without prejudice to any other rights the Company may have, any successor-in-title, including but not limited to any executor, heir, liquidator, judicial manager, curator or trustee, of either party shall be bound by these Terms and Conditions.
13.6 Each provision in these Standard Terms and Conditions is severable from all others and if any provision, phrase, sentence, paragraph or clause is found to be defective or unenforceable for any reason, the remaining provisions, phrases, sentences, paragraphs and clauses shall nevertheless continue to be of full force.