The following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
“Contract Documents” : This document read in conjunction with any accepted quotation, contract and/or delivery note from the Owner to the Hirer and where applicable any Credit Facility Documents.
“Hirer” : a person or company that accepts any quotation, contract or delivery note from the Owner and/or pays any amount of money in relation thereto.
“Owner” : Company that has listed its asset on the Khomba Platform to be rented out.
“Owner’s Depot “: any depot belonging to the Owner or the like and any other site nominated by the Owner.
“Owner’s Operator” : any fleet operator(s) supplied by the Owner to the Hirer in terms of The Agreement.
“Parties” : the Owner and the Hirer.
“Fleet” : any machinery, equipment, attachments and/or accessories hired by the Hirer from the Owner per
“Site” : the delivery address for the Fleet as specified in the Contract Documents or as specified in other correspondence between the Parties if not specified in the Contract Documents
“The Agreement ” :the agreement of hire entered into by the Parties as evidenced by the Contract Documents and governed by these Standard Terms & Conditions of Hire
The Owner in consideration of the payment or an undertaking by the Hirer to pay the amount calculated in terms of any quotation, contract and/or invoice and taking into account the Hire Period (hereinafter referred to as the “Hire Charges”), lets to the Hirer and the Hirer hires the Fleet and other services are provided in accordance with the following terms:
The Owner or their duly authorised representative shall at all times be entitled to have access to the Site and Fleet for inspection.
- USE OF THE Fleet
During the period of hire the Hirer undertakes and warrants that they will use or permit the Fleet to be used in a responsible manner and they will:
- only perform or attempt to perform work within the Fleet’s rated capacity and specification; and
- only use the Fleet for the purposes for which it was hired as communicated to the Owner (whether verbally or in writing) and not for work of a more arduous or damaging nature to the Fleet; and
- supply a competent operator for the Fleet licensed where required by law to operate said Fleet, where no operator is provided by the Owner; and
- at their own expense apply for and obtain any permits, licenses, certificates, permission or exemptions which may be required for the entry and use of the Fleet on the Site; and
- check and service the Fleet daily to keep it in good working order and condition; and
- ensure that the Fleet is not contaminated with soil or dirt at any time.
- TYRES & TUBES
- Tyres and tubes are the Hirer’s responsibility and the Owner warrants that the tyres on the fleet supplied will be in good condition.
- The Hirer shall be responsible for the cost of repairing all tyre and tube punctures, cuts, abrasions or other damage during the Hire Period.
- In the absence of a written notification from the Hirer to the contrary within 24 hours of delivery, the tyres on the Fleet shall be deemed to be in good condition.
- SITE CONDITIONS
- Where the ground or surface at the Site is soft or unsuitable for the safe travelling or operation of the Fleet, the Hirer shall be obliged, at its own cost, to provide and lay suitable materials for the fleet to travel or work on site.
- Failure by the Hirer to comply with this obligation will constitute a breach of a material term of The Agreement entitling the Owner to cancel The Agreement alternatively excusing the Owner from performance of its obligations until the Hirer has provided and laid suitable materials.
- RATED CAPACITY
- The Owner undertakes that the Fleet is in good working order, will perform substantially in accordance with the manufacturers rated capacity and specifications and has been serviced and maintained by it.
- Signature by the Hirer of the delivery note is deemed to be acceptance by the Hirer that the aforementioned is true and correct and that the Fleet is fit for the purpose for which it has been hired.
- The Hirer shall immediately report any defects, deficiencies or breakdown to the Owner by the quickest practical means of communication available to the Hirer, and shall forthwith furnish confirmation in writing.
- If the aforementioned has been reported in accordance with this clause, is caused by a defect in the Fleet and the Hirer has complied with all terms of The Agreement then the Hirer shall not be charged for the duration of the downtime. In these circumstances, the Hirer shall cease using the Fleet immediately, failing which the Hirer shall be liable for all loss or damage including consequential loss or damage sustained by the Owner out of such continued use of the Fleet.
- If the Hirer fails to notify the Owner of the breakdown in the Fleet, then the Hirer shall not be entitled to any reduction in the Hire Charges until they notify the Owner of such breakdown.
- A breakdown in any accessories and/or attachments shall not be deemed to be a breakdown or defect of the Fleet and as such will not affect the Hire Charges.
- GENERAL DOWNTIME
There will be no reduction in Hire Charges notwithstanding that the fleet is idle because of inclement weather, normal running repairs including refuelling, changing tyres and repairing punctures or the like, or as a result of any factor beyond the Owner’s control.
- Where the Hirer does not return the Fleet to the Owner on the termination date specified in the Contract Documents (“the Anticipated Termination Date”), either Party shall have the right, after having given 1 (one) full days’ notice of their intention to do so, to terminate The Agreement and for the Owner to retake possession of the Fleet.
- The Hire Period will be deemed to automatically extend beyond the Anticipated Termination Date for additional periods of 1 (one) full day at a time upon the same terms and conditions as specified in the Contract Documents until such time as the Fleet is returned to the Owner’s Depot.
- The Hirer shall pay a penalty of a full days rental fee for days beyond the 1(one) days notice period.
- The Hirer may if necessary remove the Fleet from the carrier during the Hire Period if it does not interfere with the initial hydraulic settings and/or adjustments.
- Under no circumstances may the Hirer adjust the hydraulic settings on the Fleet or the carrier to which it is fitted, as any such adjustments may cause the Fleet to exceed its maximum specified level of performance. Any damage so caused shall be for the Hirer’s account.
The agreed Hire Charges shall be firm and binding on the Parties. However, any variation in the costs of fuel, oil, grease, tyres, tubes, parts, labour, duty or taxation during the currency of the Hire Period confer on the Owner the right to approach the Hirer with a view to negotiating an amended Hire Charge. Should the parties be unable to reach agreement, the Owner shall have the right to terminate The Agreement forthwith.
- Payment of the amount shown as owing by the Hirer on any account rendered by the Owner to the Hirer shall be made by them within the time specified on the invoice and/or statements of account.
- Any amount not paid within the specified time will hereinafter be referred to as an “Overdue Amount”.
Unless otherwise directed in writing by the Owner or through their attorneys, all payments to be made hereunder shall be made free of exchange at the place indicated on the Contract Documents and payment shall not be valid and binding upon the Owner unless so made. Further, the Hirer shall not be entitled to claim a set-off in respect of any amount owing or alleged to be owing by the Owner to the Hirer
Unless otherwise stated, where the Fleet has been provided with diesel or the like (“Diesel”) it will be returned to the Owner’s Depot with the same quantity of Diesel. Failing that, a fuel refilling fee of 20 percent of the cost of the fuel will be levied for any refilling of Diesel required.
- 14. Fleet RISK
The risk of any accidental loss or damage to the Fleet howsoever caused, including theft or attempted theft will:
- The Fleet is at the sole risk of the Hirer from the moment the Fleet is handed to the Hirer until the Fleet and all accessories are returned to the Owner’s Depot;
- where the Owner transports the Fleet, pass to the Hirer when the Fleet has been accepted by the Hirer at the Site, and shall revert to the Owner when the Fleet has been loaded for return to the Owner’s Depot.
- where the Hirer transports the Fleet, pass to the Hirer while in transit or being handled, loaded or offloaded at any place other than the Owner’s Depot and shall remain with the Hirer until the Fleet is returned to the Owner’s Depot.
The risk of the Hirer is not affected by any insurance policy held by the Owner covering either the Fleet or the Hirer’s liability for damage to the Fleet.
- RISK WAIVER:
Where the Contract Documents clearly indicate that a waiver or risk waiver rental rate has been selected by the Hirer for the Fleet then the Owner waives his right to claim damages from the Hirer in relation to said Fleet in terms of clause 14 above and limits his claim to a first amount payable by the Hirer for each independent item of Fleet so affected in accordance with the Contract Documents where such amount cannot be less than R25 000 per item.
- RISK WAIVER LIMITATIONS
For the avoidance of doubt, the waiver in clause 15 will have no effect on the Hirer’s liability in terms of clause 19 below and further, the waiver in clause 15 will only be of force and effect where:
- The Hirer has complied with all of their obligations in terms of The Agreement; and
- The Hirer has paid all Hire Charges due; and
- Payment by the Hirer of the first amount payable per clause 15 above has been made to the Owner within 30 days of the loss or damage occurring;
The Hirer forfeits all benefits under The Agreement if any claim arising out of actual or alleged loss or damage to the fleet be in any respect fraudulent or if any fraudulent means or devices are used by the Hirer or by anyone acting on behalf of the Hirer to obtain benefit under this contract.
- OWNER’S OPERATOR
- Whilst on the site, the Owner’s Operator shall be under the sole and absolute control and supervision of the Hirer, who shall be responsible for all his acts or omissions. The Hirer warrants and undertakes that it will give clear and specific instructions and directions for all work to be performed by the Owner’s Operator. Any negligence, including but not limited to the negligent operation of the Fleet by the Owner’s Operator, as well as any other fault on his part will be imputed to the Hirer.
- The Owner will not be responsible or liable to the Hirer or to any third party and the Hirer indemnifies and holds the Owner harmless for any act or omissions on behalf of the Owner’s Operator (or on the part of the Hirer’s servants, employees or contractors); or for any damage whether direct or consequential of whatsoever nature or howsoever sustained.
- In the event that the Owner’s Operator is indisposed through illness or refuses, fails or neglects to perform his duties then the Hirer shall immediately report same to the Owner in which event the Owner shall provide a substitute operator and the Hirer shall have no other remedy against the Owner arising therefrom.
- Where it is necessary for the Owner’s Operator to reside on or near the Site during the Hire Period, this shall be specified in the Contract Documents and throughout such period the Hirer shall be obliged to provide reasonable accommodation of a standard appropriate to the Owner’s Operator and transport to and from such accommodation to the Site.
- HIRERS LIABILITY:
- The Hirer shall be responsible for all expenses arising from the breakdown, loss of or damage to the Fleet occurring through the Hirer’s negligence, misdirection or misuse which shall include the traveling time and costs of the Owner or their nominee.
- Upon termination of The Agreement, the Hirer will return the Fleet to the Owner in good working order.
- The risk of any damage to any property (other than the Fleet) and/or injuries to or death of any person, property or thing arising out of the use of the Fleet passes to the Hirer during the Hire Period and the Hirer indemnifies and holds the Owner harmless against all claims of any nature whatsoever for any loss or damage aforesaid, including all costs relating to such claims.
- In the event of a third-party instituting legal proceedings against the Owner, then the Owner will be entitled to instruct its own attorneys to oppose or defend such proceedings. Should the Owner proceed as aforesaid then the Hirer indemnifies the Owner for all the Owner’s legal costs reasonably incurred on an attorney and client scale.
- All Liability of whatsoever nature and howsoever arising from the use of the Fleet during the Hire Period is the responsibility of the Hirer.
- CONSEQUENTIAL LOSS
The Owner shall under no circumstances whatsoever, at any time, be liable for any claims for direct, delictual and/or consequential loss or damage which may be sustained by the Hirer; and/or made by any third party whatsoever about or arising out of The Agreement and/or the use of the Fleet and the Hirer hereby indemnifies and holds the Owner harmless against all such claims including the cost of defending such claim or action.
- OCCUPATIONAL HEALTH & SAFETY ACT 85 of 1993 (“The Act”)
- Acceptance of The Agreement constitutes an acknowledgement by the Hirer that it is familiar with the provisions of The Act and the Regulations made thereunder insofar as they relate to fleet and machinery and the Hirer undertakes that to the extent it is an Employer user in terms of The Act, it will comply with the provisions of The Act and its Regulations.
- In the event that the Hirer believes that it does not have the competence to ensure the safe use of the Fleet, the Hirer shall notify the Owner of that belief in writing prior to commencement of The Agreement.
- If the Hirer: defaults in due payment of any amount owing by the Hirer to the Owner, commits any other breach of the Contract Documents, any judgment is obtained against the Hirer, commits an act of insolvency, offers to effect a compromise with their creditors, is placed under judicial management, dies or ceases to carry on business then the Owner shall be entitled (without notice to the Hirer) to immediately retake possession of the Fleet and the Hirer shall immediately restore and give possession of the Fleet to the Owner.
- Should the Hirer dispute the aforementioned, the Owner may apply ex-parte to any competent court for an order enabling the Owner to obtain possession of the Fleet. Notwithstanding the aforementioned, the Owner shall be entitled to recover from the Hirer all monies, due or unpaid or to become due hereunder for the full and unexpired Hire Period in terms of the Contract Documents and/or any extension thereof and all loss or damages sustained by the Owner, in respect of damages, depreciation and/or repairs of the Fleet, and all costs (including attorney and client charges) incurred or made by the Owner in connection with obtaining possession of the Fleet.
The Hirer shall not cede or assign The Agreement nor sell, sublet, mortgage, alienate, pledge nor in any way encumber the Fleet, or lend or part with possession thereof, and shall be obliged to retain the Fleet on the Site and, save for the purpose of returning it to the Owner, shall neither remove or allow it to be removed therefrom without first obtaining the written consent of the Owner.
- 24.WHOLE AGREEMENT
- The Contract Documents record the whole agreement between the Owner and the Hirer and overrides all other agreements purporting to relate to the hire of the Fleet and collateral verbal agreements are expressly excluded. No condition, term or representation not expressed therein shall be binding on the Owner or the Hirer unless expressly provided for therein.
- No variation shall be binding on the Parties unless agreed to by the Owner and Hirer and reduced to writing.
- CAPTIONS/HEADINGS: The captions are intended to facilitate easy reference to the provisions of this document and shall not affect the interpretation of such provisions;
- JURISDICTION: The applicable law shall be the law of the Republic of South Africa. The Owner shall be entitled, at its option, to institute any legal proceedings against the Hirer which might arise out of or in connection with The Agreement in any magistrate’s court having jurisdiction in respect of the Hirer, notwithstanding that the claim exceeds the normal jurisdiction of such court as to the amount.
- DOMICILIUM: The Hirer chooses its domicile as the Site or any email address used when entering into The Agreement or any part thereof and the Owner chooses firstname.lastname@example.org
- LATE PAYMENT FEE: The Hirer agrees that an administrative late payment fee of R2000 will be charged by the Owner to the Hirer upon an Overdue Amount arising.
- INTEREST: The Hirer agrees that interest shall be payable at the maximum prescribed rate for incidental credit agreements as set out in the National Credit Act 34 of 2005 as amended/gazetted from time to time, calculated from the date that the debt becomes due owing and payable to the Owner.
- PRESCRIPTION: The Hirer expressly agrees that no debt owed to the Owner by the Hirer shall become prescribed before the passing of 10 (ten) years from the date the debt becomes due.
- RELAXATION: Any act of relaxation, indulgence or grace granted by the Owner to the Hirer shall not operate as or be deemed to be a waiver by the Owner of their rights hereunder or a novation of The Agreement.
- RULE OF INTERPRETATION: the rule of interpretation which prescribes that, in the event of ambiguity, a contract should be interpreted against the party responsible for its drafting shall not be applied in the interpretation of The Agreement;
- INTERPRETATION: an expression which denotes any gender includes the other genders; the singular includes the plural and vice versa; and a natural person includes an artificial or juristic person and vice versa;