1. PERIOD OF HIRE & TERMINATION
If the hire is for a definite period as described in the quotation and if the hirer does not return the plant to the owner at the expiration of such period then the hire of the plant will thereafter continue upon the same terms and conditions as set out herein for an indefinite period, subject to either party being entitled to give the other not less than 24 (twenty four) hours written notice of termination. After termination of this agreement, the owner shall be entitled to retake possession of the plant without prejudice to any other rights, which it may have against the hirer. Notice of termination of the owner’s operator shall not constitute valid notice of termination of the agreement of hire. Where the plant is required to be transported by lowbed or any other means of transport, then unless otherwise specified in the schedule, the hire period shall be deemed to commence when the plant leaves the owner depot or nominated site and these terms and conditions will be deemed as agreed regardless if the purchase order is still forthcoming.
2. ACCESS & SITE CONDITIONS
The owner or its duly authorised representative shall at all times be entitled to have access to site and to inspect the plant. Where the ground or surface at the site is unsuitable for the safe travelling or operations of the plant, the hirer shall be obliged, at its own cost, to provide and lay suitable materials for the plant to travel and work on. Failure by the hirer to comply with this obligation is a breach of material term of the agreement which entitles the owner to cancel the agreement, alternatively excusing the owner from performance of its obligations until such time as the hirer has provided and laid sustainable materials.
3. DEFECTS, BREAKDOWN AND ABSENTEEISM
The hirer shall be obliged to notify the owner immediately and not later than 12 noon the following day of any defects or deficiencies in the plant, or which become apparent, or any operator/driver absenteeism to firstname.lastname@example.org and email@example.com. In such event the hirer shall cease using the plant forthwith failing which the hirer shall be liable for all loss or damage sustained by the owner out of such continued use of the plant. If the downtime has been reported in accordance with this clause the hirer shall not be charged for the duration of the downtime. If the hirer fails to notify the owner in terms of this clause then the hirer shall not be entitled to any reduction in the hire rate.
4. RATED CAPACITY AND USE OF PLANT
The owner undertakes that the plant will perform substantially in accordance with the manufacture’s rated capacity and specifications, and shall be serviced and maintained by the owner in accordance therewith. The hirer acknowledges that the owner has tendered to the hirer the manufacture’s rated capacity and specifications of the plant. Signature of daily timesheets shall be deemed to be acceptance by the hirer that the plant has performed satisfactorily or when no operator is supplied, signature by the hirer of the delivery note shall be deemed to be accepted by the hirer that having regard to the manufacture’s rated capacity specifications, the plant is fit for the purpose for which it has been hired.
5. HIRER’S SUPERVISION OF OPERATOR
Whilst on site the operator shall be under the sole and absolute control and supervision of the hirer who shall be responsible for all of the operators’ acts or omissions. The hirer warrants and undertakes that it will give to the operator clear and specific instructions and directions for all work to be performed by the operator and the plant on site. The hirer shall be obliged and warrants that it will supervise or will provide responsible and competent supervision for the operator whilst the plant is on site during the period of hire. Damages or loss of plant due to negligence will be for the hirer’s account as well as the standing time chargeable at the minimum hire rate. The management of diesel consumption at acceptable levels will be the hirer’s responsibility.
6. SPECIAL CONDITIONS
50% charge shall be levied during downtime as a result of inductions and/or medicals. Any modifications required in order to make the plant employer compliant shall be the responsibility of the hirer. No RADDS operators are allowed to be used on External Plant Hire Equipment without written consent from RADDS. No external operators are allowed to be used on RADDS equipment without written consent from RADDS. Where equipment must be removed from site for repairs and/or maintenance (where the site does not allow such events), transport costs will be for the hirer’s account. The same will apply where specialised equipment and/or services needs to be utilised for the repair to comply with special site restrictions. Each equipment needs to be de-established with all components fitted as when it was delivered to or fitted on site. No components eg. radios are to be removed from the equipment as these installations will be deemed as permanent fixtures. Any missing components will be replaced by the hirer or charged by RADDS. The hirer is responsible for the provision of an appropriate wash-bay with adequate non-corrosive water and with appropriate pressurized tools to clean the equipment effectively from all sides. The hirer is responsible for providing clean, uncontaminated, undiluted, minimum four-micron (4) filtered fuel. Specialised site specific PPE requirements will be for the hirer’s account. All plant hire rates are subject to a surcharge for all cross border operations and harsh applications within South Africa.
7. EXCLUSIONS OF OWNER’S LIABILITY
While the plant is on hire at the hirer’s related site, the owner shall not be responsible or liable to the hirer or to any other person for any acts or omissions on the part of the owner’s operator nor shall the owner be liable for any damages whether direct or consequential of whatsoever nature and however arising occasioned to the hirer or to any other person or property.
The hirer indemnifies and holds the owner harmless against all such claims including the cost of defending any such claim or action. The owner shall not be liable or responsible to the hirer, the hirer’s principle or any third party for any direct or consequential loss or damage suffered by the hirer or any other person arising out of stoppages of the plant through any cause whatsoever, including non-arrival of the plant or any accident or breakdown of the plant at any time whatsoever. The hirer hereby identifies and holds the owner harmless in respect of any such claim made by any other person against the owner arising out of the hire of the plant or from any cause aforesaid.
The hirer shall be liable for ongoing hiring charges at 50% of the full minimum hour rates specified in the schedule not withstanding that the plant is idle as a result of inclement weather, normal running maintenance including fuel, changing tyres and repairing punctures, stoppage due to contaminated fuel, replacement of GET’s, Acts of God/force majeure or as a result of any other factor beyond the owner’s control. The time taken for the induction of operators, arrangement of accommodation, tagging of equipment, conforming to quality and safety requirements or any other special site requirements will not be discounted from any hire charges. Where applicable, no equipment will be accepted as “Off Hired” until such time as the operator has completed his/her exit medical. No discount will be provided in the event that the equipment is idle due to an operator’s exit medical, regardless if the equipment has already been removed from site. The hirer will be responsible for repair costs due to vandalism or abuse as well as plant hire charges during repair downtime. Strike action or any consequences as a result of strike action that results in downtime will not be considered as idle time, but 50% of the full minimum hour payment will apply. Such strike action is not limited to hirer’s employees. No discount for any ancillary plant will be offered in the event of leader item breakdown. Public holidays will be considered as non-working days and will not be charged, with the exception that if the site works, normal hire rates will be charged. Also note that days between public holidays and weekends will be charged and no discounts will be considered should the hirer take an extended weekend. Failure to inform and agree the annual December shutdown period with the owner, a maximum period of fourteen calendar days will be free of charge regardless if the site is shut down for an extended period. Calculation of standing charge shall be standing time (idle time) due to no fault of owner and shall be deemed as be 100% chargeable. The hirer shall not be liable for hire charges when the plant is idle due to unavailability of the operator or due to breakdown of the plant caused by defect in the plant subject to compliance by the hirer.
If the hirer commits any breach of the conditions of this agreement, including failure to pay any amount due by the hirer to the owner, or if any judgement is obtained against the hirer, or the hirer commits an act of insolvency or is placed under judicial management, or ceases to carry on business, then the owner shall be entitled forthwith via facsimile or email notice to the hirer to cancel this agreement and take possession of the plant and the hirer shall immediately restore and give possession of the plant to the owner. Notwithstanding the cancellation of this agreement by the owner or the taking of possession by the owner of the plant, the owner shall be entitled to recover from the hirer all monies due or to become due in terms of this agreement for the full and unexpired hire period, including any extension thereof, together with all cost, expenses and payments including legal cost on a client and attorney scale incurred or made by the owner in connection with the cancellation of the agreement and/or obtaining possession of the plant.
10. PAYMENT NO SET OFF
Payment of the agreed amount shown as due by the hirer on the owner’s invoice shall be made to the owner on presentation of invoice and free of exchange. Interest on overdue accounts will accrue at the prime overdraft rate + 2% charged by the hirer’s bankers from time to time. Other than that provided herein, the hirer shall not be entitled to claim set off in respect of any amount owing or alleged to owe the hirer under any circumstances whatsoever. Rates quoted are exclusive of VAT.
Unless stated to the contrary in the schedule, hire charges payable by the hirer are based on the hours or days reflected on the time sheet. According to whether the hire as stated in the schedule is for a period of days or weeks the operator shall present to the hirer daily or weekly time sheet for signature by or on behalf of the hirer. In the event that the hirer disputes the contents of the daily or weekly time sheets and/or refuse to sign any time sheet, he shall within 24 hours of presentation of the time sheet notify the owner of the fact of his refusal and the grounds thereof. In this regard notification to the operator shall not constitute notification to the owner. Time sheets duly completed by the operator shall be primafacie evidence of the correctness of the content of the time sheet. Signature of any time sheet by or on behalf of the hirer constitutes acceptance by the hirer of the correctness of the content of the time sheet. The hirer warrants that this agreement is entered into that whoever signs time sheets on behalf of the hirer will be duly authorised by the hirer to do so. The hirer must provide copies of the timesheets to the owner in the event of disputes.
12. FINANCIAL & COMMERCIAL CONDITIONS
The payment currency of this agreement will be South African Rands, and all accounts will be settled in this currency. Terms of payment will be strictly 30 days unless otherwise agreed to. Payment will be made according to what has been agreed and signed by an authorized responsible representative of the hirer.
The owner shall only raise an invoice once the amount due is agreed by the hirer, which shall be within 7 days of the hirer receiving the owners pro-forma invoice. Notwithstanding the latter, the hirer in the absence of agreement will make payment against the charges he agrees and the agreed charges will not be delayed. Both parties agrees to resolve any charges in disputes within a period of 14 days.
13. TYRES & SPRINGS– HIRER’S RESPONSIBILITY
Unless otherwise specified herein, the cost of repairing tyres are the hirer’s responsibility and the owner warrants that the tyres on the plant supplied will be in good condition. The hirer shall be responsible for the cost of repairing all tyres or other damages to tyres during the period of hire and shall be responsible for the cost of repair to all cuts or abrasion of tyres while the plant is on site. Unless the hirer notifies the owner in writing to the contrary within 24 hours of delivery of the plant on site, the tyres on the plant shall be deemed to be in a good condition. Replacement cost of tyres due to premature failure and not by any defect will be for the hirer’s account proportional to the percentage life remaining.
14. OWNER’S RATES
In the event of a single shift per day, minimum hours per day is 9.5 hours per day less breakdown hours, but hour meter reading per day will apply in excess of the minimum hours. In the event of a double shift per day, minimum hours per day is 18 hours per day less breakdown hours, but hour meter reading per day will apply in excess of the minimum hours. Weekends will be charged on hour meter readings. Inclement weather will be at 50% of the hire rate. The rates of hire are dry inclusive of operator/driver. Establishment and de-establishment will be for the hirer’s account and a full breakdown with supporting documentation will be provided with the invoice in recovering these costs from the hirer. GET’s assessment shall be done for each unit of plant by the owner upon arrival on site and the hirer representative will inspect and agree the percentage wear. The hirer will be responsible for the cost of GET’s replacements taking into account the latter assessment. Normal wear and tear on tracks and undercarriage is included in the hire rates, but long distance traveling of track-equipment on own power must be agreed prior to movement.
The risk of loss or damage to the plant and/or to property and/or injury to persons, passes to the hirer on arrival or delivery of the plant on site. Such risk remains with the hirer until the plant is off hired. Where the plant is required to be transported by low bed or any other means of transport, excluding self-propulsion, which is provided or arranged by the hirer, risk of loss or damage to the plant whilst in transit or being handled, loaded or off loaded at any place shall be assumed by and shall pass to the hirer at the commencement of the loading operation at the owners depot or nominated site and shall remain with the hirer until the plant has returned to the owner for offloading at its depot or nominated site. In any case where transport is provided or arranged by the hirer whether on commencement or termination of the hire period, the hirer indemnities the owner against any loss of or damage to any property whatsoever or arising from injury to or death of any person caused or occurring whilst the plant is in transit or being loaded, handled or offloaded.
16. OPERATORS ACCOMMODATION
Where it is necessary for the operator to reside on or near the site during the period of this agreement and where it is agreed that the hirer shall supply accommodation, this shall be specified in the schedule and throughout such period the hirer shall be obliged to provide reasonable accommodation of a standard appropriate to the operator and transport to and from such accommodation to the site. No discounts will be entertained due to late shift start-ups as a result of hirer’s transport arriving late or departing early.
17. ARBITRATION CLAUSE
Any difference or dispute between the parties in connection with the interpretation or application of the provision of this Agreement or its breach or termination shall be referred to and be determined by arbitration in terms of this clause. Either party to this agreement may demand that a dispute be determined in terms of this clause by written notice given to the party. The arbitrator shall be agreed upon between the parties. Should the parties fail to agree on an arbitration within 14 days after giving the notice, the arbitrator will be appointed at the written request of either party to the dispute by the chairman for the time of the Association of Arbitration (Southern Africa). The arbitration shall be held in Johannesburg at a date, time and venue to be determined by the arbitrator; in accordance with the prevailing rules for the conduct of arbitrators as published from the Association of Arbitrators (Southern Africa); the arbitration shall be accordance with South Africa Law.
The owner is in consideration of the payment, or an undertaking by the hirer to pay the amount of the hire charges calculated in terms of the hire rates set out in the schedule. No conditions, terms or representation not expressed herein shall be binding on either parties unless reduced to writing and agreed to by the owner and hirer. Any additional work that is not in scope will be charged at an agreed rate between the owner and the hirer. A site instruction / variation order from the owner must be completed and signed by the hirer prior to commencement of the additional work. The owner referred to as RADDS operates as a group of companies namely Hennox 170 cc, RMS Joint Ventures cc, Therascene cc, Alpha Tipper Services, SI Trucking which by default are all individually defined as the “the owner” in accordance with this agreement.