OCEANSENSE CC and RED ONE AFRICA (A DIVISION OF OCEANSENSE CC)
GENERAL TERMS AND CONDITIONS
Definitions
1.1 “The Company” means OCEANSENSE CC and RED ONE AFRICA (a division of Oceansense CC) of 45 Gateside Manor, Gateside Ave, Broadacres Ext 9, Johannesburg, South Africa and its successors and assigns
1.2 “The Customer” means the person, (including his successors, personal representatives and permitted assignees.) hiring equipment or purchasing goods or services from the company.
1.3 “The Equipment” means the equipment and all articles, materials, vehicles hired out or supplied by the Company to the Customer or any replacements or substitutes and all accessories and additions made thereto
1.4 “Company Personnel” means the employees, agents, sub-contractors or other representatives of the Company whose services are employed by the Customer whether in conjunction with the hire of equipment or the sale or purchase of goods or otherwise
1.5 “The Contract” means the agreement between the Company and the Customer for the hire of the Equipment or Company Personnel or the sale and purchase of goods in accordance with and incorporating these Terms & Conditions.
Acceptance of Terms and Conditions
2.0 Unless otherwise agreed in writing by a director of the Company any order by the Customer for the supply of Equipment and/or Company Personnel and/or Goods shall be construed as an express acceptance of these Terms and Conditions, which shall prevail to the exclusion of all others.
Hire Period for Equipment/ Duration
3.1 The Company will use all reasonable endeavors to have the Equipment available for delivery or collection on the date requested by the Customer at the time of order but the Company shall not incur any liability whatsoever in the event of any delay.
3.2 In the event that the equipment is lost, damaged or destroyed, the period in respect of which a hire charge shall be payable shall continue until such time as the equipment is recovered and returned to the company or until such time as the equipment is repaired and available for hire (in the case of damage) or until such time as the replacement equipment is available for hire (in the case of equipment replacement) or the replacement value has been paid to the company.
3.3 If the customer, following the commencement of the hire, cancels it or seeks to reduce its requirement for services or equipment, the company reserves the right to charge the customer at sum which reflect the cost of the company entering into the agreement and preparing for the supply of the equipment or services.
Rates and Payment
4.1 During the Hire Period and (without prejudice to any termination of the Contract and any consequent rights of the Company) until redelivery of the Equipment to the Company, the Equipment shall (subject to these Terms and Conditions) be let and hired at the rates set out in the Company’s list of hire rates current at the commencement of the Hire Period – copies of which are available on request. The rates are quoted and all charges are payable in South African Rand.
4.2 The Customer shall pay hire charges weekly in advance and the charges for the initial week or part of a week are due immediately prior to the date of the proposed commencement of the Hire Period.
4.3 The rates and charges in the price list are subject to increase by the Company to cover variations in cost to the Company of goods components materials labour packing loading carriage and insurances.
4.4 Cancellation of booked or reserved equipment and/or services within 24 hours of the time specified for delivery or collection by the Hirer, will incur a cancellation charge up to the maximum of 100% of the rental fee for the equipment concerned.
4.5 All sums due from the Customer to the Company under the Contract shall be increased to include Value Added Tax (or any similar or replacement tax) at the rate for the time being in force.
4.6 The Customer shall be exclusively responsible for all customs and other duties and all related costs and expenses payable on any international transaction.
4.7 The Customer may in certain circumstances and at the Company’s discretion become entitled to a discount on the Equipment hire charges payable under the Contract. Any such discount shall be strictly conditional on the Customer complying with the Company’s payment terms and the Company reserves the right without notice to revoke it any time prior to receiving payment in full.
4.8 The Customer shall pay interest at 2 per cent per month on all sums which may be due from the Customer to the Company under the Contract and remain unpaid, such interest being calculated from the due date until actual payment compounded quarterly and payable as well after as before any judgment obtained in respect thereof.
4.9 For so long as there are any sums due to the Company from the Customer under any contract which remain unpaid the property of the Customer then in or later coming into the custody possession or control of the Company shall be subject to a lien in favour of the Company for such unpaid sums.
4.10 All payments shall be made without deduction and free of bank charges or any other charges to the company at the company’s place of business or to the company’s bank account.
4.11 Voided Payments – Any payment made by or on behalf of a customer which is later voided by the application of any statutory provision shall be deemed not to discharge the Customer’s obligations to the Company and, in such an event, the parties are to be restored to rights and obligations which each respectively would have had if the payment had not been made.
4.12 As long as the contract remains in force the customer shall not be entitled to withhold any payment for any reason whatsoever and in the event of any dispute arising between the parties, the customer shall, pending settlement of or a decision in such dispute, continue to pay all amount on the due dates. Should the customer at any time fail to pay by the due dates, the company reserves the right, without prejudice, to any other rights available to it, to recover such amounts.
4.13 Queries on invoices must be raised within 10 days from the date of origination of the invoice.
4.14 Hire charges or any other charges quoted in US Dollars or any other foreign currency will be converted to Rands by the company at the ruling rates at the time of invoicing for equipment.
4.15 Any dates quoted for the supply of or delivery of equipment, services or goods are approximate only and the Company shall not be liable for any delay in the delivery how so ever caused. Time is not of essence when referred to in any contract or correspondence from the Company.
Inspection and Condition
5.1 The Customer shall inspect and satisfy itself as to the condition and suitability of the Equipment before it is accepted by the Customer and the acceptance of delivery or use of the Equipment (whichever is the earlier) by or on behalf of the Customer shall be conclusive evidence that the Equipment is in satisfactory condition good working order and properly maintained at the date of such acceptance.
5.2 In instances where the equipment and / or goods are to be delivered to the Customer, Delivery – including for the purposes of risk loss – of the equipment to the customer shall be deemed to have taken place when the equipment is placed on a vehicle or with a carrier which is to take it from the Company to the location as specified by the Customer. Notwithstanding the foregoing, in the event that the Customer, its employees, agents, contractors or representatives test and or prep the Equipment at the Company’s premises, the Customer shall bear all risk with respect to any damage to the Equipment or any liability caused as a result of the actions or ommissions of the Customer, its employees, contractors or agents during such testing or prep.
5.3 The Customer is responsible for returning the Equipment at the end of the Hire Period in the same condition it was in at the commencement of the Hire Period. The customer shall make good to the Company all and any loss suffered as a result of loss or damage to the Equipment of whatsoever kind and from whatsoever cause and the lesser of the full replacement cost of the Equipment or of reinstating the Equipment to the condition it was in at the commencement of the Hire Period and (without limitation to the foregoing) the Customer shall pay hire charges for the period during which the Equipment (or its replacement) is unavailable for hire as a result of such loss or damage.
Insurance
6.1 The Customer shall (without prejudice to the liability of the Customer to the Company) keep the Equipment insured for its full replacement value throughout the Hire Period against all risks including third party risks loss or damage by fire theft (whether or not involving forcible or violent entry or exit to premises) and other risks usually covered by comprehensive insurance of products of the type of the Equipment.
6.2 The Customer shall in addition (and without prejudice to the liability of the Customer to the Company) take out and maintain insurance against loss, damage or liability arising in connection with the use or storage of the Equipment and/or loss due to breakdown, accident damage or delay and/or against loss damage or liability arising in connection with acts, omissions or default of Company Personnel in carrying out orders incidental to their duties. Under the Contract such insurance to be for such sum as is stipulated by the Company or in the absence of such stipulation for a minimum of R12 million for public or product liability in respect of one occurrence. Additionally the insurance provided by the Customer must include an extension to include hire charges incurred on lost or damaged equipment whilst it is being replaced or repaired.
6.3 The Customer shall in respect of such insurance, produce to the Company on demand a current insurance policy and a receipt for the last premium paid. Customers agree to inform its nominated insurers where any equipment may be subjected to abnormal or hazardous conditions or possible damage by foreign materials such as salt, water, dust, or sand so that the full and appropriate insurance cover may be effected.
6.4 Such insurance shall be free from unreasonable restrictions or excess and shall (if the Company so elects) be in the joint names of the Company and the Customer and shall be with a reputable insurance company or companies who shall be notified that the Equipment is on hire from the Company.
6.5 The Company shall itself be entitled (but not obliged) at any time and from time to time to effect – at the expense of the Customer – insurance against all or any of the contingencies above referred to and against any other contingency which the Company may in its absolute discretion decide.
6.6 The Customer shall not use or allow the Equipment to be used for any purpose or by any person not permitted by the terms and conditions of the policy of insurance (by whomsoever effected) and shall not do or allow any act or thing whereby such insurance may be invalidated. The Customer shall indemnify the Company against all loss damage or liability what-so-ever or where-so-ever not recoverable under the policy of insurance.
6.7 Notwithstanding anything else in section 6 – Insurance – the Customer shall remain primarily liable to the Company pursuant to the provisions mentioned in this section and the Company may enforce its remedies hereunder directly against the Customer without proceeding against the insurer.
6.8 The Customer shall (within 24 hours of the occurrence) give written notice to the Company of any occurrence, which will or may give rise to a claim being made on any insurance pursuant to this condition. The Customer shall not compromise any claim without the consent of the Company, and shall allow the Company to take over the conduct of negotiations (except in relation to claims of the Customer for personal injuries, loss of use of the Equipment, or loss or damage to the property of the Customer unconnected with the Equipment) and shall at the expense of the Customer take such proceedings (in the sole name of the Customer or jointly with the Company) as the Company shall direct, holding all sums recovered, together with any monies received by the Customer under its policy of insurance, on trust for the Company and paying or applying the same as the Company directs and as herein provided.
Limitation of Liabilities and Indemnities
7.1 The Company shall have no liability under or arising out of breach of or negligence in connection with the Contract either to the Customer or to any other person, firm or company in respect of any claim howsoever arising in connection with the acquisition, use, operation or possession of the Equipment or the acts, omissions or default of Company Personnel including (without limitation) any claim for consequential loss or consequential damage other than liability (if any) of the Company for death or personal injury arising out of negligence on the part of the Company.
7.2 THE CUSTOMER EXPRESSELY ACKNOWLEDGES AND AGREES THAT THE COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE, OR OTHER LOSSES RESULTING FROM THE FITNESS, QUALITY, DESIGN, CONDITION, REPAIR, MERCHANTABILITY, FUNCTIONING, PERFORMANCE OR MALFUNCTIONING OF THE EQUIPMENT, OR OF ITS MATERIAL OR WORKMANSHIP.
7.3 The Customer shall indemnify the Company against all claims or actions by and/or loss or damage to any other person, firm, company or property directly or indirectly connected with the acquisition, use, operation or possession of the Equipment whether such claim, action, loss or damage arises from breach of contract or of third party rights or from the negligence of the Company, its employees, suppliers, subcontractors or agents or otherwise and such indemnity shall continue in force in relation to the subject matter of the Contract notwithstanding that the parties remaining obligated under the Contract shall have been discharged or otherwise terminated.
7.4 The Company will not be liable for any loss suffered by the Customer as a result of trade disputes, difficulties in obtaining Equipment or components from suppliers, or manufacturers or anything otherwise outside the control of the Company.
7.5 The Company will not be liable for damage to the Equipment after delivery to the Customer or to a carrier nominated by the Customer or to any person acting under authority of the Customer either expressed or implied or for any damage to Equipment caused by any delay in delivery, adverse weather conditions or unsuitable storage after the Equipment has left the premises of the Company.
7.6 In no circumstances shall the liability of the Company to the Customer (under the Contract or otherwise) exceed the invoice value of the Contract to the Company.
7.7 Specifically regarding capture and storage of data on DIGITAL equipment, including digital photographic equipment, equipment using ” spinning disc ” or similar technology and all data storage and capture apparatus used in conjunction therewith, the Company shall assume no liability or responsibility, whether direct or indirect, consequential or otherwise, for any loss or damage to the integrity of such data, including that the Company shall not be liable or responsible for recreating all or any portion of any data in the event of data loss or data corruption if loss, damage or the integrity of the data is effected.
7.8 The Company shall not be liable for the loss of any profits or contracts or any other indirect or consequential loss howsoever caused. This includes, but is not limited to, instances where electronic data, including transcoded files, do not render the results as required, expected, stipulated or contracted for by the Customer or its agents or any third party, either within the time period as required or at all.
Termination of Hire and Repossession
8.1 If the Customer shall fail to pay any sum payable under the Contract (or under any other agreement between the Company, or any associated company of the Company, and the Customer) when due (whether demanded or not) or shall commit a breach of the other terms and conditions whether express or implied of the Contract (or of the terms and conditions of any such agreement as aforesaid) or shall do or allow to be done any act or thing which in the opinion of the Company may prejudice or jeopardise the Company’s rights in the Equipment or any part thereof or may in the opinion of the Company affect the Customer’s creditworthiness (including, without limitation, the service on the Company of any legal proceedings), then in each and every such case the Customer shall be deemed to have repudiated the Contract and the Company may thereupon or at any time within 3 months thereafter forthwith terminate the leasing constituted by the Contract.
8.2 If any of the following events shall occur, namely:
8.2.1 if any distress, execution or other legal process shall be levied on or against the Equipment or any part thereof or against any premises where the same may be or against any of the Customer’s goods or other property or the Customer shall permit any judgment against it to remain unsatisfied for 7 days; or
8.2.2 if the Customer, being an individual, shall die, shall suffer an interim order (within the meaning of the Insolvency Act 1986) to be made against him or enter into a voluntary arrangement or suffer the making of a statutory demand or the presentation of a petition for a bankruptcy order; or
8.2.3 if the Customer, being a body corporate, shall enter into any liquidation, shall call any meeting of its creditors or shall have a receiver or receiver manager of all or any of its undertaking or assets appointed, or shall suffer the appointment or the presentation of a petition for the appointment of an Administrator under the provisions of Part II of the Insolvency Act 1986, or shall be deemed by virtue of S123 of the Insolvency Act 1986 to be unable to pay its debts. Then in each and every such case the hire constituted by the Contract shall ipso facto and without notice terminate and no payment subsequently accepted by the Company with or without knowledge of such termination shall in any way prejudice or affect the operation of this clause.
8.3 The Customer shall upon termination under clauses 8.1 or 8.2 above, pay to the Company all arrears of hire charge then due and all other sums accrued due and unpaid at the date of termination, together with interest thereon payable under clause 4.7 hereof; and the cost of all repairs and/or replacements required as at the date of termination; and compensation for the loss suffered by the Company as a result of such termination, such loss being determined by the Company having regard to all relevant circumstances; and any other sums which are or become due to the Company or to which the Company is entitled by way of damages.
8.4 The termination of the hire constituted by the Contract shall not affect any rights of the Company or liabilities of the Customer subsisting at the date of termination.
8.5 On termination of the hire or on expiry of the Hire Period, the Customer shall no longer be in possession of the Equipment with the Company’s consent and shall (unless otherwise agreed with the Company) forthwith return the Equipment to the Company at such address as the Company may direct and at the Customer’s expense and risk. Without prejudice to the foregoing or to the Company’s claim for any arrears of hire charge or damages for any breach by the Customer of the Contract or any other rights hereunder, the Company or its authorised representatives may at any time after such termination or expiry of the Hire Period without notice, retake possession of the Equipment and for such purpose enter upon any premises belonging to or in the occupation or control of the Customer or any premises where the Equipment is stored and the Customer shall be responsible for all costs, charges and expenses so incurred in retaking possession of the Equipment. The Customer shall also bear the reasonable costs incurred by the Company at any time in ascertaining the whereabouts of the Equipment and/or the Customer.
Customer’s Duties
9.1 During the period of the Contract the Customer shall:
9.1.1 keep the Equipment in its custody and control and shall not sell, loan, assign, pledge, encumber, or part with possession of or suffer any lien to be created over the Equipment or any part thereof (unless otherwise agreed in writing by the Company);
9.1.2 ensure that the Equipment is used in a skilful and proper manner and only by persons having the appropriate qualifications and experience and who are familiar with the Equipment and not on any abnormal or hazardous assignment;
9.1.3 take proper care of the Equipment and ensure that it is properly stored and protected from interference and damage from any source whatsoever including inter alia the effect of the elements and interference from strangers.
9.1.4 not take or allow any of the Equipment to be taken out of the borders of South Africa without the
prior written authority of the Company and in the event of that authority being given only on such terms as the Company deems fit.
9.1.5 may examine and test the equipment at the time of rental, the company will provide assistance in this regard, however the company does not guarantee, assume responsibility, or make any representation for the performance or results of the equipment. The customer acknowledges that the company has no particular knowledge of the customer’s specific requirements and although the company is available to advise the customer on selection and use of the equipment, the customer bears full responsibility for its correct choice and use of equipment.
9.1.6 may not sub-hire any equipment to a third party without the express permission of the company and the hirer may not alter the packaging, packing arrangements, or alter or remove the labelling of the equipment in any way whatsoever.
Replacement and Repairs
10.1 The Customer shall at all reasonable times permit the Company and its agents access to the Equipment to inspect, test, adjust, repair, alter or replace the same.
10.2 If at any time during the period of the Contract the Equipment or any part thereof is in need of adjustment or repair or if there are any accidents or incidents involving the Equipment or any part thereof then:
10.2.1 the Customer shall forthwith (at whatever time of night or day) give notice to the Company by telephone followed by confirmation in writing to be received by the Company within five days.
10.2.2 in the case of adjustment or repair for which the company is responsible, the Company shall either carry out the necessary adjustment or repair on site or at its discretion shall arrange for the removal of the Equipment or part or parts thereof to the Company’s premises for adjustment or repair.
10.2.3 in the event of the Company removing the Equipment or any part thereof then the Company may at its option adjust or repair or redeliver the Equipment or such part or parts thereof or determine this Contract forthwith in relation to the Equipment or part thereof or the Company may replace the Equipment or such part or parts thereof in which case the Contract shall continue as if the substituted product or such part or parts had been included in the subject matter of the Contract.
10.2.4 in the case of adjustment, repair or substitution the Company may at its option apply new hire rates current at the date of completion of the adjustment, repair or substitution in place of those set out in the list of rates current at the date of the Contract in respect of any adjusted repaired or substituted product as from the date of such completion.
10.3 If the Equipment’s condition results in damage or the need for adjustment or repair to the whole or any part (other than where due to fair wear and tear) then:
10.3.1 the Customer shall (in addition to its other liabilities set out in the Contract) be liable for all costs of inspection, loading, unloading and transport and other labour costs and replacement parts or other materials in connection with the carrying out of the adjustments or repair the removal of the Equipment or any part or parts thereof and the redelivery thereof or any substitute thereof and for the avoidance of doubt should the Customer request that any repair be carried out on location by Company Personnel then all additional labour costs and all other expenses (including travel and accommodation) shall be paid by the Customer.
10.3.2 hire charges shall continue to be payable as if the Equipment had not been in need of adjustment or repair.
Services of Company Personnel
11.1 During any period when the services of Company Personnel are employed by the Customer then such Company Personnel shall be deemed to be the servants or agents of the Customer and the Customer shall be responsible for and shall indemnify and keep indemnified the Company against:
11.1.1 The compliance with all health and safety legislation in relation to the services performed by the Company Personnel and the place and method of work and in particular (but without limitation) the Customer shall ensure that (a) all Company Personnel working at heights in excess of 2 metres (without guardrails or equivalent protection) or 15 metres (in any event) shall wear safety harnesses which shall be provided by the Customer; (b) drivers of vehicles shall not exceed the maximum hours allowed by statute the Customer paying for a replacement driver and all associated expenses as necessary and the Customer shall provide such facilities and locations as shall enable the Company to comply with all and any similar legislation and regulations which are applicable.
11.1.2 all claims costs expenses proceedings or demands made by a third party in connection with or arising from any acts omissions or default of Company Personnel
11.1.3 all claims costs expenses proceedings or demands made by Company Personnel in connection with or arising from any act omission or default of the Customer under the Contract or otherwise,
11.2 The rates applicable to the hire of the services of Company Personnel will be those set out in the current Equipment Hire Catalogue which is available upon request and which is subject to variation from time to time.
11.3 The period for the hire of services of Company Personnel shall (unless terminated in accordance with these Conditions) continue until the termination date agreed between the Company and the Customer or, if later, the date on which the said services are actually terminated.
Miscellaneous
12.1 The Contract incorporating these Terms and Conditions constitutes the entire understanding and agreement between the parties hereto and any variation shall be binding only if it is in writing signed on behalf of the Company.
12.2 The waiver by the Company of any breach of any term of the Contract or these Terms and Conditions shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any subsequent breach.
12.3 Any notice under the Contract shall be in writing and telexed or sent by facsimile transmission or prepaid first class post or delivered to the address stated herein or to the last known address of the addressee. Service shall be deemed to be effective on the date of the telex or facsimile and in the case of posting on the day following the day of posting and any notice delivered to an address by hand shall be deemed to be effective from the date of such delivery.
12.4 Where there are two or more parties to the Contract as Customer, their liability shall be joint and several. In the Contract and these Terms and Conditions and where the context so admits or requires the masculine shall include the feminine or neuter (and vice versa) and the singular shall include the plural.
12.5 The Contract and these Terms and Conditions and any disputes, which may arise in connection with it, shall be governed in all respects by the Laws of the Republic of South Africa.
12.6 Time is not of the essence of the contract. Any time or date stipulated by the company for delivery is intended as an estimated time only and the company shall not be liable in any way for any loss or damage (including consequential loss) which may result from non-delivery or late delivery of the equipment or from timeous or late delivery of erroneous equipment, nor shall any such delay or error confer upon the customer any right to rescind the contract.
12.7 If any of the company’s obligations in terms of this contract shall be interfered with for any reason whatsoever beyond the contract without the company’s reasonable control, the company shall have the right to suspend or cancel prejudice to the company’s right to recover all the monies as owed to the company at the date of suspension or cancellation.
