TERMS & CONDITIONS Alf’s Tippers CC Terms and Conditions Registration no.: 1993/001995/23 VAT no.: 4540144542
INTRODUCTION
1. THESE ARE IMPORTANT CONDITIONS LIMITING THE HIRER’S RIGHTS AND SHOULD BE READ CAREFULLY.
2. Words imparting the singular include the plural and vice versa, any gender includes the other gender and “person” includes artificial legal entities.
3. The headings of clauses are inserted for ease of reference only and do not affect the interpretation or construction of these Terms and Conditions.
4. “Agreement” means Alf’s Tippers CC’s quotation and this written document.
5. The “Hirer” means the party on whose behalf the Agreement is concluded.
6. The Hirer’s placing of an order constitutes the Hirer’s acceptance of Alf’s Tippers CC’s quotation, including these Terms and Conditions.
7. Alf’s Tippers CC reserves the right to, from time to time, amend the quotation and these Terms and Conditions. The Hirer will be bound by all current Terms and Conditions, and it is the Hirer’s responsibility to be familiarised with same on a regular basis.
8. The “Goods” means trucks, plant and earthmoving equipment with Operators.
9. The quotation and these Terms and Conditions are a recordal of all the terms and conditions, provisions, arrangements, representations and stipulations made by and between the parties in respect of the hire of the Goods. In the event of there being a conflict between the terms and conditions contained in an order and this Agreement, this Agreement shall prevail.
10. The Hirer herewith declares not having been induced to enter into any agreement by any undertaking, promise, warranty or representation not recorded in this Agreement.
11. If any of the terms and conditions contained in this Agreement are not acceptable to the Hirer, Alf’s Tippers CC is to be notified in writing, immediately upon presentation of quotation or tax invoice (or as soon thereafter as reasonably possible), whichever occurs first, in order to provide Alf’s Tippers CC with an opportunity to agree to any amendments or to cancel the Agreement, collect the Goods and exercise any rights in terms of the law.
12. The “Site” means the Hirer’s working site.
DELIVERY AND ACCEPTANCE
13. All risk of loss, damage, destruction or otherwise in and to the Goods, shall pass to the Hirer on delivery.
14. The Hirer undertakes to inform Alf’s Tippers CC in writing of any defects in the condition, state or quality of the Goods within 24 (twenty four) hours after receipt of the Goods by the Hirer, failing which it shall be deemed that the Goods were received by the Hirer, fit for purpose and in good order and repair.
15. Alf’s Tippers CC shall not be liable for any damage or loss (including consequential loss) resulting directly or indirectly from any delay in delivery of the Goods, or for the condition of the Goods or lack of fitness of the Goods for the purpose intended.
16. The Hirer acknowledges and warrants that: (a) neither Alf’s Tippers CC nor anyone on its behalf has given any warranties, guarantees or undertakings of whatever nature as to the condition of the Goods or their fitness for any purpose whatsoever; (b) it is aware that the hire of the Goods is “voetstoots” in all respects and that it shall have no claim of whatever nature (whether for consequential damages or otherwise) arising out of the use of the Goods or any defects therein against Alf’s Tippers CC, nor shall the Hirer be entitled to cancel the Agreement or in any way avoid or postpone any of its obligations hereunder if, after delivery, the Goods are unacceptable to the Hirer for any reason.
17. The Hirer shall have no claim whatsoever against Alf’s Tippers CC in the event of late delivery or non-delivery of the Goods or any of them, save that in the case of non-delivery the Hirer shall be entitled to a refund of any payments made in respect of such of the Goods as are not delivered subject to the Hirer reimbursing Alf’s Tippers CC to its reasonable satisfaction for all costs incurred or losses suffered by Alf’s Tippers CC.
18. The Hirer has selected the Goods and the Hirer shall, at its own cost, procure and take delivery of the Goods from Alf’s Tippers CC or its duly authorised representative at such place as Alf’s Tippers CC may determine.
19. The Hirer shall at its own costs procure and make available for return, the Goods to Alf’s Tippers CC or its duly authorised representative at such place as Alf’s Tippers CC may determine.
PERIOD OF HIRE
20. This hire shall commence on the Delivery Date and automatically expire on the Return Date.
21. Although this Agreement endures for the period of the hire, the right to retain the Goods is a right that is subject thereto that the Hirer complies with its obligation in respect of payment.
OWNERSHIP
22. Alf’s Tippers CC remains the owner of the Goods at all times and the Hirer has no right in the Goods other than the limited right to possess the Goods whilst the Agreement is in force.
23. The Hirer does not have a right to possession in the event of termination of the Agreement (even if disputed) or whilst the Hirer is subject to a process of debt review, business rescue or winding up. This right to possession will terminate automatically should the Hirer enter into a process of debt review, business rescue or winding up.
FINANCIAL INFORMATION
24. The Hirer understands and acknowledges that Alf’s Tippers CC has concluded this Agreement by virtue of the representations contained in the financial information provided by the Hirer to Alf’s Tippers CC alternatively, representations contained in the Hirer’s Credit Bureau information. The Hirer furthermore acknowledges that its financial position may vary from time to time. Such variance may increase Alf’s Tippers CC’s risk, entitling it to terminate the Agreement notwithstanding the duration of the hire.
25. As a consequence, the Hirer undertakes to provide Alf’s Tippers CC within 48 (forty eight) hours from being called upon to do so, with the following financial information, which request may be addressed to the Hirer at any time. The financial information that the Hirer should provide to Alf’s Tippers CC on demand is: (a) its latest audited financial statements (not older than 14 (fourteen) months) (b) management accounts for the past 6 (six) months (c) copies of all its bank statements for the last 6 (six) months (d) a list of its outstanding debtors and creditors (e) details of all contracts it has concluded with third parties (f) copies of all resolutions passed by the Hirer’s Board of Directors and Shareholders (or members).
26. The Hirer shall be obliged to inform Alf’s Tippers CC should there be a material negative change in its financial position, or if its financial position has deteriorated since the conclusion of this Agreement.
27. Alf’s Tippers CC has the right, after having considered the financial information, to terminate this Agreement if in its view the Hirer’s financial position has significantly deteriorated since the conclusion of the Agreement. This right to terminate is a right granted to Alf’s Tippers CC in its sole and exclusive discretion and its election to terminate is final.
28. In the event of Alf’s Tippers CC electing to terminate this Agreement, it shall do so without having to advance reasons therefor, whereafter it may call upon the Hirer to return the Goods within 2 (two) days from being called upon to do so.
29. Should the Hirer dispute this right, it shall be obliged to return the Goods to Alf’s Tippers CC pending a final determination of this right.
- RATES AND PAYMENTS
30. All rates are as specified in the quotation or tax invoice and are exclusive of value added tax (“VAT”), ground engagement tools (“GET”) and fuel charges.
31. During inclement weather, 50% of the charge for the hire is payable.
32. A minimum of 9½ hours per day will be billed when the Goods are on Site.
33. A minimum of 180 hours per month will be billed when the Goods are on Site.
34. The Hirer shall punctually pay to Alf’s Tippers CC the amounts specified in the tax invoice upon presentation thereof.
35. All payments in terms of the Agreement shall be made without deductions or set-off of any kind and shall be free of exchange, bank costs and other charges.
36. The Hirer shall not be entitled to withhold any payment by reason of the fact that the Goods are defective, have been damaged, or cannot be operated or used, or have been lost or stolen, and in the event of any dispute arising between the parties, the Hirer shall, pending settlement of or a decision in such dispute, continue to pay all amounts payable in terms hereof on their due dates.
37. Alf’s Tippers CC reserves the right to vary the rate of hire to compensate for any variation in the inflation rate.
38. All payments due by the Hirer to Alf’s Tippers CC in terms of the Agreement shall be made in Elsburg, alternatively Bedfordview.
39. Alf’s Tippers CC may appropriate any payment made by or on behalf of the Hirer to any indebtedness of the Hirer to Alf’s Tippers CC whether in terms of the Agreement or any other cause. This right of allocation is a right given by the Hirer to Alf’s Tippers CC, which may be exercised in Alf’s Tippers CC’s sole discretion.
40. As long as the Agreement remains in force, the Hirer shall not be entitled to withhold payment for any reason whatsoever and the Hirer shall not be entitled to set-off against any payments payable in terms hereof any present or future claim which the Hirer may have against Alf’s Tippers CC from whatsoever cause.
41. The Hirer shall pay all payments, taxes, charges, toll fees, accommodation charges, fines and impositions which may from time to time be or become payable in respect of the Goods and/or Operators and shall produce on demand, all receipts for such payment.
42. If the Hirer disputes any unit quantities reflected on the tax invoice, Alf’s Tippers CC is to be notified in writing within 30 (thirty) business days from date of presentation of tax invoice, accompanied by supporting documents, reflecting the alleged unit quantities (with reference to the Goods, date and time associated with the hire), failing which it will be deemed that the Hirer consented to the unit quantities reflected on the tax invoice.
ALF’S TIPPERS CC’S RIGHT TO POSSESSION OF THE GOODS ON BREACH
43. In the event of the Hirer failing to pay any amount/s payable to Alf’s Tippers CC in terms of the Agreement, properly and on the due date, or committing a breach of any of other provisions of this Agreement, Alf’s Tippers CC may, without prejudice to any other right it may have in terms of the of the Agreement or otherwise in law, demand delivery of the Goods from the Hirer, who undertakes to immediately deliver the Goods to Alf’s Tippers CC.
44. Alf’s Tippers CC may, at its election, terminate this Agreement and may in any event approach the Gauteng Local Division of the High Court, Johannesburg (to whose jurisdiction the Hirer consents) or any other High Court, or the Magistrates’ Court for an order to have the Goods returned to Alf’s Tippers CC.
TERMINATION ON TOTAL LOSS
45. If the Goods are lost or stolen or if the Goods are damaged or destroyed and Alf’s Tippers CC, in its sole discretion, determines that the Goods are incapable of economic repair, Alf’s Tippers CC shall be entitled to cancel the Agreement.
46. The Agreement shall terminate forthwith in respect of such Goods hired thereunder as are lost or stolen and are not recovered within such period as may be determined by Alf’s Tippers CC; or are destroyed or damaged beyond repair. Such termination shall be without prejudice to any rights of Alf’s Tippers CC, which may have accrued prior to such termination. The Goods shall be deemed to be destroyed or damaged beyond repair only if Alf’s Tippers CC notifies the Hirer in writing that in Alf’s Tippers CC’s opinion the Goods have been destroyed or damaged beyond repair.
CERTIFICATE OF INDEBTEDNESS AND VALUATION
47. At any time either during the currency of this Agreement or thereafter, a Certificate or affidavit under the hand of any member or manager of Alf’s Tippers CC or other person authorised by Alf’s Tippers CC (whose appointment or authority it shall not be necessary to prove) as to any indebtedness of the Hirer, shall be prima facie evidence of the Hirer’s indebtedness to Alf’s Tippers CC for the purpose of any legal proceedings that may be instituted against the Hirer. A Certificate or affidavit as envisaged in this clause shall entitle Alf’s Tippers CC to obtain judgment by default against the Hirer, even though the amount referred to in such a Certificate or affidavit may otherwise constitute illiquid damages.
48. The Hirer represents and warrants to Alf’s Tippers CC as follows: (a) the Hirer is a company/close corporation/trust or sole proprietor duly constituted and validly existing as an independent legal entity under the laws of the Republic of South Africa and is fully qualified and empowered to own and carry on its operations and activities; (b) the Hirer has the requisite power to enter into and perform its obligations under the Agreement and such entry into and performance have been authorised by appropriate corporate or other actions; (c) no litigation, arbitration or other legal proceedings before any court or of any judicial, administrative or government authority, arbitrator or other body is taking place, pending, or, to the best of the knowledge, information and belief the Hirer, threatened against the Hirer or against any of its assets which might have an adverse effect on the financial condition, business, assets or prospects of the Hirer; (d) the Hirer is and will at all times be compliant with all statutes applicable to taxation.
49. The representations and warranties made by the Hirer herein shall survive until all obligations of the Hirer under the Agreement have been finally discharged.
LOSS AND INDEMNITY
50. No loss or damage to the Goods or any part thereof shall affect or impair the obligations of the Hirer hereunder which shall continue in full force and effect and Alf’s Tippers CC shall not in any event be liable for any loss or damage to the Goods.
51. The Hirer shall be solely responsible for and shall indemnify Alf’s Tippers CC in respect of all loss of or damage to the Goods howsoever caused, occurring at any time or times before the return thereof, fair wear and tear to the Goods excepted.
52. The Hirer herewith indemnifies and keeps Alf’s Tippers CC harmless against any and all loss, claims, demands, costs and expenses whatsoever and in whatever manner arising by reason of any claim made by any third party in respect of or arising out of the condition, possession or use of the Goods or in any way relating to the Goods or arising directly or indirectly out of the hire, possession or use of the Goods.
53. The Hirer hereby indemnifies and holds Alf’s Tippers CC harmless from any and all loss, injury, damage, fines, taxes or other fiscal charges, penalties and claims whatsoever and howsoever arising from or connected with the Goods, their hire, or the use, possession or operation thereof and whether or not such claims are caused by any act or omission of the Hirer or anyone else.
WARRANTIES RELATING TO THE GOODS
54. It is expressly agreed and acknowledged that no warranty, representation, promise or assurance of any kind is or has been given by or on behalf of Alf’s Tippers CC in respect of the Goods or any part thereof, except as stated in these Terms and Conditions.
55. Any warranties expressed or implied by the law relating to the specifications, quality, description, and marketability or otherwise of the Goods or as to their fitness for any purpose are excluded.
56. The Hirer agrees and acknowledges that Alf’s Tippers CC shall not be liable for any claim, expense or other liability of any kind or nature directly or indirectly related to any of the Goods or caused by any inadequacy thereof for any purpose or by any deficiency or defect thereof.
BREACH
57. Should the Hirer (a) fail to punctually make any payment due in terms hereof; or (b) breach any of the provisions of this Agreement; or (c) commit any act of insolvency as defined in the Insolvency Act, 1936; or (d) suffer any default judgment against it to remain unsatisfied for more than 7 (seven) business days; or (e) fail to make application for rescission within 10 (ten) business days of any default judgment; or (f) be liquidated or placed under judicial management, or be wound up, whether provisionally or finally; or (g) compromise with any of its creditors, or endeavour or attempt to do so; or (h) have made any materially incorrect or untrue statement or representation in connection with this Agreement or its financial affairs or particulars relevant thereto; or (i) do or suffer to be done anything which might prejudice Alf’s Tippers CC’s rights under the Agreement; or (j) allow the Goods to be seized under any legal process issued against the Hirer; or (k) fail to provide financial information within 48 (forty eight) hours after having been called upon to do so; or (l) its shareholders or its directors resolve to initiate a process of debt review, business rescue or winding up; or (m) fail to disclose to Alf’s Tippers CC that its financial position has changed materially or significantly deteriorated since the conclusion of this Agreement; then any of the events / breaches shall be deemed to be material breaches of this Agreement.
58. Such a material breach shall be deemed to be a breach going to the root of the Agreement and Alf’s Tippers CC shall have the right, without prejudice to any other rights which may be available to it, to cancel the Agreement.
59. Should the Agreement be cancelled, the Hirer shall forthwith forego possession of and return the Goods to Alf’s Tippers CC at the Hirer’s cost.
60. Save for any other remedy available to Alf’s Tippers CC, the Hirer undertakes to be liable for the following damages in the event of the Agreement having been terminated as a consequence of a breach by the Hirer: (a) holding over charges calculated per day that the Hirer remains in possession of the Goods after date of cancellation, calculated in proportion to the hourly rate; and (b) the actual costs in transporting the Goods to Alf’s Tippers CC’s premises; and (c) an amount equal to the amounts that would be payable for the unexpired term of the hire as liquidated damages.
61. In addition and in the event that the Goods are destroyed or that the Hirer refuses to return the Goods, the Hirer shall become liable to Alf’s Tippers CC for the retail second hand market value of the Goods as at date of cancellation as determined in the applicable Vehicle Dealers’ Guide and/or Dealer valuation for the month of cancellation.
62. Alf’s Tippers CC shall be entitled furthermore to retain all monies paid by the Hirer, whether by way of advance payments or allowances.
CONSENT TO JURISDICTION
63. The Hirer consents to the jurisdiction of the Gauteng Local Division of the High Court, Johannesburg, for the decision of all matters arising out of this Agreement in respect of the Goods and between Alf’s Tippers CC and the Hirer.
64. It shall nevertheless be entirely within Alf’s Tippers CC’s discretion as to whether to initiate proceedings against the Hirer in a Magistrates’ Court, or any other court having jurisdiction.
65. In the event of Alf’s Tippers CC electing to institute proceedings against the Hirer in the Magistrates’ Court, then the Hirer consents to the jurisdiction of the Magistrates’ Court in terms of Section 45 of the Magistrate’s Courts Act, 32 of 1944.
66. The Hirer hereby consents and submits to the jurisdiction of the Magistrate’s Court having jurisdiction over its person in respect of all proceedings connected with the Agreement, notwithstanding that the amount claimed or the value of the matter in dispute exceeds such jurisdiction, provided that Alf’s Tippers CC shall not be obliged to institute action in the Magistrate’s Court.
COSTS AND EXPENSES
67. All costs and disbursements incurred by Alf’s Tippers CC, including but not limited to legal costs, (including costs as between attorney and own client), charges and disbursements in enforcing or defending any of the provisions of the Agreement and/or recovering possession of the Goods and costs and disbursements incurred in tracing the Hirer and in collecting or endeavour to collect all or any amounts payable by the Hirer to Alf’s Tippers CC, hereunder or otherwise, and all collection commissions, costs of valuation of the Goods, including costs of restoring the Goods to a working order, including any VAT on any such costs, charges, disbursements, commissions or fees arising directly or indirectly from the Agreement shall be for the account of the Hirer and shall be payable on demand.
ADDRESSES
68. The Hirer chooses the physical address of the Site and the email address and facsimile number set out in the quotation and tax invoice as its addresses or facsimile number at which all notices, legal processes and other communications must be delivered for the purpose of this Agreement. Any notice or communication required or permitted to be given in terms of the Agreement shall be valid and effective only if in writing.
69. The Hirer may by written notice to Alf’s Tippers CC change its chosen address to another physical or email address or change its facsimile number, provided that the change shall become effective on receipt of the notice by Alf’s Tippers CC.
70. Any notice to the Hirer: (a) delivered by hand to a responsible person during ordinary business hours at its chosen address; or (b) faxed to its chosen facsimile number; or (c) mailed electronically; shall be deemed to have been received in the case of delivery by hand, faxing or e-mailing, on the day of delivery, faxing or e-mailing thereof.
GENERAL
71. All of the provisions of the Agreement shall be severable and no provision shall be affected by the invalidity of any other provision of this Agreement. If any part or portion of this Agreement has been deemed to have been struck out and/or be declared a prohibited practice or the like in terms of the Competition Act, the Consumer Protection Act, the National Credit Act or other legislation, the effect of which is to adversely affect the rights of Alf’s Tippers CC to receive payment of any nature or enforce its rights, the parties will favour an interpretation placing them substantially in the same position as they were before or as similar to that as possible.
72. No relaxation or indulgence granted by Alf’s Tippers CC to the Hirer shall be deemed to be a waiver of any of Alf’s Tippers CC’s rights in terms of the Agreement, nor shall any such relaxation or indulgence be construed to constitute an amendment, variation or replacement of any of the terms and conditions of the Agreement or the novation of any accrued cause of action.
73. The Agreement shall in all respects be governed by and construed in accordance with the laws of the Republic of South Africa, and all disputes, actions and other matters in connection therewith shall be determined in accordance with such law. All payments mentioned in the Agreement exclude VAT.
74. This Agreement constitutes the entirety of the agreement between the parties.
75. Nothing contained in this Agreement, including this clause, shall be capable of being varied, amended or rectified in any way, other than by way of written agreement, contained in a single document which is signed by Alf’s Tippers CC and the Hirer.
76. No waiver shall be effective against Alf’s Tippers CC unless it is contained in a document signed by Alf’s Tippers CC.
77. The Hirer consents to Alf’s Tippers CC (or its agent) requesting and obtaining any information reported by one of the registered Credit Bureaux.
78. No consensual cancellation of this Agreement shall be effective unless it is contained in a single document signed by Alf’s Tippers CC and the Hirer.