TERMS & CONDITIONS
STANDARD TERMS AND CONDITIONS
For the purposes of these terms and conditions, unless the context indicates otherwise, the words and expressions set out below shall have the meanings assigned to them and cognate expressions shall have a corresponding meaning, namely –
“Agreement” – the agreement between the Customer and Assos Power which arises from a Rental Schedule accepted by Assos Power and to which these Conditions shall form an integral part and be incorporated by reference;
“Business Day” – any day other than a Saturday, Sunday or public holiday in the RSA, within the meaning of the Public Holidays Act, 1994;
“Conditions” – these standard terms and conditions of lease;
“Customer” – the party who has delivered a Rental Schedule to Assos Power and whose details are reflected on such Rental Schedule and/or the relevant customer account application;
“Equipment” – the generators, trailers, spare parts and/or other related equipment and/or goods supplied or to be supplied by Assos Power to the Customer for hire in terms of the Agreement;
“Assos Power” –Assos Pty Ltd Reg No. 2018/523351/07 a private company with limited liability incorporated under the laws of the RSA;
“Rental Schedule” – a signed rental schedule delivered by the Customer to Assos Power for the lease of Equipment and/or the supply of Services pursuant to a written quotation and in a form prepared by Assos Power;
“RSA” – the Republic of South Africa, comprising the nine provinces identified in section 103 of the Constitution of the Republic of South Africa, 1996; and
“Services” – any maintenance, installation, refueling, support or other work or services provided or rendered or to be provided or to be rendered by Assos Power to the Customer in respect of the Equipment in terms of the Agreement.
2 Rental Schedules
(i) These Conditions govern all contracts and sub-contracts entered into by Assos Power for the lease of any Equipment and/or the rendering of any Services and are an integral part of any Rental Schedule. Accordingly any conditions stipulated by the Customer which are in conflict with these Conditions or not expressly incorporated in an
accepted Rental Schedule are expressly excluded, unless otherwise agreed in writing by the parties.
(ii) Any Agreement shall only become binding and into force upon Assos Power notifying the Customer of its acceptance of a Rental Schedule in writing.
(iii) Any quotation given by Assos Power shall only be valid for a period of 30 calendar days from the date of delivery thereof to the Customer, whereafter it shall lapse automatically.
(v) It is recorded that Assos Power may at any time discontinue, without any obligation or liability to the Customer, the lease of any Equipment or lines thereof. Assos Power will have no obligation, under any circumstances, to accept orders for the hiring of any Equipment which are not in its current inventory.
(vi) Assos Power shall not be obliged to accept any variations, modifications, alterations or additions to any Rental Schedule if such variations, modifications, alterations or additions are requested after the date of acceptance of the Rental Schedule by Assos Power in terms of this clause 2. No variations, modifications, alterations or additions to any Rental
Schedule shall be of any force or effect unless agreed to in writing by Assos Power.
3 Lease and payment
(i) All orders for the hiring of Equipment and/or the procurement of Services shall be evidenced by a written Rental Schedule delivered by the Customer to Assos Power. No order for the hiring of Equipment and/or the procurement of Services shall be binding on Assos Power unless, and until, it has been accepted in writing by an authorised representative of Assos Power and delivered to the Customer.
(ii) Pursuant to a Rental Schedule, Assos Power shall lease the Equipment described in such Rental Schedule to the Customer and grant the use and enjoyment of such Equipment to the Customer for the rental period described in the Rental Schedule (“Rental Period”).
(iii) The rental charged to the Customer for Equipment leased (“Rental”) or the additional fees charged for Services rendered hereunder (which are not included in the Rental) shall be the amounts reflected on the Rental Schedule based on the written quotation prepared by Assos Power, provided such quotation was still valid at the time of receipt by Assos Power of the Rental Schedule from the Customer. It is recorded that certain components of the Equipment may be imported by Assos Power and the quoted Rental for such Equipment may accordingly be adjusted by Assos Power by written notice to the Customer as a result of exchange rate fluctuations, provided that once a Rental Schedule has been accepted by Assos Power, such Rental may only be adjusted by Assos Power by written notice to the Customer to the extent that the relevant Rental Schedule made provision for such adjustment or otherwise relies on or reflects an assumed exchange rate.
(iii) The Customer shall be required to pay the Rental and any fees for additional Services in cash in South African Rand by way of electronic transfer to Assos Power’s designated bank account without set-off or deduction either (a) 30 calendar days of receipt of the statement from Assos Power (which statement shall be delivered either at the end of the Rental Period if the Rental Period is shorter than  months or by the end of each month during the Rental Period, if the Rental Period is  months or longer), in the case of a Customer whose customer account application has been accepted in writing by Assos Power (“Account Customers”) or (b) upon acceptance of the Rental Schedule and receipt of a proforma invoice from Assos Power, in the case of any other Customer (“COD Customers”).
(iv) Rental and other amounts quoted and/or invoiced shall, unless otherwise expressly stated, exclude value added tax payable in accordance with the Value Added Tax Act, 1991. In addition to the amount specified in each invoice, the amount of any such value added tax applicable to the supply of the Equipment and/or Services hereunder shall be paid by the Customer.
(iv) Any Customer who wishes to be an Account Customer shall be required to submit a duly completed customer account application in the prescribed form, together with the prescribed supporting documentation, to Assos Power prior to signing a Rental Schedule. Assos Power shall not accept any Rental Schedules from Customers who have indicated that they wish to be Account Customers prior to the acceptance in writing of such customer account application by Assos Power.
(v) Assos Power shall not be required to deliver any Equipment and/or Services ordered by any COD Customer unless and until Assos Power has received the full Rental specified in the relevant pro-forma invoice from such COD Customer.
(vi) In the case of Equipment in the form of generators, such Equipment is supplied by Assos Power to the Customer with a full fuel tank and (a) in the case of Account Customers, must be refilled at the end of the Rental Period at the Customer’s expense or (b) in the case of COD Customers, the cost of such fuel shall be included in the Rental reflected on the proforma
invoice. At the end of the Rental Period, COD Customers shall be invoiced for the Rental Period based on their actual fuel consumption and shall be refunded by Assos Power for any unused fuel, calculated with reference to the rate reflected on the Rental Schedule.
(vii) Assos Power reserves the right to require a Customer to provide a cash deposit to Assos Power calculated with reference to the expected Rental and/or other fees to be incurred by the Customer over the Rental Period, which deposit shall serve as security for the payment of any amounts which may be due from time to time by the Customer to Assos Power hereunder and the fulfillment of any other obligations of the Customer under the Agreement.
(vii) If the Customer fails to pay any amount payable to Assos Power by the relevant due date or if the Customer’s financial position shall become impaired or unsatisfactory to Assos Power, Assos Power reserves the right to change the terms of payment and/or defer or discontinue further deliveries, without prejudice to any other lawful remedy, until past due payments are made and satisfactory assurances of the Customer’s credit standing are received by Assos Power. Assos Power also reserves the right in the case of any of the foregoing events to cancel the Rental Schedule, in which event the Customer shall compensate Assos Power for any commitments, obligations, expenditure, expenses, and costs Assos Power may have incurred in connection with the Rental Schedule.
(vii) Assos Power may charge the Customer interest at 2.5% per month on any past due Rental or other payments from the due date until fully paid or collected, together with all costs and expenses of collection, including legal fees on an attorney-and-own-client scale.
4 Delivery. Risk and Ownership
(i) Unless expressly stated otherwise in the Rental Schedule, the Customer shall be required to collect the Equipment from the premises of Assos Power and shall be responsible to arrange for transportation of the Equipment to its own premises at its cost.
(ii) Unless expressly requested by the Customer and agreed to by Assos Power, the Rental shall exclude the installation and/or commissioning of the Equipment at the Customer’s premises, which installation and/or commissioning shall be the Customer’s responsibility and for its account. Assos Power shall not be liable for any damage, loss, cost or expense arising from or otherwise attributable to any installation and/or commissioning undertaken by either the Customer itself or any other third party.
(iii) If the Customer fails to collect any Equipment from Assos Power’s premises within 7 Business Days from the date on which Assos Power notified the Customer that such Equipment is available for collection, Assos Power shall be entitled to charge the Customer reasonable storage and handling fees until the date of collection. Notwithstanding anything to the contrary in this clause, should the Customer fail to take delivery within a reasonable time after Assos Power has by notice in writing requested the Customer to do so, Assos Power shall be entitled to terminate the Agreement and recover from the Customer any loss suffered by reason of such failure.
(iv) All estimates as to collection or delivery dates are based upon conditions prevailing at the date of quotation. In the event that there are any delays in this regard as a result of circumstances outside the reasonable control of Assos Power, Assos Power shall not be liable therefor and the Customer agrees to collect the Equipment when available and/or accept deliveries when made.
(v) Unless otherwise agreed to in writing between the parties, risk of loss of or damage to the Equipment shall transfer to the Customer upon delivery, which shall, unless expressly stated otherwise in the Rental Schedule, be effected at Assos Power’ premises.
(vi) Ownership in the Equipment shall remain vested in Assos Power at all times during the Rental Period and at no stage during the Rental Period or thereafter shall the Customer, or any person on its behalf, acquire ownership of Equipment in terms of the Agreement.
(vii) Assos Power shall be entitled to repossess any Equipment from the Customer’s premises or elsewhere if the Customer fails to fulfil the terms of payment of any invoice. The Customer shall keep the Equipment in its own possession and control and free from the claim of third parties and from attachment. The Customer shall not, without the prior written consent of Assos Power, be entitled to sell, dispose of or in any manner encumber any Equipment.
(viii) The Customer shall immediately notify Assos Power in writing of the name and address of the owner or landlord of the Customer’s premises and the name and address of any subsequent owner or landlord of the same or any subsequent premises. The Customer shall similarly notify the owner or landlord and any subsequent owner or landlord of Assos Power’s ownership of the Equipment. The Customer shall advise Assos Power of any intended change in the location of the Customer’s premises at least 20 Business Days prior to any such change and not remove or allow the Equipment to be removed from the Customer’s premises without the prior written permission of Assos Power.
5 Maintenance, use and warranties
(i) Maintenance and support costs are included in the Rental, provided that if the Customer’s premises are located outside of a 20km radius from Assos Power’s premises, such additional travelling expenses of Assos Power’s technicians will be charged to the Customer at the rate specified on the Rental Schedule.
(ii) The Customer shall ensure that the Equipment is at all times operated in accordance with the operating manual and the manufacturer’s requirements and instructions and remains sheltered from harmful environments or circumstances. The Customer shall not alter or modify the Equipment, or any part thereof, without the prior written consent of Assos Power.
(iii) The Customer shall ensure that the servicing requirements stipulated on the Rental Schedule are timeously adhered to. The Customer shall be required to perform the specified daily checks for oil, water and general condition. The Customer shall ensure that all routine and other repair and maintenance services in respect of the Equipment, other than the above daily checks, shall be rendered only by Assos Power’s approved technicians.
(iv) The Customer acknowledges that it does not rely on any warranties or representations made by Assos Power in respect of the Equipment and Services or any of their qualities, other than those contained in the Agreement.
(ii) Assos Power warrants to the Customer, in the case of generators, that such Equipment shall substantially comply with the specifications set out in the accepted Rental Schedule and product manual provided to the Customer and shall be free from defective workmanship or materials (fair wear and tear excepted) during the Rental Period, up to a maximum period of 1 year or 2 000 operating hours, whichever comes earlier (“the Warranty”). Save for the warranty, Assos Power does not represent or warrant that the Equipment is fit or suitable for any particular purpose, free from any defects or have any qualities and expressly disclaims any such warranties or representations, whether express or implied, to the extent permissible by applicable law.
(iii) The warranty shall be invalidated and the Customer shall not be entitled to claim thereunder if (a) the Equipment was installed by any person who is not a qualified and approved technician, (b) the Equipment has been altered or tampered with in any manner or any non-original equipment manufacturer (OEM) spare or replacement parts were used with the Equipment, (c) any person, other than Assos Power, has been allowed by the Customer to service, maintain or repair the Equipment or (d) the Equipment was used or operated in any manner contrary to the specifications or the product manual provided by Assos Power to the Customer or in any other improper manner.
(iv) Any claim under the Warranty must be made in writing and within 5 Business Days from the date on which the alleged defect or malfunction occurred. Upon receipt of such notice from a Customer, Assos Power shall have a period of 10 Business Days during which to examine and test the Equipment to confirm whether the requirements for a claim under the w arranty have been met.
(v) Should it be determined that the Customer is entitled to claim under the warranty, Assos Power sole liability towards the Customer shall be to repair or replace any Equipment which does not substantially conform with the agreed specifications or otherwise contain defective workmanship or materials within a period of 30 Business Days from the date on which it was so determined that the Customer has a valid claim and the Customer shall not be entitled to claim any refund of the Rental or other form of compensation under the Warranty.
(vi) Any storage, handling and/or transportation costs incurred by Assos Power for Equipment in respect of which a Customer has alleged that it has a claim under the warranty shall be for the Customer’s account, unless and until such claim has been determined to be valid. Assos Power shall not be liable for any other costs, expenses or losses, save for the cost of the repair or replacement of the Equipment, as the case may be, which may be incurred by the Customer in returning the defective Equipment to Assos Power in terms of this clause 5.
(i) The Customer shall not be entitled to cancel or rescind any accepted Rental Schedule and if it purports to do so, it shall remain liable towards Assos Power for the full Rental and other fees for the Equipment and/or Services reflected on the accepted Rental Schedule.
(ii) The Customer agrees to comply with all procedures, steps and instructions specified by Assos Power in writing from time to time in connection with the use and operation of the Equipment to ensure that the Equipment is safe and without risks to health when properly used. The Customer acknowledges that such written instructions may be included in any manual provided by Assos Power to the Customer from time to time.
The Customer indemnifies and holds Assos Power harmless against any and all loss, damages, costs, expenses or other liability arising from or in connection with (a) the Customer’s use of the Equipment, other than Assos Power’s liability under the W arranty or as a result of any grossly negligent acts or omissions of Assos Power, (b) any breach of the Customer’s obligations under this Agreement and (c) any contravention of any applicable law, regulation or order of the RSA by the Customer. In no event shall Assos Power be liable for any indirect, incidental, consequential, special or punitive damages, including, without limitation, loss of business, revenue or profits, whether in an action in contract, delict, strict liability, or otherwise. In no event shall Assos Power’s aggregate liability under, arising out of or in connection with any Rental Schedule exceed the Rental paid by the Customer to Assos Power under such Rental Schedule.
8 Independent contractor
In making and performing Rental Schedules and otherwise under this Agreement, each party acts and shall act at all times as an independent contractor, and nothing contained herein shall be construed or implied so as to create the relationship of a partnership, agency, franchise, joint venture, employment, or other similar relationship between Assos Power and the Customer.
The Customer shall obtain and maintain in effect for the duration of the Rental Period appropriate insurance policies in respect of damage to or theft of the Equipment with a reputable insurer providing adequate cover and shall provide Assos Power with copies thereof upon request.
10 Force majeure
Assos Power shall not be in breach of the Agreement by reason of any failure or delay in the performance of any obligation under the Agreement where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of Assos Power. Such causes shall include, without limitation, storms, floods, other acts of nature, fires, explosions, riots, war or civil disturbance, strikes of labour unrests, embargoes and other governmental actions or regulations, as well as delays in transportation or an inability to obtain necessary supplies that would prohibit it from providing Equipment or Services or from performing any other aspects of its obligations hereunder.
(i) Either party shall be entitled to cancel the Agreement immediately without further notice to the other party if: (a) it has given written notice to the other party that such other party has committed a material breach of the terms of the Agreement in performing its obligations and failed to rectify such breach within a period of 7 calendar days, (b) any order is made or an effective resolution is passed for the winding-up of the other party or if the other party is placed into provisional or final liquidation or if the other party institutes business rescue proceedings or such business rescue proceedings are instituted against the other party pursuant to the provisions of the Companies Act, 2008 or (c) the other party compromises with its creditors, or commits an act which, if that party was an individual, would have constituted an act of insolvency in accordance with the Insolvency Act, 1936.
(ii) Upon termination of the Agreement all indebtedness of the Customer to Assos Power shall become immediately due and payable without further notice or demand, which is hereby expressly waived, and Assos Power shall be entitled to reimbursement for any reasonable legal fees that it may incur in collecting or enforcing payment of such obligations. (iii) On termination of the Agreement, for any reason whatsoever, the Equipment shall be returned to Assos Power at an address nominated by Assos Power at the Customer’s cost, in the same condition as existed as at the commencement of the rental period, fair wear and tear accepted.
(iv) Should Assos Power cancel the Agreement or the Rental Period terminates and the Customer either disputes the right to cancel or otherwise fail to return the Equipment, then (a) the Customer shall, pending the determination of such dispute, continue to pay to Assos Power on the due date thereof all amounts due under the Agreement, and the acceptance thereof shall be without prejudice to Assos Power’s rights and (b) should any such dispute be determined in favour of Assos Power, any such payments received shall be deemed to be amounts paid by the Customer on account of damages suffered by Assos Power by reason of the cancellation of the Agreement and/or the unlawful holding over by the Customer.
(i) The Agreement contains the entire agreement between the parties in relation to the subject matter hereof. (ii) Neither party shall have any claim or right of action arising from any undertaking, representation or warranty not included in the Agreement.
(iii) Any latitude or extension of time which may be allowed by Assos Power to the Customer shall not under any circumstances whatsoever act as an estoppel or be a waiver of Assos Power’s rights hereunder.
(iv) No alteration or variation to, or consensual cancellation of, the Agreement shall be of any force or effect unless it is recorded in writing and signed by both the parties to this Agreement.
(v) If any clause or term of the Agreement should be invalid, unenforceable or illegal, then the remaining terms and provisions of the Agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of the Agreement.
(vi) The Customer shall not be entitled to cede, delegate or assign any or all of its rights and/or obligations under this
Agreement to any person. Assos Power shall be entitled to cede, delegate or assign any or all of its rights and/or obligations under the Agreement to any of its subsidiaries, holding companies or fellow subsidiaries of such holding company as contemplated in the Companies Act, 2008.
(vii) Assos Power shall be entitled to set any amounts payable or creditable by Assos Power to the Customer off against any amounts owed by the Customer to Assos Power pursuant to this Agreement.
(viii) The Customer agrees that the amount due and payable to Assos Power from time to time may be evidenced
by a certificate issued by any director of Assos Power, which certificate shall constitute prima facie proof of such indebtedness. (ix) Assos Power may subcontract, at its expense, any portion of the Services to any subcontractor of its choice.
(x) Assos Power shall retain copyright in any manuals, specifications, lists, brochures or other documents provided to the Customer in respect of any Equipment and/or Services or otherwise under the Agreement and the Customer may not use such documents in any manner or for any purpose other than its use of the Equipment and/or Services purchased under the Agreement or in any manner copy or reproduce such documents.
(xi) Each party chooses the address set out opposite its name below as its domicilium citandi et executandi at which all notices, legal processes and other communications must be delivered for the purposes of this Agreement:
– Assos Power: 18 Blenheim Court, Umhlanga,4320]; and
– the Customer: the address specified in the relevant customer account application or Rental Schedule, and any notice or communication required or permitted to be given in terms of the Agreement shall be valid and effective only if in writing, but it shall be competent to give notice by email.
(xii) Any notice to a party sent or delivered
(i) by prepaid registered post to it at its chosen address shall be deemed to have been received on the seventh Business Day after posting (unless the contrary is proven)
(ii) by hand to a responsible person during ordinary business hours at its chosen address shall be deemed to have been received on the actual day of delivery (unless the contrary is proven), or
(iii) by email to a party at its email address shall be deemed (unless the contrary is proven), to have been received within two hours of transmission where it is transmitted during normal business hours or within 24 hours of the opening of business on the first Business Day after it is transmitted where it is transmitted outside those business hours.
(xiii) The Agreement, as well as any non-contractual obligations arising out of or in connection with this Agreement, shall be governed by and construed exclusively in accordance with the laws of the RSA.
(xiv) Each party submits itself to the non-exclusive jurisdiction of either seat of the Durban and Coast Local Division, Durban of the High Court of South Africa for the purposes of any claims, disputes or other court proceedings under or arising from the Agreement.
The undersigned accepts the attached standard terms and conditions of agreement on behalf of the customer. The customer acknowledges that the amount due for goods or services will be due unconditionally within 30 days from the end of the month in which a tax invoice was issued by Assos Investements t/a Assos Power . The signatory hereby binds him/herself as co-principal debtor jointly and severally. The customer hereby declares than no cheques will be issued for payments unless there are sufficient funds available and that such funds will remain available in order that all cheque payments will be honoured and that under no circumstances will any cheque be stopped.