Terms & Conditions

1. INTRODUCTION

1.1

Kings Hire is in the business of selling, leasing, cleaning, repairing, installing and preparation of chemical toilets, showers, guard huts, sheds, water and diesel bowsers, industrial equipment, and accessories (hereinafter referred to as “goods”).

1.2

This Master Standard Terms and Conditions is a master agreement under which the Parties to this agreement may from time to time agree for the provision of products and/or services by Kings Hire. The terms of this agreement will apply to all subsequent quotations and/or work orders by the Client.

1.3

All quotations and/or services contained in all subsequent quotations and/or work orders will be incorporated into, form part of and be subject to the terms of this Master Standard Terms and Conditions.

Save where expressly provided to the contrary or insofar this Master Standard Terms and Conditions applies, the terms and conditions of one subsequent quotation and/or work order shall not apply to any other subsequent quotation and/or work order.

Insofar as any term and condition in a subsequent quotation and/or work order conflicts with this Master Standard Terms and Conditions, the terms of the subsequent quotation and/or work order shall prevail.

Any subsequent quotation and/or work order will be attached as a schedule to this Master Standard Terms and Conditions.

These conditions shall at all times take precedence over any terms, conditions or stipulations contained in any of the Client’s documentation as may be in conflict herewith.

Should the Client in any way purport to attach any conditions which vary, amend or are in conflict with the conditions set forth herein, then, notwithstanding anything to the contrary stipulated by the Client, the conditions set forth herein shall prevail and be of full force and effect unless specifically verified by Kings Hire in writing with specific reference to the Client’s contrary documentation.

1.4

Any false information given in the Application Form above and any subsequent application to hire items will be regarded as a criminal offence and will be dealt with as such.

1.5

All prices quoted by Kings Hire and accepted by the Client are subject to normal price increases without prior notice.

2. NATURE OF THE CONTRACT

2.1

This agreement is not a credit agreement.

2.2

The Client will pay a deposit amount towards Kings Hire for the hire of item(s), in the event such deposit amount is required by Kings Hire.

2.3

The conclusion of this agreement for each separate and subsequent quotation and/or work order lies within the sole discretion of Kings Hire, who may refuse to conclude this agreement based on the payment history and credit record of the Client.

Kings Hire will have the sole discretion as to whether it wants to enter into an agreement for each separate and subsequent quotation and/or work order on a COD (Cash on Delivery) basis.

2.4

The Client may not apply any deposit amount for the payment of invoices.

2.5

If an account was opened for one item to be hired, but in the end ten items are hired, the deposit will only be refunded after all the items are off-hired irrespective of the period it takes to off-hire all the items.

A deposit will have to be paid for every item hired.

Refund of any deposit will be made 10 (ten) days after payment of the Client’s final invoice, the Client’s written request and receipt of the Client’s banking details.

2.6

If the equipment is to be delivered by Kings Hire, Kings Hire will not be responsible for any loss or damages suffered by the Client as a result of non-delivery of equipment or part thereof, or delays in delivery for whatsoever reason, and time shall not be of the essence in respect of any order.

2.7

Ownership in the goods remains vested in Kings Hire at all times, until the full purchase price has been paid, if applicable to the said transaction.

2.8

The Client is not entitled to sell or dispose of any unpaid purchased goods without the prior written consent of Kings Hire.

2.9

The Client shall not allow the goods to become encumbered in any manner whatsoever, including but not limited to prior to the full payment thereof.

The Client shall advise third parties of the rights of Kings Hire in the goods.

3. QUOTES

3.1

All quotes will remain valid for a period of 7 (seven) days from the date thereof.

3.2

The validity of any price quoted is subject to availability and to normal increases without prior notice.

3.3

The Client hereby confirms that the goods and services on the delivery note issued duly represent the goods and services ordered by the Client and the prices agreed to by the Client and, where delivery/performance has already taken place, that the goods and services were inspected and that the Client is satisfied that these conform in all respects to the quality and quantity ordered and are clean and free of defects.

3.4

All orders or variations to orders, whether oral or in writing, will be binding and subject to these Standard Terms and Conditions and may not be cancelled.

3.5

Kings Hire shall be entitled, in its sole discretion, to split the delivery/performance of the goods and services ordered in the quantities and on the dates it decides.

3.6

Kings Hire shall be entitled to invoice each delivery/performance actually made separately.

4. PAYMENT

4.1

The Client agrees to pay the amount of any tax invoice relating to the transaction in question within 14 (fourteen) days.

4.2

The Client shall make payment of invoices at the offices of Kings Hire:

a) in cash (South African currency); and/or

b) by way of credit card; and/or

c) by way of electronic banking into the bank account of Kings Hire.

4.3

Interest will be levied on any invoice amount that has not been settled within 14 (fourteen) days after date of invoice and will amount to 2 (two) % per month on the outstanding amount until date of payment.

4.4

Should any amount not be paid by the Client on the due date, then all other amounts in respect of all transactions between Kings Hire and the Client shall become due, owing and payable irrespective of the date(s) when these transactions took place or when payment of same would have become payable.

4.5

The Client is not entitled to set off any amount due to the Client by Kings Hire against any amount owed to Kings Hire.

4.6

All discounts will be forfeited if payment in full is not made on the due date.

4.7

If payment is made by credit card, the Client confirms and consents that Kings Hire is authorised to debit against such card account any outstanding amount that is due to Kings Hire.

5. HIRE PERIOD

5.1

TAKE NOTE: Should the hire period of toilets, sheds and/or other equipment not exceed 15 (fifteen) days, a minimum hire charge equivalent to half the monthly hire price (as set out in the Kings Hire price list) will be charged.

5.2

The hire period shall commence when the Client takes delivery of the equipment and shall end when Kings Hire accepts return of the goods during its office hours, provided that in the case of goods delivered and to be collected by Kings Hire, the hire period shall be regarded as having endured until the Client has notified the Kings Hire Renting Desk per telephone, by fax or in person of termination of the hire period.

In the event that notification of termination of the hire period is effected by way of e-mail, the Client must also notify Kings Hire telephonically.

The Client shall immediately on receipt of notice by Kings Hire be allocated with a lease termination confirmation number (the Off Hire Number – O/H Number), and the responsibility will be on the Client to obtain an O/H Number.

In case of dispute as to the date and time of notice of termination of a lease by a Client, the O/H Number and the recorded date and time (as recorded by Kings Hire) of the allocation of such number shall be final and conclusive proof of the giving of notice by the Client and the date and time when such notice was given.

5.3

In the event that the Client fails to return goods on the date of termination, Kings Hire shall be entitled to agreed pre-estimated damages in an amount equal to the hire charges as set out in this agreement until the goods are returned, replaced or paid for in full.

The hire period shall continue until such date and time when the Client gives notice to Kings Hire by phone or e-mail and in return receives an O/H Number or returns the goods to Kings Hire.

5.4

The hire charges in respect of this agreement will cease from the O/H date of the goods.

5.5

In the event that the Client:

5.5.1 does not specify the hire period for goods leased; and/or

5.5.2 has not arranged for the lease to be for an undetermined period,

then the hire period for unreturned goods will be deemed to be 24 (twenty-four) hours, until terminated by either party.

5.6

Notwithstanding that the Client specified the hire period for goods leased, the Client shall bear the burden to inform Kings Hire two (2) days prior to the termination of the hire period of the date, time and place where the goods are to be collected.

Either party may terminate the extended contract period by giving 24 (twenty-four) hours’ notice.

5.7

The Client must obtain a valid Off Hire Number in circumstances so stipulated in terms of this clause and, in all circumstances, an off-hire delivery note, in order for the termination to be valid.

5.8

It is recorded that Saturdays will be deemed to be a working day if the Client does not notify Kings Hire in writing to the contrary.

If the Client indicated in writing that work would not be done on Saturdays, and it so happens that Kings Hire goods and/or services are being used on the said day, then and in that event the Client will incur penalties of three (3) times the agreed daily rate for the duration of the use of the goods and/or services for the said Saturday(s) during the hire period.

5.9

It is recorded that 1 (one) working day is the equivalent of 9 (nine) business hours.

6. PROOF OF DELIVERY & GOODS IN GOOD ORDER AND REPAIR

6.1

A signed delivery note shall constitute sufficient proof that the goods have been delivered to and received by the Client in good condition, whether signed by the Client, an employee, an agent or representative of the Client.

6.2

The goods shall be deemed to be in good order and repair and fit for the purpose for which they are intended when delivered to the Client, unless the Client notifies Kings Hire of any defects immediately upon taking delivery.

6.3

Kings Hire shall decide, at its sole discretion, whether the goods are defective or unfit for the purpose for which they are intended and shall be entitled to either:

  • terminate this agreement;
  • refund any hire charges already paid; or
  • replace the defective goods.

7. UTILISATION OF GOODS

7.1

The Client acknowledges that it is aware of the purpose for which the goods were designed, as well as all safety and maintenance procedures required in respect of the goods by any lawful authority.

The Client further acknowledges that it has the necessary knowledge and know-how to safely and correctly use the goods.

7.2

The Client shall be liable to, and hereby indemnifies, Kings Hire for all damage or loss suffered by the Client should the goods be used for any purpose other than that for which they were intended.

7.3

The Client confirms that the goods are used at its own risk and indemnifies Kings Hire against any claims of any nature brought against it by the Client, its employees, agents, representatives or third parties arising out of the use of the goods while under the control of the Client in terms hereof, and for the duration of the hire period.

Any costs and expenses of representation shall be binding on the Client.

7.4

Kings Hire does not undertake to furnish the Client with any technical advice, but should it do so, it does not warrant the correctness thereof.

7.5

It is the sole responsibility of the Client to determine whether the goods and services ordered are suitable for their intended purpose.

The Client may in no way cede or assign this agreement, nor sub-let the goods.

7.6

The failure by the Client, without the prior written consent of Kings Hire, to:

  • retain possession of the goods;
  • remove the goods from the intended hire site;
  • use the goods for any purpose other than indicated at the time of order;
  • use the goods outside the agreed hire period; or
  • permit the use of the goods by unauthorised, inexperienced, unqualified or unlicensed persons,

will incur penalties of three (3) times the agreed daily rate from the moment of occurrence until the issue of an off-hire delivery note by Kings Hire.

8. BREAKDOWN AND REPAIR

8.1

The Client shall, at its own cost, service and maintain the goods in good running order and repair to the standard required by Kings Hire until the goods are returned to Kings Hire.

8.2

The Client shall immediately notify Kings Hire of any breakdown.

Kings Hire shall be entitled to repair or replace the goods at its own cost at the Client’s principal place of business, unless Kings Hire, in its sole discretion, determines that the breakdown is due to improper use of, or failure to service and maintain, the goods, in which event the Client shall, on demand, reimburse Kings Hire for all costs incurred as a result of the breakdown.

8.3

The Client shall return the goods in a clean state and in good order, fair wear and tear excepted.

8.4

In the event that the goods are lost, destroyed or damaged as a result of any cause prior to the return thereof, the Client shall be liable to make good the replacement cost thereof, and hire charges shall continue until the Client has paid for or replaced the lost goods.

If goods are returned in an unclean state, the Client shall be liable for the reasonable costs incurred by Kings Hire for cleaning the goods.

Should it be agreed that Kings Hire shall remove the goods at the end of any hire period from the relevant site where they are situated, the Client shall ensure that the goods are readily accessible, properly vacated and recoverable.

The Client indemnifies Kings Hire against all claims for damages or losses incurred as a result of the removal of the goods from the relevant site.

8.5

In the event of a breakdown of any of the goods leased by the Client, the Client shall notify the Kings Hire Renting Desk (KHRD) by telephone of such breakdown.

The Client shall immediately upon receipt of notice by Kings Hire be allocated a Kings Hire Breakdown Confirmation Number (“KHB Number”).

In the event of any dispute as to the date and time of notice of the breakdown of the goods, the KHB Number and the Kings Hire recorded date and time of the giving of such notice shall constitute final and conclusive proof of the giving of notice by the Client and the date and time when such notice was given.

9. RISK

9.1

The risk of damage, destruction or theft of the goods passes to the Client upon delivery, and the Client undertakes to insure the goods for their replacement value until returned.

9.2

The Client shall at all times be fully responsible for the goods prior to their return and shall return them to Kings Hire upon expiry of the hire period or cancellation of the agreement.

Provided that, where Kings Hire has contracted to collect the goods, Kings Hire shall carry the risk from the moment it takes possession of the goods upon collection, or within 48 (forty-eight) hours (excluding Saturdays, Sundays and public holidays) from notification of termination of the lease by the Client, who must be in possession of a valid O/H Number, whichever occurs first.

9.3

Kings Hire shall at all reasonable times be entitled to access any premises of the Client for the purposes of:

9.3.1 Inspection;

9.3.2 Repairing;

9.3.3 Repossession of the goods;

9.3.4 Cleaning; and

9.3.5 Servicing the goods.

9.4

Under no circumstances will Kings Hire be liable for any damages arising from any use, misuse or abuse of the goods.

9.5

Under no circumstances will Kings Hire be liable for any consequential damages or any arising liability of any nature whatsoever.

10. CHEMICAL TOILETS AND OTHER EQUIPMENT

10.1

The Client shall, prior to the relocation of any goods to another site, obtain the written approval of Kings Hire.

If the Client contravenes the terms of this clause, then the Client shall bear the surplus charge levied by Kings Hire for travelling costs incurred, which charge will be similar to the service charge levied for the maintenance of the goods.

10.2

The Client must specifically state the date of relocation as well as the full particulars regarding the new site address.

10.3

If the goods are moved to another site and the Client did not obtain the necessary prior written approval, then the Client will be responsible for any damages incurred in the process of relocation.

10.4

If the goods being moved are chemical toilets and/or equipment and the Client did not obtain the necessary prior written approval from Kings Hire, but the Client attached certain structures to the equipment, then the Client shall be liable for any extra costs incurred by Kings Hire in order to remove or relocate the said equipment.

10.5

If the chemical toilets are not accessible for servicing or removal, or are obstructed in any way that may cause difficulty for Kings Hire to remove them, then the Client shall bear any additional costs incurred by Kings Hire in doing so.

11. WARRANTIES

11.1

Kings Hire does not furnish any warranties, nor make any representations other than those contained herein.

11.2

No warranties or representations shall be binding on Kings Hire unless such warranties or representations are in writing and signed by a duly authorised representative of Kings Hire.

11.3

The Client agrees that neither Kings Hire nor any of its employees will be liable for any innocent misrepresentation made to the Client.

It is the sole responsibility of the Client to determine that the goods or services ordered are suitable for the purposes of their intended use.

12. CESSION

12.1

The Client hereby irrevocably and in rem suam cedes, pledges, assigns, transfers and makes over to and in favour of Kings Hire all its rights, title and interest in and to all claims of whatsoever nature and description and howsoever arising which the Client may now, or at any time hereafter, have against all and any persons, companies, corporations, firms, partnerships, associations, syndicates and other legal personae whomsoever, without exception, as continuing covering security for the due payment of every sum of money which may now or at any time hereafter be or become owing by the Client towards Kings Hire from whatsoever cause or causes arising, and for the due performance of every obligation which the Client may be or become bound to perform in favour of Kings Hire.

It being acknowledged that this cession is a cession in securitatem debiti (“as security for a debt”) and is not an out-and-out cession.

12.2

The Client undertakes to inform Kings Hire in writing within:

  • 7 (seven) days of any change of address, Director, Member, Shareholder or Owner; or
  • 14 (fourteen) days prior to selling or alienating the Client’s business.

Failure to do so will constitute a material breach of this agreement.

13. NON-SOLICITATION OF EMPLOYEES

13.1

The Client acknowledges that it is in the interest of the protection and maintenance of Kings Hire’s intellectual property rights (including patents, trademarks, registered designs, copyright, know-how, trade secrets and database rights) to maintain confidentiality.

Accordingly, the Client undertakes that, during the term of this agreement and for a period of 12 (twelve) months from termination hereof, however such termination is caused, it shall refrain from directly or indirectly:

  • employing;
  • engaging;
  • seeking to employ;
  • seeking to engage; or
  • causing another person to employ or engage,

any employee of Kings Hire or any affiliate thereof, or any person who was employed by Kings Hire or any affiliate within the 12 (twelve) months immediately preceding the termination date.

Unless otherwise negotiated between the Client and Kings Hire and reduced to writing, the Client shall be liable to pay Kings Hire a Placement Fee equal to the greater of:

  • 20% (twenty per cent) of the employee’s gross annual salary at the Client; or
  • 20% (twenty per cent) of the employee’s gross annual salary received at Kings Hire.

14. BREACH, CANCELLATION AND TERMINATION OF CONTRACT

14.1

The Client will be liable for all costs if a transaction is cancelled online by the Client, as well as for any administration fees resulting from such cancellation.

14.2

The Client agrees and acknowledges that, in the event of:

14.2.1 the Client breaching any condition contained in this agreement, including but not limited to an invoice not being settled in full within 14 (fourteen) days after the date of invoice;

14.2.2 the Client failing to pay any amount due and payable on the due date;

14.2.3 the Client suffering any civil judgment to be taken or entered against it;

14.2.4 the Client causing a notice of surrender of its assets to be published in terms of the Insolvency Act;

14.2.5 the Client dying; or

14.2.6 the Client’s estate being placed under any order of provisional or final sequestration, provisional or final winding-up, or provisional or final judicial management,

Kings Hire shall, without detracting from any other remedies available to it, be entitled to:

  • summarily cancel the agreement without notice to the Client and rely on any rights granted to it in terms of this agreement; and/or
  • repossess those goods sold or hired and delivered by Kings Hire to the Client; and/or
  • institute action and/or claim specific performance of all of the Client’s obligations, whether or not such obligations would otherwise then have fallen due for performance, and/or claim damages.

15. LEGAL COSTS AND PROCEEDINGS

15.1

The Client shall be liable for costs incurred by Kings Hire on the attorney and client scale, including any tracing, collection or valuation fees, as well as the costs required for any form of security that Kings Hire may demand, in the event of:

15.1.1 any default by the Client; and/or

15.1.2 any litigation in reference to the validity and enforceability of this agreement; and/or

15.1.3 the collection of any amounts due to Kings Hire or the enforcement of any rights arising from this agreement or the breach thereof by the Client.

15.2

The Client shall furnish sufficient security (at least in the amount of R50 000.00 (Fifty Thousand Rand)) in lieu of costs in any defended action instituted by or against the Client.

15.3

Kings Hire shall, at its sole discretion, have the right to institute action in either the Magistrate’s Court or the High Court.

15.4

The Client agrees that Kings Hire will not be required to furnish security in terms of Rule 62 of the Magistrates’ Court Rules or Rule 47 of the Uniform Rules of Court for High Courts, whichever is applicable.

15.5

A certificate signed by a manager of Kings Hire or its attorney shall constitute sufficient proof of the outstanding amount due and payable by the Client to Kings Hire.

16. ACCESS TO INFORMATION & POPIA

16.1

The Client, by signing this agreement, grants permission to Kings Hire to obtain any information regarding the Client, including but not limited to the Client’s credit record at a registered credit bureau, in order to ascertain whether or not Kings Hire can enter into an agreement with the Client for each separate and subsequent quotation and/or work order.

16.2

The Client grants permission to Kings Hire to transmit to registered credit bureaus information concerning this agreement and any non-compliance and/or payment behaviour of the Client relating to this agreement.

16.3

The Client confirms that it consents to the capturing, storing and processing of the information provided in the Application Form and any subsequent information obtained regarding the Client and its staff, as defined in the Protection of Personal Information Act, 2013 (POPIA).

The Client understands and agrees that data so obtained will be collected, stored and processed for the purposes of:

  • client relationship management;
  • contract maintenance and management;
  • marketing;
  • statistical integrity;
  • introducing new products and services;
  • the prevention of crime or fraud;
  • verification of information;
  • communication;
  • debt collection and/or tracing; and
  • compliance with statutory, regulatory or other legal obligations.

17. DOMICILIUM CITANDI ET EXECUTANDI

17.1

The Parties select as their respective domicilia citandi et executandi for the purposes of legal proceedings and for the purposes of giving or sending any notice provided for or necessary in terms of this agreement, the addresses and/or email addresses indicated in the Application Form to this agreement, or such other address or email address as may be substituted by notice given as required.

Each party shall be entitled from time to time to vary its domicilium by written notice to the other party to any other address, provided that such address is not a post office box or poste restante.

17.2

Any notice addressed to a party at its physical address shall be delivered by hand or sent by email.

17.3

A notice shall be presumed, unless the contrary is proved, to have been given:

17.3.1 If hand delivered during business hours on a business day, on the day of delivery.

17.3.2 If sent by email, on the first business day following the date of sending of such email.

18. GENERAL

18.1

This contract represents the entire agreement between the Client and Kings Hire.

No alterations or additions to this agreement shall be effective unless agreed to by both parties in writing and signed by the Client and a duly authorised representative of Kings Hire.

No waiver of any of the terms and conditions of this agreement shall be binding unless expressed in writing and signed by the party granting such waiver.

Any such waiver shall be effective only in the specific instance and for the specific purpose for which it was given.

No failure or delay by either party in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

18.2

Kings Hire may sell, transfer and assign any or all of its rights and obligations arising from this agreement to any person upon written notice to the Client, provided that the assignee agrees in writing to be bound by the covenants and agreements contained herein.

Upon such assignment and assumption, Kings Hire shall be under no further obligation in respect of the rights and obligations so assigned.

18.3

This agreement and all rights and obligations hereunder shall not be ceded or assigned by the Client except with the prior written consent of Kings Hire.

A change in control shall be deemed to constitute a cession or assignment.

This agreement shall be binding upon each party’s permitted successors and assigns.

18.4

With regard to the interpretation of this agreement:

18.4.1

The headings of the clauses are for convenience and reference only and shall not be used in the interpretation of, nor modify or amplify, the terms of this agreement or any clause thereof.

18.4.2

Words importing any one gender shall include the other two genders, the singular shall include the plural and vice versa, and references to natural persons shall include juristic persons (whether corporate or unincorporated), and vice versa.

18.4.3

All schedules attached to this agreement are incorporated herein and shall have the same force and effect as if they were set out in the body of this agreement.

18.4.4

Words and/or expressions defined in this agreement shall bear the same meanings in any schedules hereto that do not contain their own defined words and/or expressions.

18.4.5

Where a period consisting of a number of days is prescribed, it shall be determined by excluding the first day and including the last day.

18.4.6

Where the day upon or by which any act is required to be performed is not a Business Day, the Parties shall be deemed to have intended such act to be performed upon or by the first Business Day thereafter.

18.4.7

Where an expression has been defined (whether in this clause or elsewhere in this agreement) and such definition contains a provision conferring a right or imposing an obligation on any Party, then, notwithstanding that it is contained only in a definition, effect shall be given to that provision as if it were a substantive provision contained in the body of this agreement.

18.4.8

Where figures are referred to in numerals and words, the words shall prevail in the event of any conflict between the two.

18.4.9

Words and/or expressions defined in any particular clause in the body of this agreement shall, unless the application of such word and/or expression is specifically limited to that clause, bear the meaning so assigned to it throughout this agreement.

18.4.10

The contra proferentem rule shall be applicable to this agreement.

18.4.11

The eiusdem generis rule shall not apply and, accordingly, whenever a provision is followed by the word “including” and specific examples, such examples shall not be construed so as to limit the ambit of the provision concerned.

18.4.12

A reference to any statutory enactment (including statutes, ordinances, regulations and by-laws) shall be construed as a reference to that enactment as at the Effective Date and as amended, re-enacted or substituted from time to time thereafter.

18.4.13

A reference to any statutory body or court shall be construed as a reference to that statutory body or court as at the Effective Date and as substituted from time to time thereafter by successor statutory bodies or courts, as the case may be.