TALBOT TRANSPORT(PTY LTD.)
TRANSPORTER RENTAL AGREEMENT
MARCH 15TH 2017
CONTRACTORTRANSPORTATIONRENTAL AGREEMENT
BETWEEN
TALBOT TRANSPORT(Pty)ltd
3 DYKE STREET FACTORIA
KRUGERSDORP
UNIT 7B CASTLE BUSINESS PARK
1733
Reg:2016/447208/07
(Hereinafterreferred toas: (“ CONTRACTOR”)
AND
(Hereinafterreferred toas: (“THETRANSPORTER”)
. DEFINITIONS ANDINTERPRETATIONS. APPOINTMENTS
. DURATION ANDCOMMENCEMENT
. STATUS OFCONTRACT
. COMPENSATION
. TRANSPORTERS OBLIGATION
. SAFETYAND ENVIRONMENT
.
. ACCIDENTSANDBREAKDOWNS
. LIABILITYANDLOSSES
. COMPANYOBLIGATIONS
. INSURANCE
. DELIVERYTERMS
.
. LIQUIDATED DAMAGES
.
. INDEMNITY
.
. SETTLEMENT OF DISPUTES
. ASSIGNMENT
.
. TERMINATION OFINSOLVENCY
.
. TERMINATION OF DEFAULT
. FORCE MAJEURE
. NOTICES CONTRACTAMENDMENT
. WAIVERS
. AUTHORISEDREPRESENTATIVE
.ENTIREAGREEMENT
. LANGUAGE
. SEVERABILITYANDENFORCEMENT
. GENERAL
. CONTRACTCOORDINATOR
ANNEXURE1=SCOPEOFWORK
ANNEXURE2=LISTOFVEHICLES (SPREADSHEET)
Parties:
Thisrental agreementismade and entered on the……………dayof……………….………year …………….
Between:
TALBOT TRANSPORT PTYLTD,accompany under thelawsofSouth Africa and having itsregistered officeat the aboveaddressherein acting and represented asthe firstpart.(Hereinafterreferred to asTHE CONTRACTOR ,herein acting and represented
by……………………………………………………………………...... …………………asdirector/s,on thesecond part)
thecompanyincorporated under thelawsof South Africa and having itsregistered address at theaboveaddress(Hereinafterreferred to asTHETRANSPORTER, herein acting and represented by...... ………………………………………….……………… asdirector/s,on thesecond part)
WHEREAS
1. TheTransporter requires rental servicesfor movementand delivery of commoditiesfrom designed loading areas to designated offloading areasdomestically and regionally(hereinafter the“services”)
2. TheTRANSPORTER isin the transport businessand professes to haveconsiderableskills, knowledgeand expertisein thatfield.
3. TheTRANSPORTER has represented to thecompany theyhavesignificant knowledgeand experience,expertiseand capacityin allrespects necessary tocarryouttheservicesand in willing to transportand deliveror procure thetransportation and deliveryof commodities in accordancewith theterms and conditionssetoutin this rentalagreement.
4. Thepartieshavenow agreed to enterinto a rental agreementso as toevidence theirrental agreement concerning theservices.
NOW THEREFORE
In consideration of mutual promises and covenants herein contains the parties agree as follows:
1. DEFINITIONS AND INTERPRETATION
Inthisrental agreementthefollowing wordsand expressionsshallhave themeaning asdescribed to themexcept where thecontextrequiresotherwise.
“RENTAL AGREEMENT’’means thisrental agreement together with Annexesattached hereto at thetimeof signature and such otherdocumentasareherein expressly incorporated by reference,asthe samemaybeamended or supplemented by theparties.
“ANNEX’’means the variousdetailsattached tothis rental agreementatthetimeofsignature and forming an integralpartofthis rental agreement.
“BUSINESS DAYs”means anydayother than a Saturday,Sundayor publicholidayin therepublic ofSouth Africa.
“DAY”meansanydayof theweek whetheror notitisa Saturday,Sunday or publicholidayor any twenty four hour period.
“DELIVERY”means thesuccessfultransportationofproductfrom loading siteto an offloading site.
“DISPUTE”meansanydifferenceof view,disagreement,and controversyof claimarising outof or relating to thisrental agreementor theinterpretation ofperformanceof provisionsofthis rental agreementofbreach, termination ofvalidity thereof,which thepartiesareunable to resolveby mutualagreementwithin a reasonable time.
“EFFECTIVEDATE”means thedateon which this rental agreementtakeeffectwhich dateshallbe
……………………………………………………Notwithstanding, thedateofsigning.
“PRODUCT”shallmean anymeansofanyother item that the companyrequiresbeingthe
transported. The term maybeused interchangeablewith theword“cargo”
.
“MONTH”meansa calendar month.
“PARTIES”means thecontractor and the transporter collectively.
“SERVICES”means theservicesidentified in Annex1scopeofservices.
“SERVICES DATE”means thedateon which thisrental agreement issigned bythe partythatsignslast.
“VEHICLE”meansanymodeoftransportused by the transporter for the transportation and
Deliveryof anyproductsitterms of thisrental agreement.
“WEEK”meansseven consecutivedays
“YEAR”shallmeanaperiodof twelve consecutivemonthscommencingontheeffectivedateor onthefirtsdayofJanuaryandveryperiodoftwelveconsecutivemonthsthereafterwhichever isapplicablein terms ofthisrental agreement.
*Unlessinconsistentwith thecontext,words and wordssignifyingnaturalpersonalshall includeartificial personandviceversa.Signifying any one gender shall include the other, words signifying the singular shall include the plural and vice versa.
*Anyreferencein this rentalagreementto a partyincludes thatparty’spermitted successorsand signs.
*Anyreferenceto anystatusin this rentalagreementshallbea referenceto that statuteasatthe signature date,and included all regulations,orderdirectionsand promulgationsissued or passed thereunder
*When anynumberofdaysisprescribed in this rentalagreement, such numbershallbereckoned exclusivelyof the firstand inclusivelyof thelastdayunlessthelast day fallson a day than a businessday,in which case thelastdayshallbe thenextsucceedingbusinessday.
*Theheading in each section areused for convenienceonlyand shallnot limit,or effect the interpretation hereunder
*Thisrental agreement shallbeinterpreted and governed according to thelaws oftherepublicof
South Africa.
2.APPOINTMENT ANDSCOPE OF SERVICE
*The contractor herebyrents a 34 ton side tipper to thetransporter to perform theservicesset forth herein subject to theterms and conditionsofthis rental agreement.
*The transporter herebyacceptstheappointmentand agrees to perform theservicesin
Accordancewith the termsand conditionsofthis rentalagreement.
3.DURATION AND COMMENCEMENT
*Thisrental agreementshallbe for a term frommonth to month ontheeffective dateand shall continueuntilexpiryby one calendar month written notice from ether party.
*Thepartiesmayapt to renew thisagreementon such termsand conditionsas thepartiesshall agree.
*Intheevent thateitherpartywishestorenewthis rentalagreement, that partymustgivenoticeto the otherpartyofsuch intention to renewatleast one weekprior to thedateofexpiryreferred to above.
*in the event of the Transportersfailed to make timeliest rental payments then thisrental agreementshallautomatically terminate byexpirydue to none payment at Transporters costs.
*Thereafter if the transporter wishes to reinstate this rental agreement due to none payment the Transporter must pay all expenses the Contractor incurred during the non payment period.
4.STATUS OF TRANSPORTER
*The transporter shallhavean independent transportstatusand shallnotbe considered asan employeefor anypurpose.Accordingly the transporter shallretain soleand absolutediscretion in themannerand meansofcarrying outitsactivitiesand responsibilitiesunder this rentalagreement.
*Thisrental agreementdoesnotconstitutean agreementof employment,partnership jointventureof agencybetween contractor and the transporter and shallnotgiverise to anyrelationship of employerand employee,masterand servantor,saveasexpresslystated otherwise,principal and agentbetween thecontractor and the transporter ofbetweenthe contractor and any employeeagentofsubcontractor of thetransporter.
*Accordingly, the transporter shallberesponsiblefor fullworkmen compensation insurance cover for itsemployees and the companyshallnotbeliable for anyinjurelossor damage, arising in whethermanner caused to thetransportation,movementor deliveryof theproducts.
*Neitherpartyshall,saveasexpresslystated otherwise,have thepowerto makea contractin
Thenameofthe other, tograntofpledge creditof theother,to incur liabilitieson behalfof the otheror to theemployee anyperson on behalfof theotherand eitherpartyshallsaveas expresslystated otherwisehold itself outto havesuch power to purport toexerciseanysuch power.
*The contractor shallnotbeliable for anyobligationsincurred by the transporter savewhere prior written approvalofsuch commitmentand liabilitywasissued by the contractor.
5.COMPENSATION,BENEFIT ANDEXPENSES
5.1TheTransporter willprovide transportation servicesfor arental agreement to thecontractor for theperiod ofmonth to month;
:
MINE:
ORDER NUMBER: ISSUEDONSITE
OFFLOADING:
ROUND TRIP:
Theoperatinghoursis 6-6hrs or maximum 12 hour shift per day dependonas agreedbetweenbothparties.
5.2Therateis a Monthly Rental of R80,000.00 per month due each month from date signed. The driver salary is paid up front on delivery of 34 ton side tipper of R15,000.00 and due every month on same date rental is due. An once off holding deposit for damages is due on delivery of 34 tons side tipper of R50,000.00 and is refundable after rental period, after inspection report is complete and no damages reported.
5.3TheContractor shallraise andsubmitoneinvoice every monthfor rental and driver salary to Transporter for services rendered.Upfront Paymentshallbemade by Transporter on delivery of 34 ton side tipper and every month their after on due date.
5.4In the event of the Transporter none payment of due rental fee on due date. The 34 ton side tipper will be withdrawn from service at Transporters costs.
5.5The Transporter shalluse itsowntools,othermaterialsto perform the service.TheTransporter shallberesponsiblefor logistical arrangementsorthetransportation of the products from a loadingsiteto an offloading siteandshall be responsibleforall incidentalor relatedcoststhat mayarise.
5.6 The transporter is responsible for major services and tire wear and tear.
5.7No cross boarder work is allowed by transporter all work for this rental agreement must be done within the borders of the Republic of South Africa.
The transporter is to use the drivers designated to service only. By contractors approval.
6.TRANSPORTER OBLIGATIONS
*The transporter herebyacknowledgesand agrees tothe following obligationsand covenants with the contractor to:
*The transporter or moveand deliver theproductto the offloading sitesbymeansofthe vehicleswhich shallbelisted by rental agreementof the parties in annexure1immediatelybeforeor after thesigning ofthisrental agreementprovided thatthe vehiclesmeettheconditionsspecified under this rentalagreement.
*TheContractor shallatall timesensurea valid Goodsin transitcoverisinplace.
*Completeand sign all requisite contractor documentsduring theperformanceofits dutiesand obligations.
*Transporter Notto overload trucksand deviseways to prevent, controland avoid overloading. In theevent ofoverloading the transporter willberesponsiblefor thetrans-movement oftheproducttothe finaloffloading pointat no costtothe contractor and damage that may accrue to 34 ton side tipper due to overloading will be for transporters account.
*Ensure thatitsequipment,including butwithoutlimitation to allvehicles used,isin good working and operating condition and isproperlymaintained so as to avoid injury to any personnel,damage to the contractor 34 ton side tipper.
*Ensure thatthevehicles areatall timesproperlymaintained in a roadworthyand running condition,and to a standardthatmeetsthe contractor requirementsin regards to cleanliness and appearance.Vehiclesmustbefitted withsafetybeltsand reversewarning alarm (visualand audio)
*Transporter isrequired to fullyadherewith allrelevantroad trafficlegislation and safety regulationsin force from timeto time governing the conveyanceof theproductsand shall ensurebein compliancealong with allitsemployeesassigned to carryout theservices.
*providedriversand loaderswith appropriate safetygear and ensureitscorrectuseatalltimes asrequired.
*Usequalified competentdriverstrained in defensivedriving andwho haveobtained a recognized certificatethereto,having valid driving licensesand thatarereliable,sober,literate and who aremedically fitand properly to convey theinputs. The transporters in his execution of thisrental agreementshallsubmitthe namesofsuch personnel to the contractor.
*Atitsown costobtain all permitsand thelike thatmay berequired in order for itto lawfullyperform itsobligations in terms ofthis rentalagreement
*Ensure thatatalltimesduring which the transporter isperforming theservicesa suitably qualified person isappointed by thetransporter to theresponsible for andsupervise the performanceof theservicesand the transporters otherobligation interms of this rental agreement and thatatleast onesuch person is contractible24 hours at theminimum alternativelyof contact person per12hours shift.
*Cellphone, thatatleast onesuch person isavailableand authorized to makealland any decisionsregarding the performanceofthetransportation servicesor anyof thetransporters otherobligation in termofthis rental agreement.
*In addition to theobligationsherein beforeacknowledge the transporter undertakesthat:
A)All theequipmentlisted in this rentalagreementshallbeused by thetransporter exclusively for the purposeofthis rentalagreementthroughoutthe validityof therental agreementand thoseincompetentDriverswillbereplaced immediatelyshould thecontractor beoftheopinion thatthedriveris unsuitable.
B)Itwill co-operatewith all and anyotherpersons performing anyservices of anynature whateverattheloading sitesor offloading sitesasmayreasonablybenecessary to properly perform itsdutiesinterm ofthisrental agreement.
7. SAFETYANDENVIRONMENT
*The transporter mustobserveand complywith atall timeslegislation and rulesaffecting safety health and welfareofitsemployeesand theenvironment
*The transporter shallhavea written policyand applysound safetypracticesin its operations and adhere to the contractor safetyregulations.
8. EQUIPMENT
*The transporter shallensure thatallofitsequipmentisat all timesserviceableand in this regard shallallow an agentappointed by thecontractor to inspect the vehicle from time to time by agreed appointment and aftertheinspection any vehicleadjudged to beunserviceableshallbewithdrawn by the contractor at transporters cost.
*Interchangesofvehicles and equipmentby thetransporter shallbeallowed onlyin the caseof breakdownsand inefficienciesprovided prior approvalhasbeen issued to the contractor contractmanager.
9. ACCIDENTS ANDBREAKDOWNS
*In theeventof anyaccidentor breakdown involving anyequipmentusedfor purposes this rental agreementthe transporter shall:
*Immediatelynotifythecontractor
*Arrange to trans-load and conveytheproductsto thenearestoffloadingsiteat its own expense.
*Arrangewith thenecessarypolicyunderwritersofthedamageand possible claimand make good on the claimwith hisensure for theloss or damageasa resultoftheir director indirect involvement.
*The failurebythe transporter to immediatelynotifythecontractor ofany accidentshallbe considered asa materialbreach.
10.LIABILITYFOR LOSSES.
*The transporter shallhavetherightto replacemissingordamaged partsbysubmitting a request to the contractor for approval.
*The contractor reservestherightto reject thereplacementpartsiftheydo notmeetthe same qualityofthepartsdamaged or lostand to debit theinvoiceasindicated in clause above.
11.CONTRACTOR’S OBLIGATIONS
*during the term ofthisrental agreementthe contractor shall:
*Keep accuraterecordsof inspection report before delivery of 34 ton side tipper.
*Keep a (fifty thousand Rand) R50,000.00 deposit supplied by Transporter in trust for the duration of this rental contract for any damages that might accrue during the rental agreement period.
*Ensure thatvehicle isgiven to Transporter in good working condition after signing inspection report by both parties.
*The contractor shallberesponsible for Goods In-Transit insurance and vehicle insurance.
*The transporter shallimmediatelyreportanymajor engine damage to Contractor.
12.INSURANCE
*The Contractoracknowledges and agrees that it is responsible for procuring insurance in respect of all products in transit for each consignment and that each consignment is adequately insured
*The transporter shall procure at minimum third party vehicles insurance for all vehicles used to carry out the services.
13.DELIVERYTIMES
*TheTransportershallensurethe deliveryofthe products withinthetimeperiods of 12 hour shifts maximum per day prescribed by the contractorfailureofwhichshall constituteamaterialbreach.
14.INDEMNITY
*The transporter shallindemnifyand keep indemnified the contractor itsservantsand employees form all claimsand demandsarising from breach or non-observanceofallapplicable legislation in theexecution ofthe rentalagreement.Heshallkeep indemnified the contractor from and againstallactions, claims, cost charges,proceedingsand demands thatmaybemadeorbrought against the contractor or which the contractor may bring or sustain in respect of such breach or non observance and in respect of damage or injury to the persons property directly or indirectly due to or arising from an act neglect or default of the transporter its agents.
15.SETTLEMENT OF DISPUTES
*The contractor and thetransporter shallin the firstinstancemakeeveryeffortto resolve amicablybydirect,(documented) informalnegotiation anydisputeofany kind arising between themunderor in connection with thisrental agreement
*In after fifteen days from the commencementof such informalnegotiations thepartieshave notsucceeded in negotiating a resolution or settlementof thedisputeeitherpartymayreferthe dispute for determination byarbitration in accordancewith thearbitrationactof thelawsof south Africa or anystatutoryenactment in thatbehalffor thetimebeing force. Thedecision of such an arbitrator shall be finalbinding upon thepartiesand the rental agreementgoverned byits term and condition will takeprecedencewith a view to resolving theindifferencebased on the acceptanceof this rental agreement.
16.ASSIGNMENT
*This rental agreement is personal to the transporter and the transporter shall not assign transfer or support to assign or transfer to any other person any of its rights or obligations in whole or in part except with the prior written consentof the contractor.
17.TERMINATION OF INSOLVENCY
*The contractor mayat all timeterminate thecontractbygiving one month written noticeto the transporter if the transporter becomesbankruptor otherwiseinsolvent. Inthisevent termination willnotaffectanyrightofaction or remedywhich hasoccurred or willaccrue thereafterto thecontractor
The contractor may terminate this rental agreement without liability to the transporter by giving notice at anytime if:
1)The transporter makes any voluntary arrangement with its creditor’s or being an individual or firm becomes bankrupt or being a contractor becomes subject to an administration order or goes into liquidation otherwise than for the purpose of amalgamation or an approved restructuring or
2)An encumbrances takes possession or a receiver or liquidator is appointed for any of the property or assets of the transporter or
3)The transporter ceases or threatens to cease to carryon business or
4)The contractor reasonably apprehends that any of the events mentioned above is about to occur in the relation to the transporter and notifies the contractoraccordingly.
5)Any termination of this rental agreement pursuant to this clause shall be without prejudice to any other rights or remedies that a party may be entitled to here in or at law shall not affect any accrued rights of liabilities of either party:the notice period shall be two weeks given in writing
*Without prejudice to any other remedy if the contractor exercises its right to terminate this agreement in accordance the provisions if clause 22.1 the transporter shall be obliged to repay the contractor forthwith any service fee which has been pre-paid before termination.
18. TERMINATION OFDEFAULT
*Without prejudicetoany otherremedyforbreachofcontract,thisrental agreement maybe terminatedforthwithbyeitherparty if theothercommits any materialbreachof this rental agreementand which( incaseofabreachcapableof beingremedied) shall not havebeen remediedwithin 14 daysof awritten request toremedythesame. Inaddition thecontractor may terminatethis rental agreement:
*Ifthetransporter throughanyof itsemployeesengagesinor knowinglyfailstotakeactionto prevent the commissionofany illegal activityat theloading transport transferoffloadingor consumptionpointsof.
*If the transporter is not able to carry out its obligations and or does not perform its obligation under the rental agreement to the satisfaction of the contractor.
*In the event the contractor terminates the transporter in whole or in part pursuant to clause.
*Notwithstanding anything to the contrary and notwithstanding the termination of this rental agreement or any part thereof for any reason whatsoever the provisions of this rental agreement which expressly or by implication are intended to survive such termination shall survive such termination and shall continue to be of force and effect.
19. FORCEMAJEURE
*Notwithstandingtheprovisionofclauses14,15and24 thetransportershallnot beliablefor liquidateddamagesortermination fordefault,totheextent that itsdelay inperformanceor otherfailure toperformits obligationunderthisrental agreementistheresult of an eventof force majeure
*Forpurposes of thisclause“forcemajeure”means an eventbeyondthecontrolof the transporterandnotinvolvingthetransporterfaultornegligenceandnot foreseeable.Such eventsmayinclude but are not restricted to warsorrevolutionsfiresfloods quarantine, Restrictionsandfreight embargoes
*Ifaforcemajeuresituationarisesthetransportershallnotifythecontractorinwritingofsuch condition within24hours of becomingaware of a“forcemajeure”situation.
Thisnotification mustdescribethenatureof thecircumstances that haveemergedandifpossiblean estimated effectof theinabilityof thetransportertodischargeitsobligation underthisagreement unless
Otherwise directed by the contractor in writing the transporter shall continue to perform its obligations under the contract as far as is reasonably practical and shall seek all reasonable alternative means for performance not prevented by the majeure event.
*If an event of force majeure continues for a period of seven days of morehe contractor may terminate the contract without either party incurring any further liabilities towards the other with respect to the contract other than to effect payment for services already.
20. NOTICES
*Saveasisspecifically andexpressly stated in thisrental agreementallnoticesrequiredorpermitted underthis rentalagreement shall bemade in writingandshallbe deemedtohave been dulygivenif deliveredby handormailed postage prepaidbyregistration orcertified mailreturnreceipt or by facsimile upon completionof
Dispatchand receiptofasuccessfultransmissionslipsent tothepartytoreceivesuchnoticeat theaboveaddressesofthecontractor:
*Aparty may atanytime changeit’saddressforservice bynotice in writing totheother, providedthat the new address consistsof orincludesaphysicaladdress intheRepublic of SouthAfricaatwhichprocesscanbeserved.
*Notwithstandinganythingtothe contrary,a written noticeorcommunication whichhas actuallybeenreceived by a party shall beregardedassufficient noticedespitethefactthatis hasnot beendispatchedor delivered toorreceivedat the addressforservice.
26. CONTRACTAMENDMENTS
*Novariationin ormodification of thetermsof thecontractshallbemadeexcept by written amendmentsigned bythe parties.Noagreementtovary add toor cancel thisrental agreementshall beofany forceofeffectunless reduced to writingandsignedby oron behalf of thepartiesto thisrental agreement bythe duly authorized representativesasdefinedinthis rental agreement.
21.WAIVERS
*Nofailureonthepart ofanyparty toexerciseandnodelay in exercising any rightpoweror privilege underthisrental agreementshalloperateasawaiver of suchright powerorprivilegenot shallanywaiverofone breachbeconstrued asa waiverofany right orremedieswithrespect toany subsequent breach. No waiver of therequirementsof any provisionof thisrental agreement shallbeeffectiveunlessitsinwritingandsignedby theduly authorized representativeof the party giving it.