Terms & Conditions
Clause 1. DEFINITIONS
1.1 As used in these
Conditions and in this Contract, the following words and
expressions shall have the following meanings:
"Aggreko"
Means Aggreko Chile Ltda.
a Company having its registered office at San Ignacio 601,
Quilicura Santiago, Chile.
"General Conditions"
Means these Hire General
Conditions.
"Contract"
Shall have the meaning
ascribed to it in Clause 2.
"Day"
Eight hours, unless
otherwise specified in writing.
"Hire Period"
Means the time between
the date on which the hired equipment leaves Aggreko's warehouse or
the place where it is last unloaded until the date on which it is
received back at Aggreko's warehouse or delivered to another place
named by Aggreko. The minimum Hire Period for generators
shall be not less than one week unless specified otherwise in
writing.
"Hirer"
Means the party leasing
Aggreko's Equipment and named as such in the Contract, whether an
individual, firm, company, unincorporated association, public
authority or other body and shall include its successors, assignees
or legal representatives.
"IEC"
Means the regulations of
the International Commission of Electro-technology that are in
force and applicable.
"Invoice"
Means the invoice or
invoices sent by Aggreko to the Hirer in respect of the hire
charges incurred by the Hirer.
"Regular Working
Hours"
Means 8 a.m. to 5 p.m.
from Monday through Friday.
"Equipment"
Means all and any
equipment, cables, cable drums, trailers, fuel tanks, machinery and
accessories of whatever nature hired out by Aggreko to the Hirer,
including any eventual replacements thereof supplied pursuant to
Clause 17 of these Conditions.
"Site"
Means the place where
Equipment is delivered (or shall be delivered), in accordance with
Hirer's instructions.
"Week"
Means a period of seven
consecutive days.
"Working Week"
Means, in any Week, the
period between 8 a.m. on Monday and 5 p.m. on Friday.
“Party”
Means one of the
contracting parties named and identified in the Contract and
“parties” means both contracting companies.
1.2 For purposes of
interpretation, the paragraph headings contained herein were
attributed for convenience only and are not relevant in construing
this contract.
1.3 Unless the context
otherwise requires, the masculine gender shall be deemed to include
the feminine and the neuter and the singular number shall be deemed
to include the plural and vice versa.
1.4 All instructions,
notifications, authorizations, and information under the Contract
shall be in writing and in Spanish.
1.5 References to Clauses
are to clauses of these General Conditions.
Clause 2. EXTENT OF
CONTRACT
2.1 Aggreko’s proposal,
the Hirer's acceptance thereof, the hire contract, bill of
delivery, invoice, off-hire removal note and return note, as well
as these General Conditions comprise the entire contract and no
other terms and conditions shall form part of the Contract unless
specifically agreed in writing by the parties.
2.2 The Contract replaces
any previous agreement between the parties relating to the subject
matter of the Contract and no amendment to the Contract shall be
valid unless specifically agreed to in writing by the legal
representatives of Aggreko and of the Hirer granted with
appropriate powers.
2.3 Nothing in this
Clause 2 shall, however, operate to limit or exclude any liability
of the parties for fraud, error, simulation or unlawful act. In the
event of any incompatibility between any of the documents forming
part of the Contract, the Aggreko hire contract shall prevail over
all other documents; and all other documents shall prevail over
these General Conditions.
Clause 3. LOADING AND
UNLOADING
3.1 The Hirer shall be
responsible for loading and unloading the Equipment at the Site and
the personnel supplied by Aggreko for loading and unloading shall
do so always under the Hirer's direction and control. To
avoid any doubt, the period agreed by the parties for the
installation and hire of the Equipment shall not commence until the
Hirer has completed the unloading and placed the Equipment in its
required position and in operation.
Clause 4. CONDITION OF
EQUIPMENT ON RECEIPT
4.1 Unless the Hirer
otherwise notifies Aggreko in writing within 3 working days of the
date of delivery of the Equipment on Site or, where applicable, of
the completion of construction on-Site of any Equipment, all and
any Equipment will be deemed to have been delivered and, where
applicable, constructed in a timely manner and in good working
condition and to the Hirer's satisfaction.
CLAUSE 5. CARE OF
EQUIPMENT
5.1 During the Hire
Period, the Hirer shall be absolutely responsible, bearing all
necessary costs, unless otherwise agreed by the parties in writing,
for the safekeeping and insurance coverage of the Equipment and for
maintaining it in good condition and in compliance with Aggreko's
specifications; for the lubrication of the Equipment and oil
changes in accordance with Aggreko's instructions; for the use of
the Equipment in accordance with its specifications and current IEC
Regulations, as well as any other applicable laws or
regulations.
5.2 The Hirer shall
ensure that the Equipment is not operated for any purpose beyond
its rated capacity or in a manner likely to result in deterioration
of the Equipment except for normal wear and tear.
5.3 The Hirer shall check
lubricating oil and coolant levels of the Equipment daily and
ensure that lubricating oil and coolant are kept at the level
required for the proper operation of the Equipment in accordance
with Aggreko's specifications.
5.4 The Hirer states that
is acquainted with the conditions of the Equipment and will not
operate it in the event of defect, failure, damage or the presence
of danger, or in a state that results in a breach of any applicable
law or regulation.
5.5 If the Hirer or any
of its employees, workers or agents do operate the Equipment in the
conditions described in item 5.4, then the Hirer (i) shall be
solely liable for any damage, loss or accidents resulting from the
irregular operation of the Equipment and (ii) shall, without
prejudice to Clause 36 of these General Conditions, indemnify
Aggreko in respect of any loss or damage suffered by Aggreko and
against any claims made against Aggreko resulting from this
irregularity.
5.6 Should breakdown or
damage occur to any part of the Equipment due to (i) failure by the
Hirer to observe any terms of the Contract or of the applicable
technical specifications, instructions and regulations, (ii)
negligence or misuse by the Hirer or its employees, workers or
agents, (iii) willful or culpable action or omission of the Hirer
or its employees, workers or agents, however occurring, or (iv)
damage caused by salt water, salt spray and/or salt laden air, the
Hirer shall be liable to Aggreko for:
(i) The full cost
of any repairs which Aggreko shall deem necessary or useful; or
(ii)
the full replacement cost of
the Equipment, if Aggreko finds that the repair will not be
practicable or not be feasible because its cost is greater than 70%
of the value of a new piece of Equipment; and
(iii)
Payment of the hire charges
due to Aggreko (i) while the Equipment is idle due to breakdown or
damage and (ii) while repairs are being carried out.
5.7 For all purposes, the
costs set forth in item 5.6 (i) and (ii) above shall always be
estimated by technicians and/or specialized companies authorized by
Aggreko, since only they are acquainted with the particulars of the
Equipment and are qualified to repair it. Estimates and budgets
submitted by other technicians or specialized companies shall not
be accepted.
Clause 6. RECALL
NOTICE
6.1 Always subject to
Clauses 30 and 34, Aggreko may, without incurring any liability
vis-à-vis the Hirer in respect of the recall, recall part of or all
Equipment upon thirty (30) days' prior written notice to the Hirer
informing the recall date.
Clause 7. DUTY TO
RETURN
7.1 The Hirer shall be
responsible for the return of all Equipment to Aggreko on
completion of the agreed period of hire and the Equipment shall be
returned to Aggreko in good working order, in the same condition in
which the Equipment was received, normal wear and tear excepted,
and when the Equipment includes cables, the Hirer shall be
responsible for recoiling cables on the drums supplied.
7.2 If the Hirer returns
any Equipment or any part of it in conditions other than
those mentioned above for any reason whatsoever, whether or not
involving any negligence or other fault on the part of the Hirer or
its employees, workers or agents, then the Hirer shall be liable to
Aggreko for:
(i) The full cost
of any repairs which Aggreko deems necessary or useful; or
(ii)
the full replacement cost of
the Equipment, if Aggreko considers that the repairs will not be
practicable or not be feasible because their cost is greater than
70% of the value of a new piece of Equipment; and
(iii)
Payment of the hire charges
due to Aggreko (i) while the Equipment is idle due to the necessary
repairs or, where necessary, for the payment of the costs referred
to in item (ii) above
7.2
If the Hirer fails to return any
Equipment or any part of it for any reason whatsoever, whether or
not involving any negligence or other fault on the part of the
Hirer, its employees, workers or agents, then the Hirer shall be
liable to Aggreko for:
(i)
the full replacement cost of such Equipment or of the part that is
missing or not delivered; and
(ii)
payment of the hire charges until the date of payment of the costs
referred to in item (i) above.
Clause 8. OWNERSHIP OF
EQUIPMENT
8.1 The Equipment is and
shall continue at all times to be the sole and exclusive
property of Aggreko and the Hirer shall have no right, title or
interest in the ownership of the Equipment. The Hirer shall not
remove or deface any plate, marking or identification on the
Equipment identifying Aggreko as its owner.
8.2 The Hirer shall keep
the Equipment free and clear of any and all legal actions,
retention, foreclosure, seizure, attachment, liens, security
interests, retention of title and encumbrances of any kind and
shall give Aggreko immediate notice in writing of any encumbrance,
charge, lien, attachment, diligences, legal suits or any event
similar to any of the foregoing that affects or may affect the
Equipment.
8.3 Without prejudice to
the provisions of Clause 36, the Hirer shall indemnify Aggreko
against all losses, damages, costs, charges and expenses resulting
from the failure to comply with this Clause.
Clause 9. EXPENSES
9.1 The Hirer shall be
responsible for all costs, charges and expenses, including legal
fees, incurred by Aggreko (i) in recovering possession of the
Equipment or (ii) in the collection of any sums which may be due
and owing by the Hirer to Aggreko under the terms of the hire
or (iii) in the defense of any action brought against Aggreko by
third parties and any costs, losses, damages or other expenses
caused directly or indirectly by the operation or use of the
Equipment while it is in the possession or under the control of the
Hirer.
Clause 10. ACCESS
10.1 The Hirer shall
allow access to the Equipment by Aggreko's employees, workers,
agents and representatives at any pretense at all times during
Regular Working Hours in order to inspect, test, adjust, maintain,
repair or replace, if necessary, said Equipment.
10.2 The Hirer shall be
responsible for providing safe and proper access both for the
purposes specified in item 10.1 above and for delivery and removal
of the Equipment and shall be liable for all losses or damage
suffered by Aggreko or by Aggreko's employees, workers, agents or
insurers as a result of the Hirer's failure to provide, or delay in
providing, such safe and proper access.
Clause 11. ROUTINE
MAINTENANCE/TECHNICAL ASSISTANCE
11.1 Aggreko shall,
either itself or through third parties contracted by it, provide
regular maintenance and technical service during the Contract
period, in accordance with Aggreko's standard practice, considered
for all purposes to be routine maintenance and technical
assistance.
11.2 The Hirer shall make
the Equipment available to Aggreko for the purpose of carrying out
maintenance or technical assistance, whether routine or special,
within one week as of the day Hirer is advised by Aggreko that such
maintenance or assistance is due.
11.3 During Regular
Working Hours Aggreko will make no charge to the Hirer for any
routine maintenance or service. However, if the Hirer can only make
the Equipment available for this purpose off-Regular Working Hours,
then Aggreko reserves the right to charge the Hirer for overtime
costs.
11.4 In the event of
special maintenance or technical assistance, Aggreko shall be
authorized to charge the Hirer for the cost of the working hours,
whether overtime or not.
Clause 12.
TECHNICAL ASSISTANCE SERVICE/MAINTENANCE
12.1 Notwithstanding the
terms of Clauses 5 and 11, the Hirer shall notify Aggreko in
writing whenever the Equipment has operated for 400 hours as of the
date of the last maintenance carried out by Aggreko or as of the
start of the Hire Period, whichever occurred first.
12.2 The costs of any
routine maintenance service carried out by Aggreko within one week
as of notice receipt by Aggreko will normally be met by
Aggreko.
12.3 If the maintenance
is not carried out within one week as of the date Equipment has
operated for 400 hours and the Hirer has failed to notify Aggreko
as provided in this clause, then the Hirer shall compensate Aggreko
for additional wear and tear and damage to the Equipment and pay
the full cost of the next maintenance and any consequent
repairs.
12.4 If even duly
notified by the Hirer, Aggreko fails to carry out the maintenance
of the Equipment within one week as provided in this clause, then
the costs of both the next maintenance and any consequent repair
will be met by Aggreko.
Clause 13. TIMBER MATS OR
EQUIVALENTS
13.1 The ground for
installation of the Equipment shall meet the technical
specifications presented by Aggreko. If the ground at the Site is
unsuitable for operation or transport of the Equipment as per the
technical specifications without timber mats or equivalents, the
Hirer shall at its own expense supply and lay suitable timber mat
or equivalent material so that the Equipment may be installed in a
suitable position for transport or operation.
Clause 14. FUEL, OIL AND
LUBRICANTS
14.1 Fuel, oil and
lubricants used in the Equipment shall, when supplied by the Hirer,
be of a specific grade and type as stipulated by Aggreko.
Clause 15. COOLANT
15.1 Coolant, when
supplied by the Hirer, shall be a mixture of clean, fresh water and
antifreeze in a proportion and of a specific grade and type as
stipulated by Aggreko.
Clause 16. TRANSPORT
16.1 The Hirer shall bear
the cost (if previously agreed with Aggreko) and arrange for (i)
the transport of the Equipment from the collection place specified
by Aggreko to the Site and (ii) the subsequent return of the
Equipment to the collection place, as specified in accordance with
Clause 7.
16.2 In the event that
the Equipment needs to be transported for the purpose of repair due
to damage or breakdown and the cost is to be met by Aggreko under
the terms of the Contract, the cost of transport shall be met by
Aggreko.
16.3 In the event that
the cost of such repair is to be met by the Hirer under the terms
of the Contract, then the cost of transport shall be met by the
Hirer.
16.4 In the event of
replacement of the Equipment, the cost of transport to the Site
shall be borne by the party which gave cause to the replacement, as
per the provisions set forth in Clause 5 and in the Contract.
Clause 17. BREAKDOWN
17.1 Breakdowns or
defects in any part of the Equipment resulting from proper routine
use or normal wear and tear or the development of an inherent fault
or a fault (imperfection) not detectable on routine examination
carried out by technicians prior to commencement of the Hire Period
may, at Aggreko's discretion, either (i) be repaired at Aggreko's
own expenses within the shortest possible term, and the Hirer shall
not be charged from the time it notifies a breakdown to Aggreko
until repair is completed, or alternatively (ii) Equipment might be
replaced.
17.2 Any other
breakdown or defect, other than those mentioned in item 17.1 above
and resulting from the Hirer’s fault, may, at Aggreko's discretion
either (i) be repaired at the Hirer's expenses without prejudice to
the obligation of the Hirer to pay the hire charges and any sums
due to Aggreko until repair is completed or, alternatively, (ii)
Aggreko may replace the Equipment at the Hirer's cost and
expense.
17.3 Notwithstanding the
above provisions of this clause, if the breakdown or defect is
caused by willful or culpable action of the Hirer or its employees,
workers or agents, and if repair is impracticable and replacement
Equipment is not available, Aggreko may terminate the hiring
forthwith and will not have any liability whatever to the Hirer for
such termination or for any consequences of such breakdown, defect
or termination.
17.4 Any breakdown or the
unsatisfactory operation of any part of the Equipment must be
advised immediately to Aggreko and for this purpose no notification
shall be valid until it is actually received by Aggreko. The Hirer
shall not attempt to make repairs itself or to engage any third
party to carry out any repairs except with the written consent of
Aggreko.
17.5 No relief from the
amounts due as a result of the hire, or any claims will be accepted
by Aggreko for stoppages due to causes beyond Aggreko's control,
including, but not limited to, weather and/or ground
conditions.
17.6 The Hirer shall be
solely liable for the costs and expenses of recovering the
Equipment in the event of variations and/or movements of the ground
and exposition to prejudicial weather conditions and shall make
arrangements for such recovery at its own expense.
Clause 18. INSPECTION
REPORTS
Inspection reports which
Aggreko possesses, or copies thereof, shall be supplied to the
Hirer if requested and returned by the Hirer to Aggreko at the end
of the Hire Period.
Clause 19. CONSEQUENTIAL
LOSS
19.1 Aggreko shall not in
any event whatsoever be liable to the Hirer for any economic loss,
including, but not limited to, loss of business and/or profits or
consequential physical losses suffered by the Hirer, unless such
losses arise from a breach of contract, negligence or any other
failure on the part of Aggreko or its employees, workers or agents,
nor those arising from acts of God or force majeure beyond
Aggreko’s control, whether or not they have been contemplated by
Aggreko and/or the Hirer at or prior to the commencement of the
Contract.
Clause 20. INFORMATION,
RECOMMENDATIONS, ETC.
20.1 The Hirer states
that its decision to enter into the Contract has been made freely
and is not based on any recommendation, statement, representation
or warranty given by Aggreko or its employees, workers or agents to
the Hirer in relation to the Equipment being suitable for its
business purposes or appropriate for any other specific purpose of
the Hirer.
20.2 The Hirer declares
furthermore that is acquainted with and accepts all instructions,
specifications and Regulations mentioned in the General Conditions
concerning the use, installation and operation of the Equipment,
including the ground, conditions of the installation site and
technical specifications presented to the Hirer by Aggreko.
Clause 21.
LIABILITY OF AGGREKO
21.1
Notwithstanding and without prejudice to
any other terms and provisions of the Contract, Aggreko shall be
liable for damage, losses or harm to the Equipment arising:
(i)
prior to delivery of the
Equipment to the Site, when the Equipment is in transit by
transportation arranged for or owned by Aggreko;
(ii) during erection of
the Equipment on Site, provided such erection is entirely under
Aggreko's command;
(iii)
during dismantling of the
Equipment on Site, provided such dismantling is entirely under
Aggreko's command;
(iv)
after removal of the Equipment from
the Site, when the Equipment is in transit by transportation
arranged for or owned by Aggreko.
Clause 22.
SCOPE OF DAMAGES
22.1 All and any
liability on Aggreko’s part arising from the object of this
instrument, including that liability relating to the Equipment,
should it be the object of any claim or dispute, shall always be
limited to, and shall not exceed in any case, the total hire
charges received.
Clause 23.
OPERATION OF THE EQUIPMENT
23.1 Whenever necessary,
at Aggreko’s discretion, a technical operator may supervise the
installation and/or commissioning of the Equipment at the Site in
order to demonstrate and instruct the Hirer and its employees,
workers or agents on how it should be operated.
23.2 After the technical
operator has demonstrated how to operate the Equipment and having
been duly instructed, the Hirer’s employees, workers and agents
shall start working under his supervision and instruction, for
which reason the Hirer shall be liable for their acts and
omissions, including negligent ones, during the entire Hire
Period.
23.3 The Hirer shall not
permit any other person to operate the Equipment without Aggreko's
prior consent in writing, with the exception of its duly trained
employees, workers and associates.
Clause 24.
PRICE
24.1 The hire charges for
the Equipment shall always be stipulated at the time the hire
contract is signed or on the date the Hirer signs the acceptance
deed.
24.2 Should the Hire
Period exceed the term of 1 (one) year, the hire charge shall be
adjusted based on one of the following indices, at Aggreko’s
discretion: (i) the General Consumer Price Index (INPC-IBGE) or
(ii) the General Price Index – Market (IGP-M-FGV) and the
successive adjustments, if applicable, shall always be yearly,
based on the index used previously. The parties hereby agree that
should the chosen price adjustment index be extinguished, it shall
be replaced by the legal index that takes its place or the one that
best reflects any devaluation of the currency.
24.3 The price of the
accessories – materials, goods and services – shall always be
determined at the time they are requested for routine or special
maintenance and assistance whenever they are needed.
24.4 Irrespective of the
hire period or of any other term, whenever there is any change in
the cost of the accessories – goods, spare parts, oil, lubricants,
coolant, fuel or any imported materials used by the Equipment
and/or skilled labor -– Aggreko may revise and adjust the prices in
effect, which shall be quoted in U.S. dollars, in order to maintain
the economic balance between the parties.
Clause 25.
CHARGING
25.1 The Hirer shall
supply to Aggreko for each Working Week an accurate statement of
the number of hours the Equipment has been operated each Day.
Whenever the visit of an Aggreko technical operator to the Site is
required, the Hirer or its representative shall sign the operator's
Time Sheets daily or weekly and the signature of the Hirer shall
bind the Hirer or its representative to accept the hours shown on
the Time Sheets.
Clause 26.
ACCIDENT INSURANCE
26.1
The Hirer shall be responsible at its own expense for insuring the
Equipment and itself against all and any risks in respect of the
Equipment, including theft, vandalism, fire, flood and other risks
arising from the presence or operation of the Equipment, including
damages that may affect third parties and the environment.
26.2
Such insurance coverage shall be contracted and maintained in force
by the Hirer to protect the Equipment against any risk from the
time the Equipment is delivered to the Site until the Equipment is
completely removed from the Site, even if the removal takes place
after the term of the hire. For the purposes of the provisions of
this Clause, the Hirer undertakes to present the insurance policy
taken out for the entire hire period before the Equipment is
delivered to the Site.
26.3
Any insured amounts recovered by the Hirer as a result of said
risks, provided they are considered necessary by Aggreko, shall be
applied according to its instructions.
26.4 A
copy of the insurance policy taken out by the Hirer shall be
forthwith delivered to Aggreko, regardless of its request.
26.5 If
the Equipment is involved in any accident resulting in injury to
persons or damage to property, immediate notice must be given to
Aggreko by telephone and afterwards be confirmed in writing.
26.6 In
the event of any claim or dispute not covered by the Hirer's
agreement for indemnity in Clause 36 hereof, no admission, offer,
promise of payment, or indemnity shall be made by the Hirer without
Aggreko's prior consent in writing.
Clause 27.
ACCESSORY GUARANTEES
27.1 In
addition to the obligation to insure the Equipment and its
installations, without prejudice to any provision contained in this
instrument and in the other documents comprising the Contract, the
Hirer shall provide Aggreko with additional guarantees capable of
compensating for any loss event or damage that may affect the
Equipment or any part thereof.
27.2 At the time the hire
contract is entered into or at the time the acceptance instrument
is signed by the Hirer, the parties shall define which accessory
guarantees shall be provided.
27.3 Pursuant to the
provisions of item 27.1 above, the accessory guarantee to be
provided by the Hirer may be either (i) a security deposit or (ii)
a bank surety.
Clause 28 .
REHIRING, ETC
28.1 The Equipment or any
part thereof shall not be rehired, sublet, lent or otherwise made
available to any third party without the prior written consent of
Aggreko, and the Hirer shall indemnify Aggreko against all losses,
damage, costs, charges and expenses arising as a result of its
failure to comply with this clause.
Clause 29.
CHANGE OF SITE
29.1 The Equipment shall not be removed
from the Site without the prior written consent of Aggreko.
Clause 30.
HIRE TERM
30.1 In the event the
hire that is the object of the Contract is for an indefinite period
and not an agreed period, the hire may be terminated by either the
Hirer or by Aggreko by means of at least 5 days’ written notice to
the other party, and in the event of termination of the Contract by
either party, all Aggreko's rights under the Contract will remain
in force up to the date of such termination.
Clause 31.
COMPLIANCE WITH THE LAW
31.1 The Hirer
shall be responsible for complying with all relevant laws, by-laws
and regulations applicable and incidental to the installation, use
and operation of the Equipment, which without prejudice to the
generality of the foregoing, shall include the IEC Regulations in
force.
Clause 32.
FORCE MAJEURE
32.1 Aggreko shall have
no liability for any direct or indirect consequence of any delay or
failure on its part to carry out all or any part of its obligations
under the Contract if such delay or failure is attributable to the
failure of any part, component or item of equipment or machinery
caused by any alteration to data and/or error on electronic date
recognition, or by strikes, lock-outs, riots, civil commotion,
insurrections, acts of war, whether or not officially declared,
civil war, war-like actions, acts of any Parliament, government,
agency or department, whether local or national, natural calamity,
fire, flood, storm, tempest, earthquake, volcanic eruption or any
other circumstances beyond the reasonable control of Aggreko,
considering that they are unforeseeable acts of God or events of
force majeure.
32.2 To avoid any doubt,
this Clause 32 shall at all times be applied at the time of
occurrence of the above-mentioned facts, so as to exclude Aggreko’s
liability for such delays or failure and no notice shall be
required to be given by or to either party.
Clause 33.
PAYMENT TERMS
33.1
Invoices are due for payment in full within 15 days of their
issuance date.
33.2 Aggreko shall have
the right to charge monthly interest at the Selic rate on all
overdue and unpaid amounts, and late payment shall disentitle the
Hirer to any discount to which the Hirer might otherwise be
entitled.
33.3 In the absence of
payment on the due date, the Hirer shall pay, in addition to the
late-payment interest charges, a contractual penalty of 10% on the
amount of the invoice as well as indexing for inflation pursuant to
the laws in force.
Clause 34.
TERMINATION
34.1 Aggreko may
terminate the Contract due to the Hirer’s fault in the following
circumstances:
34.1.1
If the Hirer fails to make punctual payment of any sums due to
Aggreko, whether for hire of the Equipment or of any amount
provided for in the Contract;
34.1.2
If the Hirer fails to observe and perform the terms and conditions
of the Contract, or if the Hirer ceases to engage in business
activities or is unable to pay its debts as they fall due for
payment.
34.1.3
If the Hirer suffers any diligence, retention of its assets or
foreclosure against it or makes or proposes any composition with
its creditors or in the case of a Company, if it undergoes on
liquidation, reorganization proceedings or bankruptcy or suffers
any shareholding’s amendment, in the latter case except with
Aggreko’s prior consent.
34.1.4
If an administrator is appointed to manage the whole or any part of
its assets and undertakings, or does or suffers the equivalent of
any of the foregoing in any other jurisdiction, or if it does or
causes any act or thing to be done whereby Aggreko's rights in the
Equipment may be prejudiced or placed in jeopardy;
34.2 If any of the
foregoing events occur, the Contract shall terminate forthwith,
without any requirement for notice or other acts on the part of
Aggreko, notwithstanding the fact that Aggreko may have waived some
previous default or matter of the same or a like nature. Once the
contract is terminated, it shall thereupon be lawful for Aggreko to
immediately repossess the Equipment and for that purpose enter into
any premises where the same may be, and the termination of the
Contract under this Clause 34 shall not affect any other rights of
Aggreko existing up to the date of such termination, nor the right
of Aggreko to recover from the Hirer any monies due to Aggreko
under the Contract or damages for the breach thereof.
Clause 35.
MISCELLANEOUS PROVISIONS
(i)
if any provision of the
Contract is rendered void by legislation or declared void by court
decree or order or is or becomes illegal, invalid or unenforceable
in any respect under the laws of any jurisdiction, the remaining
provisions shall be severable and shall not thereby be altered and
shall remain in full force and effect;
(ii)
any waiver, indulgence or
forbearance by Aggreko in relation to any of the terms or rights
contained herein shall not affect the enforceability of such terms
or rights;
(iii)
the Hirer has no right to
terminate the Contract unilaterally and shall, in this case, be
liable for the full hire charges up to the end of the term of the
contract, in addition to losses and damages, except if Aggreko
fails to perform any obligation provided for in the contract or in
these General Conditions.
Clause 36.
INDEMNITIES
36.1 The Hirer shall be
solely responsible for, and shall fully indemnify Aggreko against,
any loss or damage arising from or in connection with the
Equipment, or as a result of the misuse or poor condition of the
Equipment or from any failure on the part of the Hirer to return
any Equipment or any part of it at the proper time as a result of
the termination of the Contract or agreed period of hire, howsoever
caused.
36.2 The Hirer shall
fully and completely indemnify Aggreko in respect of all claims by
any person whatsoever for injury to person or property caused by or
in connection with the use or condition of the Equipment and in
respect of all costs and charges related thereto, in accordance
with the laws in force.
36.3 The foregoing
indemnities shall be effective regardless of how the loss, damage
or injury arises, except in cases where the loss, damage or injury
arises from the proven negligence of Aggreko or its employees,
workers or agents, in which case the foregoing indemnities shall
not apply.
36.4 In addition to
the above provisions and without prejudice to them, the Hirer shall
also indemnify and hold Aggreko harmless from and against any and
all costs, fines, penalties, indemnities, assessments and/or
expenses levied, assessed, incurred or awarded by reason of any
violation of any applicable environmental laws, rules or
regulations in connection with the discharge, rehire and/or
disposal of any hazardous materials or substances in the course of
the operation, use, handling or transportation of the Equipment,
howsoever arising. However, the foregoing indemnity shall not apply
when such costs, fines, penalties, indemnities and/or expenses
arise from the negligence of Aggreko or its employees, workers or
agents.
Clause 37.
EXCLUSION OF WARRANTIES
37.1 Aggreko
warrants that the Equipment is and shall be free from any defects
in design, workmanship and materials which could affect the proper
and safe operation of the Equipment and shall remedy, in accordance
with the provisions of Clause 17, any such defects that become
apparent or occur during the Hire Period, PROVIDED that such
warranty and obligation to remedy does not apply where any defect
in the Equipment has arisen from any drawing, design or
specification supplied by the Hirer, willful damage, negligence,
abnormal working conditions, failure to follow Aggreko's
instructions, misuse or alteration or repair of the Equipment
without Aggreko's prior written approval, or the breach of any of
the terms of the Contract by the Hirer.
37.2 As explicitly set
out in these Conditions or any other document forming part of the
Contract, Aggreko makes no representations and gives no warranties
- statutory, implied or otherwise -- either as to the Equipment
itself, or as to its quality and condition, or as to its
suitability for any particular or general purpose.
37.3 In particular,
without prejudice to the generality of the foregoing and to avoid
any doubts, Aggreko shall neither ensure nor guarantee that the
attributes and features of the Equipment are strictly compatible
with the Hirer’s business intentions, nor ensure or guarantee the
Hirer’s business success when using it.
Clause 38.
CONFIDENTIALITY AND INTELLECTUAL
PROPERTY
38.1
All information obtained by one party
concerning the operations of the other shall be confidential and
shall not be disclosed to third parties either during the period of
this Contract or at any time thereafter. Each party shall
take the strictest possible steps to enforce this Clause and the
aggrieved party has the right to take whatever legal measure it
deems necessary, including the immediate termination of this
Contract, should any breach of this Clause come to its
attention.
38.2
To avoid any doubts, Clause 38.1 shall
apply in particular to any drawings, specifications and other
documents to which Aggreko has granted the Hirer access.
38.3 The intellectual
property right to the Equipment is owned exclusively by Aggreko,
being the Hirer bound on its own behalf and of its employees,
representatives and/or third parties hired at any pretense, to
respect said rights pursuant to the law.
38.4 All trademarks,
signs, distinctive logos and all Aggreko’s materials made available
to the Hirer for the purposes of this Contract are exclusively
owned by Aggreko and at no point in time and under no pretext are
the object of assignment, authorization or license for use to the
Hirer.
38.5 The use of any
material supplied by one party to the other does not give rise to
any right to use said material outside the terms of this instrument
or the other documents comprising the Contract.
38.6 The rental of the
Equipment to the Hirer shall not imply or denote, in any manner
whatsoever, a permanent assignment or transfer of technology by
Aggreko to the Hirer, of the techniques, tools, know-how, systems
and methodologies owned exclusively or used by Aggreko.
38.7 All technology,
know-how, patents, utility models, methodologies or industrial
property rights in general that may be developed within the scope
of the Contract shall belong exclusively to Aggreko, unless
otherwise agreed by the parties in a written document.
38.8 Under no
circumstances whatsoever may the Hirer provide to third parties the
technical features and details of the Equipment, its parts or
components as well as its documentation to third parties, without
Aggreko’s prior and written authorization.
38.9 The failure to
observe any of the above-mentioned conditions shall subject the
Hirer to the payment of damages and losses that may be ascertained
by Aggreko, without prejudice to other applicable legal
sanctions.
Clause 39.
ASSIGNMENT
The Hirer shall not
assign the Contract or any part of it or any benefit or interest
provided for in the agreement without the previous written
agreement of Aggreko, which will only be granted in exceptional
circumstances and shall, despite the foregoing, be at Aggreko’s
absolute discretion.
Clause 40.
GOVERNING LAW
The laws in force in the
Republic of Chile shall apply to the Contract and to the parties
hereto, and the Contract and the other documents which form an
integral part of it shall be interpreted according to those same
laws.
Clause 41.
RESOLUTION OF DISPUTES
41.1 Any doubts,
controversies or pending matters that may arise and may affect the
good and regular performance of this Contract or the running of
business that are not settled amicably by the parties within 30
(thirty) days shall be settled through Mediation and/or Arbitration
or by an Arbitration Court, being recourse to equity forbidden.
41.2 The Mediation and/or
Arbitration shall be carried out in the City of Santiago, Chile and
shall be handled by the Arbitration International Chamber of
Commerce, which as an institutional arbitration body may settle any
doubts, controversies or pending matters, the parties being thus
subject to the respective regulations and code of ethics adopted by
said entity, which shall become integral parts hereof, to the
extent they are in agreement with same.
41.3 The party wishing to
commence arbitration proceedings shall notify the other party of
its intention, indicating how the Mediation and/or Arbitration
proceeding is to take place and the object of the controversy.
41.4 The party that for
any reason frustrates or impedes the Mediation and/or Arbitration
proceedings, whether by failing to take the necessary measures at
the proper time or by forcing the other party to file legal action
pursuant to the provisions of Article 7 of Law No. 9.307/96, shall
be subject to a fine of 20% (twenty per cent) of the value assigned
to the controversy.
41.5 For those
controversies that cannot be settled by arbitration because they do
not concern available property rights, the Courts of the
Judiciary District of the Capital of the State of Santiago is
hereby elected, with express waiver of any other court however
privileged it may be.
Clause 42.
NOTICES
42.1 For the
purposes of this instrument and other documents comprising the
Contract, simple communications between the parties shall be made
in writing and may be made by simple letters, fax, telex or e-mail
(Internet). The notices or notifications required by this contract
shall be made in writing and delivered personally against receipt
or by registered letter to the parties' addresses indicated in the
Contract, which may be changed by means of prior notice, also in
writing, to the other party.