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.

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