Terms & Conditions | Sound Mechanix

SOUND MECHANIX (PTY) LTD (REG # 2012/034647/07) STANDARD TERMS AND CONDITIONS OF HIRE INCORPORATING A SURETYSHIP

IT IS AGREED THAT THE PARTY/IES WHO HAVE APPENDED THEIR SIGNATURE/S TO THE QUOTATION/CONTRACT ON BEHALF OF THE HIRER:

Warrant that all of the information set out in the quotation/contract form is true and correct;
Agree to abide by the limits and terms designated by SOUND MECHANIX (PTY) LTD (REG # 2012/034647/07) (“SOUND MECHANIX”);
1. SOUND MECHANIX will, from time to time, at the Hirer’s special instance and request, hire audiovisual and lighting Equipment (“the equipment”) to the Hirer and/or includes supply of Equipment operators and/or DJ’s and/or technicians and/or assistants (crew) and/or emcee’s and/or sports commentators.
2. No orders placed will be binding upon SOUND MECHANIX until accepted by SOUND MECHANIX’s registered office, and SOUND MECHANIX reserves the right not to accept orders placed.
3. Hire of Equipment will be charged at the prices ruling in terms of SOUND MECHANIX’s list of prices at the date of collection or installation of the Equipment and are subject to alteration without notice.
4. In the event of the charges not being specified or agreed then SOUND MECHANIX shall be entitled to charge it’s normal or usual charges applicable at the time.
5. The invoice price reflected on SOUND MECHANIX’s invoice shall be paid by the Hirer without any deduction and in accordance with the terms of payment, which the parties hereto might from time to time agree.
6. Ownership of the Equipment shall at all times remain with SOUND MECHANIX, but risk will pass to the Hirer as set out below.
7. The hire period commences from the date the Equipment leaves SOUND MECHANIX’s warehouse/s to the date that the Equipment is returned to SOUND MECHANIX. Charges are calculated in units of 1 (ONE) day or 1 (ONE) hour, as set out in the quotation/contract.
8. The hiring shall be deemed to continue until the Hirer has redelivered the Equipment to SOUND MECHANIX.
9. In the event of the Hirer failing to redeliver any Equipment in good order and condition then the Equipment shall be deemed to be on hire until it has been repaired to the satisfaction of SOUND MECHANIX. In the event of the hire period being exceeded by the Hirer at the conclusion of the contract SOUND MECHANIX’s normal rates will apply for the additional period.
10. No refund will be given for Equipment reserved and supplied but not utilised by the Hirer.
11. The Hirer will collect and return the Equipment unless otherwise pre-arranged with SOUND MECHANIX. Delivery and collection, including travelling costs as per the quotation/contract, by SOUND MECHANIX  will be for the account of the Hirer.
12. Any damage caused by the Hirer’s negligence in utilizing the Equipment will be for the Hirer’s account.
13. If the Hirer requests SOUND MECHANIX to cancel the Contract before the Equipment is delivered to or collected by the Hirer, SOUND MECHANIX may  accept such request subject to the Hirer paying hire charges as follows:
  1. If cancellation is within 14 days of the hire period, the full rate will be charged;
  2. If cancellation is between 14 and 28 days of the hire period, half the full rate will be charged;
  3. If cancellation is more than 28 days prior to the hire period a fee equal to the deposit, or 20% of the quoted price excluding travelling if no deposit is stipulated, will be levied and become due and payable immediately.
14. Unless otherwise stated any charge or rate quoted is INCLUSIVE of VAT.
15. Electrical certificates of compliance and structural engineers certificates are not included in any quotations, and if required by the Hirer  will be charged for additionally. It is the Hirer’s responsibility to check whether any venue requires a certificate of compliance or structural engineers certificate and to advise SOUND MECHANIX timeously thereof. The Hirer is entitled to contract directly with any qualified electrician or engineer.
Unless otherwise agreed in writing all charges reflected on SOUND MECHANIX’s invoice are payable in full 48 hours before the commencement of the hire period and failure to make any payment on due date shall render the full amount owing payable immediately, together with interest at the maximum rate permissible in law and a late payment fee equal to 10% of the charges reflected on the invoice, on all overdue amounts. SOUND MECHANIX also reserves the right to refuse to deliver the Equipment where the required payment has not been made.
1. For the purposes of set-off, payment in respect of Equipment hired from SOUND MECHANIX by the Hirer shall become due upon delivery, notwithstanding any terms of payment agreed upon.
2. The Hirer shall not be entitled to set-off any amounts which may be owing to the Hirer by SOUND MECHANIX, from whatsoever cause arising, against any amounts owing by the Hirer to SOUND MECHANIX.
3. unless otherwise agreed in writing the deposit reflected in the quotation/contract is due and payable on acceptance of and signature on the quotation/contract by the HIRER.
The risk in and to the Equipment hired shall pass to the Hirer on delivery thereof. However, notwithstanding delivery, ownership of the Equipment shall remain vested in SOUND MECHANIX and shall not pass to the Hirer.
1. When Equipment is delivered by SOUND MECHANIX in the absence of the Hirer or its representative, the delivery note shall be forwarded to the Hirer’s address and shall be deemed to be conclusive proof of the delivery of the Equipment reflected thereon in a good, clean working order. Although every effort is made to supply all Equipment at, or perform in the time agreed upon, SOUND MECHANIX shall not be responsible for late or non-delivery, or defective performance arising form circumstances beyond its control. SOUND MECHANIX shall not be liable for any consequential loss suffered by the Hirer in respect of delays in delivery, defective plant or from any other cause howsoever arising.
2. The Hirer shall be fully responsible for the safety and risk in and to all Equipment during the period of hire and while in transit and on site, and shall exercise due care that the Equipment is properly used and not exposed to any unjustifiable risk or manner of use. The Hirer shall not permit any other person to operate the Equipment without express prior written consent of SOUND MECHANIX, and the Hirer shall comply with any safety instruction applicable to the Equipment.
3. The Hirer shall provide adequate security for the duration of the period of hire, both in respect of the Equipment hired and for any of SOUND MECHANIX’s staff who are present during the installation of the equipment and at any time during the hire period. SOUND MECHANIX reserves the right not to continue with the installation and/or hire period where, in the opinion of SOUND MECHANIX, there is a threat to the safety and security of SOUND MECHANIX’s staff and the Equipment.
4. The Hirer shall return the Equipment in a clean and good condition at the end of the Contract. In the event of the Hirer failing to do so it shall be liable for a charge equal to the cost of cleaning, repairing, reconditioning or replacing, as SOUND MECHANIX considers necessary.
5. If the Hirer fails, after 5 (FIVE) days notice from SOUND MECHANIX to produce any Equipment for inspection during the hiring or if any Equipment is not returned at the end of the hiring SOUND MECHANIX may without prejudice to any right or remedy, by notice in writing to the Hirer, treat the Equipment as having been lost, whereupon SOUND MECHANIX may charge the Hirer a sum equal to the Dealer’s replacement list price of the Equipment current at the date of such notice. Any sum so charged and paid by the Hirer shall be credited or repaid if the Equipment treated as lost is subsequently returned to SOUND MECHANIX, but the Hirer shall pay hire charges until the Equipment’s return, which amount shall be deducted from the amount paid by the Hirer pursuant to it being treated as lost.
6. The Hirer shall be completely responsible for any damage or loss of the Equipment, death or injury to persons, damage or loss of property, consequential loss and all costs and charges in connection therewith and arising out of the use of the Equipment whilst on hire, the hire of vehicles, and including but not limited to such loss or damage caused by the operator of the Equipment, whether negligent or otherwise.
7. The Hirer shall in addition indemnify SOUND MECHANIX in respect of any and all claims arising out of any such loss, damage, costs or charges in connection therewith.
Any quotations and hire pursuant thereto are subject to the following:
1. Quotations are valid for 14 (FOURTEEN) days;
2. Any increase in SOUND MECHANIX’s cost coming into force after the date of the quotation over which SOUND MECHANIX has no control, will  be for the Hirer’s account;
3. Any delays due to interruption, hindrance, and postponement, local traffic, Municipal Regulations, non-production of  necessary licenses or permits or Hirer forms, will be for the Hirer’s account;
4. SOUND MECHANIX’s having equipment and/or vehicles and/or staff available on the dates required.
Quotations exclude custom duties and clearing charges, dismantling and/or erection of fittings and fixtures (unless otherwise stated).
1. The Hirer shall be responsible for ensuring that adequate access and parking is made available to SOUND MECHANIX failing which the Hirer  agrees to pay all expenses arising from any additional work or delay involved.
2. In compliance with Financial Services Board regulations SOUND MECHANIX is not permitted to provide or invoice insurance. It will therefore be  the Hirer’s responsibility to effect insurance in respect of any loss or damage to the Equipment or services in terms of these terms and conditions. The Hirer will ensure that all Equipment hired is insured for its replacement value in accordance with the Short Term Insurance Act. The Hirer warrants that it is familiar with the context and provisions of the latest insurance laws in South Africa.
Any Equipment delivered and/or installed by SOUND MECHANIX which is reported as faulty at the commencement of the hire period, and is found to be so will be repaired or replaced free of charge.
1. Where any fault is found to be a result of misuse, faulty video tapes or incorrect installation or connection by the Hirer, then such call out will be charged to the Hirer at the appropriate rates.
2. Load shedding and power cuts are beyond the control of SOUND MECHANIX, and the contract remains valid if there is no power for the contract period. Where this results in the contract period being extended, the Hirer will be charged accordingly.
SOUND MECHANIX does not hire out generators, and in providing a generator SOUND MECHANIX is merely acting as an agent on the Hirer’s behalf. Any claims in respect of generators must be addressed to the generator supplier. SOUND MECHANIX accepts no liability for any damages resulting from the use of generators whatsoever.
With respect to the cost of generators, SOUND MECHANIX will levy a 15% handling fee based on the supplier’s invoice.
1. In the event of the Hirer failing to make payment of any amount on due date, or the Hirer and/or Surety/ies committing any breach of the terms of this Agreement, all of which are deemed to be material, SOUND MECHANIX at it’s option and without prejudice to any of it’s rights in law, shall be entitled to:
  1. Retake possession of the Equipment delivered to the Hirer; and/or
  2. Demand that the Hirer immediately make payment to SOUND MECHANIX of all amounts outstanding in respect of all Equipment delivered by SOUND MECHANIX to the Hirer, notwithstanding that payment in respect of any such Equipment might not yet be due and payable.
SOUND MECHANIX, the Hirer and Surety/ies consent and agree that any dispute, disagreement or claim arising out of this Agreement or any other agreement between the parties shall at the sole discretion of SOUND MECHANIX, be finally resolved:
1. In the Magistrate’s Court having jurisdiction in respect of the Hirer and Surety/ies, notwithstanding that the amount in issue  may exceed the jurisdiction of such Court; or
2. In the High Court of South Africa; or
3. In accordance with the Rules of the Arbitration Foundation of South Africa by an Arbitrator or Arbitrators appointed by the  Foundation.
In the event of SOUND MECHANIX having to institute legal proceedings of whatsoever nature against the Hirer, the Hirer will be liable for SOUND MECHANIX’s legal costs on the scale as between attorney and own client.
A certificate by a member/director of SOUND MECHANIX showing the amount due and owing by the Hirer to SOUND MECHANIX at any given time shall be sufficient prima facie proof of the facts stated therein for the purpose of all legal proceedings and recovery of all outstanding amounts.
1. The Hirer nominates the Hirer’s physical address as recorded in the quotation/contract as its domicilium citandi et executandi address for the service upon it of all legal processes and notices.
The Hirer authorises SOUND MECHANIX to carry out any checks and/or traces that SOUND MECHANIX deems fit with any registered credit bureau and also to list the Hirer with any credit bureau in the event of the Hirer defaulting in payment in terms of this agreement.
No extension of time or any other relaxation or indulgence granted by SOUND MECHANIX to the Hirer shall operate as, or be deemed to be a waiver by SOUND MECHANIX of any of it’s rights under this Agreement, or a novation of any of the terms and conditions of this Agreement.
SOUND MECHANIX shall not be responsible for any undertaking, representation or warranty given orally or otherwise which is not specified in writing, nor shall any variation or amendment of, or addition to the terms and conditions of this agreement be binding upon the parties unless in writing and signed and accepted by a director of SOUND MECHANIX.
If any provision of this agreement, or the attached suretyship, is found or held to be invalid or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.

The signatory of the hirer on the quotation/contract declares that he/she is duly authorised to do so and that he/she has read all the terms and conditions set out herein, which are understood and accepted on behalf of the Hirer.

DEED OF SURETYSHIP

The signatory of the hirer on the quotation/contract of the address stipulated in the quotation/contract declares that he/she hereby irrevocably binds himself/herself without limitation as SURETY and co-principal debtor, in solidum and under renunciation of all benefits arising from legal exceptions, excussion, division and cession of action, unto and in favour of SOUND MECHANIX for the due fulfillment by the HIRER of all its obligations to SOUND MECHANIX of whatsoever nature and howsoever arising, whether already incurred or which may from time to time hereafter be incurred, as a continuing guarantee, notwithstanding any change in or temporary extinction of such obligations.

Without limiting the foregoing, the SURETY agrees:

That all admissions and acknowledgements of liability by the HIRER shall be binding on the SURETY;
That a certificate, signed by a director of SOUND MECHANIX, will be prima facie proof of the HIRER’s indebtedness to SOUND MECHANIX;
That in the event of the HIRER being liquidated or placed under judicial management, or a compromise being effected with its  creditors, no dividends or payments received by SOUND MECHANIX shall prejudice SOUND MECHANIX’S rights to recover from the SURETY the full amount  owing by the HIRER at the date of liquidation of the HIRER;
That this Deed of Suretyship shall be in addition and without prejudice to any securities held now or hereafter by SOUND MECHANIX,  and that this Deed of Suretyship shall remain in full force and effect as a covering Deed of Suretyship for as long as any amounts  whatsoever are owed by the HIRER to SOUND MECHANIX;
That no variation or cancellation of this Deed of Suretyship shall be of any force or effect unless reduced to writing and signed  by both the SURETY and SOUND MECHANIX;
That any indulgence or extension of time for payment granted by SOUND MECHANIX to the HIRER shall be without prejudice to any of  the rights of SOUND MECHANIX hereunder, and that no such indulgence or extension shall in any way affect the SURETY’S liability hereunder;
To the jurisdiction of the Magistrates’ Court in terms of Section 45(1) of the Magistrates’ Court Act 32 of 1944, notwithstanding  that the amount claimed may exceed the jurisdiction of such court; the aforegoing notwithstanding, SOUND MECHANIX may, in its discretion,  institute proceedings in any division of the High Court of South Africa;
That the address of the SURETY as listed above is chosen as domicilium citandi et executandi for all purposes hereunder.
In the event that any of the terms of this Deed of Suretyship are found to be invalid, unlawful or unenforceable, such terms will  be severable from the remaining terms, which will continue to be valid and enforceable;
That this Deed of Suretyship shall not be cancelled save with the written consent of SOUND MECHANIX.
The SURETY acknowledges that he/she has read and understood the Terms and Conditions of Hire and considers him/herself bound by them.

By his/her signature on the quotation/contract, the SURETY acknowledges that this Deed of Suretyship is complete in all respects, and that the witnesses are present and the SURETY warrants that the SURETY is capable of executing this Deed of Suretyship.