Romania general conditions of hire
Conditions governing the hire of Plant by Aggreko South East Europe S.R.L
1.1. In these Conditions and the Contract, the following words and expressions shall bear the following meanings:-
"Conditions" mean these General Conditions of Hire.
"Contract" shall have the meaning ascribed to it in Clause 2.
"Day" means a period of twenty-four (24) consecutive hours.
"Hire Period" means, without prejudice to any agreed minimum hire period, the time from when the Plant leaves Aggreko's depot or place where otherwise despatched until the later of (i) the date specified in the Proposal unless otherwise extended in writing by the parties and (ii) the date the Plant is received back at Aggreko's depot or delivered to another place named by Aggreko (acting reasonably). The minimum hire period shall in any event be one Week (unless specified otherwise in the Proposal).
"Hirer" means the party taking Aggreko's Plant on hire and named as such in the completed Aggreko’s Proposal and shall include its successors, assignees or personal representatives.
"Invoice" means the invoice or invoices sent by Aggreko to the Hirer on a Monthly basis in respect of the Rental Charges.
"Force Majeure Event" shall have the meaning ascribed to it in Clause 30.
"Month" means a period of thirty (30) consecutive Days and "Monthly" shall be construed accordingly.
"Normal Working Hours" means 8 am to 5 pm on each Working Day( Monday to Friday).
"Plant" means all plant and equipment of whatever nature hired by the Hirer from Aggreko as specified in the Proposal, including any replacement thereof supplied pursuant to Clause 16 of these Conditions.
"Proposal" means the proposal set out in Aggreko’s proposal form, including the notes thereto, a description of the Plant, the Hire Period, the Rental Charges and other specific terms.
"Rental Charges" means the charges incurred by the Hirer for the hire of the Plant as specified in the Proposal for the Hire Period.
"Site" means the site to which the Plant is delivered (or to be delivered) on the Hirer's instructions.
"Week" means a period of seven consecutive Days.
"Working Day" means each of Monday, Tuesday, Wednesday, Thursday or Friday.
1.2. Clause headings are inserted for convenience only and shall not affect the construction and interpretation of these Conditions.
1.3. All instructions, notifications, authorisations, and acknowledgements under the Contract shall be in writing and in English.
1.4. References to dates which do not fall on Working Days shall be construed as references to the immediately subsequent Working Day.
1.5. References to Clauses are to clauses of these Conditions.
2. EXTENT OF CONTRACT
2.1. Aggreko’s Proposal (including the Hirer's acceptance thereof), delivery note, invoice, off hire note, return note and these Conditions, together with any agreement to extend the agreed period of hire specified in the Proposal, comprise the entire contract, agreement and understanding between Aggreko and the Hirer (the "Contract") and no other terms and conditions, or pre-contractual statements or representations, shall form part of the Contract. The Contract supersedes any previous agreement between the parties relating to the subject matter of the Contract. No variation of the Contract shall be effective unless specifically agreed in writing by an authorised signatory of Aggreko and of the Hirer.
2.2. In the event of any inconsistency between any of the documents forming part of the Contract, Aggreko’s Proposal shall prevail against all other such documents and the terms of all such documents shall prevail against these Conditions.
3. LOADING AND UNLOADING
3.1. Subject to Clause 15, Aggreko shall deliver the Plant to the Site.
3.2. The Hirer shall be responsible for loading and unloading
the Plant at the Site. Any personnel supplied or contracted by Aggreko for loading and unloading shall work under the supervision and instructions of the Hirer or its representatives, and the Hirer undertakes to be fully responsible for such personnel acts and omissions (including negligent acts and omissions). For the avoidance of doubt, any period agreed by the parties for installation and commissioning shall not commence until the Hirer has completed such unloading and located the Plant in its required position.
4. CONDITION OF PLANT ON RECEIPT
4.1. The Hirer shall carry out a reasonable visual inspection of the Plant on, or as soon as possible after, the delivery of the Plant to the Site and shall promptly notify (and in any event not later than 3 (three) Working Days after the delivery date) any apparent damage or defects to Aggreko.
4.2. All Plant shall be deemed to have been delivered on time and, where applicable, installed in good working condition, free from apparent damage or defects, and to the Hirer's satisfaction, unless Aggreko receives written notification to the contrary within 3 (three) Working Days of (i) the date of delivery of any Plant on Site; or (ii) (where applicable and if later) completion of installation on Site of any Plant.
5. CARE OF PLANT
5.1. The Hirer shall use the Plant with all due prudence and diligence and in accordance with its contractual purpose, or, in the absence thereof, in accordance with any implied purpose based on certain circumstances, such as asset type. The Hirer shall be fully responsible (in each case at its own cost, unless otherwise agreed by the parties in writing) for: (i) the safekeeping and insurance of the Plant during the entire Hire Period and (ii) for the use of the Plant in compliance with its specification and any other applicable laws and/or regulations. Moreover, the Hirer shall not use or operate the Plant, nor allow or tolerate the use or operation of the Plant, (i) for any purpose beyond its rated capacity, or (ii) in a manner likely to result in deterioration of the Plant (except normal wear and tear).
5.2. The Hirer shall keep itself acquainted with the condition of the Plant and shall not operate it at any time after it has become defective, damaged or in a dangerous state, or in a state which results in a breach of any applicable law or regulations, until such time as the Plant has been repaired or replaced in accordance with the terms of the Contract. If the Hirer or any employee, servant or agent of the Hirer, does operate the Plant in such condition then the Hirer (i) shall be solely responsible for any damage, loss or accidents resulting therefrom and (ii) shall (without prejudice to Clause 34 of these Conditions) indemnify Aggreko in respect of any loss or damage suffered by Aggreko and against any claims made against Aggreko resulting therefrom.
5.3. Should any breakdown or damage occur to any of the Plant as a result of (i) failure by the Hirer to observe any terms of the Contract, (ii) negligence or misuse by the Hirer or its employees, servants or agents, (iii) wilful or accidental damage however occurring or (iv) damage caused by salt water, salt spray and/or salt laden air where conditions at the Site have not been approved in writing by Aggreko, the Hirer shall be liable to Aggreko for:-
(i) the full cost of any necessary repairs required by Aggreko; or
(ii) if Aggreko considers that such repairs would not be practicable or cost effective, the whole cost of replacement of such Plant; and
(iii) the Rental Charges for the Plant (i) while the Plant is idle owing to any such breakdown or damage and (ii) while repairs are being carried out (but without prejudice to Aggreko's right to receive any other related damages in respect of the Contract).
6. RECALL NOTICE
Subject always to Clauses 28 and 32, Aggreko may, without incurring any liability to the Hirer or giving rise to any right of termination for the Hirer, in respect of or in connection with such recall so long as there is no material interruption in the service provided to the Hirer (other than a reasonable period to allow for disconnection of the recalled Plant and connection of the substitute Plant), recall any or all Plant and substitute equivalent Plant for such recalled Plant, upon giving thirty (30) Days' written notice to the Hirer.
7. DUTY TO RETURN
7.1. The Hirer shall be entirely responsible (at the Hirer’s expense and risk) for the return of all Plant to Aggreko (to Aggreko's depot or to another place specified by Aggreko (acting reasonably)) on completion of the agreed period of hire specified in the Proposal (unless extended in writing) or on termination of this Contract by Aggreko pursuant to Clauses 28 or 32. The Plant shall be returned to Aggreko in the same condition as at the date of its receipt, subject to proper ordinary usage and fair wear and tear.
7.2. If the Hirer returns any of the Plant other than in such condition for any reason whatsoever (whether or not involving any negligence or other fault on the part of the Hirer or its employees, servants or agents, provided that the Hirer shall not be liable for any damage to the Plant caused by any act or omission of Aggreko or the development of an inherent fault or a fault not ascertainable by reasonable examination by the Hirer in accordance with Clause 4), then the Hirer shall be liable to Aggreko for:-
(i) the full cost of any necessary repairs required by Aggreko; or
(ii) if Aggreko considers that such repairs would not be practicable or cost effective, the whole cost of replacement of such Plant; and
(iii) as a damage, the Rental Charges for the Plant while the Plant is idle owing to any such repairs or, where relevant, until the payment of the costs referred to in Clause 7.2(ii) above (but without prejudice to Aggreko's right to receive any other damages in respect of the Contract).
7.3. If the Hirer fails to return any of the Plant for any reason whatsoever (whether or not involving any negligence or other fault on the part of the Hirer, its employees, servants or agents), then the Hirer shall be liable to Aggreko for:
(i) the whole cost of replacement of such Plant; and
(ii) the Rental Charges in respect of such Plant until payment of the costs referred to in Clause 7.3(i) above.
7.4. When Plant includes cable, hosing and/or ducting the Hirer shall be responsible for recoiling such cable, hosing and/or ducting (as applicable) on stillage supplied or in special bin from Aggreko.
8. OWNERSHIP OF PLANT
The Plant is and shall at all times remain in the property of Aggreko and the Hirer shall have no right, title or interest in the Plant (save the right to possession and use of the Plant subject to the terms and conditions of the Contract). The Hirer shall not remove or deface any plate or marking on the Plant identifying Aggreko as the owner of the Plant. The Hirer shall keep the Plant free and clear of any and all diligence, distress, execution, seizure, attachment, levies, liens, security interests and encumbrances of any kind and shall give Aggreko prompt notice of any encumbrance, charge, lien, attachment, diligence, judicial process or any similar event to any of the foregoing affecting the Plant. Without prejudice to Clause 34, the Hirer shall indemnify Aggreko upon Aggreko's written demand against all losses, damage, costs, charges and expenses arising as a result of failure to comply with this Clause.
9. LEGAL EXPENSES
The Hirer shall be responsible for all costs, charges and expenses including properly incurred legal fees and costs incurred by Aggreko (i) in recovering possession of the Plant or (ii) in the collection of any sums which may be due and owing by the Hirer to Aggreko under the Contract or (iii) in the defence of any action brought against Aggreko in respect of any costs, loss, damages or other expenses caused directly by or in connection with the operation of the Plant to any person while the Plant is in the possession or under the control of the Hirer.
10.1. The Hirer shall allow Aggreko's representatives, including its employees, servants, agents and insurers access (including vehicle access) to the Plant at all reasonable times to inspect, examine, test, adjust, maintain, repair or replace the same.
10.2. The Hirer shall be responsible for providing safe and proper access both for such purposes and for delivery and collection of the Plant and shall be liable for all loss or damage suffered by Aggreko or by Aggreko's employees, servants, agents or insurers as a result of the Hirer's failure to provide or delay in providing such safe and proper access.
10.3. If access is denied or delayed any obligation of Aggreko either to provide a service engineer on site and/or to remedy any fault, in each case within a specified period, shall be modified by extending the relevant period by such time as Aggreko considers is reasonably necessary to take account of such denial of or delay in access.
11. MAINTENANCE AND SERVICING
11.1. Subject to Clauses 11.3 and 11.4, Aggreko shall, either itself or via a contractor, provide regular maintenance and servicing during the Contract in accordance with Aggreko's standard practice. The Hirer shall make the Plant available to Aggreko for the purpose of carrying out maintenance or service (whether routine or otherwise) within a maximum one week of Aggreko advising the Hirer of such maintenance or service being due. During Normal Working Hours Aggreko will make no charge to the Hirer for any routine maintenance or service but if the Hirer can only make the Plant available for this purpose outside Normal Working Hours then Aggreko reserves the right to charge the Hirer for overtime costs.
11.2. Aggreko shall schedule the routine maintenance and servicing of the Plant based on the date of the last service and the agreed running mode for the Plant in the Contract. The Hirer shall immediately notify Aggreko of any change in the conditions of use of the Plant including any change to the agreed running mode, scheduled operating hours and operating environment. If the Hirer fails to notify Aggreko as provided in this Clause then the Hirer shall compensate Aggreko for additional wear, tear and damage to the Plant caused by the Plant operating beyond the scheduled service interval by paying the full cost of both the next service (including the travel and the working hours of the operators travel) and any consequent repairs. If Aggreko fails to service the Plant within one week of receipt of notification by the Hirer as provided in this Clause then the cost of both the next service and any consequent repair costs will be met by Aggreko.
11.3. If Aggreko and the Hirer have agreed in writing that the Hirer will be responsible for routine maintenance and servicing, then Clause 11.1 shall not apply and the Hirer shall at its own cost maintain and service the Plant in accordance with Aggreko's service schedule, service instructions and consumables specifications. Aggreko will in such circumstances provide the Hirer with a copy of such service schedule, service instructions and any relevant consumables specifications at the same time as the Plant is delivered to the Hirer, and the Hirer shall return duly completed service sheets to Aggreko following the completion of any maintenance and servicing of the Plant.
11.4. The Hirer shall at its own cost check fuel, battery and lubricating oil and coolant levels in the Plant daily and ensure that these are kept at the level required for the proper operation of the Plant in accordance with Aggreko's specification.
For situations in which Aggreko needs to intervene on the equipment or Hirer demand , operations which occurs due to wrong utilisation or requests out of the initial scope of the request contracted, the operations will be charged to the Hirer at the following prices: 35 EUR ( without VAT) per hour for technician manpower. The displacement from Aggreko Depot will be charged at 35EUR/hour ( without VAT), considering 50km/ hour drive.
12. SITE CONDITIONS
12.1. The Hirer is solely responsible for ground conditions at the Site. The Hirer shall at its own cost provide a suitable area for the lay down and erection of the Plant and shall ensure that the Site is levelled, graded, compacted and free from debris, structures and obstructions. If the ground at the Site is soft or unsuitable for the Plant to work on or travel over, the Hirer shall at its own cost supply and lay an aggregate/hardcore base course with gravel finish in accordance with Aggreko’s specifications in a suitable position for the Plant to travel over or work on.
12.2. The Hirer shall at its own cost carry out all civil works required at the Site for the erection and operation of the Plant and agreed between the parties including, without limitation, the installation of cable trenching and drainage and the supply and erection of a security fence with lockable gate and lighting.
12.3. The Hirer shall be solely responsible for all costs and expenses occurring in relation to the above as well as to the recovery of any Plant from soft ground and shall, where required to do so by Aggreko, make arrangements for such recovery.
13. FUEL, OIL AND LUBRICANTS
13.1. Fuel, oil and lubricants shall, when supplied by the Hirer, be of a grade and type specified by Aggreko.
13.2. The Hirer shall be responsible for disposal of waste including used engine oil, drums, lubricants, hazardous waste and filters, in a manner that meets the requirements of any applicable law.
Coolant, when supplied by the Hirer, shall be a mixture of clean fresh water and antifreeze in a proportion and of a grade and type specified by Aggreko.
15.1. The Hirer shall bear the cost of (and, if required by Aggreko, arrange): (i) transport of the Plant from the collection place specified by Aggreko to the Site; and (ii) the subsequent return of the Plant to a collection place so specified in accordance with Clause 7.
15.2. In the event that the Plant is required to be transported during the term of the Contract for the purpose of repairs owing to damage or breakdown, the related transport costs shall be borne as follows:
(i) by Aggreko, in the event that the cost of such repair is to be met by Aggreko in terms of the Contract; and
(ii) by the Hirer, in the event that the cost of such repair is to be met by the Hirer in terms of the Contract.
The cost of transporting replacement Plant to the Site shall be borne by the relevant party on the same basis.
16.1. Subject to Clause 5, breakdowns or defects in any Plant resulting from proper ordinary usage or fair wear and tear or the development of an inherent fault or a fault not ascertainable by reasonable examination by the Hirer in accordance with Clause 4 may, at Aggreko's option, either (i) be repaired at Aggreko's expense and with the least reasonably practicable delay, in which case the Hirer shall not be charged from its notification of a breakdown to Aggreko until repair is completed or alternatively (ii) Aggreko may replace the relevant Plant.
16.2. Any other breakdown or defect may, at Aggreko's option, either (i) be repaired at the Hirer's expense (and without prejudice to the obligation of the Hirer to pay any sums due to Aggreko under the Contract until repair is completed) or (ii) alternatively, Aggreko may replace the relevant Plant at the Hirer's cost and expense.
16.3. However notwithstanding the foregoing provisions of this Clause 16, if repair is impracticable and if replacement Plant is not available, the hiring shall be terminated and Aggreko will not have any liability whatever to the Hirer for such termination or any consequences of such breakdown, defect or termination.
16.4. Any breakdown or the unsatisfactory working of any part of the Plant must be notified immediately to Aggreko and for this purpose no notification shall be effective unless and until it is actually received by Aggreko. The Hirer shall not attempt to effect repairs himself or to engage any third party to carry out any repairs except with the express written approval of Aggreko. If there are stoppages outside Aggreko’s control, the Hirer shall not be relieved from its obligation to pay the Rental Charges (except to the extent that such stoppages arise as a direct result of a Force Majeure Event) and Aggreko shall not be liable for any other claims however they arise.
17. INSPECTION REPORTS
Inspection reports which Aggreko may be obliged by applicable law to possess, or a copy thereof, shall be supplied to the Hirer if requested and returned by the Hirer to Aggreko at the end of the Hire Period.
18. CONSEQUENTIAL AND FINANCIAL LOSS
Subject to Clause 20.2, to the fullest extent permitted by applicable law, Aggreko shall not in any event be liable to the Hirer because of any representation, statement, warranty, condition or term, duty (in each case express or implied) or under any express term of the Contract for:
(i) any special, indirect or consequential loss or damage; or
(ii) any loss (direct or indirect) of profit, business, contracts, opportunity, goodwill, revenues, anticipated savings or similar, suffered by the Hirer whether arising from breach of contract, arising by tort (including the tort of negligence), arising by breach of statutory duty or otherwise arising as a result of any other such fault on the part of Aggreko or its employees, servants or agents and whether or not in the contemplation of Aggreko and/or the Hirer at or prior to the commencement of the Contract or during its term.
19. INFORMATION, ADVICE, ETC.
The Hirer recognises and accepts that in entering into and during the term of the Contract, Aggreko will rely on any advice, statement, representation or warranty given by the Hirer to Aggreko or its representatives, including its employees, servants or agents, including in relation to the Plant, its use (whether regarding specification, performance capability or suitability for any purpose) and location. To the fullest extent permitted by applicable law, Aggreko shall not be liable to the Hirer to the extent that any breach of contract, tort (including the tort of negligence), breach of statutory duty or other ground for liability is due to any such advice, statement, representation or warranty being incorrect, incomplete or misleading.
20. LIABILITY OF AGGREKO
20.1. Notwithstanding and without prejudice to any other terms of the Contract Aggreko shall accept liability for (subject to Clauses 18 and 21) damage, loss or injury to the Plant arising:-
(i) prior to delivery of the Plant to the Site where the Plant is in transit by transport arranged or owned by Aggreko;
(ii) during erection of the Plant on Site provided such erection is entirely within Aggreko's control;
(iii) during dismantling of the Plant on Site provided such dismantling is entirely within Aggreko's control;
(iv) after removal of the Plant from the Site where the Plant is in transit by transport arranged or owned by Aggreko.
20.2. Nothing in the Contract shall operate to exclude or limit Aggreko's liability for: (i) fraud or fraudulent misrepresentation; (ii) the gross negligence or wilful misconduct of Aggreko or its representatives, including its employees, servants or agents; (iii) the death or personal injury of any person caused by the negligence of Aggreko or its employees, servants or agents; or (iv) for any other liability which cannot be excluded by applicable law.
21. SCOPE OF DAMAGES
Subject to Clause 20.2, to the fullest extent permitted by applicable law, Aggreko's aggregate liability under or in connection with the Contract shall in no event exceed the total Rental Charges, if any, received from the Hirer by Aggreko under the Contract, and this limit shall apply however that liability arises, including, a liability arising by breach of contract, arising by tort (including the tort of negligence) or arising by breach of statutory duty.
22. OPERATION OF THE PLANT
The Plant shall either be operated by duly qualified personnel of the Hirer or an Aggreko operator, subject to the following conditions:
(i) The Hirer shall ensure that its personnel operate the Plant in accordance with Aggreko’s operating instructions and the terms of the Contract (including, without limitation, Clause 5.1 and 5.2).
(ii) Where an Aggreko operator is provided with the Plant, he shall work under the supervision and instructions of the Hirer or its representatives and, for the Hire Period, the operator shall be deemed to be an employee of the Hirer, who shall be responsible for his acts and omissions (including negligent acts and omissions) as if he were in the Hirer's direct employment.
(iii) The Hirer shall not permit any third party to operate the Plant without Aggreko's prior consent in writing.
23.1. The initial Rental Charges for Plant and services are the rates in force at the time of delivery of the Plant as specified in the Proposal for the Hire Period. Aggreko reserves the right, upon giving the Hirer at least 4 weeks' notice, to vary the Rental Charges so as to reflect variations in Aggreko's own cost of goods, materials and labour. Aggreko also reserves the right to vary the prices charged for fuel without notice (with reference to Platts Price Index or any similar measure of market fluctuations).
23.2. All prices stated in the Contract are exclusive of an amount equal to any value added tax, sales tax or other similar tax, which shall be payable in addition by the Hirer.
The Hirer shall render to Aggreko for each Week an accurate statement of the number of hours the Plant has worked each Day. Where the Plant is accompanied by an Aggreko operator, the Hirer or its representative shall sign the operator's Time Record Sheets daily or weekly and the signature of a representative of the Hirer shall bind the Hirer to accept the hours shown on the Time Record Sheets.
25. INSURANCE AND ACCIDENTS
25.1. Unless otherwise agreed in writing with Aggreko, the Hirer shall be responsible at its own expense for insuring the Plant and itself against all and any risks in respect of the Plant, including for the avoidance of doubt, theft, malicious and accidental damage, fire, flood any risks arising from the presence or operation on or at the Site of, the Plant (including, without prejudice to the generality of the foregoing, legal liabilities to third parties arising from the operation of, or in connection with, the Plant). Such insurance shall be maintained from the time when the Plant is delivered to the Site until the Plant is subsequently uplifted from the Site and shall additionally cover transport where this is the responsibility of the Hirer. Any insurance monies recovered by the Hirer in respect of such risks shall, to the extent deemed necessary by Aggreko, be applied as directed by Aggreko.
25.2. Evidence of the Hirer's insurance shall be supplied by the Hirer to Aggreko forthwith on request by Aggreko.
25.3. If the Plant is involved in any accident resulting in injury to persons or damage to property, immediate notice must be given to Aggreko by telephone and confirmed in writing and no admission, offer, promise of payment or indemnity shall be made by the Hirer without Aggreko's consent in writing.
26. REHIRING, ETC
Neither the Plant nor any part thereof shall be rehired, sublet, lent or otherwise made available to any third party without the written consent of Aggreko and the Hirer shall indemnify Aggreko against all losses, damage, costs, charges and expenses arising as a result of failure to comply with this Clause.
In case of rehire, no Aggreko sticker can be removed from the equipment.
27. CHANGE OF SITE
The Plant shall not be moved from the Site without the prior written consent of Aggreko.
28. INDEFINITE HIRING
28.1. Subject to Clause 32, in the case where the hiring which is the subject of the Contract is an indefinite hiring and is not for an agreed period, the Contract may be terminated by either the Hirer or Aggreko on giving not less than five (5) Working Day's written notice to the other (provided that the same shall not expire prior to the end of any agreed minimum hire period).
28.2. In the event of termination of the Contract by either party, Aggreko's rights under the Contract as at the date of such termination will remain and are reserved in accordance with Clause 32.4.
29. COMPLIANCE WITH LAW
The Hirer shall be responsible for complying with, and shall act in compliance with, all applicable laws, by-laws and regulations applicable and incidental to the installation, use and operation of the Plant.
30. FORCE MAJEURE
Aggreko shall not be in breach of the Contract nor liable for, nor for any direct or indirect consequence of, any failure or delay in performance of any obligations under the Contract (and the time for performance of the obligations shall be extended accordingly) arising from or attributable to any external circumstance, act, event, omission or accident which is unpredictable, completely insuperable and unavoidable (a "Force Majeure Event"), including but not limited to any of the following: strike, lock-out, riot, civil commotion, insurrections, terrorism or suspected terrorism, threat of terrorism, act of war (whether or not officially declared) or civil war, war-like action, related act 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.
31. PAYMENT TERMS
Unless otherwise agreed by the parties in writing, invoices are due for payment in full within 30 Days of their date. Notwithstanding termination of this Contract by Aggreko pursuant to Clause 32.1(i), Aggreko shall have the right to charge interest at the rate per annum which is 4% above the base rate of the National Bank of Romania from time to time on all overdue amounts and late payment shall disentitle the Hirer from any discount to which the Hirer might otherwise be entitled.
32. DEFAULT AND TERMINATION
32.1. Notwithstanding any other termination related provisions herein, the Contract may be terminated in one of the following situations:
(i) the Hirer fails to make punctual payment of any sums due to Aggreko, whether for hire of Plant under the Contract or otherwise; or
(ii) the Hirer shall fail to observe and perform any of the terms and conditions of the Contract; or
(iii) the Hirer shall do or cause to be done or permit or suffer any act or thing whereby Aggreko's rights in the Plant during the term of the Contract, may be prejudiced or put into jeopardy; or
(iv) a Force Majeure Event shall have affected the Plant and/or the performance of all or any part of Aggreko's services under the Contract for a continuous period of 14 Days,
then Aggreko may terminate the Contract with immediate effect by serving written notice of termination on the Hirer (and notwithstanding that Aggreko may have waived some previous default or matter of the same or a like nature or failed to serve a termination notice at a time when it was entitled to do so).
32.2. In the case where the Hire Period exceeds the agreed period of hire specified in the Proposal, the Contract may be terminated by Aggreko on giving not less than five Working Day's written notice to the Hirer.
32.3. In the event that the Hirer fails to return the Plant in accordance with Clause 7, it shall thereupon be lawful for Aggreko to retake possession of the Plant and for that purpose enter into or upon any premises where the same may be.
32.4. The termination of the Contract shall not affect any of Aggreko’s accrued rights and/or obligations at the date of termination (including, without limitation, the right of Aggreko to recover from the Hirer any monies due to Aggreko under the Contract or damages for breach thereof).
32.5. Aggreko's rights to terminate the Contract for the Hirer’s failure to observe its obligations under the Contract shall be enforceable notwithstanding that Aggreko may itself be in breach of the Contract.
33.1. 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.
33.2. Any waiver, indulgence or forbearance by Aggreko of any of the terms or rights contained herein shall not affect the enforceability of such terms or rights.
33.3. Every payment payable by the Hirer under the Contract shall be made in full without any set off or counterclaim howsoever arising and shall be free and clear of, and without deduction of, or withholding for or on account of, any amount which is due and payable to Aggreko.
33.4. Each and all the terms and conditions/clauses of the Contract have been negotiated and explained individually and collectively by the Parties and expressly agreed by each Party as correct and reasonable.
33.5. These Conditions are drafted in the English language. If these Conditions are translated into any other language, the English language text shall prevail.
34.1. Subject to Clause 34.3, the Hirer shall be solely responsible for and shall hold Aggreko fully indemnified against any loss or damage arising to or in connection with the Plant or as a result of the use or situation of the Plant or from any failure on the part of the Hirer to return any of the Plant timeously at the termination of the Contract or agreed period of hire (howsoever caused). 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 situation of the Plant and in respect of all costs and charges in connection therewith whether arising under statute or law.
34.2. Subject to Clause 34.3, in addition to and without prejudice to the provisions of Clause 34.1 the Hirer shall also indemnify and hold harmless Aggreko from and against any and all costs, fines, penalties, damages, assessments and/or expenses, levied, assesses, incurred or awarded by reason of any violation of any applicable environmental laws, rules or regulations in connection with the discharge, release and/or disposal of any hazardous materials or hazardous substances in the course of the operation, use, handling or transportation of the Plant.
34.3. The indemnities contained in Clauses 34.1 and 34.2 shall not apply to the extent that the loss, damage or injury arises from any fraud or negligence on the part of Aggreko or its employees, servants or agents.
35.1. Aggreko warrants that the Plant shall be free from any defects in design, workmanship and material which would affect the proper and safe operation of the Plant. The only remedy for a breach of such warranty by Aggreko shall be the repair or replacement of such Plant in accordance with the provisions of Clause 16, provided that such warranty and obligation to remedy will not apply where any defect in the Plant has arisen from any drawing, design or specification supplied by the Hirer, wilful damage, negligence, abnormal working conditions, failure to follow Aggreko's instructions, misuse or alteration or repair of the Plant without Aggreko's prior written approval or breach of any of the terms of the Contract by the Hirer.
35.2. Save 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 other - either as to the Plant itself, or as to the quality and condition of the Plant, or as to its suitability for any particular or general purpose.
36.1. All information obtained by one party concerning the operations of the other shall be confidential and shall not be divulged to third parties either during the period of this Contract or 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 action at law it deems necessary, including the immediate termination of this Contract, should any breach of this Clause come to its attention.
36.2. For the avoidance of doubt, Clause 36.1 shall apply in particular to any drawings, specifications and other documents to which Aggreko has granted the Hirer access.
Unless otherwise provided by applicable law, the Hirer shall not assign, novate or otherwise transfer the Contract or any prt of it or any benefit or interest in or under it without the previous written agreement of Aggreko which will only be given in exceptional circumstances and shall notwithstanding the foregoing be in the absolute discretion of Aggreko.
38. GOVERNING LAW
38.1. The validity, interpretation and performance of the Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Romania.
38.2. Any dispute or claim arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania the rules of which are deemed to be incorporated by reference into this Clause.