1. DEFINITIONS

1.1       Unless the context in which they are used requires otherwise, the following words and phrases shall have the meanings as hereunder ascribed to them.

• “Agreement” means this master rental of equipment agreement read together with all annexures, and/or Rental Schedule/s hereto which annexures, and/or Rental Schedule/s and the Summarized Terms of Rental Agreement, which are deemed to be included in this Agreement and form part hereof;

• “Business Day” means any day other than a Saturday, Sunday or statutory public holiday in South Africa, on which commercial banks are generally open for business in South Africa;

1.1.3        “Effective Date” means the date as indicated on the Rental Schedule;

1.1.4        “Equipment” means the equipment rented by the Lessor to the Lessee in terms of this Agreement and particularly under the Rental Schedule/s which form a part hereof, and includes any accessories supplied with the Equipment at the Effective Date (“Add-ons”);

1.1.5        “Insolvency Event” means, and shall occur when / if: (a) where the Lessee is a natural person, s/he applies for any debt review proceedings or dies, with effect from the date on which s/he dies or the date on which the application is issued  (a) the Lessee disposes of the whole or part of its assets, operations or business other than in the ordinary course of business; (b) the Lessee ceases to carry on business or is deregistered; (c) the Lessee ceases to be able to pay its debts as they become due; (d) the Lessee takes any step to enter into any arrangement of compromise with its creditors; or (e) where the Lessee is a juristic person, it is placed under business rescue, either provisionally or finally by a court or passes a resolution to go into voluntary business rescue; with effect from the date on which the application is issued at court or the resolution is passed, whichever is applicable;

1.1.6        “Lessee” means the Party indicated as such on the Rental Schedule;

1.1.7        “Lessor” means Secutel Technologies (Pty) Ltd, with Registration Number: 2006/037890/07, with chosen domicilium address at 13 Picaroon Street, Laser Park, Honeydew, Gauteng;

1.1.8        “Parties” means the Lessor and the Lessee and “Party” is a reference to either one;

1.1.9        “Prime Rate” means the publicly quoted nominal rate of interest per annum of the Lessor’s bank (as certified by any General Manager of that bank, whose appointment and authority it shall not be necessary to prove) at which that bank lends monies on overdraft and without security to its most favoured corporate borrowers, which interest shall be compounded monthly in arrears and calculated in a 365-day year, irrespective of whether or not the year in question is a leap year;

1.1.10      “Purchase Option Price” means the price at which the Lessee shall pay in the event that it exercise its option to purchase in accordance with the provisions of clause 8 hereto, as indicated on the Rental Schedule;

• “Rental Schedule” means the rental schedule/s of the Lessor (which Rental Schedule forms part of the Summarised Terms of Rental Agreement) which schedule/s includes the salient terms of the rental relating to each individual item of Equipment, which shall be deemed to be incorporated into this Agreement by reference;

1.1.12      “Rental Period” means the period or term of rental period of the Equipment as recorded in the Rental Schedule;

1.1.13      “Site” means the location where the Equipment will be utilised by the Lessee, as indicated in the Rental Schedule;

1.1.14      “Summarised Terms of Rental Agreement” means the Equipment Rental Agreement entered into between the Parties, containing the summarised terms of the rental of the Equipment between the Parties, including the Rental Schedule, and which are deemed to be included in this Agreement and form part hereof.

2. AGREEMENT OF LEASE AND DURATION

The duration and applicable terms shall be those recorded in the clause 1 of the Rental Schedule and Summarised Terms of Rental Agreement.

3. DELIVERY

Delivery, collection and installation of the Equipment shall in accordance with the terms as recorded in clause 2 of the Rental Schedule and Summarised Terms of Rental Agreement.

 

4. RENTALS AND PAYMENT

The Lessee shall make payment of Rental Payment in accordance with the provisions of as recorded in clause 3 of the Rental Schedule and Summarised Terms of Rental Agreement.

5. MAINTENANCE AND SERVICING

5.1       The Lessee shall be liable for the cost and payment of any and all routine servicing, maintenance of and repairs to the Equipment.

5.2       The Lessee further undertakes that it will, without delay, make available the Equipment for any and all maintenance, repairs and services.

5.3       In addition to the above, the Lessee will at all times at its own expense during the period of this Agreement:

5.3.1        obey and comply with all laws, rules, regulations, orders and other legal requirements from time to time in force anywhere in the world in respect of the Equipment or its use;

5.3.2        take such steps as the Lessor may require upon complaint by the Lessor that the Equipment has been misused or abused;

5.3.3        ensure that the Equipment is operated in accordance with the manufacturer’s approved operating manual;

5.3.4        not do or permit or omit to be done any act in breach of any policy of insurance taken out under this Agreement or any act by which any such insurance would or might be invalidated, revoked, suspended, adversely amended or allowed to lapse;

5.3.5        not do or permit or omit to be done anything which might endanger the title of the Lessor to the Equipment or the Lessor’s ability to recover it in good condition on termination of this Agreement and promptly at the Lessor’s request execute all such documents and take all such action as the Lessor may reasonably require in order to establish and protect the Lessor’s title to the Equipment;

5.3.6        not directly or indirectly create, incur, assume or allow to exist any mortgage, pledge, lien, attachment, encumbrance or third party right on the Equipment or pledge the Lessor’s credit for any purpose whatever;

5.3.7        immediately notify the Lessor with full details of any damage or defect arising in the Equipment and any other event or circumstance which might endanger the Lessor’s title to the Equipment or the Lessor’s ability to recover it in good condition on termination of this Agreement;

5.3.8        ensure that at all times that the Equipment remains identifiable as belonging to and owned by the Lessor;

5.3.9        not do or permit or omit to be done any act which might adversely affect the Lessor’s rights under any warranty given by the manufacturer of the Equipment or any component parts;

5.3.10      ensure that the Equipment is not operated in any manner or place or for any purpose which would or might render it liable to confiscation, forfeiture or seizure;

5.3.11      promptly notify the Lessor of any event or circumstance which might result in the Lessor’s becoming entitled to terminate this Agreement or which might materially adversely affect the Lessee’s ability to perform any of its obligations under this Agreement;

5.3.12      unless the Lessor has agreed in writing for the Equipment to be utilised by a third party, keep the Equipment under its control, immediately notify the Lessor should control be lost and take all reasonable and necessary steps to recover and retain control at its own cost;

5.3.13      not assign, lend, pledge, transfer or sublease the Equipment or permit any of the Equipment to be moved / removed from the location specified in the Agreement without the prior written consent of Lessor;

5.3.14      not allow the Equipment to be subject to any claims by third parties or to be attached by any person, and immediately notify the Lessor of any attempt to attach the Equipment;

6. ACCESS

The Lessor or its duly authorized representatives shall at all times be entitled and on reasonable notice to the Lessee have access to the Site and to inspect the Equipment.

7. PERMITTED USE

7.1       The Lessee shall not permit the use of the Equipment in contravention of the terms and conditions of any insurance policy then in force in respect of the Equipment.

7.2       The Lessee shall be given the opportunity to inspect the Equipment upon the Delivery Date, and shall, within 48 (forty eight) hours after becoming aware of a defect, notify the Lessor, in writing, that the Equipment is defective and specify the defect, failing which the Equipment will be deemed to have been received by the Lessee in good working order.

7.3       The Lessee acknowledges having selected the Equipment/s as set out in the Rental Schedule and the Lessor does not warrant that the Equipment conforms to the Lessee’s specific application.

7.4       All intellectual property in the Equipment and any software or Add-ons provided shall vest in the Lessor (or the applicable third party owner) and the Lessee shall have no rights to share and or utilise such intellectual property other than as provided in this Agreement without the consent of the Lessor in writing.

7.5       The Lessee shall have the right to use the Equipment, Add-ons, GSM Data communications and Visual Monitor Software. The supply of any additional services shall be at the discretion of the Lessor and ay be at extra cost, subject to quotation.

7.6       The Lessee shall have access to unlimited usage of the Visual Monitor Software using the Lessor’s hosted cloud services. In the event where the Visual Monitor must be installed on the Lessee’s  supplied servers and network infrastructure, it shall be supplied in terms of a separate license agreement The Lessor reserves the right to suspend access to this software in the event of the Lessee being in breach of any term of this Agreement.

7.7       The Lessor will supply the Equipment, as well as a SIM Card. The GSM Data Amount cost per month is limited to the amount as specified herein. Any data usage above this, will be for the account of the Lessee.

8. OPTION TO PURCHASE

In the event that the Purchase Option has been selected and agree to between the Parties, the Purchase Option shall be in accordance with the terms as recorded in clause 4 of the Summarised Terms of Rental Agreement.

9. REPLACEMENT COSTS

The Lessee accepts full responsibility for any loss or damage (beyond normal wear and tear) to the Equipment after it has been leased from the Lessor, to its pre-delivery condition, including replacement in the event of theft or loss or misplacement or non-return or damage beyond the repair of the Equipment, which will be for the account of the Lessee. In the event of damage beyond repair or theft or misplacement or non-return of the Equipment, the Lessee accepts and agrees to compensate the Lessor at the full retail price of the Equipment and further to effect payment of the agreed rental rates until the Lessee has effected full payment of the full retail price, or has returned the Equipment in a perfect working condition. In the event of having to reinstate the Equipment to its pre-delivery condition, the Lessee will remain liable for the agreed hire rates until the Equipment has been reinstated to its pre-delivery condition. The Lessor may opt to make payment of the costs in order to bring the equipment to its pre-delivery condition, and to claim the costs thereof from the Lessee, or deduct from any amounts paid by the Lessee to the Lessor, including the Deposit.

 

10. RISK, LIABILITY AND INSURANCE

10.1     The risk of any loss of or damage to the Equipment howsoever caused, including theft or any attempted theft and the risk of loss of, or damage to property or persons, passes to the Lessee on the Delivery Date. Such risk remains with the Lessee until the Equipment is delivered to Lessor upon termination of the agreement for any reason. The risk remains with the Lessee irrespective of any insurance policy covering either the Equipment or the Lessee’s liability for damage to the Equipment.

10.2     All risk of loss, damage or destruction in and to the Equipment, property or persons arising from the use of the Equipment is the responsibility of the Lessee while under the Rental Period.

10.3     Throughout the period of this Agreement, the Lessee shall have absolute direction and control over and responsibility for the operation of the Equipment and shall be responsible for the loss of and all damage to the Equipment however caused and the Lessee will at its own expense maintain in full force and effect from the date of the Equipment’s delivery insurance of the Equipment approved by the Lessor (“the Insurances”) at least for the Insurance Value, and covering the respective interests of the Lessee and the Lessor against all risks including loss of or damage to the Equipment and any liability for injury or damage caused by or arising out of or in connection with the operation, storage, maintenance or use of the Equipment.

10.4     The Lessee shall procure that each of the Insurances:

10.4.1      is in the name of the Lessee and includes the Lessor as an additional named insured, with all its provisions, except the limits of liability, operating as if there were a separate policy covering each of the parties thereby insured;

10.4.2      require all payments to be made by the insurers under the all risks, war and allied risks insurances to be made direct to the Lessor or its order;

10.4.3      provide that the cover afforded to the Lessor by the policy is not invalidated by any act or omission (including misrepresentation and non-disclosure) of any other person or party which results in a breach of any term, condition or warranty of the policy provided that the Lessor has not caused, contributed to or knowingly condoned the said act or omission;

10.5     The Lessee shall bear any part of any loss or liability which is to be borne by the insured under the Insurances (notwithstanding that such policy might have been taken out in joint names).

10.6   The Lessee shall immediately notify the Lessor of any event which will or may give rise to a claim under the Insurances and not without the prior consent of the Lessor settle any such claims.

10.7   The Lessee shall disclose this Agreement to insurers and upon request shall provide the Lessor with extracts from each policy for the Insurances and receipt for the premiums for them upon reasonable request and information about the progress of renewals.

10.8     The Lessee warrants that all information given by it or on its behalf to insurers in connection with the Insurances is and will from time to time be true and complete in all material respects.

11. OWNERSHIP

Ownership of any Equipment rented in terms hereof shall at all times remain vested in the Lessor. The Lessee’s right in and to any Equipment is limited to use and possession thereof in accordance with the terms of this Agreement.

12. INDEMNITY

12.1   The Lessee indemnifies each of the Lessor and its employees and agents and shall keep each of them fully indemnified at all times against all actions, claims, demands, proceedings, costs, expenses, fines, penalties, taxes (other than taxes payable by the Lessor), losses and liabilities whatever in any way arising out of or connected with the Equipment or this Agreement and arising during the period of this Agreement, but whenever incurred.

12.2   The Lessee further agrees to defend the Lessor against any action or proceeding relating to any such losses as are mentioned in clause 12.1, to permit the Lessor (at its option) to become party to any such action or proceeding and to indemnify the Lessor against all costs (including legal costs) arising from any such defence.

13. EXCLUSIONS

The Lessor shall not be liable to the Lessee in any manner whatsoever (whether in the law of Agreement, delict or otherwise) in respect of any loss or damage, whether direct, consequential, economic or of any other kind whatever, however arising from or in respect of the Equipment or its operation, maintenance or use, and the Lessee waives any such other warranties and liabilities on the part of the Lessor.

14. SAFEKEEPING OF EQUIPMENT PENDING REMEDY OF BREACH

14.1     Without prejudice to any of the rights of the Lessor in terms of clause 15 hereunder, should the Lessee be in default of this Agreement for any reason whatsoever, the Lessor shall, as the Lessor elects, be entitled (but not obliged) to collect the Equipment and store such Equipment at such place as the Lessor may deem suitable for safekeeping until:

14.1.1      The Lessee has remedied the breach; or

14.1.2      The Lessor has exercised its rights in terms of clause 15.

14.2     All risk in the Equipment shall remain with the Lessee notwithstanding the possession of the Lessor thereof and all costs in connection with the collection, transportation, storage, safekeeping and insurance of the Equipment as well as all costs arising out of the redelivery thereof to the Lessee irrespective of where this takes place, shall be for the Lessee’s account and shall be payable on demand.

15. BREACH AND TERMINATION

15.1     Notwithstanding anything to the contrary contained in this Agreement, the Lessor may terminate the Agreement for convenience by giving the Lessee not less than 14 (fourteen) days’ prior written notice.

15.2     Unless otherwise provided by Lessor, the Agreement shall automatically terminate if an Insolvency Event occurs.

15.3     Without limiting its other rights or remedies, Lessor shall be entitled forthwith to cancel the Agreement (and any other Agreement it may have with the Lessee) and/or to claim immediate payment and/or performance by the Lessee of all of the Lessee’s obligations whether or not the due date for payment and/or performance shall have arrived, by giving written notice to the Lessee, if the Lessee:

15.3.1      breaches any warranty given by it in this Agreement;

15.3.2      breaches any term or condition of the Agreement and such breach cannot be remedied or if such breach can be remedied it fails to remedy that breach within 5 (five) days after receipt of a written notice from Lessor to do so; or

15.3.3      being a natural person, publishes a notice of the voluntary surrender of his/her estate, or has any application or other proceedings brought against him in terms of which he is sequestrated or placed under curatorship or the whole or a major portion of his assets is alienated or encumbered;

15.3.4      being a partnership, is dissolved; or

15.3.5      being a juristic person,

15.3.6      it is, (or admits inability) or becomes unable to pay its debts as they fall due, or it is (or admits to being) insolvent, or files any application or action for relief under any insolvency, reorganisation or moratorium law with the object of it being wound up, liquidated, or placed under curatorship, receivership, administrative receivership or administration, as applicable in its jurisdiction, whether provisionally or finally and whether compulsory or voluntary;

15.3.7      any proceedings are started or steps are taken or instituted against it (but excluding any such steps or proceedings which are frivolous or have no prospect of success), for a liquidation order or provisional liquidation order to be made in relation to it or for its winding-up, dissolution or reorganisation or for the appointment of a judicial manager, trustee, liquidator or similar officer in relation to it or its assets; and/or

15.3.8      it is unable (or admits inability) to pay its debts generally as they fall due, or it is (or admits to being), otherwise insolvent or stops or suspends payment of all or a material part of its debts or convenes a meeting or takes any steps for the purposes of making any arrangement, compromise or composition for the benefit of its creditors or agrees or declares a moratorium or reorganisation in respect of its debts; and/or

15.3.9      any receiver, administrative receiver, administrator, compulsory manager, judicial custodian, liquidator or business rescue practitioner or the like is lawfully appointed in respect of it or any material part of its assets or revenues or it requests any such appointment;

15.3.10    suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;

15.3.11    repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify Lessor’s opinion that the Lessee’s conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement.

15.4     Without limiting the rights or remedies of Lessor, on termination or cancellation of the Agreement for any reason:

15.4.1      the Lessee shall immediately pay to Lessor:

15.4.2      all of Lessor’s outstanding unpaid invoices and interest;

15.4.3      the costs or losses incurred by Lessor as a result of the cancellation of third party agreements related to the Agreement, including any cancellation fees;

15.4.4      the Lessee shall return all of Lessor’s materials or Equipment which have not been paid for in full by the Lessee. If the Lessee fails to do so, then Lessor may enter the Site and take possession of them. Until they have been returned, the Lessee shall be solely responsible for their safe keeping and will not use them for any purpose whatsoever;

15.4.5      Lessor shall have the right to set-off any amount due in terms of this Agreement or any other agreement with the Lessee, against any deposit or advance payment paid to Lessor by the Lessee in terms of this Agreement and the Lessee shall forfeit any deposit or advance payment made to Lessor prior to the date of termination of the Agreement, in the event that the Agreement is cancelled pursuant to clause 15.3;

15.4.6      the accrued rights and remedies of Lessor as at termination and/or cancellation shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

15.5     For the purposes of exercising its rights under clause 15.4.6:

15.5.1      the Lessee irrevocably and in rem suam authorises and appoints Lessor with full power of substitution to sign all and any document/s in the Lessee’s name or on the Lessee’s behalf, and to do all such things as may be necessary or desirable, to enable Lessor to give effect to or to enforce its rights under clause 15.4.6;

15.5.2      grants Lessor and its agent, an irrevocable right to enter the Site where the Equipment may be located and take possession of and remove the Equipment without being responsible for any damage caused or without obtaining any court order. All costs and expenses incurred by Lessor as a result of this action shall form part of the Lessee’s indebtedness to Lessor under the Agreement and shall bear interest as contemplated in the Agreement.

16. RIGHTS ON TERMINATION

16.1     Upon cancellation / termination / expiry of this Agreement for any reason, the Lessor’s consent to the Lessee’s possession of the Equipment shall terminate and the Lessor may, without notice retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located. If required by the Lessor, the Lessee shall deliver the Equipment to the Lessor’s domicilium address upon termination of the Agreement, at its cost, by no later than 7 (seven) days following termination.

16.2     without prejudice to any other rights or remedies of the Lessor, the Lessee shall pay to the Lessor on demand:

16.2.1      all Rental Payments and other sums due but unpaid at the date of such demand together with any interest;

16.2.2      any costs and expenses incurred by the Lessor in recovering the Equipment and/or in collecting any sums due under the Agreement (including any storage, insurance, repair, transport, legal and remarketing costs).

17. DEACTIVATION

17.1     The Lessee acknowledges that the Equipment is by its nature movable, and shall not accede to the Site or any premises at which it is utilised / situated. The Lessee further acknowledges and accepts that the Lessor may, in certain circumstances, be able to, and shall be entitled to remotely stop/deactivate the operation of the Equipment by written notice to the Lessee (“Stoppage Notice”), thereby rendering it incapable of operation in the following circumstances:-

17.1.1      where the Lessee fails to make immediate payment of any amount that is due to the Lessor within 24 (twenty four) hours of receipt of written demand to do so or within the period specified in the notice from the Lessor;

17.1.2      where the Lessee cancels the Agreement under circumstances contemplated in clause 15.3.

17.2     The Stoppage Notice will remain in force until all overdue Rental Payments, including interest are received in full by the Lessor. In the event where the Equipment is stopped/deactivated following the Stoppage Notice, the Lessee will be liable for payment of the costs set out in the Stoppage Notice.

17.3     The Lessee acknowledges that the right to stop/deactivate the operation of the Equipment is a right in addition to, and not in substitution of any other rights which may accrue to the Lessor upon breach or cancellation of the Agreement and/or the Rental Schedule.

18. CLAIMS AND INDEMNITY

18.1     Subject to any other provision of this Agreement which specifically provides otherwise, the Lessee shall have no claim of any nature whatsoever under this Agreement arising out of or in any way directly or indirectly connected with the condition of the Equipment as a consequence of any repairs to the Equipment whether performed by the Lessor or on its behalf, or the Lessee’s deprivation of the use of the Equipment during repairs or for any other reason whatsoever and the Lessee agrees that, save as specifically stated in the Agreement, no representations or warranties have been made or given by the Lessor or on its behalf in respect of the Equipment other than those provided by the supplier and / or the manufacturer of the Equipment.

18.2     Neither Party shall be liable –

18.2.1      for any loss or inconvenience caused to the other Party by reason of any failure or delay in delivering the Equipment to the Lessee;

18.2.2      for any loss or damage to any property left in or upon the Equipment after signature of any confirmation of receipt in writing or on delivery, whichever is the earlier or when the Equipment is in the custody of Lessor for any purpose under this Agreement;

18.2.3      under any circumstances for any loss of profit or other consequential damage of any nature whatsoever or any inconvenience suffered by the Lessee which arises directly or indirectly out of this Agreement.

18.3     Subject to any other provisions of this Agreement which specifically provides otherwise, the Lessee indemnifies the Lessor in respect of any claim of any nature whatsoever which may be made against the Lessor arising directly or indirectly out of the use or misuse by the Lessee of the Equipment under this Agreement or the Lessee failing to carry out any obligations hereunder.

18.4     Any reference to the Lessor in this clause shall include any agent, servant, employee or cessionary of the Lessor.

19. MEDIATION

19.1     The Parties shall each appoint a representative to serve as their respective representatives under this Agreement.

19.2     In the event of a dispute arising between the Parties, the representatives of each of the Parties shall meet to resolve the dispute. The representatives shall be authorized and responsible for liaison and communication between the Parties during the dispute and for resolving any disagreements regarding the interpretation or implementation of this Agreement.

19.3     Should the representatives referred to in 19.2 fail to reach agreement on any matter referred to them for resolution within a period of 7 (seven) days, the CEO and / or CFO or their duly appointed nominees shall meet in an attempt to resolve the dispute within a 14 (fourteen) day period.

19.4     Only in the event that neither representatives nor the CFO / CEO’s are able to resolve the dispute, shall the aggrieved party resort to arbitration in terms of clause 21 below.

20. COSTS AND EXPENSES

Pursuant to default by either Party, if finally determined by a court of law, the other Party shall be entitled to recover from the other Party all legal fees, costs and disbursements on a scale as between an attorney and his own client, and also all costs of locating, repossessing and disposal of the Equipment incurred by the Party, irrespective of whether action has been instituted or not.

21. ARBITRATION
    • If any dispute arises between any of the Parties hereto in relation to any matter pertaining to, or arising out of this Agreement, including its validity, or arising out of the termination thereof, then such dispute shall, at the instance of any Party, be referred to arbitration by a single arbitrator, in accordance with the provisions of this clause 21.

• The arbitration shall be held:
  • at Johannesburg (or other place as agreed);

• subject to the provisions of this clause 21, in accordance with the Arbitration Foundation of Southern Africa (“AFSA”) rules relating to commercial arbitrations (“Rules”).

• The arbitrator shall be mutually agreed upon between the parties to the dispute, provided that should such Parties fail to agree on an arbitrator within 10 (ten) Business Days after the dispute is referred to arbitration, the arbitrator shall, at the written request of any Party, be appointed by the Chairman for the time being of the Johannesburg Bar Council or its successor.

• Subject to each Party’s rights of appeal in accordance with the Rules, the Parties irrevocably agree that the decision of the arbitrator shall be final and binding on them, shall be carried into effect, and shall be capable of being made an order of the High Court of South Africa, Gauteng Local Division.

• The provisions of this clause shall not preclude any Party from obtaining interim relief on an urgent basis from the High Court of South Africa, Gauteng Local Division, pending the decision of the arbitrator.

• Notwithstanding the above provisions contained in this clause, the Lessee agrees that the Lessor, at its sole option, may elect to submit the / any dispute to litigation in any court of competent jurisdiction.

22. CESSION, SUBLEASE AND POSSESSION

22.1   The Lessee may not sublet the Equipment or assign delegate or otherwise deal with any of its rights or obligations under this Agreement or in any way allow the Equipment to pass out of its actual possession and control except only for the purpose of repair, maintenance or inspection.

22.2     The Lessor may, upon prior notice to the Lessee, cede, delegate or otherwise deal with any of its rights or obligations under this Agreement and in such event the expression “Lessor” shall include any such cessionary, delegate or successor in title.

23. INTERPRETATION

23.1     This Agreement constitutes the entire agreement between the Parties in relation to its subject matter and no addition to or variation of it shall have any effect unless in writing and signed, by a person duly authorised, on behalf of each of the Lessor and the Lessee.

23.2     Headings are given for convenience only and shall not affect interpretation.

23.3     Any part of this Agreement found by any court or other competent authority to be unenforceable shall be considered severable so as not in any way to affect the remainder of this Agreement.

24. GENERAL

24.1     In the event of any conflicting provisions, the hierarchy of documents will be as followed:

24.1.1  Separate documents and or proposals provided by the Lessor to the Lessee;

24.1.2  The Rental Schedule attached hereto;

24.1.3  The provisions contained in the body of this Agreement.

24.2     The Parties agree to the jurisdiction of the High Court of South Africa, Gauteng Local Division for the purposes of this Agreement.

24.3     No relaxation that either Party may allow the other Party in regard to the carrying out of its obligations under this Agreement shall prejudice or be regarded as a waiver, vitiation or novation of the rights hereunder of that Party.

24.4     The Lessee hereby warrants in favour of the Lessor that it has complied with all regulations and company and procurement policies and any related legislation which may be required in order to conclude and/or implement this Agreement and the transactions contemplated  herein;  and  that  neither the  Lessor  nor  any  of  its  shareholders,  directors,  agents  or  employees (“indemnified parties”) shall be liable for any loss, damages, claims, actions, liabilities, costs or expenses of any nature whatsoever and howsoever incurred, which are suffered or sustained by the Lessee and/or any third party pursuant to any breach by the Lessee of any of the warranties and the Lessee hereby indemnifies and holds the indemnified parties harmless from and against any loss, damages, claims, actions, liabilities, costs or expenses of any nature whatsoever and howsoever incurred, which are suffered or sustained by the Lessor or any third party pursuant to any breach by the Lessee of any of the warranties set out herein.

24.5     A certificate signed by any manager or director of the Lessor as to any amount due by the Lessee to the Lessor or by the Lessor to the Lessee shall constitute prima facie proof (not conclusive proof) per se of the amount owing by the Lessee or the Lessor as the case may be.

24.6     This Agreement shall be interpreted in all respects in accordance with the laws of South Africa.

24.7     The Lessee shall under no circumstances be entitled to withhold any payment or claim set-off in respect of any amounts owing by the Lessee to the Lessor.

24.8     Should the Lessee fail to comply with any of the provisions contained in this Agreement, the Lessor shall be entitled to effect such compliance on the Lessee’s behalf and to recover the costs of doing so from the Lessee on demand.

24.9     In the event of any of the provisions contained in this Agreement being in conflict with any law in force in South Africa, then such provision shall be deemed to be amended only to the extent necessary to bring it into compliance with such law.

24.10 This Agreement (which will include the provisions of any Credit Application, terms and conditions and surety, if completed) constitutes the whole Agreement between the Lessee and the Lessor and nothing at variance hereto shall be of any force or effect unless agreed to by the in writing.

24.11   Any and all amounts contained in this Agreement shall be exclusive of VAT, and, if applicable, VAT will be payable over and above the amount stipulated.

25. NOTICES

All notices and other communications under this Agreement shall be in accordance with the provisions as recorded in with the terms as recorded in clause 7 of the Rental Schedule and Summarised Terms of Rental Agreement.

Carel Brink CEO