RENTAL AGREEMENT TERMS AND CONDITIONS

1. INTERPRETATION

1.1. The following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:

1.1.1. “Additional Components” means any accessories, hardware or devices fitted to the Equipment by the Lessee;

1.1.2. “Additional Terms and Conditions” means the terms and conditions stipulated in all invoices, monthly statements, or other agreements between the Lessor and the Lessee;

1.1.3. “After-Hour Fee” means the amount, calculated at the After-Hour Rate, payable by the Lessee to the Lessor for the Lessee’s use of the Equipment in excess of the Maximum Hours;

1.1.4. “After-Hour Meter” means the instrument used to measure the amount of time that the Equipment is used in excess of the Maximum Hours by the Lessee;

1.1.5. “After-Hour Rate” means the rate charged by the Lessor to the Lessee for the Lessee’s use of the Equipment in excess of the Maximum Hours as is stipulated in the Quotation;

1.1.6. “Agreement” means the Terms and Conditions together with the Quotation and the Additional Terms and Conditions;

1.1.7. “Alternative Equipment” means any equipment similar to the Equipment that the Lessor replaces the Equipment with;

1.1.8. “Applicable Laws” means all laws and regulations relating to the Lessee and the Equipment in general and in particular relating to the Lessee’s possession, use, transportation and maintenance of the Equipment;

1.1.9. “Business Day” means any day other than a Saturday or Sunday or statutory public holiday in the Republic of South Africa;

1.1.10. “Deposit” means the deposit amount stipulated in the Quotation;

1.1.11. “Effective Date” means the effective date of this Agreement, being the date upon which the Lessee accepts to be bound by the terms of this Agreement;

1.1.12. “Equipment” means the equipment leased by the Lessor to the Lessee as described in the equipment list in the Quotation;

1.1.13. “Excess Kilometer Fee” means the amount, calculated at the Excess Kilometer Rate, payable by the Lessee to the Lessor for the Lessee’s use of the Equipment in excess of the Maximum Kilometers;

1.1.14. “Excess Kilometer Meter” means the instrument used to measure the number of kilometers that the Equipment has been used by the Lessee in excess of the Maximum Kilometers;

1.1.15. “Excess Kilometer Rate” means the rate, stipulated in the Quotation, charged by the Lessor to the Lessee for the Lessee’s use of the Equipment in excess of the Maximum Kilometers;

1.1.16. “Fees” means the Rental Fee and/or After-Hour Fee and/or Excess Kilometer Fee as well as any other fee payable by the Lessee to the Lessor, in terms of this Agreement;

1.1.17. “Lessee” means the person/entity whose details appear in the Quotation;

1.1.18. “Lessor” means Africa Power Company CC (registration number: 1998/014930/23) a company duly registered and incorporated in South Africa in accordance with the Companies Act 71 of 2008, as amended;

1.1.19. “Maximum Hours” means the number of hours per day / week / month (as the case may) be that the Lessee intends to use the Equipment for as is stipulated in the Quotation;

1.1.20. “Maximum Kilometers” means the number of kilometers per day / week / month (as the case may be) that the Lessee intends to use the Equipment for as is stipulated in the Quotation;

1.1.21. “Operators” means qualified and competent operators and/or drivers of the Equipment;

1.1.22. “Outstanding Fees” means any and all Fees which are due, owing and payable by the Lessee to the Lessor in terms hereof;

1.1.23. “Party/ies” means either the Lessor or the Lessee, or both, as the case may be and as informed by context;

1.1.24. “Quotation” means the quotation hereto upon which certain information pertaining to this Agreement has been recorded;

1.1.25. “Rental Fee” means the amount payable at the particular rate as stipulated in the Quotation which is payable by the Lessee to the Lessor in consideration of the Lessee leasing the Equipment from the Lessor;

1.1.26. “Rental Period” means the period in which the Equipment will be leased by the Lessee from the Lessor, as stipulated in the Quotation;

1.1.27. “Satisfactory Condition” means the condition that the Equipment was in upon delivery thereof by the Lessor to the Lessee, less any reasonable wear and tear; and

1.1.28. “Terms and Conditions” means these terms and conditions; and

1.1.29. “Tracker Systems” means hardware and software integrated within or attached to the Equipment and/or the Additional Components (or any other hardware or devices interfacing with the Equipment) which, inter alia:

1.1.29.1. collect information and data in respect of the Equipment and/or Additional Components (or any other hardware or devices interfacing with the Equipment) and the Lessee’s use thereof;

1.1.29.2. transmit such information and data to the Lessor; and

1.1.29.3. are capable of modifying the utility, performance and functionality of the Equipment and/or Additional Components (or any other hardware or devices interfacing with the Equipment).

1.2. In the event of any conflict or inconsistency between the provisions of these Terms and Conditions and those of the Additional Terms and Conditions, then the provisions of these Terms and Conditions shall prevail.

1.3. The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof. Unless a contrary intention clearly appears, words importing:

1.3.1. any one gender includes the other gender;

1.3.2. the singular includes the plural and vice versa; and

1.3.3. natural persons include created entities (corporate or unincorporated) and the state and vice versa.

1.4. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
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1.5. When any number of days is prescribed in this Agreement, they shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day that is not a Business Day, in which case the last day shall be the next day which is not a Business Day.

1.6. The use of any expression in this Agreement covering a process available under South African law such as a winding up (without limitation eiusdem generis) shall, if any of the parties to this Agreement is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such defined jurisdiction.

1.7. Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.

1.8. The expiry or termination of this Agreement shall not affect such of the provisions of this Agreement that expressly provide that they will operate after any such expiry or termination or which of necessity must continue to have effect after such expiry or termination, notwithstanding that the clauses themselves do not expressly provide for this.

1.9. Any reference in this Agreement to a party shall include a reference to that party’s assigns expressly permitted under this Agreement and, if such party is liquidated or sequestrated, be applicable also to and binding upon that party’s liquidator or trustee, as the case may be.

1.10. The words “include”, “including” and “in particular” shall be construed as being by way of example or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding word/s.

1.11. The words “other” and “otherwise” shall not be construed eiusdem generis with any preceding words where a wider construction is possible.

2. INTRODUCTION

The Lessee is desirous to lease the Equipment from the Lessor and the Lessor leases the Equipment to the Lessee on the terms and conditions of this Agreement, which the Lessee accepts.

3. DURATION

This Agreement shall, subject to clauses 18 and 19 below, subsist during the Rental Period.

4. FEES

4.1. The Fees quoted in the Quotation are:

4.1.1. strictly nett and exclusive of value added tax;

4.1.2. exclude all costs associated with the provision of Operators (unless such costs are quoted for in the Quotation);

4.1.3. include all costs associated with the provision of insurance for the Equipment;

4.1.4. exclude all costs associated with accommodation for Operators (unless such costs are quoted for in the Quotation);

4.1.5. exclude all costs associated with site establishment and de-establishment (unless such costs are quoted for in the Quotation);

4.1.6. exclude all costs associated with the provision of fuel for the Equipment;

4.1.7. exclude all costs associated with obtaining necessary permits, licences and the like (if any) in respect of the Equipment and the Lessee’s use thereof;

4.1.8. exclude all costs associated with customs duties (import and export duties) and associated taxes (if any); and

4.1.9. include all costs associated with certifying the equipment (if necessary).

5. PAYMENT

5.1. The Lessee shall pay the Fees to the Lessor on a monthly basis during the Rental Period.

5.2. The Fees shall become due, owing and payable by the Lessee to the Lessor within 30 (thirty) days from the date of the Lessor’s tax invoice in respect thereof.

5.3. The Lessee shall effect payment of the Fees to the Lessor by way of an electronic bank transfer into the following bank account or into any other bank account that the Lessor may direct in writing from time to time:

Account Name: Africa Power Company
Bank: Absa Bank
Branch: Rosebank Central
Branch Code: 630805
Account Number: 404 801 5966

5.4. Notwithstanding any tax rate stipulated in this Agreement or on any of the Lessor’s tax invoices pursuant hereto, the Lessee shall pay tax on the Fees at the prevailing tax rate from time to time.

5.5. The Lessee may not, under any circumstances withhold, defer, set-off, or make any deduction from any Outstanding Fees.

5.6. The Lessor may apply any Fees paid by the Lessee to the Lessor, to any amount owing by the Lessee to the Lessor.
5.7.
5.8. Any loss of the Equipment, damage to the Equipment or impairment in the utility and functionality of the Equipment shall not abate or excuse the Lessee’s obligation to pay the Fees to the Lessor as aforesaid.

5.9. All Outstanding Fees shall accrue interest thereon at a rate of 2% per month, calculated and compounded monthly. In the event of a dispute between the Parties as to the rate of interest, a certificate in writing by a manager or an accountant of the Lessor, whose appointment shall not be necessary to prove, shall, absent manifest error, be binding on the Parties.

6. DEPOSIT

6.1. The Lessee shall pay the Deposit to the Lessor on the Effective Date.

6.2. The Lessor shall hold the Deposit in a bank account that bears no interest.

6.3. The Lessor may set off the Deposit against any amount owed to it by the Lessee in terms of this Agreement.

6.4. If the Lessor sets off any portion of the Deposit against an amount owed to it by the Lessee in terms of this Agreement, then the Lessee agrees to immediately remit to the Lessor the difference between the Deposit and the amount so set off.

6.5. The Lessor will refund the Deposit to the Lessee within thirty days after the termination of this Agreement, subject to clause 6.3 above.

7. ADDIITIONAL COMPONENTS AND ALTERATIONS

7.1. All Additional Components shall, at no cost to the Lessor, become the property of the Lessor unless the Additional Components can be removed from the Equipment without in any way:

7.1.1. diminishing the value of the Equipment; and

7.1.2. lessening the lifespan and/or the utility of the Equipment.

7.2. Any damage to the Equipment caused by the removal of any Additional Components shall be repaired by the Lessee and at the Lessee’s sole expense, to the satisfaction of Lessor.

7.3. The Lessee may not make any alterations to the Equipment without the prior written consent of the Lessor. In the event that such permission is granted, then the Lessee shall make the permitted alterations to the Equipment at its own cost.

7.4. The Equipment shall, notwithstanding any permitted alterations thereto, remain the sole property of the Lessor at all times.

8. COMPLIANCE WITH APPLICABLE LAWS

8.1. The Lessee shall comply with and conform to the Applicable Laws.

8.2. If the Applicable Laws require that the Lessee files tax returns or reports in respect of the Equipment, then the Lessee agrees to promptly file such tax returns and reports and deliver copies to Lessor.

8.3. The Lessee agrees to keep and make available to the Lessor all tax returns and reports for taxes paid by Lessee in respect of the Equipment.

8.4. If applicable, the Lessee shall include the Equipment in its rental fleet for emissions reporting purposes and shall accurately prepare and file all such reports in a timely manner.

9. INSPECTION

9.1. The Lessor may at any time and without prior notice to the Lessee, inspect the Equipment and to this end the Lessee shall, if required by the Lessor, do all things necessary to:

9.1.1. advise the Lessor as to the exact location of the Equipment; and

9.1.2. grant the Lessor and/or any third parties associated with the Lessor access to the Equipment.

10. ASSIGNMENT

10.1. The Lessee may not at any time assign any of the terms of this Agreement to a third party unless approved in writing by the Lessor, the approval of which shall not be unreasonably withheld.

10.2. Such approval includes the granting of permission to anyone other than Lessee to use the Equipment.

11. REPLACEMENT OF EQUIPMENT

11.1. The Lessor may, without prior notice to the Lessee, collect the Equipment and replace the Equipment with Alternative Equipment at any time during the Rental Period.

11.2. In such circumstances, the provisions of this Agreement will, mutatis mutandis, apply in respect of the Alternative Equipment.

12. TRACKER SYSTEMS

12.1. The Lessor may equip the Equipment with Tracker Systems at any time during the Rental Period.

12.2. The Lessor may at all times access, use, collect and disclose all information and data generated by the Tracker Systems.

12.3. The Lessor may update the Tracker Systems from time to time and the Lessee shall grant the Lessor reasonable access to the Equipment for this purpose.

12.4. The Lessee shall not remove, modify or disable any Tracker Systems without the Lessor’s prior written consent.

12.5. Notwithstanding any disabling of the Equipment in terms of clause 19.1.13.1 below, the Lessor will continue to pay and be liable for the Fees in terms of this Agreement.

13. DISCLOSURE OF INFORMATION

13.1. The Lessee consents and authorises the Lessor in rem suam at all times to investigate the Lessee’s financial affairs and to contact any person/s to request and obtain any of the Lessee’s information from such person/s in order to establish the Lessee’s credit-worthiness.

13.2. Without in any way detracting from the generality of clause 13.1 above, the Lessee authorises the Lessor to:

13.2.1. perform a credit information search on the Lessee at any credit bureau;

13.2.2. monitor the Lessee’s payment behaviour by researching the Lessee’s records at a credit bureau;

13.2.3. use new information and data obtained from credit bureaus in respect of the Lessee’s future credit review report; and

13.2.4. establish the existence of the Lessee’s account with any credit bureau;

13.3. The Lessee authorises the Lessor to record how the Lessee has performed in terms of this Agreement and transmit same to any credit bureau or other person/s, which information will be available to other third parties.

14. WARRANTY DISCLAIMER

The Lessee acknowledges that the Equipment is leased in terms of this Agreement on an “as is” and “as available” basis only, without warranty of any kind. All express, implied or statutory warranties, conditions, representations, including but not limited to, the condition of the Equipment, the implied warranties of title, merchantability, fitness for a particular purpose, accuracy, timeliness, completeness, adequacy and non-infringement or warranty arising out of course of performance, course of dealing or usage or trade are excluded by the Lessor. The Lessor does not warrant that the Equipment will meet the requirements of the Lessee and operate on an uninterrupted or error -free basis. The Lessee is solely responsible for any and all acts or omissions taken or made in reliance on the Equipment.

15. UNDERTAKINGS

15.1. The Lessee undertakes to:

15.1.1. use the Equipment for commercial purposes only, and not for personal, family or household purposes;

15.1.2. affix and maintain, in a prominent place on the Equipment, any labels, plates or other markings that the Lessor may provide to the Lessee;

15.1.3. operate the Equipment in a careful and prudent manner and keep the Equipment in Satisfactory Condition;

15.1.4. pay for all operational, service and maintenance costs necessary to keep the Equipment in Satisfactory Condition;

15.1.5. make, at its own expense, any and all repairs to the Equipment;

15.1.6. not move the Equipment to another county or province without Lessor’s prior written consent;

15.1.7. operate and maintain the Equipment in accordance with all:

15.1.7.1. Applicable Laws;

15.1.7.2. manuals and other instructions issued by the manufacturer/s and/or supplier/s of the Equipment; and

15.1.7.3. insurance policy terms and requirements;

15.1.8. not represent that it owns the Equipment;

15.1.9. provide Operators for the Equipment, if no provision for Operators is made by the Lessor;

15.1.10. to keep the Equipment free of any liens and encumbrances;

15.1.11. immediately notify the Lessor of any liens or encumbrances threatened against the Equipment;

15.1.12. if necessary, load, unload, transport, and secure for transport the Equipment in accordance with the Applicable Laws;

15.1.13. acquire all proper permits, licences and the like in compliance with the Applicable Laws required for the use of the Equipment.

15.1.14. in the ordinary course, operate the Equipment for the Maximum Hours.

15.1.15. keep the After-Hour Meter, Excess Kilometer Meter and Tracker Systems in good working condition and connected to the Equipment at all times.

15.1.16. not dispute any measurement of the After-Hour Meter, Excess Kilometer Meter and Tracker Systems;

15.1.17. reimburse the Lessor for any and all repair and/or replacement costs related to any damage or malfunction of the After-Hour Meter, Excess Kilometer Meter and Tracker Systems that may occur;

15.1.18. immediately notify the Lessor in the event of any damage, theft, destruction, seizure, failure or malfunction of the Equipment, After-Hour Meter, Excess Kilometer Meter and/or Tracker Systems;

15.1.19. in the event of any loss or damage to the Equipment, After-Hour Meter, Excess Kilometer Meter and/or Tracker Systems, immediately and at its own cost repair or replace the Equipment, After-Hour Meter, Excess Kilometer Meter and/or Tracker Systems (as the case may be) to the Lessor’s satisfaction;

15.1.20. upon the Lessor’s request, promptly provide the Lessor with copies of all insurance policies required by the Lessee in terms of this Agreement;

15.1.21. provide suitable qualified supervision of the Equipment at all times;

15.1.22. notwithstanding any cancellation/termination of this Agreement, continue to pay the Fees to the Lessor until such time as the Lessee returns the Equipment (together with any Additional Components belonging to the Lessor, Tracker Systems, After-Hour Meters and Excess Kilometer Meters in respect of the Equipment) to the Lessor;

15.1.23. keep an accurate and detailed record of the amount of kilometers and/or hours that it has used the Equipment for and to furnish the Lessor with such records on or before the first day of each month during the Rental Period;

15.1.24. advise the Lessor of the exact location of the Equipment as and when required by the Lessor; and

15.1.25. promptly deliver to the Lessor such financial statements, reports and other information as Lessor may request in writing.

16. INDEMNIFICATION

The Lessee indemnifies and holds harmless the Lessor, its officers and directors, employees and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) in respect of and/or in connection with this Agreement and/or the Equipment and in particular with inter alia the use, possession, transportation, damage, theft, destruction, seizure, failure or malfunction of the Equipment.

17. WARRANTIES

17.1. The Lessee warrants that:

17.1.1. by entering into this Agreement, it has not violated any laws or is in breach any order of court or other governmental agency, or of any undertaking by which Lessee is bound;

17.1.2. all information that it has furnished the Lessor with is true, accurate and complete;

17.1.3. since the date of the most recent financial information given to the Lessor, no material adverse change in the Lessee’s business, assets, or prospects has occurred;

17.1.4. it has the necessary expertise to operate the Equipment;

17.1.5. the execution, delivery and performance by the Lessee of this Agreement will not breach any provision of the Lessee’s organizational documents or legal authority;

17.1.6. the safe operation and the proper servicing of the Equipment were explained to Lessee;

17.1.7. the Equipment (including all manufacturer manuals and instructions) has been delivered to, and examined by, Lessee;

17.1.8. it selected the Equipment;

17.1.9. it has inspected the Equipment prior to signing this Agreement and has satisfied itself that the Equipment is fit for the purpose which the Lessee intends to use the Equipment for, is in good working order and in immaculate condition; and

17.1.10. it received the written warranty applicable to the Equipment from the Lessor and understands that the written warranty is not a part of this Agreement.

18. CANCELLATION

18.1. This Agreement may be cancelled in the following circumstances:

18.1.1. at any time by Lessor on 20 (twenty) Business Days written notice to the Lessee and Lessor need not furnish the Lessee with any reasons therefor; or

18.1.2. pursuant to the provisions of clause 19 below.

18.2. This Agreement shall in any event terminate upon the expiry of the Rental Period.

18.3. If/when this Agreement is canceled/terminated then:

18.3.1. the Lessee shall immediately, at its own cost, deliver to the Lessor the Equipment (together with any Additional Components belonging to the Lessor, Tracker Systems, After-Hour Meters and Excess Kilometer Meters in respect of the Equipment), in Satisfactory Condition, together with all of the Equipment’s use, maintenance and repair records;

18.3.2. the Lessee shall immediately pay to the Lessor all Outstanding Fees; and

18.3.3. in the event of this Agreement being cancelled pursuant to the provisions of clause 19 below, any Fees that would have become due, owing and payable by the Lessee to the Lessor (but for the cancellation in terms of clause 19), will immediately become Outstanding Fees and the Lessee shall immediately effect payment thereof.

18.4. If, upon its return to Lessor, the Equipment (together with any Additional Components belonging to the Lessor, Tracker Systems, After-Hour Meters and Excess kilometer Meters in respect of the Equipment) is/are not in Satisfactory Condition, then the Lessor may conduct repairs thereon and the Lessee will be liable to pay the cost of any such repairs.

18.5. Notwithstanding any cancellation/termination of this Agreement, the Lessee shall continue to pay the Fees to the Lessor until such time as the Lessee returns the Equipment (together with any Additional Components belonging to the Lessor, Tracker Systems, After-Hour Meters and Excess Kilometer Meters in respect of the Equipment) to the Lessor.

19. BREACH

19.1. If the Lessee:

19.1.1. breaches any of the provisions of this Agreement and fails to remedy such breach within 10 Business Days from receipt of written notice from the Lessor requiring remedial action; and/or

19.1.2. ceases operating; and/or

19.1.3. institutes or has instituted against it, proceedings under any bankruptcy or insolvency law; and/or

19.1.4. makes an assignment for the benefit of its creditors; and/or

19.1.5. amalgamates or consolidates with another entity; and/or

19.1.6. sells substantially all of its assets; and/or

19.1.7. dissolves or terminates its existence; and/or

19.1.8. uses the Equipment in a manner that the Lessor deems is improper or unreasonable; and/or

19.1.9. dies (if an individual), and/or

19.1.10. has any attachment, execution or writ/warrant of process levied against the Equipment or any of the Lessee’s property, and/or

19.1.11. a default occurs in terms of any other agreement between the Lessee (or any of Lessee’s affiliates) and the Lessor (or any of Lessor’s affiliates);

then, the Lessee will be in breach of this Agreement and the Lessor shall be entitled, but not obliged, without prejudice to any other rights or remedies which the Lessor may have in law, including the right to claim damages, to either:

19.1.12. claim immediate performance of all the Lessee’s obligations in terms hereof; or

19.1.13. without cancelling the Agreement and without in any way repudiating the Agreement to:

19.1.13.1. disable the functionality of the Equipment (together with any Additional Components belonging to the Lessor, Tracker Systems, After-Hour Meters and Excess Kilometer Meters in respect of the Equipment), using the Tracker Systems until such time as the Lessee has remedied the breach/breaches in question; and/or

19.1.13.2. collect the Equipment (together with any Additional Components belonging to the Lessor, Tracker Systems, After-Hour Meters and Excess Kilometer Meters in respect of the Equipment) from the Lessee and retain possession thereof until such time as the Lessee has remedied the breach/breaches in question; or

19.1.14. cancel this Agreement and immediately collect the Equipment (together with any Additional Components belonging to the Lessor, Tracker Systems, After-Hour Meters and Excess Kilometer Meters in respect of the Equipment) from the Lessee.

20. FORCE MAJEURE

Neither Party shall be held liable or responsible to the other Party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of the affected Party including but not limited to fire, floods, embargoes, war, acts of war (whether war be declared or not), acts of terrorism, insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority or the other Party.

21. LEGAL PROCEEDINGS

21.1. The Lessee agrees to action being instituted against it in the Magistrates’ Court in respect of any Outstanding Fees without prejudice to the Lessor’s right to proceed in any other competent court having jurisdiction.

21.2. A certificate by a manager or an accountant of the Lessor as to any amount of Outstanding Fees shall, save for manifest error, be final and conclusive, and binding on the Lessee for the purpose of proving the amounts of Outstanding Fees at legal proceedings.

21.3. In the event of any legal action being instituted against the Lessee by the Lessor, the Lessee agrees to pay all costs and legal costs incurred by the Lessor in relation thereto, including but not limited to:

21.3.1. attorney and client costs;

21.3.2. collection charges;

21.3.3. travelling costs (whether by air or any other mode of travel);

21.3.4. subsistence costs, including any accommodation costs incurred by any representative or witnesses of the Lessor; and

21.3.5. all other ancillary charges or expenses in relation to the aforegoing.

22. NOTICES AND DOMICILIA

22.1. For the purposes of the giving of notices and the serving of legal process in terms of this Agreement, each of the Parties chooses a domicilium citandi et executandi (“Domicilium”) as follows:

22.1.1. the Lessor:

Physical Address: 5 Bickley rd.
Pretoriusstad
Nigel

E-mail Address: admin@africapowercompany.co.za

22.1.2. the Lessee:

Physical Address: the Lessee’s physical address as described in the Quotation.

E-mail Address: the Lessee’s e-mail address as described in the Quotation.

22.2. Any Party may at any time, by notice in writing to the other Party, change its Domicilium to any other address in South Africa which is not a post office box or post restante.

22.3. Any notice given in connection with this Agreement shall, save where a particular form of notice is prescribed by law, be:

22.3.1. delivered by hand; or

22.3.2. delivered by electronic mail; or

22.3.3. sent by courier; or

22.3.4. delivered by registered post;

to the Domicilium chosen by the Party concerned.

22.4. A notice given as set out above shall be deemed to have been duly given (unless the disputing Party proves the contrary):

22.4.1. if delivered by hand, on the date of delivery; or

22.4.2. if delivered by electronic mail, on the date of transmission/dispatch thereof; or

22.4.3. if sent by courier, on the date of collection thereof by the courier service concerned; or

22.4.4. if sent by registered mail, on the date one week after the posting thereof.

22.5. Any written notice actually received by a Party shall be valid, notwithstanding that it may not have been given in accordance with the preceding provisions of this clause.

23. GENERAL

23.1. Each clause of this Agreement is severable, the one from the other, and if any clause is found to be defective or unenforceable for any reason by any competent court, then the remaining clauses shall be and continue to be of full force and effect.

23.2. No relaxation, indulgence or extension of time granted by either Party (“Grantor”) to the other Party shall be construed as a waiver of any of the Grantor’s rights in terms hereof, or a novation of any of the terms of this Agreement or estop the Grantor from enforcing strict and punctual compliance with the terms of this Agreement.

23.3. No variation of, addition to, consensual cancellation of or waiver of any right arising in terms of this Agreement shall be of any force or effect unless it is reduced to writing and signed by both Parties.

23.4. This Agreement constitutes the whole agreement between the Parties in relation to the subject matter hereof and no Party shall accordingly be bound by any undertaking, representation or warranty not recorded herein.

23.5. This Agreement and all matters in connection therewith shall be governed by, construed and interpreted in accordance with the laws of the Republic of South Africa.

23.6. The Lessee irrevocably authorizes the Lessor, at any time, to:

23.6.1. insert or correct information on this Agreement in respect of the Lessee’s correct legal name, serial numbers and Equipment descriptions;

23.6.2. submit notices and proofs of loss for any required insurance; and

23.6.3. endorse the Lessee’s name on remittances for insurance and Equipment sale or rental proceeds.

23.7. The Lessor is the owner of the Equipment and the Lessor has, and shall continue at all times to have, title to the Equipment. The Lessee does not acquire, under this Agreement or otherwise, any right, title or interest to the Equipment, except the right to use the Equipment in accordance with the terms of this Agreement. As such, unless otherwise set forth herein, the Equipment is, and shall remain at all times, the personal property of the Lessor.