Anywhere in the Agreement that refers to the singular also means the plural or the other way around, as the case may be. Similarly if the masculine is referred to it also means the feminine and neuter, or the other way around, as the case may be. Reference to natural persons includes artificial persons, or the other way around, as the case may be.
The address which you choose to accept service of all documents on yourself will be, for all purposes, your Physical address overleaf. The address which you choose to receive any letters or notices on yourself will be your Postal address or Telefax number. You shall therefore be deemed to have received any letter or notice on the 8th day after the date of posting or on the day the notice or letter was delivered or telefaxed to the abovementioned address.
Each phrase, sentence, paragraph and clause in the Agreement can be separated the one from the other irrespective of how they may be linked together and if a court orders any phrase, sentence, paragraph or clause to be defective or unenforceable, the remaining part of the Agreement shall still be of full force and effect.
You agree that this is a Master Agreement. The terms of this Agreement shall apply to each and every Schedule which we may enter into with you for the goods described therein as if the Terms of Business of the Agreement were incorporated in such Schedule. The conclusion of a further Schedule shall create a separate agreement relating to the goods described therein. You agree that should any separate agreement which has been created in terms hereof, be terminated by us in terms of the Agreement or by any cause whatsoever and howsoever arising, you will continue to fulfill your obligations to us in respect of any other separate agreement created in terms hereof and the Terms of Business of the Agreement will remain in force in respect of such separate agreement so created. We agree to grant you the use of the goods described in the Schedule(s) hereto for the initial rental period stated therein on the terms and conditions set out in this Agreement and in the Schedule(s) thereto, subject to 2 below.
The initial rental period of the Agreement is the period stated in the Schedule thereto commencing from the date of last signature hereto (“the Commencement Date”).
You and we both agree that the rights in the Agreement and in the ownership of the goods is held, and remains with us, or anyone we have transferred our rights to, and that nothing in the Agreement shall be taken to mean that ownership may pass to you, or that you have any interest in the Agreement or the goods other than as the user thereof.
You and we both agree that the Agreement applies only to the hiring of the goods, which you have accepted "as is" and that the rental does not include any payment in respect of licensing, service or maintenance. You and we agree that there is no licensing, service or maintenance agreement between you and us, and if you require one it should be obtained from the supplier of the goods. You agree that any dispute in respect of the goods, their licensing, maintenance or any other agreement you may have, will not entitle you to cease complying with your obligations in terms of the Agreement, and you will not be entitled to withhold any rental payments.
You shall insure the goods for their replacement cost with a registered insurer or through a broker of your own choice for as long as you have them, and advise the insurer of our ownership and our rights in and to the goods. You agree that you will notify us, in writing within fourteen days, if any of the goods are lost, stolen or damaged. You confirm that you have been given prior written notice of your right of free choice in terms of Section 43(1) of the Short Term Insurance Act 53 of 1998, and that you have exercised that freedom of choice and you were not coerced or induced as to the manner in which you exercised your choice.
If you breach any of the conditions or terms of the Agreement, or fail to pay any amounts due to us, or if you become insolvent, or compromise with any of your creditors, or if you have made false statements in connection with the Agreement or our ownership of the goods, or you allow any judgment that has been granted against you to remain unsatisfied for more than seven days, or if you are subject to a final or provisional order of liquidation or surrender, or if you are an individual and your estate is provisionally sequestrated, then you agree that we have the right (without notice to you and without affecting any of our other rights) to:
claim immediate payment of all amounts which would have been payable in terms of the Agreement until expiry of the rental period stated in the Schedule, whether such amounts are then due for payment or not. You agree that we may take possession of the goods and only return them to you on receipt of full payment of all amounts owing by you. You will not be able to withhold payment or make any deductions from any amount owing as a result of your loss of possession of the goods; or
immediately terminate the Agreement, recover possession of the goods, retain all amounts already paid by you and claim all outstanding rentals, all legal costs as between attorney and his own client and the Net Present Value at Prime of the rentals which would have been payable had the Agreement continued until expiry of the initial rental period stated in the Schedule as a pre-estimate of the damages which we may suffer.
If we grant you an extension of time, in order to pay, or any other indulgence, this does not mean that we have given up any of our rights in the Agreement. You agree that we are entitled to charge interest on overdue amounts, including damages, at a rate of two percent per annum over prime.
A certificate signed by any of our managers or other authorised persons, certifying the amount due by you will on the face of it, be proof of the amount of your indebtedness. It shall not be necessary to prove the appointment of the person signing such certificate.
You agree that Value Added Tax (VAT), or any other taxes which may become applicable during the period of the Agreement will be payable by you.
You agree to pay all Rentals in terms of this Agreement in advance, every month, without the necessity of us having to send you a monthly statement or invoice. Paying on time is an essential condition of the Agreement and you agree that your signature to the Agreement gives us authority to draw against your bank account, wherever it may be, the amounts due to us in terms of the Agreement. You may not deduct any amounts owing by us to you from any amounts owing to us.
You agree to keep the goods in a secure and suitable place and use them according to the manufacturer's directions. Should you wish to relocate the goods or the accessories you must obtain our prior approval in writing. Upon cancellation or termination of the Agreement you agree, at your expense, to return the goods to us in good condition.
You may not transfer your rights in terms of the Agreement, nor part with possession of the goods to any other party without obtaining our written consent. We may, without notice to you, transfer all or any portion of our rights in terms of the Agreement or our ownership of the goods to any other person or persons. You agree that, if we transfer, you will hold the goods and continue to fulfill your obligations to the new owners of the rights to the Agreement and/or the goods.
The first rental and documentation fee will become due on the commencement date and thereafter rentals will become due on the common due date of every succeeding month.
You and we both agree that this is the entire Agreement, regardless of any representations that may have been made regarding the goods or the Agreement and no variation, waiver, suspension, extension of time or agreement to cancel shall be of any force or effect unless in writing and signed by both you and us.
You agree that the Magistrate's Court shall have jurisdiction over any proceedings that arise as a result of the Agreement, but we have the right to institute proceedings in the High Court if we so wish, and that you will be liable to pay all costs on an attorney and own client basis if we decide to use our attorney to recover monies owed to us in terms of the Agreement, and we shall not be limited to the recovery of costs on a Magistrate’s Court scale.
You acknowledge and agree:
that you selected and inspected the goods prior to signing this Agreement and/or the Schedule and are satisfied with the goods and that they suit your purpose;
that all warranties implied by the Common Law are excluded and that no representations of any nature have been made by or on behalf of us; and
that once the Schedule to the Agreement is signed by you, all the risk in the goods pass to you.
You agree that if a claim is made on the insurance policy for the loss of the goods, you will be responsible to pay any excess. Should you fail to insure the goods or fail to produce written proof of insurance within 14 days from our written request, we shall be entitled, but not obliged, to effect such insurance as we deem fit on your behalf and you will pay the premiums to us on our demand.
If you fail to return the goods after the Agreement has expired, then in addition to any other claims that we may have against you, you will still be liable to continue to pay the rentals as if the Agreement had not expired.
If any of the goods are lost or stolen, and not recovered within a period of 21 days after such loss or theft, or are damaged beyond repair, then you agree that the Agreement will terminate in respect of such goods unless, we at our option decide to replace such goods with other goods of a similar nature and condition, and thereafter the Agreement shall continue to apply equally to the replacement goods which you will accept accordingly. Any dispute in this regard shall be referred to any sworn valuator selected by us who shall act as an expert and whose decision shall be final and binding on you and us.
If the Agreement is terminated according to paragraph 19, then you will immediately pay to us all outstanding rentals and the Net Present Value at Prime of the rentals which would have been payable had the Agreement continued until the expiry of the initial rental period stated in the Schedule less any proceeds received by us from any insurance claims.
If we breach or cancel or attempt to cancel the Agreement, you may only cancel or accept our cancellation if you have first given us 14 (fourteen) days notice in writing to remedy such breach or withdraw our cancellation.
You agree that we may use any payments made by you to settle any debt(s) in terms hereof or otherwise which may be owing by you to us in terms hereof or otherwise.
23.1 We hereby cede to you who agrees to accept cession thereof, all claims which we may have against the Supplier or the licensor of the goods arising out of any express or implied guarantee, warranty or undertaking to the condition, state or quality of the goods or software or as to the fitness or stability thereof for any purpose whatsoever or arising out of any latent defect in the goods.
23.2 The cession in terms of 23.1 operates as a complete and absolute discharge of any liability which we may have to you in respect of any corresponding claim which is not excluded in this Agreement. Nothing contained in this Agreement shall derogate from your obligation in terms of this Agreement notwithstanding that you may have no right against the Supplier(s) of the goods or components thereof in terms of any of our rights ceded to you in terms of this Agreement.
23.3 We make no warranty or representations as to the validity or enforceability of any right you may have against any of the Supplier(s).
23.4 The cession of rights against the Supplier(s) in terms of this clause 23 shall by the very fact terminate on termination of this Agreement and the rights hereby ceded shall by that very fact be deemed to have been re-ceded by you to us.
You confirm that you agree on your behalf and on behalf of your directors, shareholders, members and associates that we are entitled at any time to communicate with any person to obtain and provide any information relating to your payment behavior, credit worthiness or defaults.
You acknowledge that your guarantor/s are entitled in law to obtain your confidential financial information and you hereby consent to us to providing the guarantor/s with your confidential financial information.