Master Rental Agreement - Customer

Master Rental Agreement - Customer

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Agreement

Entered into by and between AQUA THERMA INVESTMENTS PROPRIETARY LIMITED Registration Number: 2022/381558/07 (Hereinafter referred to as the "Owner") 26 Glen Road, Bramley, Johannesburg, Gauteng, 2190 To be completed by the person signing this Agreement: I/We the person signing this Master Rental Agreement on behalf of the User hereby certify, acknowledge, warrant, and agree that: 1. I/We understand the contents of this agreement, and have been provided with adequate opportunity to read the whole of this Master Rental Agreement, and have read and understand all of the Owner’s terms and conditions, as well as the Users rights, risks, and obligations associated herewith; 2. No misrepresentations have been made to me by the Owner or any of its representatives or agents, as to the clauses, interpretations, and contents of this Master Rental Agreement. 3. Every Schedule marked as a Rental Schedule, which I may sign will form a part of, and be subject to the terms and conditions of this Master Rental Agreement. TERMS AND CONDITIONS OF RENTAL AND INSURANCE This agreement contains certain clauses which may: (i) impose risk or liability on you, or; (ii) cause you to indemnify us or a third party, or; (iii) which limit our liability to you or; (iv) be an acknowledgement of a fact by you. Nothing in this agreement should be understood to be an attempt to detract from yours or Aqua Therma Investments (Pty) Limited’s rights under the Consumer Protection Act 68 of 2008, (the “CPA”), to limit yours or our ability to exercise any such right, nor to limit any obligations that you or we may have under the CPA, but in entering this agreement, you acknowledge that, for purposes of the CPA, we are not the manufacturer, importer, distributor or retailer of the solar geyser units being rented to you under this agreement. 1. DEFINITIONS AND INTERPRETATION 1.1. In this agreement, unless the context indicates otherwise: 1.1.1. "Broken period" means the period from the delivery date until the end of the particular month or quarter in which the delivery date falls; 1.1.2. “Broken period rental” means the proportionate rental which must be paid by you to us for the hire of the equipment during the broken period; 1.1.3. “Commencement date” means the first day after the end of the broken period; 1.1.4. “CPA” means the Consumer Protection Act 68 of 2008, (including its Regulations), as amended from time to time, if and only to the extent that it is applicable; 1.1.5. “Delivery date” means the date on which you sign the certificate of acceptance; 5 1.1.6. “Certificate of acceptance” means the certificate of acceptance, in the form required by us, which you complete and sign when you take delivery of the equipment; 1.1.7. "Insurance policy" means a short-term insurance policy issued in respect of the Solar Geyser Units in terms of which cover is provided for losses arising due to the theft, loss of, damage to, or destruction of the equipment; 1.1.8. “Owner” means Aqua Therma Investments (Pty) Limited; 1.1.9. “Payment date” means the date on which each rental must be paid by you; 1.1.10. “The Parties” means you and us; “Party” means you or us; 1.1.11. “Prime rate” means the interest rate published by the banks, or by the Recipient’s bank from time to time as their prime lending rate, expressed in nominal annual compounded monthly terms; 1.1.12. “Recipient” means a third party who takes transfer of our rights in terms of clause 12; 1.1.13. "Rental" means the monthly amount payable by you to us for the hire of the Solar Geyser Units during the minimum period and any extended period of this agreement; 1.1.14. “Solar Geyser Units” means a configuration of solar panels, reliant on the sun’s energy, and used to heat up stored water in a Geyser; 1.1.15. “Supplier” means an independent third party appointed by the Owner for the delivery of Solar Geyser Units to the User; 1.1.16. “User” means the individual or entity in possession of and operating the Solar Geyser Unit; 1.1.17. "VAT" means the tax leviable in terms of the Value Added Tax Act, 89 of 1991, as amended; 6 1.1.18. “We”, “us” or “our” means us, as the Owner; 1.1.19. “Working day” means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa; 1.1.20. “Your Premises" means the premises where the Solar Geyser Units will be installed, or any other premises to which the equipment may be moved with our prior written permission; 1.1.21. Headings of clauses are for convenience and may not be used to interpret this agreement. 1.1.22. Any reference to any legislation or subordinate legislation shall be a reference to that legislation or subordinate legislation as at the date of signature of the agreement by you, and as amended or substituted from time to time. 2. PERIOD OF THE AGREEMENT 2.1. This Agreement starts on the delivery date, irrespective of when it is signed by you or us. 2.2. This Master Rental Agreement will be in place for a period of 5 (five) years. 2.3. The User may elect at any stage to purchase the Solar Geyser Unit, alternatively may exercise the option to renew for a further 5 (five) years, further alternatively, may exercise an early termination, and return the Solar Geyser Unit, subject to the terms and conditions set out in clauses 4.7, 4.8, and 5.4 below. 3. DELIVERY, INSTALLATION AND ACCEPTANCE OF THE SOLAR GEYSER UNITS 3.1. The Owner will arrange, and you must accept delivery of the Solar Geyser Unit from the Supplier. 3.2. Any pre-arranged delivery and/or installation dates are only estimates, and although the Owner and Supplier will try to adhere to any agreed delivery times, 7 delivery of the Solar Geyser Units, is not guaranteed on the estimated dates, the Owner will not be liable for any costs or losses incurred by you as a result of any delay in delivery. 3.3. You acknowledge that: 3.3.1. When a Certificate of Acceptance is signed for the Solar Geyser Unit, the Owner can accept that the Solar Geyser Unit has been delivered, and in suitable condition, and you undertake the notify the Owner within 14, (fourteen) days from date of delivery of any defects in the Solar Geyser Units, or any operational problems with the Solar Geyser Unit, failing which, the Owner shall be deemed to have delivered the Solar Geyser Unit in good working order and condition. 3.3.2. In the event of the User notifying the Owner of any defects or operational problems within the aforesaid time period, the Owner and/or manufacturer will attend to rectify or remedy the problem complained of, provided that the defect or operational problem did not occur as a result of the User’s gross negligence, or breach of this Agreement. 3.4. You further agree that: 3.4.1. We have not made, and you do not rely on any representations given or made by us or our employees as to the state, condition, quality, or fitness of the Solar Geyser Unit, and that we will not be liable for any innocent or negligent misrepresentations made to you; 3.4.2. We are only renting the Solar Geyser Units to you, and are not the manufacturer thereof, have never inspected the Solar Geyser Units, and could therefore not reasonably have foreseen or discovered any defect and are therefore not reasonably responsible for any risk which occurs as a result of a defect; and 3.4.3. The manufacturer’s five-year warranty on the Solar Geyser Unit will be provided to the User on request. 8 3.4.4. Subject to the provisions of the CPA: 3.4.4.1. You will exercise any rights arising in relation to defects, failures or other matters referred to herein as against the supplier or manufacturer, as the case may be, of the equipment. In this regard we assign (give) to you the benefit of all supplier or manufacturer warranties which may be given to us in relation to the equipment for the duration of this agreement. You may not waive (give up) any of our rights, as purchaser of the Solar Geyser Unit, as against the supplier, as seller; and 3.4.4.2. To the full extent permitted by the CPA and/or law, all express terms and warranties, (other than the ones set out in this agreement), and all implied terms, conditions and warranties are excluded; in particular, we give no warranties, expressly or impliedly other than any warranties provided by the manufacturer, or such applicable warranties as are implied into this agreement by the CPA, but only to the extent that they may not be limited or excluded in this agreement), and in this regard, the manufacturer of the Solar Geyser Units offers a five year warranty thereon; 3.5. If you elect to cancel this agreement through the exercise of any right that you may enjoy in terms of the CPA, you may be liable for the payment of certain costs, which will include the use and depletion of the Solar Geyser Unit while it was in your possession. 4. RENTALS 4.1. For the rental of a Solar Geyser Unit, an initial deposit, as set out in the schedule, is required by the Owner, as a commencement payment for the rental period; 4.2. The balance of the payments will be effected to the Owner by means of a monthly debit order payment, as reflected in the schedule, and rental will remain fixed at this amount for a period of five years. 9 4.3. You must pay the rentals on or before the first day of each month by means of a debit order. 4.4. You must, on or before the commencement date, pay the broken period rental for the use of the Solar Geyser Unit during the broken period. 4.5. You must pay the rentals and broken rental without set-off or deductions of any kind, and free of bank or other charges. You may not claim any reduction of the rental, or delay or refuse to make payments due to us on the basis of set off or any claim which you may have against us or for any other reason. 4.6. You understand that VAT is payable amongst others on each rental and that the rentals will change if the rate at which VAT is charged under the Value Added Tax Act No. 89 of 1991 is changed. 4.7. Any notice of termination in terms of clause 2.3 must be sent by electronic mail to the other Party, and to its chosen domicilium citandi et executandi as set out in this Agreement, and early termination shall be on at least 30, (thirty) days-notice to the Owner. 4.8. If you or we give notice to end this agreement in terms of clause 2 above, and you do not deliver the Solar Geyser Unit to us on or before termination date, you must continue to pay the rental for every month, or part thereof for which you remain in possession of or fail to return the Solar Geyser Unit. You will be liable for any collection and other costs which we may incur in attempting to collect the Solar Geyser Unit. 4.9. You agree that we may at any time before or after this agreement has ended, use any money paid by you towards payment of any debt that you have with us, and if we do so, you must pay any shortfall which may arise under this agreement. 4.10. If any amount is not paid on due date by the User to the Owner, interest shall be payable on the prime lending rate plus 2%, on all overdue amounts. 5. OWNERSHIP, RISK, MAINTENANCE, USE AND RETURN OF THE EQUIPMENT 10 5.1. The equipment will at all times belong to us, unless you exercise your option to purchase the Solar Geyser Unit after a 5, (five), year period. 5.2. If you wish to purchase the Solar Geyser Unit at any stage after a 5 (five) year period, the purchase price will be determined as 15% of the initial retail price, as at the commencement date. 5.3. If you do not wish to purchase the Solar Geyser Unit after a 5 (five) year period, the Solar Geyser Unit can be rented for a further 5 (five) year period, at a 50% discount of the monthly rental amount, as per the schedule. 5.4. Should the User elect to rent the Solar Geyser Unit for a further 5 (five) year period, as provided for in clause 5.3 above, the User will become the Owner of the Solar Geyser Unit at the end of this period. 5.5. On termination of this Agreement for any reason, the Solar Geyser Unit must be returned to us in the same condition as it was on the delivery date, fair wear and tear accepted. 5.6. Subject to your rights under the CPA, all responsibility for and risk of loss, damage, theft and destruction in and to the Solar Geyser Unit shall pass to you on the date of delivery, until such time as the Solar Geyser Unit is returned to us. 5.7. You must: 5.7.1. Notify us of any sale of the property, in which the Solar Geyser Unit is installed, to a third party, and ensure that the third party is made aware in any Offer to Purchase, of the terms and conditions contained in this Agreement, and that the Solar Geyser Unit is owned by us. 5.7.2. To the extent that the User sells the property in which the Solar Geyser Unit is installed, the User must notify us of the Offer to Purchase, and the Solar Geyser Unit is required to be purchased by the User prior to the sale of the property. 11 5.7.3. Allow us or our agents to inspect the Solar Geyser Unit at any reasonable time; 5.7.4. If applicable, ensure that any person who uses the Solar Geyser Unit is fully qualified and authorised to operate it, as specified by the manufacturer, or otherwise approved by us; 5.7.5. Not change or remove any identifying markings on or affixed to the Solar Geyser Unit; 5.7.6. Given that we are not the manufacturer, importer, distributor or retailer of the equipment, neither we nor anyone acting on our behalf shall be liable to you or to any third party for, and you indemnify us from any claim, liability, loss, injury, death, damage, cost, expense or penalty whatsoever and howsoever ,(including without limitation all direct and indirect, special and consequential losses or damages), suffered or incurred by you or any third party whether directly or indirectly arising from or incidental to a breakdown or defect in the equipment and/or the delivery, supply, use, possession, operation, repair, servicing, maintenance, removal and/or storage of the Solar Geyser Unit and/or any accident to or involving the Solar Geyser Unit, and/or any act or omission by us or anyone acting on our behalf in relation to the Solar Geyser Unit. 6. INSURANCE 6.1. We will insure the equipment and will take out the insurance policy. You must comply with all reasonable conditions imposed by our insurers or their agents with regard to the location and use of the Solar Geyser Unit, and you must pay the excess in the event of a claim. 6.2. You agree to indemnify us against any loss that we may incur as a result of your non-compliance with the terms and conditions of the insurance policy (in other words, you will be responsible for any such loss). If any insurer rejects an insurance claim for any reason or if the replacement cost of the Solar Geyser Unit is more than the benefit under the insurance policy, you will have no recourse against us for 12 any loss you may suffer as a result, unless such loss is directly or indirectly attributable to our gross negligence or that of any person acting for or controlled by us. 7. INFORMATION 7.1. You acknowledge that all information inserted in this Master Rental Agreement is to the best of your knowledge, correct, unless you notify us to the contrary within, seven (7) days of receipt by you of a copy of this Master Rental Agreement. 8. BREACH OF AGREEMENT 8.1. You will be in breach of this agreement if you: 8.1.1. If you are in breach of this agreement, we may, (without affecting any of our other rights under this agreement or at law), immediately on written notice where your breach cannot be remedied, or where the default is capable of remedy and you do not remedy that default within ten (10) working days of written notice from us to do so, cancel this agreement, take the Solar Geyser Unit back, sell the Solar Geyser Unit through an auctioneer of our choice, keep all payments you have made and recover from you all amounts outstanding at date of cancellation; 8.1.2. If you are in breach and we exercise our rights in terms of this clause, and you dispute our right to do so, you must continue to pay the amounts owing to us. Our acceptance of such payments will not affect any of our rights in terms of this agreement or in law. 8.1.3. We may provide a certificate from any of our managers, whose position it will not be necessary to prove, showing the amount that is due to us and how it is calculated. Such certificate will on its mere production be prima facie proof,(that is, sufficient proof unless the contrary is proved), of any amount due and/or owing by you in terms of this agreement 9. CESSION AND ASSIGNMENT 13 9.1. We may, without your consent or notice to you, cede, sell and/or pledge all or part of our rights under this agreement and/or delegate all or any part of our obligations under this agreement and/or transfer ownership of the equipment to any person, either absolutely or as security even though that cession and/or delegation may result in a splitting of claims against you, and you agree that you will recognise the cession, delegation and/or transfer.. 10. NOTICES AND ADDRESSES The Parties hereby choose domicilium citandi et executandi for purposes hereunder: 10.1. Owner- Physical Address: "As Per form entry" E-mail: "As Per form entry" 10.2. User- Physical Address: "As Per form entry" E-mail: "As Per form entry" 10.3. Any party may, by written notice to the other party, change their domicilium citandi et executandi to another address within the Republic of South Africa. 11. GENERAL 11.1. This is the whole agreement between the Parties. 14 11.2. No change to, or cancellation of this Agreement, or waiver of our rights under this Agreement will be of any force or effect unless it is agreed in writing and signed by or on behalf of the Parties. 11.3. Any indulgence or special consideration we may give or have given you will not be seen as a waiver of any of our rights under this Agreement or in any way affect any of our rights against you. 11.4. South African law will govern this agreement. The Parties agree that any legal action can be instituted out of the appropriate Court having the requisite jurisdiction. 11.5. 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, the remaining clauses shall be of full force and effect and continue to be of full force and effect.

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