General Conditions of Contract, Sale and Lease

General Conditions of Contract

All supplies and services are rendered exclusively on the basis of the following General Conditions of Contract, Sale and Lease ("the General Conditions"). No alternative conditions proposed by the customer are binding on Hϋnnebeck in any way whatsoever, notwithstanding that Hϋnnebeck fails to object to such alternative conditions, or that Hϋnnebeck continues to provide the customer with goods or services, despite being aware of the customer's proposed alternative conditions. Only where alternative conditions are explicitly recognised by both Hϋnnebeck and the customer in writing as being incorporated into the contract concerned, will such alternative conditions form part of the contract. For the avoidance of doubt, the observance and validity of any statutory obligations shall not be affected by the General Conditions.

1. Exclusions
No contract or amendment of an existing contract shall be deemed to have come into effect unless reduced to writing and signed by a duly authorised representative of Hϋnnebeck. Every contract shall be supplemented by the General Conditions, Hϋnnebeck's technical regulations, and, where necessary, Hϋnnebeck's conditions of installation and mechanical service, unless Hϋnnebeck indicates otherwise.

2. The Contract and its Scope
Tenders furnished by Hϋnnebeck shall not be binding on Hϋnnebeck until such time as Hϋnnebeck confirms the tender concerned in writing. Weights and measurements contained in a tender, whether binding or otherwise, together with appended drawings and illustrations, are no more than approximations, save for where Hϋnnebeck confirms same in writing.

3. Protected Rights / Monitoring
Responsibility for the infringement of any rights vesting in third parties, including but not limited to rights in respect of intellectual property, shall rest with the Party preparing the technical design which gave rise to the infringement concerned. Construction plans or other documents furnished by Hϋnnebeck are to be utilised solely in the construction of the structures in respect of which they were furnished, and any subsequent construction having as a basis the construction plans or other documents in question, is prohibited. By its signature of the contract, the customer grants Hϋnnebeck the right to monitor the customer's building site/s accordingly, both during and after the contract duration.

4. Time and Deadliness, Arrears and Impossibility of Performance
All timeframes and deadlines ("timeframes") proposed by Hϋnnebeck, whether in a contract, a tender or otherwise, are subject to change. No timeframe shall commence to run until such time as the contract in which such timeframe is contained becomes effective, and in any event, not prior to the payment of a deposit to Hϋnnebeck's satisfaction. In the event of incidents, occurrences or disturbances lying beyond Hϋnnebeck's control, including but not limited to acts of God, natural disasters, industrial disputes, strikes, lock-outs, government prohibitions, energy and transport difficulties, late delivery of essential raw materials or building materials etc., any timeframes shall, upon written notice by Hϋnnebeck to the customer, be extended for a period commensurate with the length of time for which contractual performance by Hϋnnebeck was delayed, and the customer shall have no claim against Hϋnnebeck in this regard, whatsoever. Should contractual fulfilment not be made in due time for reasons other than those contemplated above, the customer shall grant Hϋnnebeck a reasonable opportunity to remedy such non-fulfilment, which period shall not be less than 10 (ten) days, after the expiry of which the customer may terminate the contract. In the absence of gross negligence or wilful default on the part of Hϋnnebeck, any damages to be claimed for delayed performance shall be restricted to 5% of the contract price or ,000,000.00 (one million US Dollars), whichever is the lesser. In the case of equipment rental, the contract price is deemed to be the amount of rent for three months. The customer shall have no claims against Hϋnnebeck for delayed performance, save for in the event of gross or malicious non-performance on the part of Hϋnnebeck, the onus of proving which shall lie with the customer.

5. Transfer of Risk and Dispatch
All risk in the item associated with its delivery, including in the case of pre-paid freighting, shall be borne by the customer from the time when the goods are handed over to the carrier or freighter, or to the customer itself. Both packing and means of dispatch may, on written notice by Hϋnnebeck to the customer, be subject to Hϋnnebeck's prior approval. Dispatch charges, freight, packing, customs dues and unloading, as well as charges for waiting time during unloading, and any other costs or charges incidental to dispatch, are for the customer's account.

6. Accepting, Fulfilling and Taking Delivery
The customer shall accept every delivery, notwithstanding that the items delivered appear to have minor defects.
Part delivery by Hϋnnebeck shall be permissible. Delivered goods will be deemed to have been finally accepted by the customer, where the customer has not notified Hϋnnebeck of any defects or omissions in the delivered goods within 14 (fourteen) days after the goods have been received. Delivery shall be deemed to have been fulfilled if the item delivered corresponds to the conditions in the contract or, where delivery has, as a result of an act or omission on the part of the customer, been delayed or rendered impossible, where Hϋnnebeck has declared its readiness to make such delivery. Where the customer has expressly agreed to take delivery by means of collection, then such customer must collect the goods either at Hϋnnebeck's factory or at one of its stores, unless otherwise agreed in writing between the customer and Hϋnnebeck. Upon collection by the customer, the customer shall sign a written receipt in respect of the goods. In the event that the customer fails to collect as agreed, in spite of being furnished with sufficient notice to collect and having been informed of the consequences of non-collection, then delivery shall be deemed to have been taken of the goods in accordance with the contract, and Hϋnnebeck shall have no liability to the customer for delivery of such goods, whatsoever.

7. Prices, Minimum Order Value
Hϋnnebeck's prices as notified to the customer are ex-factory, and exclude Value Added Tax, which is also payable.
The prices as notified are subject to change by Hϋnnebeck from time to time, which changes shall be notified to the customer by Hϋnnebeck in writing a soon as it is reasonably possible for Hϋnnebeck to do so. Notwithstanding the aforegoing, no price adjustment shall be applied by Hϋnnebeck unless at least 4 (four) months have elapsed between conclusion of the contract and the first delivery in terms thereof. In the event of a price change, customers shall be entitled, where the price increase is in excess of the CPIX applicable at the relevant time, and provided such customers have no orders pending delivery, to terminate the contract by written notice to Hϋnnebeck of such termination. For the avoidance of doubt, any price adjustment notified shall not apply to orders which have been placed and which are pending delivery. The minimum invoice amount for orders placed is, in the case of equipment rental, R1000.00 (one thousand Rand) per week, and in the case of sales, R1000.00 (one thousand Rand) per order. Any orders of a lower amount placed by customers shall be invoiced by Hϋnnebeck to the customer at the minimum invoice amount, notwithstanding their actual invoice amount.

8. Payment, Retention, Accounting
All prices shall be notified to the customer in South African Rand ("the Rand"), and all payments by the customer to Hϋnnebeck shall be in Rand. Any change to the value of the Rand due to fluctuating exchange rates from time to time shall not constitute grounds for termination of the contract, delay or non-performance of either party's obligations in terms of the contract, or renegotiation of the contract or of individual provisions thereof, by either party. Discounting of customers` bills in payment will be accepted only when such discounts have been expressly agreed upon in writing by Hϋnnebeck, in advance. Any costs and expenses associated with payment, including but not limited to stamp duty on bills of exchange, if any, shall be for the customer's account. In case of bills and cheques, any costs incurred by Hϋnnebeck associated with the acceptance, cashing and/or processing of such bills and cheques shall be for the customer's account. Payment of Hϋnnebeck invoices must be made in cash within thirty days of the date of invoice. Hϋnnebeck reserves the right to require payment from a customer at an earlier date or immediately upon invoice, on prior written notice to the customer concerned. Subject to the provisions of clause 13 (General) below, all payments due by the customer to Hϋnnebeck in terms of the contract shall be made on the due date for payment reflected in the relevant invoice, free of deduction or set-off, unless otherwise agreed in writing by Hϋnnebeck in advance.

9. Accelerated Liability
In the event that the customer fails to pay one or more invoiced amounts on the relevant due dates, Hϋnnebeck shall notify the customer accordingly ("the demand"). Should the customer fail to pay such outstanding amounts within 14 (fourteen) days of demand, then Hϋnnebeck shall, without prejudice to any other rights that Hϋnnebeck may have in law or in terms of this contract, be entitled, but not obliged, to demand immediate payment from the customer of all outstanding sums, whether then due or not. The customer shall be liable under such acceleration of liability, notwithstanding any reduction in its assets it may experience at any time after conclusion of the contract

10. Consequences of arrear payment
Interest on late payments shall be charged by Hϋnnebeck at the maximum rate of interest allowable in terms of the National Credit Act No. 34 of 2005 and any regulations promulgated thereunder, calculated for every day that payment is outstanding, commencing on the due date and ending on the date of actual payment. In the event that late payment by the customer causes Hϋnnebeck loss for which interest is insufficient compensation, Hϋnnebeck shall be entitled to claim appropriate compensation from the customer, save where the customer can show that Hϋnnebeck has not suffered the loss alleged, or has suffered a smaller loss than alleged, or that the loss alleged does not arise from the customer's late payment.

11. Guarantee, Liability
The guarantee period in respect of the goods is 6 (six) months, commencing on the date of delivery.
Discrepancies between delivered goods and the content of Hϋnnebeck's confirmation of order, the order schedule, the drawings or the other contractual documents shall be deemed to be defects only where the discrepancies render the goods unusable or commercially unviable, and discrepancies which do not render such goods unusable or commercially unviable, do not constitute defects. The customer shall immediately notify Hϋnnebeck in writing of alleged defective goods in its possession. Hϋnnebeck shall be entitled to inspect the alleged defective goods, and/or to request substantiation of the alleged defects from the customer. Where the customer prevents Hϋnnebeck from inspecting the goods, or fails to furnish substantiation on request, Hϋnnebeck shall have no liability to the customer in respect of the alleged defective goods, whatsoever. In the event that Hϋnnebeck, in its sole discretion, does not dispute the customer's allegation, Hϋnnebeck shall have an election to remedy the defective goods, or to replace the defective goods. In the event that the customer concerned requests a rebate in the price, as opposed to repair or replacement of the goods, Hϋnnebeck shall grant to customers in trade a rebate determined by Hϋnnebeck, and in the case of customers not in trade, Hϋnnebeck shall grant them the option of a rebate in the price, or a rescission of the sale concerned. In the case of equipment, products or services obtained by Hϋnnebeck from third parties, Hϋnnebeck's guarantee shall be effected by Hϋnnebeck assigning to the customer the rights of guarantee in respect of the equipment, products or services in question, granted to Hϋnnebeck by the external supplier, and Hϋnnebeck shall have no liability whatsoever to the customer for any claim arising out of the use by the customer of externally-sourced equipment, products or services. Notwithstanding anything to the contrary contained in these General Conditions, and whether in respect of equipment, products or services obtained by Hϋnnebeck from third parties or otherwise, Hϋnnebeck shall not be liable to the customer for any consequential or indirect damages, whatsoever.

12. Limitation of Liability
Subject always to the relevant provisions of paragraph 4 (Time and Deadlines, Arrears and Impossibility of Performance), in the event of a claim against Hϋnnebeck, irrespective of its basis, Hϋnnebeck's liability shall, in aggregate, not exceed an amount of ,000,000.00 (one million US Dollars) in respect of all such claims arising out of any single order. The limitation of liability as aforesaid applies to the personal liability of Hϋnnebeck's employees, servants, staff members and representatives. The customer hereby acknowledges and aggress that Hϋnnebeck's products are to be installed and used in strict compliance with the relevant instructions for installation and use, and that where the relevant instructions are not followed, or where parts produced by a third party are utilised in the installation, Hϋnnebeck shall bear no liability to the customer in respect of any loss or damage suffered by the customer, whatsoever.

13. General
Any amount owing by Hϋnnebeck to a customer shall be set off against monies owing by the customer to Hϋnnebeck, save where the customer terminates the contract by written notice to Hϋnnebeck, in which case Hϋnnebeck shall, provided it does not dispute the debt, pay the outstanding amount to the customer within 30 (thirty) days of receipt of the termination notice. Each provision of the contract, including of these standard terms and conditions, is severable, and the contract shall remain legally binding, notwithstanding that certain provisions may become invalid. In the event of such invalidity, the provision in question shall be replaced by Hϋnnebeck with a valid provision, the substance and purpose of which is consonant with the substance and purpose of the contract. Installation work and engineering services are governed by Hϋnnebeck's separate conditions for installation and our conditions for engineering services. The customer consents to the exclusive jurisdiction of the High Court of South Africa Cape of Good Hope Provincial Division for all present and future claims arising from this contract.
The contract is to be governed, interpreted and enforced in accordance with the laws of the Republic of South Africa.

Conditions of Sale

1. Payment
For cash payment within ten days of invoice, Hϋnnebeck grants a discount of 2% (two percent) on the invoice price. The date and time of payment is deemed by Hϋnnebeck to be the date and time at which the relevant credit is received into Hϋnnebeck's bank account.

2. Reservation of Ownership
Hϋnnebeck reserves ownership of all delivered goods until such time as all amounts owing by the customer to Hϋnnebeck in respect of such goods, have been discharged in full, including but not limited to amounts incurred by way of purchase, rent, installation and/or freight. In the event that Hϋnnebeck has granted credit to a customer, Hϋnnebeck retains ownership of the goods in question as security for the balance of the debt, until such time as the debt is fully discharged. Until such time as all amounts owing by the customer to Hϋnnebeck are discharged in full, and ownership of the relevant goods passes to the customer, such goods may not form the subject of a mortgage, a pledge as security, or any other form of security, nor may the customer dispose of the goods or encumber them in any other way without the prior written consent of Hϋnnebeck, which shall be in Hϋnnebeck's sole discretion. The customer must immediately inform Hϋnnebeck of any infringement of Hϋnnebeck's intellectual property rights of which the customer becomes aware. Any claims the customer may have against third parties arising from the alienation of Hϋnnebeck's property or any transfer of its use (e.g. by leasehold), shall be ceded to Hϋnnebeck by the customer upon demand. Should Hϋnnebeck's property be alienated by the customer along with other items unrelated to Hϋnnebeck, or after having been worked on or finished by the customer, only so much of the claim shall be ceded as is proportionate to the value of the Hϋnnebeck goods alienated. Hϋnnebeck shall be entitled to make such cession of claim publicly known. Notwithstanding the provisions of the immediately preceding paragraphs, in the event that the alienation or encumbrance of the Hϋnnebeck property by the customer results in the customer discharging in full the amounts due by it to Hϋnnebeck in respect of the goods, then the customer shall be deemed to have been entitled to make such alienation or encumbrance, and Hϋnnebeck shall not object to same. In the case of Hϋnnebeck goods being combined with another movable object to make a new unified object, or in case of Hϋnnebeck goods becoming a new object by virtue of being finished or rebuilt, then Hϋnnebeck remains the owners or joint owners of the new object in the proportion of the value ascribed to the Hϋnnebeck goods prior to combination or finishing, to the value of the new object at the time of finishing or rebuilding. Should the value of Hϋnnebeck's securities exceed Hϋnnebeck's claims by more than 20% (twenty percent), then Hϋnnebeck shall, at the customers` request, release so many securities, selected by Hϋnnebeck, as will bring the value of Hϋnnebeck's securities in relation to its claims back to 20% (twenty percent) or less. Hϋnnebeck calculates the value of its securities on the net purchase price less freighting costs of an entire order. A discount for this amount will be given amounting to 30% per year pro rata from the time of purchase for each year commenced, subtracted from the value accruing to each preceding period.

3. Non-Payment
In the event that Hϋnnebeck exercises its right to repossess delivered goods in respect of which Hϋnnebeck retains ownership, for any reason whatsoever, then the customer shall reimburse to Hϋnnebeck the value of the possession and use of the goods for the period for which the customer had possession thereof, such value being determined in accordance with Hϋnnebeck's standard rates of rental. The remuneration may not exceed the purchase price payable in respect of the goods. All costs and charges arising from Hϋnnebeck's repossession of the goods in question shall be for the customer's account, payable within 14 (fourteen) days of demand.

Conditions of Leasing

1. Term of Lease
Every lease of Hϋnnebeck equipment shall run for a minimum period of 30 (thirty) days. The term of a lease shall commence on the day on which the leased equipment is collected by the customer from the Hϋnnebeck warehouse, and shall terminate on the day on which the leased equipment is returned to the specific warehouse notified to the customer by Hϋnnebeck in writing.

2. Rental charges, Subsidiary Charges, Payment
Rental, calculated in accordance with Hϋnnebeck's standard equipment rental rates, unless Hϋnnebeck agrees otherwise in writing, shall be payable by the customer monthly in advance. No reductions in rental shall be granted, notwithstanding the incidence of any public holidays or other factors precluding the use of the equipment by the customer during the period of the lease. All ancillary costs and charges, including but not limited to charges for sorting, bundling and preparing leased equipment in pursuance of the lease, together with return transport costs, shall be for the customer's account. Rental and ancillary costs must be paid by the customer to Hϋnnebeck in cash on receipt of the relevant invoice, without deduction or set-off.

3. Condition of Leased Goods
Hϋnnebeck shall make the leased equipment, which shall be in good working order, together with all parts necessary for its operation, available for collection from a Hϋnnebeck store or warehouse notified to the customer by Hϋnnebeck in writing. Alternately, Hϋnnebeck may, by prior written agreement, deliver the leased equipment to such premises as are designated by the customer, the costs of which delivery shall be for the customer's account. The customer acknowledges that all leased equipment is pre-used equipment, and the customer shall have no claim to lease new equipment. Where leased equipment is delivered to the customer, whether by collection or otherwise, customers shall be deemed to have accepted such equipment as satisfactory and defect-free, unless the customer concerned notifies Hϋnnebeck in writing of its dissatisfaction with the equipment within 2 (two) days of delivery.

4. Special obligations of the Customer
The customer is obliged to obtain any registrations and/or permissions necessary for the actual use of the leased equipment at the premises at which the customer makes use thereof. The customer undertakes to exercise the utmost care and diligence in respect of the leased equipment in its possession, and to service, maintain and clean the equipment as and when necessary, and to return the equipment, sorted and bundled, in the condition in which it was received, fair wear and tear excepted. The customer shall use its best endeavours to ensure the security of the leased equipment. In the event that any equipment parts are lost, or that the leased equipment suffers irreparable damage, the customer shall be liable to Hϋnnebeck for the cost of replacing the equipment, which cost shall be the list price of the equipment concerned, provided that where the damaged or lost equipment was pre-used equipment, a pre-used rebate of 5% (five percent) will be granted on the list price, upon written request by the customer to Hϋnnebeck. In the event that the customer fails to make, or delays in making the replacement payment as aforesaid, the customer shall be liable to Hϋnnebeck for any loss suffered by Hϋnnebeck as a result of the equipment being out of use, for the period commencing on the date of termination of the lease and terminating on the date upon which the equipment is replaced. In the event that, upon delivery of the replacement equipment to Hϋnnebeck, the equipment is not capable of being offloaded by means of fork-lifts, then any costs arising out of the off-loading of the equipment shall be for the customer's account.
The customer shall furnish Hϋnnebeck with at least 3 (three) days notice of the impending delivery of the replacement equipment.

5. Cleaning / Repair of Leased Equipment
In the event that leased equipment returned to Hϋnnebeck upon the termination of a lease has not been cleaned to the standard required by Hϋnnebeck, or has been damaged, then Hϋnnebeck shall undertake the cleaning and/or repair of such equipment, and shall be entitled to recover the costs thereof from the customer. Hϋnnebeck shall, before commencing with the necessary cleaning or repair, furnish the customer with written notice of the extent and approximate cost thereof. Upon receipt of this advice, the customer has 5 (five) days in which to arrange for a third party to clean and/or repair the equipment, at the customer's cost and on the customer's premises. Should the customer fail to dispute the cost as quoted by Hϋnnebeck, or fail to arrange for a third party to perform the cleaning and/or repair, then, the cleaning and/or repair will be carried out automatically in accordance with the standard cleaning and/or repair standards applied by Hϋnnebeck, and the costs thereof shall be calculated in accordance with the list prices for cleaning and repair in force at the time.

6. Right to Inspect
Hϋnnebeck is entitled to inspect the leased equipment at the customer's premises from time to time, upon reasonable notice to the customer. The customer shall inform Hϋnnebeck of the address of the premises where the leased equipment is to be used, and shall keep Hϋnnebeck apprised of any change to such address. Hϋnnebeck reserves the right to conduct an inspection of the leased equipment upon its return to Hϋnnebeck, for the purposes of ascertaining whether the equipment is complete, free of damage, and in a condition acceptable to Hϋnnebeck. The inspection as aforesaid may be conducted at any time within a period of 8 (eight) days following the return of the leased equipment to Hϋnnebeck. Acceptance of the returned equipment onto the Hϋnnebeck premises does not imply any admission by Hϋnnebeck that such equipment is complete, free of damage, and in a condition acceptable to Hϋnnebeck. In the event that, pursuant to an inspection, Hϋnnebeck discovers the equipment to be damaged or incomplete, the relevant provisions of paragraphs 5 (Special Obligations of the Customer) and 6 (Cleaning and Repair) shall apply.

7. Sub-Leasing, Claims by Third Parties
The customer shall not sub-lease or lend any item of equipment leased from Hϋnnebeck, to a third party, nor shall the customer in any way encumber or dispose of leased equipment to a third party. Any claims brought by a third party arising out of such sub-lease or disposition shall be notified to Hϋnnebeck by the customer immediately, and the customer shall cede such claim to Hϋnnebeck with immediate effect.

8. Assumption of Risk
All risk in and to the leased equipment shall be borne by the customer from the time the leased equipment leaves the Hϋnnebeck premises, until the time at which they are returned to the Hϋnnebeck premises.

9. Duty of Supervision
The customer shall keep the leased equipment under constant supervision at the place of use, and shall replace damaged parts immediately. Hϋnnebeck shall be liable to the customer for the reasonable cost of such replacement parts, provided Hϋnnebeck is satisfied that the need for replacement did not arise out of the negligence or wilful default of the customer.

10. Liability
Hϋnnebeck shall bear no liability in respect of any claims arising out of damage or loss caused by the use of the leased equipment, save for where the claim arises in respect of a customer in trade, and the loss or damage is a direct result of gross negligence or wilful default on the part of Hϋnnebeck. Notwithstanding anything to the contrary contained in the contract, including these terms and conditions, Hϋnnebeck shall not be liable for any indirect or consequential loss, whatsoever.

11. Tolerance Levels
The customer acknowledges that tolerance levels appertaining to the Hϋnnebeck equipment as stated in the tables and instructions obtainable from Hϋnnebeck must be strictly adhered to, and the customer undertakes to acquaint itself with the relevant tolerance levels, and to adhere to same.

12. Advertising
Hϋnnebeck is entitled to affix advertising for Hϋnnebeck products to the leased equipment, which advertising shall be of a suitable size.

13. Premature Cancellation, Compensation
Should the customer breach any of the obligations imposed upon it by the contract or, where the contract is silent, by the common law, Hϋnnebeck is entitled to terminate the lease with immediate effect, on written notice to the customer of such termination, and to claim damages, including, but not limited to, any rental amounts to which Hϋnnebeck would have been entitled had contract not been terminated. In the event of the termination of the lease by Hϋnnebeck, the customer shall immediately cease to use the leased equipment, and shall return same to Hϋnnebeck's premises no later than 3 (three) days after receipt of notice of termination, save for where Hϋnnebeck informs the customer that it shall collect the leased equipment, in which case the customer shall make the leased equipment available for collectin with immediate effect.