1. HIRE OF EQUIPMENT

Lambson’s Hire and Sales (Pty) Limited (“Lambson’s”) hires the equipment described in the hire contract

(“the hire equipment”) to the person described in the hire contract (“the customer”) subject to the terms and

conditions herein, which terms and conditions also apply to the hire of operated equipment, with a suitably

trained operator (“the operator”), to the customer, for the performance of the identified project (“the project”)

at the project site (“the site”) as described by the customer.

  1. PERIOD

2.1 The hire period commences when the hire equipment is delivered to, or collected by the customer, or (where applicable) delivered to the site (“the commencement date”).

2.2 The hire period shall terminate upon the earlier of the following:

2.2.1 the date upon which Lambson’s accepts the return of the hire equipment; or

2.2.2 the date upon which Lambson’s is notified in writing that the equipment has broken down and is inoperable or destroyed and/or that the operator has become incapacitated, being unable to operate the equipment; and/or

2.2.3 the date upon which Lambson’s establishes that the hire equipment has become inoperable, lost or destroyed.

2.3 If the parties agree on a commencement date, Lambson’s shall use reasonable endeavours to ensure that the hire equipment and/or operator are available to start the project at the agreed time but shall not be liable for damages howsoever arising of whatsoever nature, should the hire equipment and operator not be available at such time.

2.4 Notwithstanding the aforegoing, Lambson’s is entitled to terminate this agreement at any time without notice and to demand immediate return of the hire equipment.

  1. DEPOSIT AND HIRE CHARGES

3.1 The deposit stated in the hire contract (where applicable) is payable to Lambson’s on the commencement date, unless otherwise agreed in writing. Lambson’s shall be entitled to utilise the deposit as payment of any amounts due to it by the customer and the balance (if any) after deduction of such due amounts, will be refunded to the customer within a reasonable period after the return to, or collection by, Lambson’s of the hire equipment.

3.2 The hire charges are calculated on the daily rates mentioned in the hire contract in respect of each item of the hire equipment and shall be payable for every day that the hire equipment is in the possession of the customer inclusive of the day of delivery thereof to the customer and the day of return to Lambson’s.

3.3 Hire charges are for “time out” and not for “time used”, i.e. hire charges are payable for the period that the equipment is in the customer’s possession. Hire charges shall be due and payable in advance, unless the parties have agreed otherwise, but shall in any event be due and payable upon the return of the hire equipment. For purposes hereof “possession” includes the hire equipment being on site, under the direct or indirect control of the customer.

3.4 The customer shall be deemed to have accepted the correctness of any statement of account, in all respects, addressed to it by Lambson’s unless Lambson’s is notified in writing of any queries or discrepancies within 5 (five) days of such account.

  1. HIRE EQUIPMENT AND (IF APPLICABLE) OPERATOR

4.1 The hire equipment shall be deemed to be of the description stated in the hire contract and shall be deemed to be in good order and repair and fit for the purpose for which it is intended, and (if applicable) the operator ready to commence with the project, when delivered to the customer, unless the customer notifies Lambson’s in writing forthwith on delivery of any deficiency in quantity, or any defective or incorrectly delivered hire equipment, or (if applicable ) any incapacity of the operator.

4.2 Upon receipt of a notice as mentioned in clause 4.1 above, Lambson’s shall, in its sole discretion, be entitled either to terminate this agreement and refund the deposit (if any) and any hire charges paid, or to replace the defective or incorrectly delivered hire equipment or remedy any defects in the delivered hire equipment, or (if applicable) substitute the operator, as the case may be.

4.3 The hire equipment shall at all times remain the property of Lambson’s.

4.4 Where applicable, the operator shall comply with the customer’s reasonable instructions and directions in respect of the project only, the customer acknowledges that the operator is Lambson’s employee and at all material times remains subject to Lambson’s authority, and is at liberty to refer instructions extending beyond the scope of the project to Lambson’s before complying therewith.

  1. BREAKDOWN AND DAMAGE TO HIRE EQUIPMENT AND REPLACEMENT COSTS

5.1 The customer shall immediately notify Lambson’s of any breakdown in the hire equipment, or incapacity of the operator, in which event Lambson’s shall be entitled to repair or replace the hire equipment or substitute the operator, or in its discretion to terminate this agreement.

5.2 In the absence of a notice contemplated in 5.1, Lambson’s shall not be liable for any damage or loss suffered by the customer in respect of any such breakdown, or downtime or any delays occurring as a consequence of a breakdown of the hire equipment or (where applicable) any incapacity of the operator.

5.3 In the event of the hire equipment being lost or destroyed or damaged beyond economical repair during the hire period, the customer shall be liable to Lambson’s for the replacement cost of the hire equipment. “Replacement cost” shall mean the cost of a new piece of equipment, identical, or similar, to the hire equipment, to be determined in Lambson’s sole and absolute discretion, and the meaning of the phrase, within the context of insurance or accountancy terms, shall not have any bearing on determining such replacement cost. A certificate signed by a manager of Lambson’s certifying the replacement cost of the hire equipment shall be prima facie evidence of such replacement cost.

5.4 In the event of the equipment being damaged prior to its return to Lambson’s, the customer shall be liable to Lambson’s for the cost of the repair of the equipment. A certificate signed by a manager of Lambson’s certifying the repair cost of the hire equipment shall be prima facie evidence of such repair cost.

5.5 The customer shall not be entitled to substitute any other equipment for the hire equipment, the customer agreeing to maintain and service the hire equipment in good running order and repair, to Lambson’s reasonable satisfaction, whilst such equipment is in the customer’s possession.

5.6 At the option and at the expense of the customer, the customer may take out and maintain appropriate risk insurance in respect of the hire equipment, in which event the customer shall immediately notify Lambson’s of such insurance policy and hereby cedes such insurance policy in favour of Lambson’s. The customer shall however remain liable for any excess amounts payable in terms of such policy and also for the balance of Lambson’s loss should the proceeds of the insurance

policy be inadequate to cover the full replacement or repair cost of the lost, destroyed or damaged hire equipment.

  1. USE OF EQUIPMENT AND ACCEPTANCE OF RISK

6.1 In the event of the hire of operated equipment:

6.1.1 Lambson’s shall not be liable to the customer for any damage or losses, claims or costs suffered by the customer, arising from instructions or directions, whether verbal or by way of drawings or sketches or howsoever conveyed or given by the customer to the operator, in respect of the project, and the customer accepts all consequences of error, omission,

inaccuracy or defect in such instructions or directions.

6.1.2 The customer hereby waives any claim it may have or acquire against Lambson’s, its directors, officers or employees, including the operator, for any incidental, indirect, consequential or special damages (which is deemed to include any loss of profits, loss of business, production or operation) as a consequence of the operator’s operation of the hire equipment on the project.

6.2 In respect of the hire of hire equipment generally, the customer:

6.2.1 acknowledges that it is aware of the purpose for which the hire equipment is intended and shall use the equipment for such purpose;

6.2.2 accepts operation of the hire equipment at its own risk, and indemnifies Lambson’s against any claim of any nature brought against Lambson’s by the customer’s employees, agents, representatives, or any other third parties arising out of the operation of the hire equipment during the hire period, or any other cause and indemnifies Lambson’s against all costs and expenses incurred by Lambson’s, on an attorney and client scale, in defending or settling such proceedings.

  1. DELIVERY

Time shall not be the essence of the hire contract and delivery dates and commencement date must be treated as approximate only. Under no circumstances shall the customer be entitled to withdraw from or terminate the hire contract on account of any delay in delivery or have a claim of any nature against Lambson’s arising from late delivery.

  1. NO WARRANTIES

Lambson’s furnishes no warranties and makes no representations other than those contained herein. The provisions of these terms and conditions shall govern the relationship between the parties to the exclusion of all other conditions whether implied by law or stipulated by the customer, unless accepted by Lambson’s in writing.

  1. ACCESS

Lambson’s shall at all reasonable times be entitled to access to any premises of the customer or (where applicable) the site, the operator and the project, for the purposes of inspecting, repairing or replacing the hire equipment and, (where applicable) assessing the customer’s instructions to the operator.

  1. PERMITS, APPROVALS (APPLICABLE TO OPERATED EQUIPMENT ONLY)

The customer warrants and represents that it has all required permits, approvals and consents necessary to perform the works on the project, which permit, consent or approval it hereby agrees and undertakes to furnish to Lambson’s upon demand.

  1. SALES

The sale of all consumables and other goods incidental to the operation of any hire equipment shall be strictly on a cash on delivery basis, the customer acknowledging that such goods or consumables are sold and delivered without any warranty, whether express or implied.

  1. ACCOUNTS

Where the customer is granted an account, the customer hereby agrees that in respect of each and every individual item of hire by the customer a separate and distinct contract shall be deemed to have been concluded with Lambson’s in respect of that specific item subject to these terms and conditions.

  1. BREACH

13.1 Should the customer:

13.1.1 fail to comply with any obligation imposed upon it in terms hereof, all of which are deemed to be material, on due date; or

13.1.2 commit any act of insolvency, or be placed in liquidation or sequestration, whether provisional or final, or apply for business rescue or debt review, then and in that event Lambson’s shall be entitled to forthwith cancel the hire contract and to enter any premises of the customer, or the site, and retake possession of the hire equipment.

13.2 The specific remedies which Lambson’s has against the customer pursuant to these terms and conditions are without prejudice to any other remedies which Lambson’s may have including the right to claim all such consequential and other damages from the customer as Lambson’s may have suffered as a result of the breach by the customer of its obligations.

  1. DOMICILIUM / NOTICES

14.1 For the purposes of these terms and conditions, the customer chooses as its domicilium citandi et executandi the physical address stated in the hire contract or in the account application, as the case may be.

14.2 Any notice to be given pursuant to these terms and conditions shall be given in writing and shall be deemed to have been received by the addressee:

14.2.1 within 7(seven) days after it is posted, if posted by registered or ordinary mail; or

14.2.2 upon the day of receipt, if hand delivered during office hours; or

14.2.3 on the day of transmission, if sent by way of telefax or e-mail, provided proof of transmission is provided.

14.3 The customer may change its domicilium address to any other address in the Republic of South Africa by way of written notice sent by registered post to Lambson’s at Postnet Suite #337, Private Bag X, East Rand, 1462.

  1. MISCELLANEOUS

15.1 The customer will be liable for Lambson’s costs on an attorney and client scale should Lambson’s institute legal proceedings against the customer arising out of the provisions of these terms and conditions.

15.2 Lambson’s shall be entitled to apply any amount received from the customer to the liquidation, in whole or part, of any obligation whether arising out of these terms and conditions or otherwise owed by the customer to Lambson’s, irrespective of whether the final amount of the obligation has been determined.

15.3 No relaxation, extension of time or indulgence granted by Lambson’s to the customer shall be deemed to affect, prejudice or abrogate or be a waiver of any of Lambson’s rights in terms hereof, nor shall any such relaxation, giving of time, indulgence or judgment taken be deemed to be a novation of any of the terms and conditions hereof.

15.4 Any amendment or variation of these terms and conditions shall be in writing and signed by both parties.

15.5 The customer shall not have any claims of any nature whatsoever against Lambson’s for any failure by Lambson’s to carry out any of its obligations under the contract as a result of causa fortuita, vis major, including but without being limited to, any strike, lockout, shortage of labour, incapacity of operator, shortage of materials, breakdown of machinery, delays in transport, accidents of any kind or any delay by any sub-contractor or supplier of Lambson’s, riot, political or civil disturbance, the elements, any act of any state or government or any authority or any other cause whatsoever           beyond Lambson’s control.

15.6 The customer shall comply with all laws, including all statutes, ordinances, by-laws, proclamations, regulations and other enactments, which are required to be complied with by the customer or Lambson’s for the purposes of the contract and the customer hereby indemnifies Lambson’s against any loss, damage, costs or other liabilities incurred by Lambson’s as a result of the customer failing to comply with any such laws.

15.7 No claims of any nature shall arise against Lambson’s for damages sustained by the customer, from any cause relating to the demonstration, use or malfunction of the hire equipment.

15.8 In the event of the customer collecting the hire equipment, the customer shall be responsible for loading, unloading, securing and transporting the hire equipment. Any person/s provided by Lambson’s to assist the customer in loading/unloading or securing the hire equipment shall be deemed to be employed by the customer for such purpose.

15.9 In the event that Lambson’s delivers the hire equipment to the customer, the customer shall be solely responsible for unloading and in the event that an employee of Lambson’s assists the customer in loading or unloading the hire equipment at any time, such person is deemed to be an employee of the customer at such time.

  1. CREDIT/DEBIT CARD AUTHORITY (IF APPLICABLE)

In the event that the customer agrees to payment of the hire charges and/or deposits required by Lambson’s in terms of the hire contract, from time to time, by way of a credit and/or debit card, the customer’s signature below shall constitute authority for the issuer of the card/s to debit the customer with the total amount due in respect of hire charges and/or deposits, inclusive of all costs, charges and damages of whatsoever nature arising out of the hire contract.

  1. SURETYSHIP

THE PERSON SIGNING THESE TERMS AND CONDITIONS HEREBY BINDS HIMSELF AS SURETY

AND CO-PRINCIPAL DEBTOR, JOINTLY AND SEVERALLY WITH THE CUSTOMER, FOR THE DUE

PERFORMANCE OF THE CUSTOMER’S OBLIGATIONS PURSUANT TO THESE TERMS AND

CONDITIONS. THE AFORESAID PARTY HEREBY SPECIFICALLY RENOUNCES THE BENEFITS OF

EXCUSSION AS WELL AS ALL OTHER LEGAL EXCEPTIONS AVAILABLE TO HIM IN LAW.