In this Agreement, unless the context indicates otherwise, the words and expressions set out below shall have the meanings assigned to them and cognate expressions shall have a corresponding meaning, namely:
1.1 “Agreement” means collectively the cover page, this terms and conditions and any annexures attached to the cover page;
1.2 “Building” means the silo erected on the Property;
1.3 “Business Day” means any day which is not a Saturday, Sunday or a public holiday in the Republic of South Africa;
1.4 “Commencement Date” means the date as indicated on the cover page, notwithstanding the Signature Date;
1.5 “Deposit” means the amount as indicated on the cover page;
1.6 “Laws” means the law of the Republic of South Africa;
1.7 “Lease Period” means the period as indicated on the cover page, being the period for which this lease subsists;
1.8. “Lessee” means the entity as indicated on the cover page, a private company duly registered in accordance with the laws of the Republic of South Africa;
1.9. “Lessor” means the party indicated as per the Cover Page being either: AFGRI Operations (Pty) Limited, Registration Number: 1995/005872/07, a private company duly registered in accordance with the laws of the Republic of South Africa or AFGRI Grain Silo Company (Pty) Limited, Registration Number: 2016/440533/07, a private company duly registered in accordance with the laws of the Republic of South Africa;
1.10. “Parties” means collectively the parties to this Agreement and “Party” shall mean either of them as the context requires;
1.11. “Premises” means the relevant portion of the premises and all improvements thereon including but not limited to the Building, excluding the area currently subject to a lease or sublease by third parties (if any) situated on the Property;
1.12. “Property” means the property as indicated on the cover page;
1.13. “Rent” means the rental payable in respect of the Premises and calculated as indicated on the cover page;
1.14. “Rates” means the assessment rates payable on the Property and includes any other charges payable by the Lessor to the local authority, but excluding charges for water or electricity or gas;
1.15. “Signature Date” means the date of signature of the cover page by the last signing of its signatories;
1.16. “Termination Date” means the date as indicated on the cover page;
1.17. “VAT” means value-added tax or similar taxes charged and levied and any other indirect tax additionally imposed; and
1.18. “Year” means a period of 12 (twelve) consecutive months starting on the date on which this Agreement comes into operation or any anniversary of that date.
2.1 In this Agreement:
2.1.1 references to a statutory provision include any subordinate legislation made from time to time under that provision and include that provision as modified or re-enacted from time to time;
2.1.2 words importing the masculine gender include the feminine and neuter genders and vice versa; the singular includes the plural and vice versa; and natural persons include artificial persons and vice versa;
2.1.3 references to a “person” include a natural person, company, close corporation or any other juristic person or other corporate entity, a charity, trust, partnership, joint venture, syndicate, or any other association of persons;
2.1.4 references to a “subsidiary” or a “holding company” shall be references to a subsidiary or holding company;
2.1.5 if a definition imposes substantive rights and obligations on a Party, such rights and obligations shall be given effect to and shall be enforceable, notwithstanding that they are contained in a definition;
2.1.6 any definition, wherever it appears in this Agreement, shall bear the same meaning and apply throughout this Agreement unless otherwise stated or inconsistent with the context in which it appears;
2.1.7 if there is any conflict between any definitions in this Agreement then, for purposes of interpreting any clause of this Agreement or paragraph of any Schedule, the definition appearing in that clause or paragraph shall prevail over any other conflicting definition appearing elsewhere in this Agreement;
2.1.8 where any number of days is prescribed, those days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which event the last day shall be the next succeeding Business Day;
2.1.9 where the day upon or by which any act is required to be performed is not a Business Day, the Parties shall be deemed to have intended such act to be performed upon or by the next succeeding Business Day;
2.1.10 any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated as having not been written (ie pro non scripto) and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction;
2.1.11 the use of any expression covering a process available under South African law (such as but not limited to a winding-up) shall, if any of the Parties is subject to the law of any other jurisdiction, be interpreted in relation to that Party as including any equivalent or analogous proceeding under the law of such other jurisdiction;
2.1.12 references to any amount shall mean that amount exclusive of VAT, unless the amount expressly includes VAT; and
2.1.13 the rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (ie the eiusdem generis rule) shall not apply, and whenever the word “including” is used followed by specific examples, such examples shall not be interpreted so as to limit the meaning of any word or term to the same genus or class as the examples given.
2.2 The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement which are expressly provided to operate after any such expiration or termination, or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the relevant provisions themselves do not provide for this.
2.3 Each of the provisions of this Agreement has been negotiated by the Parties and drafted for the benefit of the Parties, and accordingly the rule of construction that the contract shall be interpreted against or to the disadvantage of the Party responsible for the drafting or preparation of this Agreement (ie the contra proferentem rule), shall not apply.
3. LETTING AND HIRING
3.1 The Lessor is the owner of Property and the Lessee desires to lease the Premises for purposes of erecting a base station and installing antennae on top of the Building.
3.2 The Lessor is agreeable to leasing the Premises situated on the Property to the Lessee on the terms and conditions set out herein.
4.1 Notwithstanding the Signature Date, this Agreement shall come into operation on the Commencement Date and shall terminate on the Termination Date.
4.2 Both the Lessor and the Lessee have the right to cancel this Agreement by giving the other Party 3 (three) month’s prior written notice.
5.1 The Lessee shall pay the monthly Rent as calculated in accordance with clause 1.11 to the Lessor for the Lease Period calculated from the Commencement Date.
5.2 An escalation, as set out on the cover page, will apply to any subsequent Year of this Agreement after the Commencement Date of this Agreement in relation to the Rent payable in terms of clause 5.1 above, such escalation will become effective on each subsequent anniversary of the Commencement Date.
5.3 The above-mentioned escalation will become effective on each subsequent anniversary of the Commencement Date, for as long as the Lessee occupies the Premises or fails to remove any equipment, fixtures or property from the Premises and/or Property, regardless of whether this Agreement has been formally renewed or not.
6.1 All payments due by the Lessee to the Lessor under this Agreement shall be made to the Lessor by depositing same into the Lessor’ s bank account or to such other person, if any, at such other place, if any, as the Lessor has designated by written notice to the Lessee.
6.2 The Lessee shall not withhold, defer, or make any deduction from any payment due to the Lessor, whether or not the Lessor is indebted to the Lessee or in breach of any obligation to the Lessee.
6.3 The Rent amount shall be payable monthly in advance on or before the 1st Business Day of every month for the duration of this Agreement.
6.4 If the Commencement Date is not the first day of a calendar month, a pro rata amount of the Rent for such period shall be paid for the first calendar month after the Commencement Date.
6.5 The Lessee shall be liable for interest (calculated by using the then prevailing prime lending rate of commercial banks plus 6%) on all overdue amounts payable under this Agreement.
7.1 On entering into this Agreement, the Lessee shall pay the Lessor a Deposit, which amount the Lessor may apply, in whole or part, in meeting any payment due by the Lessee to the Lessor at any time during the Lease Period or after the termination of this Agreement.
7.2 Whenever during the Lease Period, the Deposit is so applied in whole or part for any reason, the Lessee shall on demand reinstate the deposit to its original amount.
7.3 As soon as all the obligations of the Lessee to the Lessor have been discharged following the termination of this Agreement, the Lessor shall refund to the Lessee, free of interest, so much of the Deposit as has not been applied in terms of the above provisions.
8. OBLIGATIONS OF THE LESSEE
The Lessee undertakes to:
8.1 provide the Lessor’s engineer with full details and drawings indicating exactly where and how the equipment is to be installed on the Premises;
8.2 not to make any structural changes to the Building, Premises or Property, without the prior written approval of the Lessor. The Lessee may however with prior written permission of the Lessor affix such fixtures and fittings, that the Lessee requires, and such fittings must be removed on termination of this Agreement and the damage caused by the installation or removal thereof must be repaired;
8.3 not commence with the installation without the prior written approval of the Lessor’s engineer regarding the installation details;
8.4 take whatever steps necessary and, at own cost, rectify any interference to other radio telecommunication equipment caused by the radio frequency or any other type of emissions scientifically proven to be as a result of the Lessee’s equipment, after written request to do so. If not rectified within 14 (fourteen) days after written request the Lessor will have the right to decommission the Lessee’s equipment;
8.5 ensure that transmitters/receivers shall have band-pass filters and isolators (harmonics and spurious emissions as per SABS specification 1069);
8.6 install all necessary lighting protection equipment to safeguard both the installed antennae and Building against lighting strikes;
8.7 clearly mark any equipment, fixtures and or installations in a clearly identifiable manner, and inform the Lessor of the marking within 1 (one) week of installation, in order for the Lessor to be able to identify same. The Lessor will be entitled to remove any equipment that is not identifiable; and
8.8 shall insure all his equipment installed on the Premises and/or Property and undertakes to obtain such public liability insurance as may be necessary in the circumstances at its own cost.
9. ACKNOWLEDGEMENT BY LESSEE
9.1 The Lessee accepts that:
9.1.1 In the case of a Silo Lease agreement; that the space on silos is leased on a first come first served basis, it is therefore the duty of the last come to ensure that his equipment or radio signals does not interfere with that of already installed equipment; and
9.1.2 the complete installation must be done to the satisfaction of the Lessor’s engineer, whose discretion shall not be executed unreasonably. After completion of the installation the Lessee shall notify the Lessor in writing and the Lessor undertakes to approve such installation within 14 (fourteen) days. Failing to make the necessary alteration to bring the installation up to standard within 1 (one) month of written notice by the Lessor, the Lessor shall be entitled to terminate this Agreement with immediate effect.
9.2 The Lessor reserves the right to reclaim the space in or on the Building (including the Premises) for its own purposes and is not obliged to provide alternatives, provided that the Lessor will give the Lessee three (3) months’ notice of his intention to reclaim space as aforementioned, notwithstanding the period mentioned in clause 4.
9.3 Where equipment needs to be moved or cables have to be rerouted, all costs will be for the Lessee’s account.
9.4 No advertising billboards or signposts shall be displayed on the Building, Premises or Property.
9.5 The Premises may only be used by the Lessee as an RF site, which entails the installation, housing, and operation of equipment owned by the Lessee, for the purposes of providing internet access.
10. INSTALLATIONS AND/OR FITTINGS
This clause shall be applicable only in the case of an antennae lease agreement as indicated on the Cover Page:
10.1 The Lessee shall be entitled to erect and install in or on the site, at its own cost and expense, at any time during this Agreement, such fixtures, fittings or equipment, or upgrade an antennae system if necessary, provided that:
10.1.1 prior written permission is obtained from the Lessor;
10.1.2 all such fixtures, fittings and equipment shall be removed by the Lessee on expiry or early termination of this Agreement and that the Building, Premises and/or Property is returned to the condition as on the Commencement Date, fair wear and tear expected; and
10.1.3 any damage caused to the Building, Premises and/or Property of the Lessor, as a result of such installation, or erection, or any other cause, shall be made good by the Lessee at his sole expense.
10.1.4 The Lessor acknowledges that all equipment installed on the Premises by the Lessee, whether a mast, antennae, electronic equipment or other, shall be deemed to be movable property, and shall remain the property of the Lessee.
11. OVERRIDING CONDITION
This clause shall be applicable only in the case of a grain lease agreement as indicated on the Cover Page:
11.1 This Agreement is a fully maintaining and repairing lease and therefore the rentals payable in terms of this Agreement are net rentals and the Lessor will, except only for the insurance premiums provided for in clause 12 and the Rates, not incur any expenditure of any amount in relation to the Premises during the Lease Period and the Lessee shall be obliged to pay all expenditure in respect of the Premises during the Lease Period as if the Lessee was the owner of the Premises. The principle contained in this clause is applicable to the whole of the Premises including the Property and the interior as well as the exterior of the Building.
11.2 The Lessee shall at all times and at its own cost and expense keep the Premises clean and in good order and repair and will at all times ensure that the Premises are suitable for the purposes for which it is leased and comply with such requirements of relevant authorities from time to time relative to the occupation of the Premises or the conduct thereon of the business of the Lessee.
11.3 In the case of any conflict between the principle recorded in clause 11.1 and any provision of this Agreement, or in the case of any agreed expenditure relating to the Premises, which is not covered by the provisions of this Agreement, the principle in clause 11.1 shall prevail or apply, as the case may be.
This clause shall be applicable only in the case of a grain lease agreement as indicated on the Cover Page:
12.1 It is recorded that the Building and other improvements on the Premises or which may from time to time be erected thereon (subject to such erecting be approved in terms of this Agreement) shall be insured and kept insured by the Lessor, in accordance with the normal insurance practice for similar properties of the bank holding the mortgage bond over the Property. Such insurance shall:
12.1.1 cover the reasonable replacement cost of the Building;
12.1.2 be subject to all normal exclusions and conditions, including but not limited to business interruption risks; and
12.1.3 comprehend the following risks:
18.104.22.168 risk of loss and damage by fire, riot, civil disturbance, earthquake and such other causes (whether or not similar to the foregoing) against which property of such nature is ordinarily insured; and
22.214.171.124 risk of loss or damage by political riot, malicious damage and similar causes, to the extent such insurance is commercially available on the South African market.
12.2 The proceeds of the insurances contemplated by clause 9.1 shall be applied for the restoration of the Building, or that part thereof which shall have been damaged or destroyed, on the basis of replacing or reinstating on the same site, property of the same kind or type.
12.3 The Lessee shall not keep or do on or about the Premises anything which is liable to enhance any of the risks against which the Property is insured for the time being to the extent that such insurance is rendered void or voidable or the premiums of such insurance are, or become liable to be, increased.
12.4 Without prejudice to any other right of action or remedy which the Lessor may have arising out of a breach of the foregoing provision, the Lessor may recover from the Lessee on demand the full amount of any increase in insurance premiums in respect of the Property attributable to such breach.
12.5 For the avoidance of doubt the neither the Lessor shall be responsible for any other insurance relevant to the Premises, the Property and the Building or any insurance in relation to any person, item and/or action upon, in, or about the Property, the Building, or the Premises not specifically listed herein, including but not limited to stock kept on the Premises.
13. RIGHT OF ENTRY
13.1 The Lessor or his authorized agent has the right to admission to the Premises at all reasonable times for inspection or any other lawful purposes.
13.2 Personnel or representatives of the Lessee will only be allowed to enter the Premises and/or Property for inspection and/or repair work to the equipment during normal working hours, except if otherwise specifically arranged with the Lessor. The Lessor will only allow personnel authorized in writing by the Lessee access to the Premises and/or Property.
14.1. The Lessor agrees that electrical power shall be made available for the Lessee’s equipment; or
14.2. The Lessor shall install an electricity meter on the premises; or
14.3. The premises are equipped with an electricity meter which will allow the Lessee to buy electricity on a prepaid basis; or
14.4. The Lessee shall at its own cost, within two weeks from the commencement date, install an electricity meter on the premises, failing which the Lessor shall install said meter. The Lessee shall be liable for and shall on demand pay the installation costs of the aforesaid meter.
14.5. The Lessor shall be liable for the costs of all electricity and water consumed by the Lessor and or the Lessor’s equipment on the Premises.
14.6. The Lessee shall pay for water usage and other municipal charges calculated as a pro rata percentage of the total amount due for water usage by all the Lessees on the property, and the Lessor will use the Lessee’s monthly electricity usage as basis for the calculation of the aforesaid pro rata tariff for the Lessee’s use of water. The Lessor shall, at its own discretion, be entitled to use any other basis it may deem fit for calculation of the Lessee’s pro rata percentage of the total amount due for water usage.
14.7. The Lessee shall pay for refuse removal calculated as a pro rata percentage of the total amount due for refuse removal by all the Lessees on the property, and the Lessor will use the Lessee’s monthly electricity usage as basis for the calculation of the aforesaid pro rata tariff for the Lessee’s use of refuse removal. The Lessor shall, at its own discretion, be entitled to use any other basis it may deem fit for calculation of the Lessee’s pro rata percentage of the total amount due for refuse removal.
14.8. The Lessee shall pay for sewerage calculated as a pro rata percentage of the total amount due for sewerage by all the Lessees on the property, and the Lessor will use the Lessee’s monthly electricity usage as basis for the calculation of the aforesaid pro rata tariff for the Lessee’s sewerage. The Lessor shall, at its own discretion, be entitled to use any other basis it may deem fit for calculation of the Lessee’s pro rata percentage of the total amount due for sewerage.
14.9. The Lessee shall pay for any other municipal charges excluding electricity, water, refuse removal and sewerage calculated as a pro rata removal and sewerage calculated as a pro rata percentage of the total amount due for such other municipal charges by all the Lessees on the property, and the Lessor will use the Lessee’s monthly electricity usage as basis for the calculation of the aforesaid pro rata tariff for the Lessee’s other municipal charges. The Lessor shall, at its own discretion, be entitled to use any other basis it may deem fit for calculation of the Lessee’s pro rata percentage of the total amount due for such other municipal charges.
14.10. The Lessee shall not be entitled to use any other source of energy on the premises without the Lessor’s prior written consent and agrees not to use any other source of energy on the premises but the electricity supplied by the local municipal council.
14.11. The Lessor will supply the Lessee with monthly invoices reflecting the amount payable by the Lessee in respect of the Lessee’s use of water, refuse removal, sewerage and other municipal charges. The Lessee shall pay the amount reflected on the invoice within 7 (seven) days failing which, without prejudice to any other rights it may have, the Lessor shall be entitled to terminate the supply of electric current, and/or water to the Lessee, and shall not be liable for any consequential damages that may be suffered by the Lessee, notwithstanding that the Lessor or its agents or employees may have acted negligently.
14.12. If there is any dispute as to the amount of the Lessee’s liability for any of the abovementioned charges, the onus of proof shall be on the Lessee. If any such fees, rates and charges are paid by the Lessee direct to the local authority, the Lessee shall, if called upon to do so, provide to the Lessor the receipts in respect thereof and if such fees, rates and charges are paid by the Lessor’s Agent, the Lessee shall make repayment thereof to the Lessor immediately upon demand.
14.13. This clause shall be applicable only in the case of an antennae lease agreement as indicated on the Cover Page: the power consumption of the equipment will not exceed 35 watts. The Lessor agrees that power shall be made available for the Lessee’s equipment and that the cost of power is included in the rental cost.
14.14. The Lessor shall provide the Lessee with a monthly invoice of the amounts payable by the Lessee directly to the Lessor in respect of the consumption of water and electricity.
14.15. The amounts payable by the Lessee to the Lessor shall be paid on or before the 1st Business Day of every month for the duration of this Agreement.
14.16. The Lessee shall, at his own expense, provide for the proper and certified installation of any required cables from an appropriate power source on the Property to the Lessee’s equipment.
15. FOOD SECURITY AND RISK MANAGEMENT
This clause shall be applicable only in the case of a mill lease agreement as indicated on the Cover Page:
15.1. The Lessee will be made aware of all the requirements in terms of the Agricultural Product Standards Act 119 of 1990 and R707 of 3 May 2005 as well as the Occupational Health and Safety Act 85 of 1993, and comply with any actions and drill exercises that will from time to time be necessary.
16. SUNDRY OBLIGATIONS OF THE PARTIES
16.1 The Lessor shall be responsible for:
16.1.1 giving the Lessee vacant and beneficial occupation of the Premises before or on the Commencement Date; and
16.1.2 paying all Rates in respect of the Property.
16.2 The Lessee shall be responsible for (which includes but not limited to, any payment for):
16.2.1 keeping the Premises and adjacent property clean and tidy at all times;
16.2.2 maintaining the Premises and all fittings and fixtures thereon;
16.2.3 paying the actual electricity and water usage and any necessary services in respect of the Premises as per clause 14 of this Agreement;
16.2.4 refraining from placing or leaving any article or other thing in or about the Property so as to cause a nuisance or obstruction;
16.2.5 refraining from bringing onto the Premises or Property any articles which, by reason of its weight or other characteristics, is liable to cause damage to the Premises or Property and in the event of the Lessee contravening this clause the Lessor shall be entitled to, but no limited to, claim damages in relation to such breach;
16.2.6 refraining from doing anything which would cause damage to any part of the Premises, except as damage reasonably accepted in accordance with the erection, maintenance and continuous operation of the Agreement;
16.2.7 refraining from contravening any of the conditions of title of the Property or any of the laws, rules or regulations affecting owners, tenants or occupiers of the Property;
16.2.8 refraining from painting, affixing or attaching in any way any sign, notice, awning or canopy, without the Lessor’ s consent, except as approved in accordance herewith;
16.2.9 keeping any such signs, notices, awnings and canopies which has been approved by the Lessor in good order, condition and repair at all times;
16.2.10 refraining from interfering with the electrical and plumbing installations or systems serving the Property, except as may be necessary to enable the Lessee to carry out its obligations of maintenance and repairs in terms of this Agreement;
16.2.11 taking all reasonable measures to prevent blockages and obstructions from occurring in the drains, sewerage pipes and water pipes serving the Property;
16.2.12 keeping any alteration which has been so approved by the Lessor in good order, condition and repair at all times;
16.2.13 complying with all relevant laws, including environmental laws, and by-laws applicable to the Property;
16.2.14 providing security or additional security in respect of the Premises if the business of the Lessee is of such a nature that existing security, if any, is insufficient and /or the business of the Lessee is of such a nature that it may increase the risk to the Premises; and
16.2.15 abiding by all the rules made by the Lessor and the Lessor from time to time in respect of the management and use of the Property as advised by the Lessor to the Lessee from time to time in advance prior to implementation. Such rules may among other things be in respect of security, safety, fire, access, attaching name boards, and other ancillary matters. Such rules to be reasonable and not infringe or in any way restrict the Lessee’ s rights in terms of usage and enjoyment of the Premises.
17. INCREASE IN RATES
17.1 The Lessee agrees, acknowledges and accepts unconditionally and irrevocably that should circumstances occur, which circumstances relate inter alia to changes in any law, statute, regulation, ruling, directive, policy or any event which has the effect of increasing the Rates, the Lessor shall be entitled to immediately amend the Rent payable by the Lessee.
17.2 Any dispute between the Lessor and the Lessee concerning the Lessee’ s liability for any amount claimed by the Lessor under this clause 15, whether related to reasonableness or any other factor or fact, shall be determined by the Lessor’ s professional advisors acting as experts and not as arbitrators and their decision shall be final and binding on the parties, provided that:
17.2.1 such professional advisors will have made such determination in good faith and after taking all reasonable measures to verify the relevant information; and
17.2.2 if the dispute is determined in favour, or substantially in favour, of the Lessor, the Lessee shall bear, and pay on demand to the Lessor or its professional advisors, the reasonable costs of the determination and all expenses incurred in connection therewith.
17.3 Whenever the Rates are increased during the Lease Period, the Lessor may, by written notice to the Lessee, increase the monthly Rent of the Premises by an amount which bears the same ratio to the increase in Rates, calculated on a monthly basis, as the Rent payable by the Lessee for the Property for the time being. Every such increase in the Rent shall take effect on the 1st first day of the month following that in which the Lessor’ s notice of the increase is received by the Lessee or, whichever is the later, the date on which the corresponding increase in the Rates takes effect.
18. LIABILITY AND INDEMNITY
18.1 The Lessee may not withhold or delay any payment due to the Lessor by reason directly or indirectly of:
18.1.1 a breach by the Lessor of any of its obligations under this Agreement;
18.1.2 any act or omission of the Lessor or any agent or servant of, or contractor to, the Lessor, whether or not negligent, or otherwise actionable at law, and including (without limiting the generality of the foregoing) any act or omission of any cleaner, maintenance person, handyman, artisan, labourer, workman, watchman, guard, or caretaker;
18.1.3 the condition or state of repair at any time of the Premises and/or Property, or any part of the Premises and/or Property;
18.1.4 any failure or suspension of, or interruption in, the supply of water, electricity, gas, air conditioning, heating, or any other amenity or service to the Premises, and/or the Property, whatever the cause;
18.1.5 any breakdown of, or interruption in the operation of, any machinery, plant, equipment, installation or system, situated in or on, or serving the Premises and/or Property, and including (but without limiting the generality of the foregoing) any lift, escalator, geyser, boiler, burglar alarm, or security installation or system, again regardless of cause; and
18.1.6 any other event or circumstance whatever occurring, or failing to occur, upon, in, or about the Premises and/or Property, whether or not the Lessor could otherwise have been held liable for such occurrence or failure.
18.2 The Lessee or any other person entering upon the Premises and/or Property shall not have any claim against the Lessor, its directors, officers, employees, agents or representatives for any reason whatsoever or howsoever arising and may not withhold or delay any payment due to the Lessor for any reason whatsoever, and the Lessee indemnifies the Lessor against all liability to any of the associates, directors, members, agents, customers, servants, guests, employees and other invitees of the Lessee, and all other persons who may enter upon the Premises and/or Property or any parts thereof through or under the Lessee. The Lessee undertakes to erect clearly visible and eligible signs on the Premise clearly indicating the above.
18.3 The Lessee hereby indemnifies the Lessor, its directors, officers, employees, agents or representatives against all loss, liability, damage or expense of whatever nature howsoever arising from or in connection with this Agreement, specifically including loss or damages occasioned by the Lessor removing the Lessee’s fixtures, fittings, equipment from the Premises and/or Property due to the Lessee failure to remedy breach or to clearly mark such fixtures, fittings or equipment.
19. ASSIGNMENT AND SUB-LETTING
19.1 The Lessee shall not be entitled:
19.1.1 to cede or assign any or all of the rights and obligations of the Lessee under this Agreement; or
19.1.2 to sublet or give up possession of the Premises, in whole or in part, to any third party.
19.2 The Lessor shall be entitled to cede or assign any or all of the rights and obligations of the Lessor under this Agreement.
20. WARRANTIES AND GUARANTEES
20.1 The Lessor makes no representation or provides no guarantee as to the sustainability or suitability of the Premises and/or the Property for any purpose whether envisaged by the Lessee or not.
20.2 The Lessor also does not warrant that the Lessee will be granted any license, permit or consent which may be required or be necessary for carrying on of any business or activity on the Premises and/or Property.
21.1 Each Party chooses the address set out opposite their name below as their domicilium citandi et executandi at which all notices, legal processes and other communications must be delivered for the purposes of this Agreement:
the Lessor: Physical Address:
12 Byls Bridge Boulevard
Highveld Ext 73
as indicated on the cover page.
21.2 Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing, but it shall be competent to give notice by telefax and email.
21.3 Each Party may by written notice to the other Party change their chosen address to another physical address and/or their chosen telefax number to another telefax number and/or their chosen email address to another email address, provided that the change shall become effective on the 14th (fourteenth) day after the receipt of the notice by the addressee.
21.4 Any notice to a Party contained in a correctly addressed envelope and;
21.4.1 sent by prepaid registered post to them at their chosen address; or
21.4.2 delivered by hand to a responsible person during ordinary business hours at their chosen address,
21.4.3 shall be deemed to have been received, on the 7th (seventh) Business Day after posting (unless the contrary is proved).
21.5 Any notice by telefax or by email to a Party at their telefax number or its email address shall be deemed, unless the contrary is proved, to have been received on the first Business Day after it is transmitted.
22.1 Should any Party (“the Defaulting Party”) commit a breach of any provision of this Agreement and fail to remedy such breach within 14 (fourteen) days from the date of written notice from the other Party to this Agreement (“the Aggrieved Party”) calling upon it to do so, the Aggrieved Party shall without prejudice to any other rights available to the Aggrieved Party, have the right either:
22.1.1 to cancel this Agreement and to claim restitution of whatever has been performed in terms of this Agreement; or
22.1.2 to take whatever action may be necessary to enforce its rights under this Agreement, and
22.1.3 in either event to claim such damages as it may have suffered as a result of such breach of contract.
22.2 The Defaulting Party shall be liable for all costs and expenses (calculated on an attorney and own client scale) incurred as a result of or in connection with the default.
23. SPECIAL REMEDY FOR BREACH
23.1 Should the Lessee default in any payment due under this Agreement or be in breach of its terms in any other way, and fail to remedy such breach within 14 (fourteen) days after receiving a written demand that it be remedied, the Lessor shall be entitled, without prejudice to any alternative or additional right of action or remedy available to the Lessor under the circumstances, and without further notice to cancel this Agreement with immediate effect, to remove any fixtures, fittings, equipment from the Premises and/or Property, and recover from the Lessee damages for default or breach and the cancelation of this Agreement.
23.2 The Lessor will not be liable for any damages and/or losses as a result of the Lessor removing fixtures, fittings, equipment from the Premises and/or Property.
23.3 In the event of the Lessor having cancelled this Agreement justifiably but the Lessee fails to remove its equipment fixtures and fittings from the Premises and/or Property, with or without disputing the cancelation, and continuing to tender payment of Rent and any other amounts which would have been payable to the Lessor but for the cancelation, the Lessor may accept such payments without prejudice to and without affecting the cancellation, in all respects as if they had been payments on account of the damages suffered by the Lessor by any reason of the unlawful occupation on the part of the Lessee.
24.1 This Agreement contains the entire agreement between the Parties as to the subject matter hereof.
24.2 No Party shall have any claim or right of action arising from any undertaking, representation or warranty not included in this Agreement.
24.3 No failure by any Party to enforce any provision of this Agreement shall constitute a waiver of such provision or affect in any way that Party’s right to require performance of any such provision at any time in the future, nor shall the waiver of any subsequent breach nullify the effectiveness of the provision itself.
24.4 No agreement to vary, add to or cancel this Agreement shall be of any force or effect unless reduced to writing and signed on behalf of all the Parties.
24.5 It is agreed that 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 continue to be of full force and effect.
24.6 Each Party warrants that it is acting as a principal and not as an agent for an undisclosed principal.
24.7 The Parties hereby consent to the jurisdiction of the Courts of the Republic of South Africa in connection with any action which any Party to this Agreement may institute in connection with this Agreement.
24.8 This Agreement will be governed by the laws of the Republic of South Africa.
25.1 Each Party shall bear that Party’s own legal costs and disbursements of and incidental to the negotiation, preparation, settling, signing and implementation of this Agreement.
25.2 Any costs, including all legal costs on an attorney and own client basis and VAT, incurred by a Party arising out of or in connection with a breach by another Party shall be borne by the Party in breach.
This Agreement may be signed in counterparts, in which event the originals together will constitute the entire agreement between the Parties.