EQUIPMENT RENTAL TERMS OF SWIFT ACCESS ENTERPRISE (PTY) LTD
This document sets out the terms and conditions upon which Swift Access Enterprise (Pty) Ltd with registration number 2018/492623/07 (“Swift Access”) has agreed to lease certain equipment to you, as the Client (“Terms”). Your acceptance of any Swift Access quotation or invoice, or acceptance of delivery of any of Swift Access’ equipment indicates your explicit and/or tacit acceptance of the terms set forth herein below.

1. INTRODUCTION
   1.1. The Client seeks to lease certain equipment from Swift Access as listed in the quotation provided by Swift Access to the Client (“the Equipment”).
   1.2. Swift Access agrees to lease the Equipment to the Client in accordance with these Terms.
2. RELATIONSHIP OF THE PARTIES
   The relationship between Swift Access and the Client shall be as set forth in these Terms. Nothing contained herein shall be deemed to be or otherwise construed as constituting or creating a partnership, joint venture, employer/employee agreement or any similar relationship between the parties. Swift Access shall not, by reason of the actions of the Client or any third party, incur any liability in favour of any third party.
3. DURATION
   3.1. These Terms shall become effective and binding upon the Client with effect from the date on which the Client accepts the quotation from Swift Access as set forth in clause 4 below (“the Effective Date”).
   3.2. These Terms shall terminate:
   3.2.1. should Swift Access determine that the Equipment is in an acceptable condition following their inspection as set forth in clause 4.5 below;
   3.2.2. upon Swift Access receiving payment of the necessary repair costs in full, should it be determined that the Equipment is not in an acceptable condition following their inspection as set forth in clause 4.5 below;
   3.2.3. should the Client be declared (provisionally or finally) insolvent, or should the Client be placed under business rescue; or
   3.2.4. pursuant to an unremedied breach of these Terms as contemplated in clause 15 below.
   3.3. Upon termination of these Terms for any reason whatsoever, the Client shall immediately return the Equipment to Swift Access. No termination of these Terms shall relieve the Client from any obligation to pay Swift Access any sum (regardless of whether or not such sum is then due and payable).
4. LEASE PROCESS
   4.1. Within a reasonable period following communication from the Client, Swift Access shall provide the Client with a quotation (“the Quotation”), which shall include:
   4.1.1. a description of the Equipment to be leased by Swift Access to the Client;
   4.1.2. the date on which Swift Access shall deliver the Equipment to the Client’s nominated premises (“the Delivery Date”);
   4.1.3. the date on which Swift Access shall collect the Equipment from the Client’s nominated premises (“the Return Date”);
   4.1.4. the applicable rental, delivery, collection, operator, and insurance fees, and the due date for such payment; and
   4.1.5. Swift Access’ banking details for payments.
   4.2. Upon acceptance by the Client of the Quotation, Swift Access shall provide the Client with an associated invoice (“the Invoice”).
   4.3. Provided that the Client has made payment of the full amount reflected in the Invoice by the due date thereof, Swift Access shall cause the Equipment to be delivered to the Client’s nominated premises at or before 09h00 on the Delivery Date. Should the Client fail to make payment of the full amount reflected in the Invoice on or before the due date, Swift Access shall be entitled to lease the Equipment offered to the Client to other clients or third parties.
   4.4. At or before 17h00 on the Return Date, Swift Access shall cause the Equipment to be collected from the Client’s nominated premises. Such collection shall not constitute Swift Access’ express, implied, or tacit acceptance or approval of the Equipment’s condition. Should the Equipment not be ready for collection by 17h00 on the Return Date, Swift Access shall be entitled to charge a late fee of R400 (four hundred Rand) per hour after 17h00.
   4.4.1. Any extensions of the rental period must be formally requested by the Client in writing no less than 24 (twenty-four) hours prior to 17h00 on the Return Date as the Equipment may already be booked out and unavailable for any extensions.
   4.5. Swift Access shall inspect the Equipment at its convenience within 24 (twenty-four) hours following the Return Date.
   4.6. In the event that Swift Access is dissatisfied with the condition in which the Equipment was returned by the Client, Swift Access shall notify the Client of the details of its claim within 10 (ten) business days following the Return Date.
   4.7. Swift Access shall have the sole and exclusive right to appoint a qualified technician to assess and repair the Equipment where appropriate. The Client shall be bound by the assessment of the appointed technician and shall be liable for the full costs of repair in terms of the appointed technician’s assessment (to the extent that such costs are not covered by insurance as contemplated in clause 8 below).
5. FEES AND PAYMENT TERMS
   5.1. The Client agrees that rental, operator, and insurance fees are charged on a per-day basis. The Client shall be liable for rental fees for each day that the Equipment is in its possession, including weekends and public holidays, regardless of whether the Equipment is in operational use.
   5.2. The Client shall pay any invoices issued by Swift Access prior to the Delivery Date on or before the due date thereof. Any invoices for late fees, repairs, or any other subsequent charges shall be paid by the Client to Swift Access within 5 (five) business days after presentation.
   5.3. All invoices shall be paid by electronic funds transfer into a bank account nominated by Swift Access for that purpose.
   5.4. No rental of the Equipment may commence prior to all payments due and owing to Swift Access by the Client have cleared in the nominated bank account.
   5.5. All fees are inclusive of VAT.
   5.6. The Client shall not be entitled to withhold payment of any invoices, fees, or additional costs from Swift Access for any reason whatsoever, including in circumstances where they are awaiting payment from any third party.
6. GENERAL OBLIGATIONS OF SWIFT ACCESS
   Swift Access undertakes to the Client that they will:
   6.1. provide the Equipment in good working condition and fit for its intended purpose;
   6.2. ensure that any operators engaged by them to operate the Equipment on behalf of the Client are appropriately trained, qualified, and licensed to operate the Equipment;
   6.3. ensure that the Equipment complies with all relevant safety standards and regulations;
   6.4. provide necessary instructions for the safe operation of the Equipment; and
   6.5. not do anything or allow any act to be done which does or is reasonably and foreseeably likely to prejudice the good name and reputation of the Client.
7. GENERAL OBLIGATIONS OF THE CLIENT
   The Client undertakes to Swift Access that it will:
   7.1. use the Equipment in a careful and proper manner and only for its intended purpose;
   7.2. comply with all applicable laws and regulations regarding the use of the Equipment, including but not limited to the Occupational Health and Safety Act 85 of 1993;
   7.3. not use the Equipment for any unlawful purpose;
   7.4. ensure that only qualified and licensed operators used the Equipment;
   7.5. immediately notify Swift Access of any damages, malfunction, or breakdown of the Equipment;
   7.6. not remove the Equipment from its nominated premises without Swift Access’ prior written consent;
   7.7. provide Swift Access with access to the Client’s nominated premises for the purposes of delivery, repair (if necessary), and collection of the Equipment;
   7.8. pay all invoices punctually and in full;
   7.9. provide accurate and complete information, data, and directions to Swift Access as and when requested, and work collaboratively with Swift Access to ensure the highest quality service delivery;
   7.10. notify Swift Access in writing should any previously submitted information, data, and/or directions be or become untrue, incorrect, and/or inaccurate; and
   7.11. not do anything or allow any act to be done which does or is reasonably and foreseeably likely to prejudice the good name and reputation of Swift Access.
8. INSURANCE
   8.1. Swift Access shall ensure that the Equipment is insured at all material times during the lease period.
   8.2. The Client acknowledges and agrees that they shall be responsible for any loss or damage to the Equipment that is not covered by the applicable insurance policy, regardless of the cause.
   8.3. In the event of an insurance claim, the Client shall be liable for payment of any insurance excess or deductible required under the terms of the insurance policy.
9. OPERATORS
   9.1. Where requested by the Client and agreed to by Swift Access, Swift Access shall provide qualified and appropriately licensed operators to operate the Equipment on behalf of the Client.
   9.2. Swift Access warrants that any such operators will be suitably trained and competent to operate the Equipment safely and in accordance with all applicable laws and regulations.
   9.3. The Client shall remain responsible for ensuring that the operators comply with all site-specific safety requirements and instructions.
   9.4. Any fees associated with the provision of operators shall be set out in the relevant quotation or invoice and shall be payable by the Client in accordance with the agreed payment terms.
10. INDEMNITY AND LIMITATION OF LIABILITY
    10.1. The Client agrees that Swift Access shall not be liable for any loss (including loss of reputation or goodwill), damages, costs (including attorney and associated costs), interest and expenses suffered by the Client and arising out of or in connection with, whether directly or indirectly, the Client’s use of the Equipment.
    10.2. The Client hereby unconditionally and irrevocably indemnifies (and shall keep indemnified) Swift Access against all losses (including loss of reputation), damages, costs (including attorney and associated costs), interest and expenses which the Client may, does or is likely to sustain as a result of any claim arising out of or in connection with any bodily injury, illness, or death of any person, or any loss of or damage to property, or any other cause whatsoever, arising from or in any way related to the possession, use, operation, handling, transportation, or storage of the Equipment by the Client or any third party, regardless of whether such injury, death, loss, or damage is caused by the negligence (but excluding gross negligence or wilful misconduct) of Swift Access, its directors, employees, agents, or sub-contractors..
    10.3. Notwithstanding any provision of these Terms to the contrary, and without limiting the application of clauses 10.1 and 10.2 above, Swift Access’ maximum liability to the Client for any proven loss or damage caused to them by Swift Access’ gross negligence or wilful misconduct shall be limited to 50% (fifty) percent of the fees paid by the Client to Swift Access.
11. WARRANTIES
    11.1. The parties unconditionally and irrevocably warrant that:
    11.1.1. entering into and implementing these Terms will not result in any breach or potential breach of laws or regulations in the Republic of South Africa; and
    11.1.2. the individual agreeing to these Terms on behalf of each of the parties is duly authorised to do so and is capable of creating binding contractual obligations on the parties’ respective behalves.
12. CONFIDENTIALITY
    12.1. For the purposes of these Terms, “Confidential Information” means all disclosed information and materials, whether marked as confidential or not and of any nature or form, including without limitation, all information provided by one party to the other party.
    12.2. Unless otherwise agreed to in advance, in writing, or except as expressly permitted by these Terms, the parties will not, except as required by law or court order, use Confidential Information belonging to the other party or disclose any Confidential Information to any third party.
    12.3. The parties shall use the same degree of care to avoid disclosure of the other party’s Confidential Information as that party employs with respect to its own Confidential Information of like importance, but not less than a reasonable degree of care.
    12.4. All Confidential Information supplied by the Client to Swift Access shall, at all times, be and remain the exclusive property of the Client, but shall be held by Swift Access in safe custody at its own risk and maintained and kept in good condition by Swift Access until returned to the Client. The Confidential Information shall not be disposed of or used other than in accordance with the Client’s written instructions or authorisation.
    12.5. Upon the termination or expiration of these Terms for any reason, or upon the other party’s earlier request, each party will deliver to the other party all of the Confidential Information in tangible form that the party may have in its possession or control which belongs to the other party and provide a warranty that all other Confidential Information has been destroyed.
13. PROTECTION OF PERSONAL INFORMATION
    13.1. For this clause, “Responsible Party” is used as defined under the South African Protection of Personal Information Act, 2013 (“POPI”) to mean the party who sources and decides what to do with the personal data they have attained for processing. Similarly, the use herein of the term “Operator” as per POPI is used to mean the party who processes personal data on the Responsible Party’s instruction for a particular processing function.
    13.2. Both parties understand that they may process (including but not limited to, accessing, seeing, recording, using, transmitting and/or routing) personal data of data subjects as either a Responsible Party (for their own personal data acquired for their purposes) or as an Operator (for the personal data provided to them from the Responsible Party).
    13.3. Both parties warrant to the other that they will adhere to all requirements and duties imposed on them by the application of POPI, as dictated by the role that they fulfill relating to the personal data they process. For the avoidance of doubt, Swift Access shall, at all times, be the Operator of any and all personal data it processes on the instruction of the Client in accordance with these Terms.
    13.4. Further, both parties expressly indemnify the other party against any third-party claims which may be brought against either party for the party’s failure to adhere to their duties as prescribed under POPI related to their role as either or both the relevant Responsible Party and/or Operator.
    13.5. These duties naturally include the duty of each party to retain and store all data received from the other party as strictly confidential at all times.
    13.6. Should either party require the other party to fulfill any particular conditions relating to its processing of any personal data as the Operator, the parties shall detail and agree to the same conditions in a distinct written data processing agreement between them.
    13.7. If either party operates as a Responsible Party, they warrant to the other party (as the relevant Operator of the Responsible Party’s personal data handed to them) that they have expressly obtained all relevant consents and/or can evidence its lawful bases for relaying any of their own or own users’/data subjects’ personal data to the other party for the purposes of that other party processing it for whatever reason as the Operator.
    13.8. Both parties also warrant to each other that they have no criminal convictions or judgments recorded against them which relate to crimes relating to fraud, unlawful use of personal information or any crime related to the illegal use or processing of personal information in any way.
    13.9. Both parties also understand and agree that for data continuity and risk-mitigation purposes, should these Terms be terminated for any reason, and unless otherwise provided for in another data processing agreement between them, the parties will immediately cease all processing of personal data provided to them by the other party, as well as permanently delete/destroy any personal data of the other party’s on/within their systems. To assist each other in this process, both parties will provide the other party with whatever information or tools needed in order to action this destruction as required.
14. USE OF SUB-CONTRACTORS
    Swift Access shall be entitled to utilise sub-contractors for any of the rights or obligations contained in this Agreement. Swift Access shall ensure that its chosen sub-contractors are under appropriate obligations of confidentiality regarding the Services, which obligations of confidentiality shall be no less stringent than those set forth in this Agreement.
15. BREACH
    15.1. Either party (“the innocent party”) shall be entitled without notice, as in addition to any remedy available to it in law or under these Terms, including obtaining an interdict, to claim specific performance of any obligation whether or not the due date for performance has arrived, or termination of these Terms (in either case without prejudice to the innocent party’s right to claim damages occasioned by the other party (“breaching party”)) in the event that:
    15.1.1. the breaching party commits any breach or permit the commission of any breach of any material obligation or warranty contained in these Terms and, in respect of such a breach capable of remedy, fail to remedy that breach within 10 (ten) business days after the giving of written notice to that effect by the innocent party to the breaching party; or
    15.1.2. the breaching party repeatedly breaches any of the terms and/or conditions contained herein in such a manner as to justify the innocent party in holding that the breaching party’s conduct is inconsistent with the intention or ability of the breaching party to carry out the provisions of these Terms.
16. DISPUTE RESOLUTION
    16.1. Should any dispute, disagreement or claim arise between the parties (“dispute”) concerning these Terms, the parties shall meet within 5 (five) days of such notice and negotiate in good faith to resolve such dispute.
    16.2. Should the parties fail to resolve such dispute in the aforesaid manner or within such further period as the parties may agree to during their negotiation, the parties will resolve the dispute through arbitration as set forth herein below.
    16.3. The arbitration will be held in Cape Town, South Africa.
    16.4. The arbitration shall be conducted in accordance with the Commercial Rules of the Arbitration Foundation of Southern Africa (“AFSA”) before a single arbitrator.
    16.5. The parties shall endeavour to reach agreement on the identity of the arbitrator provided that, if they are unable to agree to the appointment of the arbitrator within 10 (ten) business days of either party writing to the other, requiring such agreement, the chairperson of AFSA will appoint an arbitrator whose appointment shall be final.
    16.6. The award rendered by the arbitrator shall be final, and the judgment may be entered upon in terms with the applicable law in any court.
    16.7. The parties both agree that in no circumstance will either party publicize the dispute on any public platform, including social media platforms. The parties understand that any publicity of this nature can cause serious damage to the other party, which damage may result in a financial claim.
17. SERVICE ADDRESS
    Each of the parties choose domicilium citandi et executandi for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purposes arising from these Terms at their respective email addresses.
18. GENERAL
    18.1. No alteration, cancellation, variation of, or addition to these Terms shall be of any force or effect unless reduced to writing and signed by all Parties to these Terms or their duly authorised representatives.
    18.2. These Terms cancel and supersede the terms and conditions of all prior negotiations and agreements between the Parties.
    18.3. This document contains the entire agreement between the Parties and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
    18.4. No indulgence, leniency or extension of time which any Party may give or allow to the other Party in respect of the performance of any obligation hereunder, shall in any way prejudice the Party giving or allowing the indulgence, leniency or extension or preclude such Party from exercising any of its rights an enforcing the obligations of the other Party in terms hereof.
    18.5. The rule of construction that these Terms shall be interpreted against the Party responsible for the drafting or preparation of these Terms, shall not apply.
    18.6. These Terms shall be governed by and construed and interpreted in accordance with the law of the Republic of South Africa.
    18.7. The expiration, cancellation or other termination of these Terms shall not affect those provisions of these Terms as expressly provide that they will operate after such expiration, cancellation or other termination or which of necessity must continue to endure after such expiration, cancellation or other termination, notwithstanding that the relevant clause may not expressly provide for such continuation.
    18.8. Each and every provision of these Terms (excluding only those provisions which are essential at law for a valid and binding agreement to be constituted) shall be deemed to be separate and severable from the remaining provisions of the agreement. If any of the provisions of these Terms (excluding only those provisions which are essential at law for a valid and binding agreement to be constituted) is found by any court of competent jurisdiction to be invalid and/or unenforceable then, notwithstanding such invalidity and/or unenforceability, the remaining provisions of these Terms shall be and remain of full force and effect.