USD cash, USD electronic transfer (Nostro);
unless some other
agreeable temporary methods are agreed according to the
exigencies’ of the matter
.
8.
SETOFF
8.1
If the
parties
engage into the plant hire
r agreement for
movable equipment the parties shall
fully recognize and
acknowledge the binding nature of the Plant Hire Agreement
agreed between themselves and attached hereto as
Annexure
‘C’
.
8.2
In addition, the parties hereby agree that any shortfalls and
payments due and outstanding to either party under
Annexure
C, may and shall immediately be
setoff
with any payments
whatsoever, due and owing to either party under this
Agreement.
8.3
Nothing under this Clause, or under this Agreement shall be
taken as precluding any of the parties to seek any other legally
permissible recourse in recouping any sums due and owing
under this Agreement.
9.
DELIVERY
9.1
The
Less
ee
shall be responsible for all expenses and costs
incurred
in transporting
and installation of
the
Batch Plant
and
Equipment to the Less
or
’
s
chosen address:
i)
at the beginning of this Lease Term
; and
ii)
at the end of the Lease Term, back to the
Less
ee
s
premises.
9.2
The Less
or
shall be responsible for providing the exact date,
location and address where the
Batch Plant and E
quipment is
to be delivered
and erected.
10.
CHOSEN LOCATION
Subject to this Agreement, t
he Less
ee
shall not remove the
Batch
Plant and E
quipment from their chosen address or the location shown
herein as the place of use of the
Batch Plant or E
quipment
. The
chosen address shall be the above
mentioned address for the Lessor,
being ‘the property.’
11.
PLEDGE & ENCUMBERING
The Less
or
shall not pledge or encumber the
Batch Plant and/or
E
quipment in any way.
12.
MAINTENANCE, DAMAGE AND LOSS
Subject to this Agreement,
the L
essee
shall
keep and maintain the
Batch Plant and
Equipment in clean and in good working
condition
.
In the event th
at the Batch Plant and
Equipment is lost or damaged
beyond repair,
and such loss or damage is attributable to the Lessor,
then the
Less
or
shall pay to Less
ee
the replacement cost of the
Batch
Plant or
Equipment
, as the case may be.
13.
INDEMNIFICATION
13.1
Except
for damages, claims or losses due to the Less
ee
’s
fraudulence or gross negligence, the Less
or
, to the full
extent permitted by law, will indemnify and hold the
Less
ee
and the Less
ee
’s property, free and harmless
from any liability for losses, claims, injury to or death of
any person, including
the
Less
or
, and for damage to
property or any other loss arising from the Less
or
’s use
and possession of the
Batch
Plant and
Equipment or fro
m
the acts or omissions of any person or persons, including
the Less
or
and any operators of the
Batch
Plant and
Equipment (notwithstanding that they may be
employees of the Less
ee
)
, using or possessing the
Plant
and
Equipment with Lessee’s express or impli
ed
consent.
14.
GENERAL WARRANTIES & GUARANTEES
The Less
ee
shall neither assume nor shall any obligation or
responsibility be placed upon it, including, but not limited to,
obligations based on warranties or guarantees or other
contractual
obligations, on behalf or in the name of the Less
or
, unless agreed
upon by
the parties in writing.
15.
WARRANTIES & REPRESENTATIONS
The parties’ representatives warrant and represent that they have
full
permission and authority to enter into these agreements on behalf
of
their respective entities and that any and all internal proce
dures
required for the entering of these agreements have been adhered
to
as appears on the attached resolutions.
The representatives further
hold themselves personally liable, should this Agreement be held to
be unlawful on the basis of lack of authority.
16.
FORCE MAJEURE
Neither
the
Lessee nor the Lessor shall be required to perform any
term, condition, or covenant of this Agreement so long as
such
performance is delayed or prevented by acts of God, material or
labor
restriction by any governmental authority, civil riot, floods,
hurricanes, or other natural disasters, or any other cause not
reasonably within the control of Lessee or Lessor, and which by the
exercise of due diligence Lessee or the Lessor is unable, who
lly or in
part, to prevent or overcome.
17.
CONFIDENTIALITY
The parties shall treat all information obtained under this
Agreement
as confidential. Confidential information may not be disclosed to
third
parties unless such discloser is required for the mainten
ance, the
repair or the operation of the equipment. The extent of the
disclosed
information shall be restricted to the minimum necessary, and
the
disclosing Party shall impose this confidentiality obligation on
the
third
party to whom such information is d
isclosed.
18.
WAIVER
The failure of
by the Less
ee
to enforce any provisions of this
Agreement shall not be deemed a waiver or limitation of th
e Less
ee
’s
right to subsequently enforce and compel strict compliance
with
every provision of this Agreement.
19.
DISPUTE RESOLUTION/ GOVERNING LAW
19.1
All the disputes related to the contract or its execution thereof,
shall be resolved firstly via friendly negotiation. Where no
settlement can be reached within 7 days of the attempted
settlement by the parties, the disput
e shall be brought
exclusively before the competent courts of the Republic of
Zimbabwe.
19.2
The expenses for the litigation shall be borne by the losing
party, including costs on an attorney
client scale.
19.3
This agreement shall be governed by and construed in
a
ccordance with the laws of the Republic of Zimbabwe.
20.
BREACH
20.1
In the event that
a Party
should breach the provisions of this
Agreement and fail to remedy such breach within seven (7)
days from the date of a written notice to do so by the
aggrieved
party
, then the
aggrieved
party
shall be entitled to invoke all
remedies available to it in law and in addition shall be entitled
to:
20.1.1
Approach the relevant court for an order of specific
performance, including seeking an award for
damages
and/or injunctive relief or any other relief as may be
provided for by the law; or
20.1.2
Terminate the Agreement forthwith
.
21.
ENTIRE AGREEMENT
21.1
This Agreement and the Annexures and addendums and
documents specifically referred to herein and so attached,
embody the entire agreement between the Parties relating to
the subject matter herein, and there are no other
representations, warranties or agree
ments between the Parties
not contained or referenced in This Agreement.
21.2
This Agreement shall be amended, supplemented or modified
only by a written instrument duly executed and signed by or on
behalf of every Party hereto which specifically refers to Thi
s
Agreement.
21.3
No
previous
or
contemporaneous
communication,
representation or agreement (whether oral or written, express
or implied) shall be of any force or effect or vary or add to or
suspend the
rights and
obligations under this
Agreement
.
22.
ASSIGNMENT
& CESSION
22.1
Neither this Agreement nor the rights or obligations hereunder
may be
ceded,
assigned, transferred, licensed, sub
licensed,
contracted or sub
contracted directly or indirectly by
any party
save with the prior written consent of the
othe
r party
.
Any such
23.
THIRD PARTY
23.1
Subject to this Agreement
, no person who is not a
p
arty to this
Agreement, shall be entitled to enforce the terms of this
Agreement, and shall have any right under the governing law
to enforce any of the terms of this Agreement.
24.
GOOD FAITH
24.1
The Parties agree to act in good faith in relation to the
perfor
mance of each Party’s obligations under
t
his Agreement
and not to make any false statements against each other.
25.
DOMMICILUM CITANDI ET EXECUTANDE
25.1
The parties accept and choose their above
mentioned
addresses as their address for the service of any notice or
process or legal proceedings in connection with this Agreement.
25.2
All notices, requests, demands and other communications
required or permitted t
o be given hereunder shall be in writing
and shall be deemed to have been duly given and received (i)
immediately if delivered by personal delivery
(ii) upon a delivery
report being received if
sent by email.
THUS DONE AND SIGNED AT HARARE ON THIS
DAY OF
FEBRUARY 2023
IN THE PRESENCE OF THE UNDERSIGNED
WITNESSES.
SIGNED:
............................................................
ERASTUS VAN EEDEN
[SCRIBANTE CONCRETE ZIMBABWE]
AS WITNESSES:
(i) ..................... .............................
(ii) ...................................................
THUS DONE AND S
IGNED AT
ON THIS DAY OF
FEBRUARY
202
3
IN THE PRESENCE OF THE UNDERSIGNED WITNESSES.
..........................................................................
ENGINEER THABANI NDLOVU
[for HARARE QUARRY (PRIVATE) LIMITED]
AS WITNESSES:
(i)
......................................................
(ii) ......................................................
ANNEXURE A
1
EXTRACT FROM THE MINUTES OF A MEETING OF
BOARD OF
DIRECTORS OF
SCRIBANTE CONCRETE ZIMBABWE (PRIVATE)
LIMITED
HELD AT HARARE ON THE 28
TH
DAY OF FEBRUARY 2023.
IT WAS RESOLVED:
1.
That the
Company enters into a Plant Hire Agreement with
Harare
Quarry (Private) Limited
of
Corner Dieppe Road and Airport Road,
Private Bag HR 282, Harare for the le
asing
of certain
piece of land
belonging t
o
Harare Quarry
and the operation of
the Companies Batch
Plant and Equipment at the aforesaid property
; and
2.
That,
RASSIE van Eeden
DOB 09/10/1982
ID No.82 10095092 0 84
Of 14 Cuba Avenue, Mt Pleasant, Harare
be and he is hereby authorized on behalf of the Company to
sign any
documents
as may be necessary to effect and bring to realization the
Batch
Plant Hire
and General Lease
Agreement.
DATED ON THIS 28
TH
DAY FEBRUARY 2023
...........................
............
SILVIO SCRIBANTE
DIRECTOR
ANNEXURE A
2
EXTRACT FROM THE MINUTES OF A MEETING OF
BOARD OF
DIRECTORS OF
HARARE QUARRY PRIVATE (LIMITED)
HELD AT
HARARE ON THE 28
TH
DAY OF FEBRUARY 2023.
IT WAS RESOLVED:
1.
That the Company enters into a
Batch
Plant
Hire and
General
Lease
Agreement with
Scribante Concrete (Private) Limited
of
14 Cuba Avenue, Mt Pleasant, Harare for the leasing of
a
certain
Batch
Plant and
ancillary
Equipment belonging to Scribante
Concrete for Harare Quarry’s business operations
;
as well as the
leasing of land by the Company to Scribante Concrete
and
2.
That,
Engineer Thabani Ndlovhu
DOB XX/XX/19XX
ID No.XX
–
XXXXXXXXX X XX
Of
Corner Dieppe Road and Airport Road, Private Bag HR 282, Harare
be and he is hereby authorized on behalf of the Company to
sign any
documents as may be necessary to effect and bring t
o realization the
Batch
Plant Hire
and
General
Lease
Agreement.
DATED ON THIS 28
TH
DAY FEBRUARY 2023
...........................
...........................
.................................
[INSERT DIRECTOR NAME]
[INSERT DIRECTOR NAME]
DIRECTOR
DIRECTOR
...........................
[INSERT DIRECTOR NAME]
DIRECTOR