TERMS & CONDITIONS

TERMS AND CONDITIONS OF SALE

1. The following are the standard terms and conditions of sale applicable between Smith Mining Equipment (Pty) Limited (Smith Mining), and any person or persons (the customer) with whom and at whose request or on whose behalf Smith Mining undertakes any business, advice, information or service.

2. An agreement between Smith Mining and the customer relating to a credit facility shall be of no force and effect unless the following conditions are met as required and directed by Smith Mining within 14 calendar days of signature of the agreement –

2.1. the customer shall provide a written undertaking that until such time as the customer has paid in full for the goods supplied by Smith Mining, Smith Mining will remain the exclusive and sole owner of the goods supplied by it. In this regard the customer acknowledges that this clause only confers upon Smith Mining a reservation of ownership in respect of the goods until payment in full is received by Smith Mining. All risk in and to the goods shall pass to the customer on delivery. Where a customer has nominated a courier or carrier for the purposes of the transportation of goods sold by Smith Mining to the customer, then the risk in and to the goods shall pass to the customer upon delivery of the goods by Smith Mining the nominated courier or carrier;

2.2. insofar as the customer is a business entity it shall provide Smith Mining with a suretyship agreement of its directors and shareholders or members or trustees as the case may be standing jointly and severally as co-principal debtors with the customer for the due and punctual performance of the customer for its obligations in terms of the credit facility;

2.3. insofar as the customer is a business entity, it shall provide Smith Mining with a cession agreement whereby it cedes all right, interest and title in and to its book debts to Smith Mining as security for the due and punctual performance of the customer’s obligations in terms of the credit facility;

2.4. insofar as the customer is a business entity, its directors shall provide Smith Mining with a cession agreement whereby they cede all right, interest and title in and to their shares or other securities to Smith Mining for the due and punctual performance of the customer’s obligations in terms of the credit facility;

2.5. the customer shall grant Smith Mining authority in writing and signed for Smith Mining to conduct a credit assessment on the customer based on the information provided by the customer to Smith Mining. Smith Mining reserves the right to reassess the customer’s application for a credit facility at any time;

2.6. the customer shall insure the goods provided by Smith Mining to the customer to the extent of 100% of the replacement value thereof and shall provide written proof of the insurance to Smith Mining;

2.7. insofar as the customer is a business entity it shall not allow a change in control of more than 15% without first receiving written consent by Smith Mining;

2.8. the customer shall not encumber any of the goods provided by Smith Mining without the prior written consent of Smith Mining; and

2.9. the customer shall provide a written undertaking to Smith Mining that it shall not cede and assign the agreement without obtaining the prior written consent of Smith Mining.

3. Unless specifically agreed, the customer acknowledges that credit facilities granted are payable strictly within 7 days from invoice for whole goods and 30 days from date of statement for all other goods and services rendered, Such payments shall not be withheld or deferred on account of any claim, counterclaim or set off.

4. Credit facilities may be withdrawn by Smith Mining at its sole discretion at any time without prior notice and Smith Mining reserves the right to review the extent, nature and duration of such facilities at all times. In the instance of the National Credit Act 34 of 2005 (NCA) being applicable to these terms and conditions Smith Mining shall exercise its rights as contemplated therein.

5. If any amount is not paid within the agreed term the customer shall be liable for interest at the maximum rate permitted by law from time to time. In the event of the applicability of the NCA, the maximum interest rate as therein contemplated shall be charged. All interest charged shall be compounded and paid monthly in arrears.

6. A certificate signed by any director of Smith Mining, whose appointment need not be proved, as to the amount owing to Smith Mining by the customer and the terms of repayment, shall be binding on the customer and shall be prima facie proof of the facts stated therein.

7. The customer agrees and acknowledges that should the customer-

7.1. breach any term contained herein;

7.2. fail to pay any amount due and payable on due date;

7.3. attain any civil judgement to be taken or entered against it;

7.4. cause a notice of surrender of its estate to be published in terms of the Insolvency Act No 24 for 1936, as amended;

7.5. die;

7.6. have its estate placed under an order of provisional or final sequestration, provisional or final winding up, or provisional or final business rescue, as the case may be, then:

7.6.1. Smith Mining shall, without detracting from any other remedies which may be available to it, be entitled to summarily cancel the sale of any goods to the customer by way of written notice to the customer, and to rely on the provisions of clause 2 and to re-possess those goods sold and delivered by Smith Mining to the customer, or to claim specific performance of all of the customer's obligations whether or not such obligations would otherwise then have fallen due for performance, in either event without prejudice to the creditor's right to claim for damages; or

7.6.2. in the event of the NCA being applicable to the agreement, Smith Mining shall by written notice demand rectification of the breach in accordance with the NCA and should the default continue for 30 Business days after receipt of such notice, Smith Mining shall cancel the agreements and enforce its rights accordingly.

8. Should Smith Mining agree to accept the return of any goods for credit that were correctly supplied –

8.1. the customer shall be liable to pay Smith Mining a handling charge of 15% on the invoiced price of the goods so returned; or

8.2. in the event of the Consumer Protection Act 68 of 2008 (the CPA) being applicable to the agreement, Smith Mining may impose a reasonable charge for –

8.2.1. use of the goods during the time they were in the consumer’s possession; and/or

8.2.2. any consumption or depletion of the goods; and/or

8.2.3. restoration costs to render the goods fit for re-stocking.

9. The customer acknowledges that it shall be responsible for all charges and expenses of whatsoever nature incurred by Smith Mining in securing the implementation of its obligations hereunder or of Its rights in terms hereof, including without limitation, all legal costs on the scale as between attorney and own client, including collection commission and tracing agent's fees.

10. The customer hereby consents to the jurisdiction of the relevant Magistrate’s Court having territorial jurisdiction in respect of it, notwithstanding any amount sought to be recovered by Smith Mining from the customer, which might otherwise exceed the jurisdiction of the Magistrate Court in accordance with Section 45(1) of the Magistrate’s Court Act 32 of 1944.

11. These terms and conditions of sale and all agreements made between Smith Mining and its customers shall be governed according to the laws of the Republic of South Africa and shall be subject to the exclusive jurisdiction of the its Courts.

12. The customer chooses as its domicilium citandi et executandi, the street and email address of the customer as included in the credit application.

13. Any indulgence, extension of time or relaxation of the terms and conditions herein contained, which may be granted by Smith Mining to the customer, shall not constitute a waiver or novation of any of Smith Mining's rights.

14. Unless specifically agreed to in writing, these terms and conditions of sale shall govern all contracts concluded between Smith Mining and the customer, and should any conflict between these terms and conditions and those of any particular contract arise, these terms and conditions shall take precedence.

15. Any agreement purporting to vary the terms of this agreement, or any consensual cancellation, shall not be valid unless reduced to writing and signed by both Smith Mining and the customer.

16. The quoted selling price of the goods to be provided by Smith Mining are subject to fluctuations in the relevant foreign exchange as the case may be.

17. The customer warrants that the natural person accepting these terms and conditions has authority to do so.

18. Save as otherwise provided herein, Smith Mining shall not be liable to the customer or any other person for any loss of profit, special damages or consequential damages howsoever arising out of any breach by Smith Mining of its obligations herein, and the customer hereby indemnifies Smith Mining against any claim which may be made against Smith Mining by any other person in respect of any matter for which the liability of Smith Mining is excluded in terms of the aforesaid. In the event of the CPA being applicable to the agreement, Smith Mining shall be liable only for direct patrimonial loss sustained by virtue of hazardous or unsafe goods provided by Smith Mining and shall not be liable for consequential damages.

19. If any clause contained herein is found to be defective or unenforceable for any reason by a competent court, the remaining clauses shall remain to be of full force and effect.

20. Smith Mining shall not be liable for any defects, latent or otherwise other than those covered by the implied warranty agreement. In the event of the CPA being applicable to the agreement, the customer shall have 6 months to return failed, unsafe or defective goods, which goods Smith Mining shall either repair or refund to the customer the price paid by the customer for the goods.

21. In these conditions, words importing one gender shall include the other genders and words importing the singular shall include the plural and vice versa.

22. By signing these terms and conditions, the customer warrants that it fully understands the implications of these terms and conditions as well as the applicability of the NCA and the CPA where specifically stated inter alia clauses 4; 5; 7; 8; 9; 10 and 18.