Between ROYALVIBE HEALTH Ltd (Registration No.: ICC20200606) And
TERMS AND CONDITIONS:
I/We the undersigned, duly authorised thereto, hereby enter into a membership agreement with ROYALVIBE HEALTH Ltd as set out in the membership schedule and in the following terms:
In this AGREEMENT, unless the context indicates otherwise, the following expressions will bear the following meanings: “business day”
“commencement date” means the day on which the equipment is dispatched by the company to the member;
“the agreement” means the membership agreement and the terms and conditions thereto, read together with the membership schedule;
"the company" means ROYALVIBE HEALTH Ltd; "the member" means the company of the equipment/ apparatus, as indicated in the agreement;
“membership” means the service and lease of equipment that remains the property of the company;"the equipment” means the equipment as identified in this agreement or any other replacement equipment provided to the member by the company (including the equipment/apparatus documents, tools and accessories supplied with the equipment); "the membership period" means the period between the date when the equipment is provided to the member and the termination date and time as specified in the membership schedule or, if such period is amended, the time and date of the amendment;
“the membership schedule” means the schedule with regards to payment plan/s selected and monthly/annual contribution for lease of service and equipment from the company as amended from time to time;
“Lessee” means the member who selects a plan at a monthly/annual fee utilising equipment that remains the ownership of the company. Once the agreed leasing period expires the equipment is returned to the possession of the owner, namely the company;
“Lessor” means the company to whom this equipment belongs and no transferral of ownership is ever given to a member or lessee;
“full contract price” means the estimated contract value as defined in the membership schedule;
“Leasing” means the company OR lessee makes its products and services available to the lessee at an agreed cost per month/annually, upon cessation of said contract the equipment leased by the lessee is returned to the possession of the lessor or company in a condition as stipulated within this agreement, failure of which will result in actions outlined in this contract;
“signature date” means the date of this agreement by the last signing signatory thereto;
“product supplier/supplier” means the entity (CellQuicken) from whom RoyalVibe Health (the company) purchases it products and equipment to lease to the lessee;
“replacement cost” is the retail cost attached to leased equipment. The lessee is responsible for this replacement cost due to any damage, loss, harm or theft be it directly or indirectly, caused by the lessee or by another individual or property. The lessee is responsible for garnering and paying insurance to protect the leased equipment belonging to the company.
1.1 The singular shall include a reference to the plural and vice versa.
1.2 A natural person shall include a reference to a legal entity.
1.3 Any one gender shall include a reference to each of the other genders.
1.4 Any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time.
1.5 When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or a public holiday.
1.6 Expressions defined in this Agreement shall bear the same meanings in schedules or annexures to this Agreement which do not themselves contain their own definitions.
1.7 Any reference to an enactment, any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment or legislative measure of government (including local or provincial government) statutory or regulatory body which has the force of law means the relevant enactment or legislative measure as at the date of signature of this Agreement as amended or re-enacted from time to time.
1.8 If any provision in a definition or in the preamble is a substantive provision imposing rights or obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the agreement.
1.9 Where figures are referred to in numbers and in words, if there is any conflict between the two, the words shall prevail.
1.10 Words and expressions defined in this Agreement shall bear the same meanings in any schedules or annexures to this Agreement which do not themselves contain their own definitions.
1.11 Words and expressions defined in any sub-clause shall, for the purpose of the clause of which that sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause.
1.12 Except as expressly provided to the contrary herein, each paragraph, clause, term and provision of this Agreement and any portion thereof shall be considered severable and if, for any reason any part of this Agreement is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation or in terms of a final, binding judgment issued by any Court, it shall not impair the operation of, or have any other affect upon, such other portions of this Agreement as may remain otherwise intelligible, which shall continue to be given full force and effect and bind the parties hereto.
1.13 The iusdem generis rule shall not apply and whenever the term “including” is used followed by specific examples, such examples shall not be construed so as to limit the meaning of that term.
1.14 The contra proferentem rule of interpretation of the contract, in a case of ambiguity, against the drafter of this Agreement shall not be applicable to the provisions of this Agreement.
1.15 The words “shall” and “will” and “must” used in the context of any obligation or restriction imposed on a party shall have the same meaning.
1.16 Reference to a party includes a reference, unless the context expressly requires otherwise, to that party’s successors in title and assigns allowed at law or in terms of this Agreement.
1.17 If the due date performance of any obligation in terms of this Agreement is a day which is not a business day then (unless otherwise stipulated) the due date for performance of the relevant obligations shall be the immediately preceding business day.
1.18 No provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any third person (stipulatio alteri) who is not a party to this Agreement.
1.19 The use of any expression which is relevant to a process available under United Arab Emirates Law (including “liquidation”, “winding up”, “insolvency” and “judicial management”) shall, if any party to this Agreement is subject to the laws of any other jurisdiction, be interpreted as to include any equivalent or similar process under the law of that other jurisdiction.
1.19.1 Any reference in this Agreement to a Party shall, if such Party is liquidated or sequestrated, be applicable also to and binding upon such Party’s liquidator or trustee, as the case may be.
1.19.2 The words “include”, “including” and “in particular” shall be construed as being a way of example or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any proceeding word/words.
1.19.3 The words “other” and “otherwise” shall not be construed as iusdem generis with any proceeding words where a wider construction is possible.
1.19.4 Reference to any “day”, “month” or “year” shall be construed as Gregorian calendar day, month, year.
Now wherefore the parties agree that:
2. The company hereby leases to member which hires on the terms and conditions herein from the commencement date specified in the membership schedule, the equipment described therein for the membership amount payable and for the membership period stated therein. The first payment date shall be the first day of each month following the commencement date of the schedule. If the commencement date is different from the membership due date, then the member will lease the equipment in terms hereof, for a pro-rata membership based on the number of days from the said commencement date to first due date. The terms and conditions of this agreement shall apply mutates mutandis to each and every equipment schedule which the parties may enter into and the equipment described in any such equipment schedule shall be leased in accordance with the terms of this agreement as if the terms and conditions of this agreement were incorporated in such equipment schedule and the conclusion by the parties of a further equipment schedule shall create a separate agreement in respect of the equipment described in such equipment schedule. Notwithstanding the aforegoing, the breach of any one of the separate agreements as constituted shall be deemed, at company's election, to be a breach of any or all agreements effected in terms of this agreement.
2.1 Member acknowledges and warrants that:
2.1.1 the equipment has been or will be purchased by the company at the request of the member and solely for the purpose of leasing the equipment to the member.
2.1.2 the equipment has been selected by the member.
2.1.3 The Company provides a product supplier/supplier warrant and guarantee. The lessee acknowledges the terms and conditions of the warranty and guarantee and accepts liability for the repair or replacement of any equipment should these costs not be covered by the warranty or guarantee.
2.1.4 The warranty and guarantee do not include human error, incorrect usage, damage, destruction, overheating or electricity surges, as well as all other terms and conditions related to the warranty and guarantee when leasing this product and service from the company.\
2.1.5 Human error includes the covering of the equipment using any product or material causing the electrical equipment to experience heat damage due to its inability to emit heat.
2.1.6 They will not cover any equipment leased from the company.
2.1.7 They will take precautionary measures against electricity spikes that cause electronic damage.
2.1.8 All financial costs due to repair or replacement of equipment caused by any damage, dents, harm, destruction, malfunctioning inflicted by human error, theft or water damage remains the responsibility of the lessee/member.
2.1.9 All warranties implied by common law are expressly excluded.
2.1.10 No representations of any nature whatsoever in connection with the equipment/apparatus are made by or on behalf of company.
2.1.11 Member warrants that it will inspect the equipment and report any defects to the company within 24 hours of delivery of the equipment.
2.1.12 All risks including the risk of destruction or loss of the equipment shall pass to member on signature of this agreement. All costs in respect of the delivery and/or collection and/or installation of the equipment shall be paid by member.
2.1.13 Member will deliver and collect leased equipment at their nearest Depo to be couriered. It is at the company’s discretion to decline or assume costs associated with delivery, collection and courier costs.
2.1.14 Member shall be obliged to take whatever steps as may be necessary to prevent the destruction or loss of the equipment. Member shall acquaint itself with the terms and conditions of any insurance policy issued pursuant to 5.1 and undertakes to do everything that may be necessary to ensure compliance with the terms and conditions of such insurance policy.
2.1.15 Lessee is advised to pursue monthly insurance of equipment at their expense, especially with regards to theft, loss, damage or electricity spike damage.
2.1.16 Company shall at all times be and remain the owner of the equipment and neither member nor any other person on his/her behalf shall at any stage before or after the expiry of this agreement or after the termination thereof acquire ownership of the equipment.
2.1.17 Member has no authority to order or purchase on behalf of company or to act as an agent for company, except that member shall be deemed to accept the equipment on behalf of company when the equipment is delivered by the supplier to member and member acknowledges that the equipment is delivered by the supplier on behalf of company.
2.1.18 The parties hereby specifically agree that this agreement applies only to the memberships and amounts payable in respect of the equipment as set out herein and the membership schedule and that such memberships and amounts do not include any payments in respect of maintenance and other services of whatever nature. All maintenance and/or repairs shall be done directly by the supplier and the costs shall be burdened by the member. The parties furthermore specifically agree that the non-performance of any of the terms and conditions of any agreement other than an agreement specifically included herein in respect of the equipment, or its maintenance will not be raised as a defence against any claim for the payment of any amount payable in terms of this agreement.
2.1.19 Member shall not be entitled to resile from this agreement or withhold payment of any amount due hereunder by reason of the late delivery or non-delivery of the equipment or any defect therein or part thereof, nor shall member have any claim against company for any loss or consequential damages suffered by it as a result thereof.
2.1.20 Member shall pay to company the memberships set out in the membership schedule. All such payments or any other payments owing in terms of this agreement shall be made without deduction of any nature.
3.1 The member shall not be entitled to withhold payment of any memberships for any reason whatsoever or be entitled to claim any remission of membership in any circumstances.
3.2 All payments in terms of this agreement, shall be made without set off or deduction or withholding of any nature, free of bank or other charges at the company's address or at such other place as the company or its cessionary/ies may direct in writing.
3.3 If member fails to affect any payment in terms of this agreement on the due date thereof such overdue amount shall be subject to administrative costs.
3.4 Company may appropriate any payments made by or on behalf of member to any indebtedness of whatsoever nature of member to company.
3.5 If required by company, member shall complete and deliver to company a banker's debit order document in such form as company may require or promissory notes or such other money market instruments as called for in payment of future memberships, which shall not be construed or regarded as substituting varying, or novating member's obligation under the agreement. Notwithstanding the afore going member's signature hereto constitutes member's authority to company or his cessionary/ies to draw against member's bank account wherever it may be, the amounts due in terms of this agreement.
4.1 Member acknowledges that in terms of the Value Added Tax Act ("VAT/GST"), VAT/GST at the prevailing rate as at date of signature hereto has been included in each membership. In the event of any change in the rate at which VAT is payable and/or in the amount of VAT/GST payable in respect of the membership payments, the memberships which fall due on or after the date of said change shall be recalculated accordingly and the said recalculated memberships shall substitute the memberships which were calculated at the old rate.
4.2 Any dispute relating to any adjustment in terms of 4.1 shall be referred to any partner of company's auditors who shall act as an expert and whose decision shall be final and binding on the parties hereto.
5.1 Member is obliged to ensure the equipment for not less than the replacement cost and retail cost thereof against all risks including political riot cover. Member shall ensure the company's interest in the equipment and this agreement is noted by the insurer in the policy and shall produce satisfactory proof thereof to company. Member hereby cedes to company as security for the due performance of member's obligations in terms of this agreement all of member's right, title and interest in any insurance policy effected in terms of this agreement and undertakes to deliver such policy to company on demand. If member fails to insure the equipment, or fails to produce to company written proof of such insurance within 14 (fourteen) days from date of demand, the company shall be entitled to effect such insurance as it deems fit on member's behalf, the premiums in respect of which shall be payable by member to company on demand.
5.2 Member is hereby given notice of its right of free choice in connection with its insurance obligations in terms of section 43 of the Short-Term Insurance Act 53 of 1998. Member represents and warrants that it has read, understood and is fully acquainted with the aforesaid provision. By signing this agreement, member acknowledges that:
5.2.1 it has been given prior written notice of its entitlement of the freedom of choice referred to in the said Act;
5.2.2 it exercised that freedom of choice;
5.2.3 it was not subject to any coercion or inducement as to the manner in which it exercised that freedom of choice.
5.3 If the equipment or any part thereof is lost, stolen or damaged irrespective of the cause, member must notify in writing company and insurer immediately.
5.4 Member shall be obliged to pay any excess that may be payable in terms of an insurance policy issued pursuant to 5.1.
6. Member shall at all times keep the equipment in its possession and under its control and shall take reasonable care in the use of the equipment. Member shall at its own expense maintain the equipment in proper working order and keep the equipment free from attachment hypothec or other legal charge or process. Member shall not sell, let, loan, pledge, transfer or otherwise encumber the equipment in any way or permit any lien to arise in respect of the equipment. The equipment shall be operated at the member's cost and be controlled only by properly trained, licensed and qualified persons. Member shall comply with the specifications, instructions and recommendations of the manufacturer for the operation, service, maintenance and/or repair of the equipment or part thereof.
6.1 Member may not materially alter or modify the equipment. Any part or accessory added to the equipment/apparatus shall become company's property without any compensation.
6.2 Member shall at all reasonable times permit company or its representative to inspect equipment. Member shall at its own expense apply for all licenses, certificates or exemptions that may be required for or in connection with the ownership or use of the equipment.
6.3 Member admits and agrees that the equipment is moveable and that the equipment is installed with the intention that the equipment shall remain moveable and that they shall under no circumstances accede to any property.
7.1 The equipment will ordinarily be kept at the address/es stated in the membership schedule and member shall forthwith upon signature of this agreement notify company in writing of any other premises to which the equipment is moved and of the name and address of the owner of such premises. Member shall also notify company immediately of any changes that may occur from time to time in the leasehold or ownership of the premises upon which the equipment may from time to time be installed or kept.
7.2 Prior to the equipment being brought onto or installed in any premises member shall notify the owner and/or Lessor of such premises in writing of company's ownership in the equipment and member shall notify each new owner or lessor of such premises in writing immediately when a change in the ownership or leasehold of the premises takes place.
8. If member defaults in the punctual payment of any monies as it falls due in terms of this agreement; or fails to comply with any of the terms and conditions of, or its obligations under this agreement or commits any deed of insolvency or being a natural person, assigns surrenders or attempts to assign or surrender his estate, or allows a default judgment to remain unsatisfied for a period of seven days or be refused rescission within fourteen days of any default judgment or is sequestrated or placed under judicial management or wound up, whether provisionally or finally or abandons the equipment, or compromises with any of his creditors or endeavours or attempts to do so, or makes any incorrect or untrue statement or representation in connection with this agreement or member's financial affairs or any particulars relevant thereto, or breaches any warranty given in terms of this agreement, or does or allows to be done anything that might prejudice company's rights under this agreement then and upon the occurrence of any of these events company may without prejudice to any of its rights elect to:
8.1.1 remotely access the equipment and limit use thereof, and
8.1.2 claim immediate payment of all amounts which would have been payable in terms of this agreement, all legal costs including legal expenses on the attorney and own client scale and, as agreed pre-estimated liquidated damages, the aggregate of the memberships which would have been payable had the agreement continued until expiry by effluxion of time; or
8.1.3 immediately terminate this agreement, take possession of the equipment, retain all amounts already paid by member and claim all and claim all outstanding memberships, all legal costs including legal expenses on the attorney and own client scale and, as agreed pre-estimated liquidated damages, the aggregate of the memberships which would have been payable had the agreement continued until expiry by effluxion of time.
9.1 Company is entitled to cede and/or delegate without notice to member all or any of company's rights and/or obligations under this agreement including its rights of ownership in the equipment or any of them, either absolutely or as collateral security, to any other person or persons and whether such cession is made to the cessionary/ies alone or to the cessionary/ies jointly and severally with company or any other person or persons, and if such cession occurs, member shall, if so required by any such cessionary/ies, make all payments direct to such cessionary/ies. Any reference in this agreement to company shall, unless the context indicates otherwise, be construed as referring to the cessionary/ies. Member hereby undertakes to accept the cession and/or delegation and to acknowledge the rights of the cessionary/ies in terms of this clause and to hold the equipment on behalf of the cessionary/ies, subject to the conditions of this agreement. The member agrees, that in the event of such cession, to the extent that any such cession and/or delegation results in the splitting of claims the member hereby consents in advance to such splitting of claims.
9.2 Member signature on this agreement implies acknowledgement that monthly membership fees are deducted as per the membership schedule and member grants the company permission to continue with this arrangement as per the membership schedule agreement.
9.3 Member acknowledges that any repairs not outlined in the warranty is at the company’s discretion to deduct any owing fees for said repairs from the members monthly contribution.
9.4 This agreement is personal to member and member shall not in any circumstances be able to make over any of his rights and/or obligations hereunder without prior written consent of company.
10. Should member fail to comply with any of the provisions of this agreement, company shall be entitled but not obliged to effect such compliance on behalf of member. All costs and expenses incurred by company in effecting such compliance or otherwise in protecting its title to the equipment shall be paid by Member to Company on demand.
11.1 Notwithstanding the provisions of this agreement should member in breach of its obligations fail to return the equipment on termination of this agreement then in addition to any other claims that company may have against member pursuant thereto, member shall be liable to continue to pay memberships to company as if the agreement had not been so terminated.
11.2 Member shall, on termination of this agreement, return the equipment in good working order, fair wear and tear permitted, together with all applicable documents to company at member's cost and expense.
11.3 Upon the return of the equipment in accordance with 11.2 Company may deal with the equipment at such time and place and on such terms and conditions as Company may determine. Member shall then have no further right or interest in the equipment.
11.4 If any part of the equipment, leased in terms of this agreement, are lost or stolen and not recovered within a period of 21 (twenty one) days after such loss or theft or are damaged beyond repair, this agreement may be terminated forthwith in respect of such equipment, provided that such equipment may, at company's election be replaced with similar equipment, in which event this agreement shall apply mutates mutandis to such replacement equipment.
11.5 On termination of this agreement in pursuance of 11.4. the proceeds of any claim under and in terms of an insurance policy referred to in 5.1 shall be paid to company and shall be credited against the balance of memberships that remain unpaid in respect of the equipment lost or destroyed immediately prior to termination of this agreement as provided for in 11.4. Member, however remains liable for any outstanding memberships and the aggregate of the memberships which would have been payable had the agreement continued until expiry by effluxion of time that may remain unpaid after the crediting of the proceeds of the insurance claim and such outstanding memberships be paid on demand by company.
12 A certificate under the hand of any manager of company, as given from time to time, in respect of the indebtedness of member in terms of this agreement or in respect of any other fact shall be prima facie evidence of member's indebtedness to company and/or such other fact. It shall not be necessary to prove the appointment of the person signing such certificate.
13. No relaxation or indulgence granted or given by company to member shall be deemed to be a waiver of any of company's rights in terms of this agreement and such relaxation or indulgence shall not be deemed to be a novation of any of the terms and conditions of this agreement.
14.1 This agreement constitutes the sole and exclusive record of the agreement between the parties hereto relating to the subject matter thereof, and no variation, modification, consensual cancellation, novation or waiver of any of the provisions hereof, or any consent to any departure therefrom by either party, shall be of any force or effect or create any estoppel unless the same shall be reduced to writing and signed by the parties hereto.
14.2 The member specifically records and agrees that there are no collateral terms to this agreement which have not been recorded herein and accordingly the member shall not be entitled to secure a rectification of any of the terms and conditions of this agreement.
15.1 All costs and disbursements, including legal costs on the attorney and own client scale incurred by company in recovering possession of the equipment or in tracing member and locating the equipment and in collecting or endeavouring to collect all or any amounts payable by member to company in terms of this agreement or otherwise and all collection commissions, storage charges, costs of valuation of the equipment, costs of sale including costs of restoring equipment to a saleable condition, selling commission, dismantling and removal charges and all other fees and charges shall be for the account of member and are payable on demand as and when incurred.
15.2 All costs in respect of documentation and administration fees shall be paid by member.
16. This agreement shall in all respects be governed by and construed in accordance with the laws of the Republic of South Africa.
17.1 Member hereby consents to the jurisdiction of the Magistrates Court having jurisdiction over its person in respect of all proceedings in connection with this agreement.
17.2 Notwithstanding the aforesaid, company shall be entitled to institute any proceedings in connection with this agreement against member in any division of the High Court of South Africa having jurisdiction.