SYSTEM MANAGEMENT SERVICES SDN BHD. (Registration No.: 199701036014 (451514-T)), a company incorporated in Malaysia and having its place of business at Suite 327, Block A, Level 3, Kelana Centre Point, No. 3, Jalan SS7/19, Kelana Jaya, 47301 Petaling Jaya, Selangor Darul Ehsan and includes its successors-in-title and assigns (hereinafter referred to as “the Owner”) of the one part; 

And

The Person(s) whose Names(s) and Address(es) are as specified in Section 1 of the Schedule 1 hereto and includes its/his/her/their heirs personal representatives successors-in-title and permitted assigns, as the case may be (hereinafter referred to as “the Hirer”) of the other part.

RECITALS

WHEREAS at the request of the Hirer, the Owner has agreed to enter into this Agreement which sets out the terms and conditions upon and subject to which the Hirer may from time to time offer to hire from the Owner certain machinery, equipment and/or goods, which offer shall be subject to the Owner’s acceptance and final approval.

BY WHICH IT IS HEREBY AGREED as follows: –

1. DEFINITIONS 

(1) In this Agreement unless the context otherwise requires:-

(a) “Commencement Date” means in relation to each Offer and each Equipment, the date when that Equipment is first delivered to the Hirer for the purpose of the hire of that Equipment under this Agreement subject nevertheless to the provisions of Condition 11(4);

(b) “Equipment” means in relation to each Offer, the equipment described in Section 1 of the relevant Offer and includes all accessories additions and accessions thereto and all replacements and renewals thereof whether made before or after the date of such Offer; and where the context so permits, means collectively all the equipment from time to time let on hire by the Owner under all the Offers pursuant to this Agreement;

(c) “Inspection Period” means in relation to each Offer and each Equipment, the period of forty-eight (48) hours from the time that Equipment is delivered to the Hirer (or such longer period as the Owner may agree upon in writing from time to time);

(d) “month” means in relation to each Offer and each Equipment, a period of one (1) month, each of  which shall commence from the date in a calendar month  which corresponds to the Commencement Date for the hiring of that Equipment, except that where such Commencement  Date is the last day of a calendar month, the period of one (1) month shall commence from the last day of the calendar month;

(e) “Offer” means an Offer, substantially in the form set out in the Appendix A annexed hereto, from time to time submitted by the Hirer to the Owner for its approval in the form of the Appendix A annexed hereto and accepted by the Owner and “Offers” means all such Offers from time to time accepted by the Owner;

(f) “Owner” means SYSTEM MANAGEMENT SERVICES SDN BHD. (Registration No.: 199701036014 (451514-T)) and includes its successors-in-title and assign;

(g) “person” or “party” shall include any company or association or body of persons, corporate or unincorporate;

(h) “lease” means in relation to each Offer and each Equipment, the lease in respect of hire of that Equipment as specified in Section 2 of the relevant Offer;

(i) “Replacement Value of the Equipment” means in relation to an Equipment at any time either of the following at the election of the Owner: –

(i) the amount for which from the manufacturer or any supplier of the Equipment would sell to the Owner at such time equipment which is identical in make and model, or where the same is unavailable, similar or substantially similar in design function specification and performance to the Equipment; or

(ii) the cost incurred by the Owner in the purchase of the Equipment;

(j) “RM” shall mean Ringgit Malaysia;

(k) “software” means any and all software and computer programmes of any kind and including all documentation and codes relating thereto;

(l) “Term” means in relation to each Offer, the term of hire specified in Section 3 of the relevant Offer

(m) “working day” means any day which is not a Saturday, Sunday or Public Holiday in the State in which the transacting branch of the Owner is located

(n) all references to any Section shall be construed as a reference to that Section in this Agreement;

(o) words importing the singular number only include the plural number and vice versa, and words importing only one gender shall include any gender; and

(p) where there are two or more persons included in the term of “the Hirer”, their liabilities under this Agreement shall be joint and several.

 (2) The Schedules and Appendices hereto shall be deemed an essential part of this Agreement.

2. OFFER

The Agreement is made for the purpose of facilitating the letting on hire to the Hirer those machinery and/or equipment and/or goods from time to time submitted by the Hirer to the Owner for its approval in the form of the Appendix A annexed hereto and accepted by the Owner.

3. REPRESENTATIONS AND WARRANTIES 

The Hirer represents and warrants to and for the benefit of the Owner that:-

(a) the Hirer has the power and authority to own his assets and to conduct the business which he conducts;

(b) there has been no material adverse change or circumstance in or affecting the Hirer since the date of the Hirer first applied for the hiring of the first Equipment and that the statements and information provided to the Owner therein were true to the best of the Hirer’s knowledge, in all material respects at the time of submission by the Hirer;

(c) the Hirer has the power to enter into, exercise his rights and perform and comply with his obligations under this Agreement

(d) all actions, conditions and things required to be taken, fulfilled and done by the Hirer (including the obtaining of  any  necessary consents) in order 

(i) to enable him lawfully to enter into, exercise his rights and perform and comply with his obligations under this Agreement, 

(ii) to ensure that those obligations are legally binding and enforceable, and  

(iii) to make this Agreement admissible in evidence in the Courts of Malaya have been taken, fulfilled and done;

(e) the Hirer’s entry into, exercise of his rights and/or performance  of or  compliance with  his obligations under this Agreement do not violate 

(i) any law to which he is subject, 

(ii) if the Hirer is a company, any provision of his Memorandum and Articles of Association, or

(iii) any agreement to which he is a party or which is binding on him or his assets;

(f) to the best of the Hirer’s knowledge his obligations under this Agreement are valid, binding and enforceable in accordance with their terms;

(g) no litigation arbitration or administrative proceedings is current or pending or, so far as the Hirer is aware threatened 

(i) to restrain the entry into, exercise of his rights under and/or performance or enforcement of or compliance with his obligations under this Agreement or 

(ii) which has or could have a material adverse effect on the Hirer’s financial position or ability to perform his obligations under this Agreement;

(h) the Hirer is not nor any of his assets owned or to which he has legal title entitled to immunity from suit, execution, attachment or other legal process;

(i) the Hirer is not in breach of or default under any agreement to an extent or in a manner which has or could have a material adverse effect on the Hirer’s financial position or ability to perform his obligations under this Agreement;

(j) no steps have been taken by the Hirer or his shareholders nor have any legal proceedings been started or threatened for the dissolution or winding-up of the Hirer or the appointment of a receiver, trustee or similar officer of the Hirer, his assets or any of them;

(k) the Hirer has fully disclosed in writing to the Owner all facts relating to his business which he knows or should reasonably know may have a material adverse effect on the Hirer’s financial position or ability to perform his obligations under this Agreement;

(l) if the Hirer is a company, the accounts of the Hirer as delivered to the Owner (with copies of the reports and statements referred to in (i) below):-

(i) include the latest audited balance sheet and profit and loss account and such other financial statements (if any) as are required by the laws to which he is subject;

(ii) include the latest 3 months company’s bank statements;  

(iii) save as stated in the notes thereto, were prepared in accordance with accounting principles and practices generally accepted in Malaysia consistently applied and have been prepared, examined, reported on and approved in accordance with all procedures required by the documents constituting the relevant person and/or the laws to which he is subject; and

(iv) together with those notes attached to the accounts, give a true and fair view of his financial condition and operations as at that date and for the year then ended; and

(m) each of the above warranties will be correct and complied with in all respects so long as any sum remains payable under this Agreement as if repeated then by reference to the then existing circumstances, except that each reference to accounts of the Hirer in paragraph (l) above shall be construed as a reference to the then latest available annual accounts for each financial year.

4. OFFER AND CONDITIONS PRECEDENT FOR ACCEPTANCE 

The Hirer may by delivering to the Owner from time to time a duly completed Offer in the form of the Appendix A annexed hereto the request Owner to let upon hire to the Hirer the equipment more particularly described in Section 2 of the Offer upon the terms and conditions specified in the Offer and this Agreement PROVIDED THAT:-

(a) all representations and warranties in Condition 3 hereof have been complied with and would be correct in all respects if repeated on the proposed Commencement Date for such hiring by reference to the circumstances then existing; 

(b) the Hirer shall not be in default of its payment and other obligations under and in relation to the hiring of any other Equipment under any previous or existing Offer accepted by the Owner under this Agreement; and

(c) all other terms and conditions as may be stipulated by the Owner in relation to any hiring of Equipment from time to time shall have been fulfilled or satisfied to its satisfaction.

5. ACCEPTANCE

Each Offer shall be irrevocable. The signing by the Owner of the Memorandum of Acceptance contained in the relevant Offer shall of itself constitute a binding acceptance of

the Offer by the Owner without notice to the Hirer.  No prior act of the Owner or the delivery

of the Equipment or any part thereof to the Hirer or the receiving from the Hirer of any

moneys or Equipment towards the deposit for the Equipment shall be deemed to be an

acceptance on the Owner’s part and the Owner shall be under no obligation to hire the

Equipment to the Hirer until such time as the Owner signs the Memorandum of Acceptance

as aforesaid.

6. TERMS AND CONDITIONS OF HIRING  

On the acceptance by the Owner, the hiring of the Equipment shall be deemed upon and subject to the terms and conditions set out in the Offer and in this Agreement by which the Hirer hereby agrees to be bound.

7. TERM

On the acceptance by the Owner of each Offer, the Hirer shall hire from the Owner upon the terms and conditions hereinafter mentioned the Equipment described in the relevant Offer for the Term commencing from the Commencement Date for such Equipment.  In the event that the Hirer wishes to extend the hire of the Equipment beyond the expiry of the Term, the Hirer shall notify the Owner thereof in writing not less than thirty (30) days prior to the expiry of the Term and the Owner may at its absolute discretion, but shall not be obliged to, extend the hire on such terms as may be agreed between the Owner and the Hirer.

8. LEASE AND OTHER CHARGES

(1) The Hirer shall during the Term and unless and until the hire of the Equipment shall have been terminated in accordance with the provisions of this Agreement pay to the Owner without demand free of any withholding or deduction whatsoever the lease specified in Section 2 of the relevant Offer which shall be payable monthly in advance, the first such lease to be paid on the Commencement Date and the subsequent leases to be paid on the first day of each succeeding month, subject to the provisions of Condition 3(e) Provided Always that any payment which would otherwise be due and payable on a day which is not a working day shall instead be due and payable on the immediately following working day.

(2) All payments of lease hereunder shall be made to the Owner via Standing Instruction:

CIMB Bank Berhad 

Account Number: xx-xxxxxxx-x

Name of Account: System Management Services Sdn Bhd

(3) The Hirer shall pay the Owner on the Commencement Date the total of the other charges specified in Section 4 of the relevant Offer.

(4) The Hirer shall bear and pay the Owner for all goods and services tax, withholding tax and other taxes, stamp duty and document fees and levies that may be imposed on the lease and any other charges or payments to the Owner.

(5) Unless otherwise expressly provided in this Agreement:-

(a) any lease in respect of any month or in respect of a Term not exceeding one (1) month shall not be apportioned notwithstanding the termination of the hire of the relevant Equipment for any reason whatsoever before the last day of any month or the Term; and

(b) the termination of the hire of the relevant Equipment shall not discharge or release the Hirer from its obligation to pay any and all leases due prior to termination and any and all the other charges referred to in Section 4 of the relevant Offer and any sum paid in respect of lease or such charges shall not be refundable.

9. DEPOSIT OR THE PREPAID RENT 

(1) The Hirer shall upon the acceptance by the Owner of each Offer pay to the Owner a deposit or the prepaid rent, as the case may be,  as the  Owner shall at its absolute discretion  decide of  the amount specified in Section 5 of the relevant Offer.

(2) The Deposit or the Prepaid Rent shall not bear any interest.

(3) In the event of the Owner electing to collect a deposit in respect of the hiring of any Equipment (hereinafter called “the Deposit”), the Deposit shall be held by the Owner as a security for the prompt and full payment of the leases and other moneys payable by the Hirer hereunder and the due observance and performance by the Hirer of all provisions of this Agreement and any extension or renewal thereof.  In the event of any default on the part of the Hirer, the Owner shall be entitled (but shall not be obliged) to apply or utilise the Deposit or any part thereof in any such manner as the Owner may in its discretion think fit towards discharging or satisfying wholly or in part any payment (including any lease) due from the Hirer to the Owner or any of the obligations or liabilities of the Hirer under this Agreement provided always that the Hirer shall not  be entitled  to set off the Deposit or any part thereof against any lease or any other moneys payable or any liability to the Owner under this Agreement.

(4) In the event of the Owner electing to collect a prepaid rent in respect of the hiring of any Equipment (hereinafter called “the Prepaid Rent”), such Prepaid Rent shall be retained by the Owner as security for the prompt and full payment of the leases and other moneys payable by the Hirer hereunder and the due observance and performance by the Hirer of provisions of this Agreement and any extension or renewal thereof.  The Prepaid Rent shall be automatically applied by the Owner in satisfaction of the lease in respect of the periods mentioned in Section 5 of the relevant Offer on the due dates therefor until it is exhausted provided always that this provision shall in no way relieve the Hirer from paying the lease in respect of periods other than those mentioned in Section 5 of the relevant Offer.

(5) Without prejudice to the generality of Condition 9(3) and merely for the purpose of removing doubts the Owner shall be entitled (but not obliged) to apply or utilise the whole or any part of the Deposit or the Prepaid Rent towards the payment in full or in part of any moneys payable by the Hirer by way of damages or by way of indemnity to the Owner under this Agreement.

(6) In the event of the Deposit or the Prepaid Rent or any part thereof being applied or utilised by the Owner pursuant to the Conditions 9(3) or (5) and as long as this Agreement shall continue to be in force, the Hirer shall on demand in writing by the Owner forthwith pay to the Owner any such sum as shall restore the Deposit or the Prepaid Rent to the full amount and any such sum so further paid by the Hirer to the Owner shall be treated as and shall form part of the Deposit or the Prepaid Rent.

(7) Upon the determination of the hire of the relevant Equipment and provided that the Hirer has observed and performed all the obligations on the part of the Hirer hereunder in relation to such Equipment and has discharged all the Hirer’s liabilities to the Owner in relation to such Equipment, the Owner shall refund any then remaining balance of the Deposit or the Prepaid Rent (without interest) paid in respect of such Equipment to the Hirer.

10. DELIVERY OF THE EQUIPMENT 

(1) Unless otherwise agreed in writing between the Owner and the Hirer, the Owner shall deliver all Equipment referred to in all the Offers to the Hirer at the Owner’s address stated in this Agreement.

(2) The Owner shall not be liable for any loss or damage whatsoever suffered by the Hirer for any delay in delivery or non-delivery of any Equipment howsoever caused.

(3) If any Equipment shall not be delivered on or before the expected delivery date specified in Section 6 of the relevant Offer or any such later date as may be agreed, then the Owner and the Hirer shall each be entitled at any time thereafter to terminate the relevant Offer by giving written notice thereof to the other party Provided that that Equipment shall not have been delivered to the Hirer by the time of service of such notice.

(4) Where the Owner is required to deliver any Equipment to any place other than the Owner’s address stated in this Agreement, the Hirer shall pay the Owner the cost and expenses incurred by the Owner in the transportation and delivery of that Equipment to such place upon being invoiced for the same.

(5) The Hirer shall upon delivery of each Equipment by the Owner issue to the Owner an acceptance receipt (in the form and substance prescribed by the Owner) stating the date of delivery of that Equipment to the Hirer, the serial numbers of that Equipment and, where available, of the parts of that Equipment.

11. INSPECTION OF EQUIPMENT 

(1) The Hirer shall within each Inspection Period inspect and test the operation of the relevant Equipment and notify the Owner in writing all the defects, deficiencies and malfunction, if any, found in that Equipment.

(2) Each Equipment shall be deemed to have been delivered to and accepted by the Hirer in the satisfactory condition free of all defects deficiencies and malfunction, save only for such defects deficiencies and malfunction as the Hirer shall have notified the Owner in writing during the relevant Inspection Period.

(3) In the event that the Hirer notifies the Owner in writing within the relevant Inspection Period of any defect deficiency or malfunction of the relevant Equipment and any of the defects deficiencies or malfunction so notified are found on that Equipment, the Owner may elect to do and complete any one of the following courses of action:-

(a) rectify the defects deficiencies and malfunction and, where that Equipment had been returned to the Owner, redeliver that Equipment to the Hirer, in which  event Conditions  11(1) and (2) shall apply to that Equipment when it is redelivered to the Hirer; or

(b) replace that Equipment; or

(c) terminate the relevant Offer by giving written notice thereof to the Hirer.

(4) In the event that the Owner elects the course in Condition 11(3)(a), the Commencement Date shall be:-

(a) if the defects deficiencies and malfunction were rectified without that Equipment being returned to the Owner, the date when all the defects deficiencies and malfunction have been rectified; and

(b) if that Equipment was returned to the Owner for rectification of the defects and deficiencies, the date when that Equipment is redelivered to the Hirer after rectification of all the defects deficiencies and malfunction.

In the event that the Owner elects the course in Condition 11(3)(b), the provisions of this Agreement, including Conditions 11(1) and 11(2), shall apply to the replacement and the Commencement Date for that Equipment shall be the date when the replacement was delivered to the Hirer.

(5) In the event that the Owner elects either of the courses in Condition 11(3)(a) or (b) and the Owner fails within a period of thirty (30) days from the date of service on the Owner of the acceptance receipt (or such longer period as may be agree upon by the parties hereto):-

(a) to rectify all the defects deficiencies and malfunction, where the Owner has elected to do so; or

(b) to replace that Equipment, where the Owner has elected to replace that Equipment; then, the Hirer shall be entitled to terminate the relevant Offer by giving written notice thereof to the Owner and the Hirer shall not have any claims against the Owner whatsoever.

12. DEFECTS AND DEFICIENCY OF EQUIPMENT

None of the Equipment shall be regarded as defective or deficient or to be malfunctioning in any way if at the time of the delivery that Equipment to the Hirer, that Equipment meets the specifications of the manufacturer thereof for that Equipment and is in a condition where it may function and operate within those specifications.

13. EXCLUSION OF CONDITIONS AND WARRANTIES, ETC. 

(1) Each of the conditions warranties or representations relating to the condition and or performance of any Equipment at any time or its merchantable quality or suitability or fitness for the particular or any purpose for which it is or may be required whether express or implied and whether under this Agreement or under any prior agreement or by law or in oral or written statements made by or on behalf of the Owner by any person to the Hirer or in the course of negotiations in which the Hirer or its  representative  may  have concerned  prior  to  the acceptance by the Owner of the relevant Offer are hereby excluded.  

(2) The Owner shall not in any way be liable either in contract, tort or otherwise for loss injury or damage howsoever and whenever sustained by the Hirer or any other person by reason of any defect deficiency and or malfunction of any Equipment whether such defect deficiency and or malfunction be latent or apparent on examination and the Owner shall not be liable to indemnify the Hirer in respect of any claim made against the Hirer by a third party for any such loss injury or damage.

14. OWNERSHIP OF EQUIPMENT 

(1) Each of the Equipment shall remain the property of the Owner and the Hirer shall have no right or interest therein otherwise than as a bailee thereof.

(2) The Owner may and the Hirer shall if so required by the Owner affix (at the Hirer’s expense) on any particular Equipment in such form and manner as the Owner shall think fit labels marks or other indicia representing that Equipment as owned by the Owner and/or hired to the Hirer.

(3) The Hirer shall not remove or deface any such aforesaid labels marks or indicia affixed to such Equipment as well as such insignia identifications markings or plates as may be affixed on such Equipment by the manufacturers of such Equipment.

(4) Without prejudice to the generality of the foregoing paragraphs of this Condition, the Hirer shall not:-

(a) sell assign sub-let pledge mortgage charge encumber or part with possession of or otherwise deal with any Equipment or any interest therein;

(b) sell  mortgage  charge  demise sub-let or otherwise dispose of any land or building on or in which any Equipment is kept without giving the Owner at least six (6) weeks’ prior notice in writing and the Hirer shall in any event procure that any such sale mortgage charge demise sub-letting or other disposition as the case may be is made subject to the right of  the Owner to repossess  such Equipment at any time and for that purpose to enter upon such land or building and sever any equipment affixed thereto.

15. CUSTODY, MAINTENANCE AND USE OF EQUIPMENT 

(1) The Hirer shall keep each of the Equipment at all times in the possession and control of the Hirer at the location stated in Section 7 of the relevant Offer (hereinafter called “the Location”). The Hirer shall not move any Equipment from the Location without the prior written consent of the Owner.  In the event of default by the Hirer hereunder, the Hirer shall, in addition to any other remedies available to the Owner, pay to the Owner all expenses  (including legal costs on a solicitor and client basis) incurred by or on behalf of the Owner in ascertaining the whereabouts or taking possession of, preserving, insuring, and/or storing the relevant Equipment and of any legal proceedings by or on behalf of the Owner to enforce the provisions of this Agreement.

(2) Where  by the  specifications  or  recommendations  of the manufacturer of any Equipment, that Equipment is required to be installed  or set up in any manner for use or operation,  the Hirer shall before using or operating that Equipment install or set up that Equipment in accordance with such specifications or recommendations and with such other conditions and specifications as may be prescribed by the Owner from time  to time.

(3) The Hirer shall conduct and carry out daily and or routine maintenance and service of each of the Equipment in accordance with the recommendations conditions and specifications made or prescribed by the manufacturer thereof.  The Hirer shall not keep maintain service use and or operate any Equipment otherwise than in accordance with the recommendations conditions and specifications made or prescribed by the manufacturer thereof for that Equipment and with such other conditions and specifications as may be prescribed by the Owner from time to time.

(4) The Hirer represents and warrants to the Owner that the Hirer has and will continue to have throughout the relevant Term for each Equipment knowledge of all the recommendations conditions and specifications made or prescribed by the manufacturer of that Equipment for the installation storage maintenance service use and operation of that Equipment.

(5) Where any Equipment is purchased by the Owner with the benefit of any warranty(ies) by the manufacturer of that Equipment, the Owner hereby allows the Hirer at any time during the Term of hire of that Equipment to claim for such warranty(ies) for and on behalf of the Owner by contacting the manufacturer directly in relation to such claim.

(6) The Hirer shall obtain all necessary licences permits and permissions for the use of each of the Equipment, and where any Equipment is to be moved from one location to another, for the import export and transportation of that Equipment and shall observe and comply with all requirements instructions and directives of the governmental authorities as well as all statutory provisions regulations rules and bylaws for the time being in force in connection with the possession and use of each of the Equipment.

(7) The Hirer shall keep each of the Equipment free from distress execution or any other legal process.

(8) The Hirer shall assume all responsibility liability and risks for each of the Equipment and the custody and use thereof and for all injuries to or deaths of persons and damage to property howsoever caused by or arising from any Equipment or the possession, custody or use thereof whether any such injury or death be of any agent or employee of the Hirer or of any third party and such damage be to any property of the Hirer or any third party.

(9) The Hirer shall not copy or use in any way any design marks text patents or other intellectual property rights subsisting in any Equipment or any part thereof without obtaining the prior written consent of the Owner.

(10) The Hirer shall not use any of the Equipment for the purpose of drawing, designing or developing any nuclear or other lethal weapon which may in any way pose as a threat or danger to the nations or contravene any law or regulation.  

16. NOTIFICATION ON DEFECT IN EQUIPMENT

The Hirer shall promptly notify the Owner in writing of any defect malfunction or breakdown occurring in any of the Equipment.

17. ALTERATION OF EQUIPMENT

(1) The Hirer shall not without the prior written consent of the Owner make any alterations additions or improvements to any Equipment or any changes of the working order or function thereof.

(2) All additions replacements or improvements made to any Equipment (with or without the consent of the Owner) shall be deemed to form part of that Equipment and be the property of the Owner and be subject to the terms and conditions of this Agreement.

(3) Provided always that if any such alterations or changes shall have been made without the Owner’s consent, the Hirer shall immediately upon being required to do so by the Owner remove such alterations or changes and restore that Equipment to the same quality function and condition as before at the expense of the Hirer.

18. ANNEXATION OF EQUIPMENT 

(1) The Hirer shall not affix or attach any Equipment to any land or building without the prior consent in writing of the Owner.

(2) In the event that the Hirer seeks the Owner’s consent referred to in the preceding paragraph of this Condition, the Hirer shall submit a written consent or a certificate from the Owner or landlord or chargee of such premises or immovable property to the effect that such owner or landlord or chargee agrees not to treat any Equipment as a fixture or fitting forming a part of such premises or immovable property.

(3) The Hirer hereby undertakes to the Owner that it will duly and punctually pay all quit rents and rates, assessments, taxes and other outgoings payable in respect of the premises where any Equipment may for the time being be placed stored and/or used and shall produce to the Owner on demand the receipt or receipts for the then latest payment due in respect thereof.

19. LOSS AND DAMAGE OF EQUIPMENT 

(1) The Hirer shall assume as from the time of the delivery of each of the Equipment the entire risk of loss of and damage to that Equipment or any part thereof occasioned in any manner or by whomsoever or by any cause whatsoever  (including lawful forfeiture) and shall fully indemnify the Owner against all such loss or destruction of or damage to any of the Equipment. For the purposes of this Condition, Equipment shall be deemed to be lost if the same has been stolen or if the Owner’s title thereto is lost

(2) The Hirer shall at its own expense replace all missing damaged or broken parts of each of the Equipment with parts supplied by or recommended by the manufacturer of that Equipment or, subject to the prior written consent of the Owner, with parts of equal quality and value and shall in default of doing so permit the Owner to take possession of that Equipment for the purpose of replacing those parts and repay the Owner the full cost of effecting such replacements and the Owner shall be entitled to retain that Equipment until such repayment but such  retention shall not prevent the accrual of lease hereunder

(3) In the event of any loss of any of the Equipment or if any of the Equipment shall be damaged to such extent as to be incapable of economic repair,  the Hirer shall be entitled to terminate the hire  of that Equipment by service of a written notice thereof on the Owner  and  making  payment of the Replacement  Value of that Equipment at the time of termination.

(4) Save as may be expressly provided in this Agreement, the loss of or any damage to any Equipment or any part thereof howsoever caused shall not affect the continuance of the  hire of that Equipment by the Hirer and shall not in any way suspend diminish or discharge the liability of the Hirer to pay  each month the lease in respect of that Equipment  or  any  other charges hereunder.

(5) Where any Equipment or any part thereof is lost stolen destroyed or damaged by the negligence or wrongful act of a third party, the Hirer:-    

(a) shall immediately notify the Owner thereof;

(b) shall not compromise any claim without the consent  of the Owner;

(c) shall allow the Owner to take over the conduct of any negotiations (except in relation to claims of the Hirer for  personal injuries loss of use of that Equipment or loss or damage to the property of the Hirer unconnected with that Equipment); and

(d) shall at the expense of the Hirer take such proceedings (in  the  sole name of the Hirer or jointly with the Owner) as the Owner shall direct  holding  all  sums recovered on trust for the Owner and paying or applying as the Owner directs such part as is necessary towards discharging the Hirer’s obligations and  liability to the Owner with respect to the loss of or damage to  that Equipment and also all other liabilities of the Hirer hereunder at the date of such payment.

20. INDEMNITY

The Hirer shall indemnify the Owner against and hold the Owner harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities (including legal costs incurred in defending any such claims actions suits or proceedings) arising out of, connected with or resulting from (a) the possession use and or operation of any of the Equipment by the Hirer or any person at  any  time prior  to the return of that Equipment to  the Owner  pursuant  to Condition  23  or (b) the breach by the  Hirer  of  any  terms  and conditions hereof.

21. INTEREST ON OVERDUE PAYMENT

Without prejudice to the Owner’s rigs under any of the other terms conditions and agreements herein expressed or implied, the Hirer shall pay to the Owner interest at the rate of 0.065% per day on any lease and any other moneys payable hereunder in respect of any of the Equipment which may from time to time be due to the Owner and on any damages which may be  recoverable by the Owner hereunder and until payment thereof such interest  shall be calculated daily with monthly rests as from the time when the same is  due  and  payable and shall accrue as well before  as after  any judgment and notwithstanding that the hire under the relevant Offer or this Agreement shall have been terminated or otherwise.

22. TERMINATION OF HIRE 

(1) The Owner may forthwith terminate the hire of all the Equipment hired under all the Offers by the Hirer under this Agreement at any time after the occurrence of any of the following events by giving written notice thereof to the Hirer:-

(a) the Hirer defaults in payment of any sum which becomes due and payable hereunder to the Owner hereunder or under any other agreement made with the Owner or of any part thereof and such default continues for more than seven (7) days after the same becomes due and payable

(b) the Hirer fails to observe or perform any of the express or implied terms and conditions of this Agreement or of any other agreement made with the Owner;

(c) the Hirer does or suffers to be done any act or thing which may prejudice or jeopardise the Owner’s property in or right to any of the Equipmen

(d) A petition for the bankruptcy of the Hirer is presented or, the Hirer, being a corporation, a resolution for winding up or liquidation of the Hirer is passed or any proceedings for

the judicial management or winding up or liquidation of the Hirer is commenced in Malaysia or elsewhere;

(e) The Hirer abandons any of the Equipment;  

(f) The Hirer becomes insolvent or unable to pay its debts as they become due.  

(2) Where the Term exceeds one (1) month, the Hirer may at any time after the expiry of the minimum lease period of one (1) month from the Commencement Date for the relevant Equipment terminate the hire of that Equipment by giving the Owner not less than fourteen (14) days’ written notice in advance thereof Provided Nevertheless that any termination by the Hirer of the hire of that Equipment shall not be effective until that Equipment is delivered to the Owner in accordance with the provisions of Condition 23.

(3) The termination of the hire of any Equipment pursuant to any of the provisions of this Agreement shall not affect or discharge the Hirer’s obligations and liabilities, including the obligation to pay any lease or other sum, which by any of the provisions of this Agreement have accrued or become due or payable prior to such termination.

(4) In the event that the hire of any Equipment is terminated pursuant to Condition 10(3), 11(3) or 11(5), the Owner shall refund the  Deposit and all leases and the other charges stated in Section 4 of the relevant Offer paid to the Owner in respect of such Equipment prior to termination.

23. RETURN OF EQUIPMENT 

Upon the expiration or termination of the hire of any Equipment whether by the Owner or the Hirer pursuant to any of the provisions of  this Agreement, the Hirer shall without demand deliver up at the Hirer’s own expense that Equipment to the Owner at the Owner’s above-mentioned  address or at such other address as the Owner may  specify or if not so required shall  hold  that  Equipment available for collection by the Owner or its agents and the Owner or its agents may without  notice retake possession of that Equipment and may for that purpose enter upon any land or buildings on or in which that Equipment is or is believed by the Owner or its agents to be situated.

If, for any reason whatsoever, the Hirer shall delay in delivering any Equipment to the Owner or delay in holding any Equipment available for collection by the Owner or its agents, as the case may be, in accordance with the foregoing provisions of this Clause 23, then the Hirer shall, subject to the provisions of Clause 24 below, continue to pay to the Owner the lease applicable to that Equipment as specified in Section 2 of the relevant Offer for the entire period of the delay, calculated as from the date of expiration or termination of the hire of that Equipment until the date on which the Owner or its agents retake possession of that Equipment.

24. FAILURE TO RETURN EQUIPMENT 

1. If, for any reason whatsoever including but not limited to the Hirer’s failure to comply with Condition 23, the Owner shall not recover possession of any Equipment on the termination of the hire of that Equipment, then in addition to any leases and other moneys payable by the Hirer hereunder, the Hirer shall on demand forthwith pay to the Owner by way of liquidated damages a sum equivalent to the Replacement Value of that Equipment at the time of termination.

2. Nothing in this Condition shall be construed to impose any obligation on the Owner to do any act or take any legal proceedings for the purpose of recovering possession of that Equipment.

25. SOFTWARE

(1) No licence or rights to any software installed or supplied in conjunction with any Equipment are conferred on or granted to the Hirer by this Agreement and none of the provisions of this Agreement shall be construed to confer upon or grant the Hirer any licence or rights to the software.

(2) Where any software is installed and or supplied in conjunction with any Equipment, the Hirer shall use the software only on and in relation to that Equipment and only for the duration of the hire of that Equipment by the Hirer and shall comply in all respects with all conditions and restrictions contained in any licence agreement  (whether between the Owner and the proprietor or licensor of such software or otherwise) regulating the use of the software installed or supplied in conjunction with that Equipment and such other conditions  and restrictions as may be imposed by the Owner from time to time.

(3) The Hirer shall not copy or duplicate or permit any person to copy or duplicate, in any manner, the software, except and to the extent that it is expressly permitted by the terms of the licence agreement referred to in Condition 26(2) or by the written consent of the Owner.

(4) Upon the expiration or termination of the hire of each Equipment, the Hirer shall return to the Owner all the software in the form in which the same were supplied or made available to the Hirer for use in conjunction with the hire of that Equipment.

(5) The Owner makes no statement representation or warranty as regards the condition suitability or performance of any software installed or supplied in conjunction with any Equipment or as regards the right of the Hirer to use the software whether in conjunction with such Equipment or otherwise.

(6) The Owner shall assume no responsibility or liability to the Hirer for any liability loss or damage incurred or suffered as a consequence of:-

(a) any claim by any person (other than the Owner or any successor-in-title of the Owner) against the Hirer for infringement of any rights in the software arising from the Hirer’s possession or use thereof (whether in accordance with the terms of any licence agreement referred to in Condition 26(2) or otherwise);

(b) any error defect deficiency unsuitability or failure in the performance of any such software; and the lease shall not be abated diminished or suspended notwithstanding any such claim or such error defect deficiency unsuitability or failure in performance.

26. 2EACH OFFER SEPARATE AND DISTINCT

Each Offer shall be separate and distinct and shall, unless the context otherwise expressly provides, not be affected by the termination or non-effectiveness of any other Offer(s).

27. TIME

Time shall be of the essence of this Agreement.

28. ASSIGNMENT

(1) The Hirer shall not be entitled to assign its rights or transfer its obligations hereunder to any third party.

(2) The Owner may, without the Hirer’s consent:-

(a) transfer, pledge, mortgage, charge or otherwise encumber any Equipment or any part thereof; and/-do-

(b) assign or transfer all or any part of its rights and obligations under this Agreement to any third party; on such terms and conditions as the Owner may deem fit, subject however to this Agreement.

29. NO WAIVER

No relaxation forbearance delay or indulgence by the Owner in enforcing any of the terms and conditions of this Agreement or the granting of time by the Owner to the Hirer shall prejudice affect or restrict the rights and powers of the Owner hereunder nor shall any waiver by the Owner of any breach hereof operate as a waiver of any subsequent or any continuing breach hereof.

30. AGREEMENT TO BIND SUCCESSORS-IN-TITLE

This Agreement shall be binding on the successors-in-title and assigns of the Owner and successors-in-title and permitted assigns (if any) of the Hirer.

31. AGREEMENT SUPERSEDES PREVIOUS ARRANGEMENT

This Agreement embodies all the terms and conditions between the parties hereto and supersedes and cancels in all respects all previous arrangements, agreements and undertakings if any between the parties hereto whether such be written or oral.

32. STAMP DUTY AND LEGAL CHARGE

The Hirer shall pay all legal charges (including the Owner’s solicitors fees on a solicitor and client basis) in respect of this Agreement and all the Offers and all stamp duty thereon.

33. SEVERABILITY

Each provision of this Agreement shall be severable from the other provisions herein and shall not be affected by any illegality or unenforceability of any other provision herein contained.

34. NOTICES

Any notice request or demand requiring to be served by either party hereto to the other under the provisions of this Agreement shall be in writing and shall be deemed to be sufficiently served:-

(a) if it is given by the party or its solicitor or solicitors by post in a registered letter addressed to the party to be served at its address hereinbefore mentioned and in  such  a case it shall be deemed (whether it is actually delivered  or not) to have been received at the time when  such  registered letter would in the ordinary course be delivered; or

(b) if it is given by the party or its solicitor or solicitors and despatched by hand to the party to be served or its  solicitor or solicitors.

35. ADDITIONAL TERMS AND CONDITIONS

The parties hereto agrees to be bound by the additional terms and conditions as specified in Section 8 of the relevant Offer for the hiring of the relevant Equipment referred to in such relevant Offer, which shall be deemed to form an essential part of this Agreement in relation to that Equipment.

36. GOVERNING LAW

This Agreement shall be governed by the laws of Malaysia.