(THESE ARE IMPORTANT CONDITIONS CONCERNING YOUR RIGHTS AND OBLIGATIONS AND SHOULD BE READ CAREFULLY)
1. DEFINITIONS AND INTERPRETATION
In this agreement unless the context indicates otherwise:
1.1 “Auto Dealers Guide”: Mead and McGrouther’s publication containing, inter alia, recommended selling prices of vehicle;
1.2 “Additional driver”: such person who, in addition to the driver, is duly authorized by the Company to drive the vehicle as reflected on the rental agreement;
1.3 “Claims Administration Fee”: an administration fee charged in all instances where a claim needs to be processed in respect of damage, loss of or theft of the vehicle and is charged per individual incident/claim;
1.4 “Company” CMH Car Hire (Pty) Ltd t/a First Car Rental S.A;
1.5 “Contract Fee”: a once-off charge per rental to cater for inter alia the cost of processing and storage of documents;
1.6 “Damages” (in relation to the vehicle) is the actual expenditure in towing, transporting and storing the vehicle, repairing any damage (including tyre and rim damage), replacing parts or accessories, remunerating an expert to inspect collision damage and report thereon (an invoice, job card or quotation produced by the Company to be prima facie proof of any such expenditure) or any other charges incurred related to an incident of whatsoever nature and includes a total loss when applicable;
1.7 “Day”: a period of 24 hours (or any part thereof), calculated from the time out as reflected on the face of the rental agreement;
1.8 “Driver”: such person who is duly authorized by the Company to drive the vehicle as reflected on the face of the rental agreement;
1.9 “Extended period”: any extension of the rental period authorised by the Company, which extension must be made in writing;
1.10 “The official rates brochure”: the Company’s current official brochure on rental rates and fees and other general information issued from time to time;
1.11 “The rental period”: the period between the date and time out and the termination date and time as specified in the rental agreement or if such period is extended, the time and date entered on the Company’s records;
1.12 “The Renter”: all of the persons, natural or juristic, jointly and severally, whose names appear on the rental agreement hereof;
1.13 “The Vehicle”: the vehicle described on the rental agreement including all keys, tyres, tools, equipment, accessories and documents in and on the vehicle when the Renter takes delivery thereof;
1.14 “Traffic Fine Administration Fee”: an amount levied to administer any traffic fine incurred by the Renter whilst renting the vehicle;
1.15 “Total loss” (in relation to a vehicle): – Damages where the estimated costs of repairs is such that the vehicle is, in the sole and absolute discretion of the Company uneconomical to repair in relation to the value and condition of the vehicle for the time being; or when the vehicle is stolen and/or lost. The amount of the total loss will be the retail value as reflected in the Auto Dealers Guide or if not reflected therein, the manufacturer’s recommended retail price of a new vehicle, as supplied by the manufacturer, as at the date of loss, less any salvage;
1.16 “Vehicle check sheet”: a signed check sheet evidencing the condition of the vehicle on delivery and return to the Company;
1.17 “Waiver”: a reduction of the liability of the Renter in the event of an accident / theft / loss of the vehicle;
1.18 The singular shall include the plural and vice versa, pronouns of any gender shall include those of the other gender and natural persons shall include legal and juristic persons and vice versa;
1.19 This agreement contains all the express provisions agreed upon. Any variation/s including any extension to the rental period must be agreed to in writing and signed by both the Renter and the Company. If this agreement is not validly extended, the waiver in terms of clause 12 and 13 will immediately lapse on expiry of this agreement.
2. RENTAL OF VEHICLE
The Company rents to the Renter, who hires the vehicle subject to the terms and conditions as set out herein. The Renter will be bound by these terms and conditions, whether he was driving or not.
3. DELIVERY OF THE VEHICLE
3.1 Delivery of the vehicle takes place, and risk passes to the Renter at the time the Renter and/or driver or his representative takes possession of the keys and/or vehicle;
3.2 The vehicle shall be deemed to have been delivered in a roadworthy condition and in good order and repair and without any damage to inter alia the paintwork, upholstery and accessories (unless such damage is recorded in writing and signed by both parties). Any damage not so recorded will be for the account of the Renter.
4. USE OF VEHICLE
4.1 The vehicle may be utilised for the rental period or any extended period, which must be extended in writing;
4.2 The Renter and/or driver agrees that any extension so noted on the Company’s records would correctly reflect such extended period;
4.3 The vehicle may only be driven by the Renter, the driver or the additional driver;
4.4 During the rental period, the vehicle may not be used:- for the conveyance of passengers and/or goods for reward; to propel or tow any other vehicle, (including any caravan or trailer) unless authorised by the Company in writing; to transport goods in violation of any customslaws or in any other illegal manner; in any motor sport or similar high risk activity; beyond the borders of the Republic of South Africa, unless authorised by the Company in writing; or in any area where there is a risk of incidents of civil unrest, political disturbance or riot or any activity associated with any of the aforegoing;
4.5 The Renter and/or driver shall be responsible for all damages to the vehicle as a result of accidents where no other vehicle/animal or object was involved;
4.6 The Renter and/or driver shall make adequate provision for the safety and security of the vehicle and, in particular, but without limiting the generality of the afore going, he shall keep the vehicle properly locked and secured and immobilised and the burglar alarm (if any) activated and any anti-theft device in the vehicle properly secured and in place when the vehicle is not in use;
4.7 The Renter and/or driver will make sure that the keys of the vehicle are under the Renter and/or driver’s control at all times;
4.8 The Company will at all times remain the owner of the vehicle;
4.9 The Renter shall at his own expense maintain radiator and oil reservoir with sufficient quantities of water and oil respectively;
4.10 In the event of the Renter travelling in excess of fifteen thousand kilometres on petrol engine vehicles and five thousand kilometres on diesel engine vehicles during the rental period, the Renter shall ensure that the vehicle receives the required lubrication maintenance.
5. RETURN OF THE VEHICLE
5.1 The Renter and/or driver shall return the vehicle, at the Renter’s expense to an authorised representative of the Company at the agreed time and location;
5.2 The Renter and/or driver acknowledges that failure to return the vehicle in terms of this agreement shall constitute illegal possession by him, and the Company may repossess the vehicle wherever same may be found and from whomsoever is in possession thereof. Any costs involved in recovering the vehicle will be for the account of the Renter;
5.3 Should the vehicle not be returned as indicated in above, any waiver option in terms hereof will become null & void, & the vehicle may be reported as stolen to the relevant authorities;
5.4 The vehicle shall be returned undamaged, with all parts and fittings, in good order and in roadworthy condition, fair wear and tear excepted;
5.5 Upon returning the vehicle to Company, the Renter and/or driver shall:
5.5.1 ensure that the vehicle is properly locked and secure; and
5.5.2 hand the keys to an authorised representative of the Company and complete and sign a check sheet, or drop the keys in a drop safe provided by the company, in the event that the offices are not open for business;
5.6 The sole risk of loss or damage to the vehicle will remain vested in the Renter until such time as the Company has recorded the return of the vehicle;
5.7 The Renter shall be responsible for all and any costs which may be incurred by the Company in so recovering and/or repossessing the vehicle.
6. TERMINATION/CANCELLATION OF RENTAL
Notwithstanding anything to the contrary contained in this agreement, the Company shall be entitled to terminate this agreement without any explanation at any time by notice (oral or in writing depending on the situation) to the Renter and/or driver, whereupon the renter shall return the vehicle to the company forthwith. In the event of failure to return the vehicle to the company, the company shall be entitled at any time to retake possession of the vehicle, wherever found and from whosoever has possession thereof. The obligations of the Renter and/or driver and the rights of the Company under this agreement shall continue in full force and effect until the vehicle has been returned to the Company in terms of this agreement and the Renter and/or driver has complied with all his obligations.
7. THE RENTER/DRIVER
7.1 The Renter and/or driver warrants that the details filled on the rental agreement are true and correct and that he is duly authorised to enter into this agreement, and that all the particulars given to the Company are true and correct;
7.2 The vehicle may not be driven by any person other than the Renter;
7.3 Notwithstanding anything else to the contrary in clause 7.1 above, the vehicle may not be driven by any person under the age of 21, and/or who has not been in possession of a valid drivers license for 3 years unless otherwise agreed to in writing by the Company in its sole and absolute discretion;
7.4 The Renter and/or driver warrants that at all times the vehicle will not be driven by any person whose blood alcohol concentration exceeds the limit permitted by any applicable law or regulation or whilst under the influence of intoxicating liquor or of a narcotic drug or similar substance and that every driver of the vehicle will have a valid license to drive the vehicle, will comply with all applicable laws and will comply in all respects with the provisions of this agreement;
7.5 If the vehicle is driven by anyone other than the Renter and/or driver, then, without derogating from any rights or remedies which the Company may have, the Renter and/or driver shall remain liable for all his obligations in terms of this agreement and in particular, he shall be liable to the Company as if he had been driving the vehicle.
8. RENTAL RATES AND CHARGES
8.1 The Renter agrees to pay the Company the rental rates plus all other charges and fees opted for or utilised by the Renter as contemplated on the rental agreement up and until the vehicle is returned, including but not limited to miscellaneous charges, valet fees, airport surcharges, tourism levy, claims administration fee, contract fee, traffic fine administration fee, one way drop off fee, over border charges, delivery fee, collection fee, standard and executive damage and theft waiver, fuel, additional driver(s) fee;
8.2 Rental rates charges and fees will be calculated for the whole of the rental period at the rates and on the basis set out in the official rates brochure;
8.3 In determining the rental charges, the distance travelled by the vehicle (where required) shall be determined from the vehicle’s odometer. If this is not possible for any reason, the Company in its sole discretion, may establish same on any other fair and reasonable basis and the Renter shall be obliged to furnish all such information and assistance as the Company may reasonably require for that purpose. If the odometer has been tampered with, then the kilometres travelled will be deemed to be 500 kilometres per day. Odometer readings will be taken from depot to depot;
8.4 The Renter shall also be liable for all fines, penalties and like expenses including but not limited to traffic and other offences, arising out of the use of the vehicle during the rental period and the Renter accordingly indemnifies the Company against all such liability;
8.5 Notwithstanding anything to the contrary contained in this agreement the Company will levy a young driver surcharge reflected on the Rental Agreement where the driver is less than 21 years of age. The young driver surcharge is subject to change without notification.
9.1 All payments are due on demand, but at the latest on expiry of the rental period (unless otherwise agreed in writing). All charges payable by the Renter shall be paid by credit card or in cash on termination of the rental period unless the Renter has a valid account with the Company and/or the Company requires all or any of the charges to be prepaid in advance;
9.2 The Renter will not be allowed to set-off or withhold payment of any amounts due in terms of this agreement for any reason whatsoever;
9.3 If the Company has agreed to accept payment from the Renter by credit card, the Renter’s signature of this agreement will constitute authority for the Company to obtain authorization and/or payment. The signature will also constitute authority for the issuer of the card to debit him with the total amount due to the Company (including but not limited to any damages or loss suffered by the Company);
9.4 The Renter remains liable for payments of all amounts due until the Company is paid in full by the issuer of the card;
9.5 In the event that the Renter and/or driver returns the vehicle to the Company prior to the due date on the reverse hereof, the Renter shall pay, at the discretion of the Company either the usual rates and charges applicable to the period and/or kilometres actually used, or the rates and charges as if the full rental period and/or kilometres occurred;
9.6 In the event of an accident and/or if the vehicle is stolen and/or lost, the amount of the damages or the total loss as suffered by the Company is payable on demand;
9.7 If any amount is not paid on due date, the Company may without prejudice to any rights it may have, charge interest on the overdue amount at the legal rate;
9.8 A certificate of any director, manager or accountant of the Company as to any amount owed by the Renter to the Company shall constitute prima facie proof of the amount.
10. RENTER’S RISKS AND LIABILITIES
10.1 The vehicle is at the sole risk of the Renter and/or driver (fair wear and tear excepted) from the moment the key and/or the vehicle is handed to the Renter and/or driver until such time as the vehicle and key is returned in terms of clause 5;
10.2 The Renter shall be liable for any damage and/or total loss sustained to the vehicle, howsoever the damage and/or total loss is caused and whether or not it is attributable to his fault or negligence (including but not limited to hail damage);
10.3 The above liability may be reduced by the Renter opting to purchase one or more of the Company’s non compulsory Collision Damage or Theft Loss Waiver products which are subject to the terms stated below. The acceptance or decline of the options referred to are contracted for and indicated on the rental agreement. The liability amount applicable for each option is also reflected on the rental agreement;
10.4 If contracted for, the Renter will only be liable for the amount as indicated as the applicable excess as stated in the rental agreement, (provided there was no breach of any conditions);
10.5 The Company, in its sole and absolute discretion, reserves the right to, in the event of loss or damage which has occurred in a situation where no physical contact is made with another vehicle or animal or object or person (in or on the road surface) charge the Renter either the actual amount of the loss or damage suffered or double the liability amount reflected on the rental agreement (notwithstanding the fact that waivers were opted for);
10.6 Should the vehicle be damaged, stolen or lost in a situation where there was a breach of any of the terms and conditions as contained herein, the Renter will be liable for the total loss and/or damage suffered by the Company (notwithstanding the fact that waivers were opted for);
10.7 Standard, Super and Executive Damage Waiver and Theft Waiver do not cover:
10.7.1 damage to glass, tyres and rims;
10.7.2 damage to undercarriage;
10.7.3 damage caused by water,
10.7.4 damage and/or total loss sustained as a result of Renter and/or driver negligence;
10.7.5 damage and/or total loss sustained when no other vehicle was involved in the accident;
10.7.6 damage and/or loss sustained whilst the Renter and/or driver is in breach of any applicable traffic laws or ordinances;
10.7.7 damage and/or total loss or sustained where incidents are not reported as contemplated in clause 14;
10.7.8 damage and/or loss sustained where the incident takes place outside the Republic of South unless prior written authority for the vehicle to be taken outside such country has been obtained;
10.7.9 damage and/or loss sustained if at any time the vehicle is driven by an unauthorised driver;
10.7.10 damage and/or loss sustained when in the opinion of the Company the vehicle has been driven or used in a manner which prejudices the Company’s interests or rights therein and / or as prohibited in clause 4;
10.7.11 damage and/or loss sustained where the driver was not holding a valid unendorsed drivers licence at the time the damage or loss was sustained;
10.7.12 damage and/or total loss sustained where an extension of the rental agreement is not authorised in writing by the Company and where the rental period has expired;
10.7.13 damage and/or loss sustained as a result of the vehicle being driven on an unsuitable road for the type of vehicle rented as determined in the sole discretion of the Company (and which specifically, but not exclusively includes gravel roads);
10.7.14 damage and/or loss sustained to the vehicle while the vehicle was being driven (at the time of damage and total loss) by a person whose blood alcohol concentration exceeded the limit permitted by any law or regulation or whilst under the influence of intoxicating liquor, narcotic drug or similar substance;
10.8 The Renter and/or driver is liable for all fines and/or penalties incurred during the rental period and hereby authorises the Company to disclose any information required by a relevant authority to process same;
10.9 Notwithstanding anything in this agreement, the company shall not be obliged to make, institute or proceed with any claim which the company may otherwise have had against a third party for recovery of any loss or damage to or in connection with the vehicle and, accordingly, the company shall be entitled, in its fair and reasonable discretion, to abandon such claim or to settle such claim on any terms.
11. WAIVERS DECLINED
11.1 The Renter may not decline the waivers offered by the Company unless he signs the Company’s “Self Insurance Agreement”;
11.2 In the event the Renter and/or driver does not opt for any of the waivers offered by the Company, the Renter will be liable, in addition to any other amount provided for in the rental agreement, for damages suffered by the Company in consequence of it not being unable to rent the vehicle, which damages will be calculated on the basis of the contracted daily rate on the rental agreement or on the official rates brochure plus 100 km per day for the period that the vehicle was inoperative.
12. WAIVER (REDUCTION) OF LIABILITY ACCEPTED
The acceptance of Standard, Super or Executive Damage and Theft Waivers reduce the Renters’ liability to the extent of the excess reflected on the rental agreement and/or on the official rates brochure in force at the time of rental.
13. PERSONAL ACCIDENT BENEFIT (PAB)
13.1 If the Renter accepts the purchase of personal benefit as indicated on the rental agreement, his acceptance shall constitute acceptance by him of the personal accident cover policy and other accompanying arrangements, if any, procured by the Company for his benefit but subject to all the terms and conditions of that policy and the other accompanying arrangements, if any. The Renter acknowledges that the Company itself shall not under any circumstances have any liability to him under or for any of the benefits under that policy or the accompanying arrangements, if any;
13.2 Such personal accident benefit will cover injuries sustained by the driver and the passengers in the vehicle (not to property or occupants of the other vehicle), but will only cover the total aggregate cost of injuries to the driver and passengers to a maximum of R20 000,00 for any one accident, being the Company’s maximum liability in terms of such cover.
14. PROCEDURE IN THE EVENT OF AN INCIDENT INVOLVING THE VEHICLE
14.1 If at any time the vehicle is damaged, stolen or lost, the Renter and/or driver shall take every reasonable precaution to safeguard the interest of the Company including but without being limited to, the following where appropriate, he shall:
14.1.1 notify the Company immediately or within 3 hours of becoming aware of the occurrence and shall within twenty-four hours of the occurrence in question complete and furnish to the Company, the Company’s standard claim form together with a copy of his drivers license;
14.1.2 obtain the name(s) and addresses of everyone involved and of possible witnesses;
14.1.3 not admit any responsibility or liability nor release any party from any liability or potential liability, not settle any claim or potential claim against or by any party, not accept any disclaimer of liability;
14.1.4 notify the police within twenty-four hours of the occurrence in question and furnish the Company with an accident report number and the details of the relevant police station;
14.1.5 make adequate provision for the safety and security of the vehicle and will not abandon the vehicle under any circumstances;
14.1.6 co-operate with the Company and its insurer in the investigation, the making or instituting of any claim or action and the defence of any prosecution, claim action relating to the incident (including the making of an affidavit if he is requested to do so);
14.2 If the Renter is not the driver, then, without in any way derogating from the Renter’s obligations in terms of clause 14, the Renter shall ensure that the driver complies with the provisions of 14.1 and the Renter warrants that the driver will do so;
14.3 The Renter shall within 24 hours of receipt thereof furnish to the Company (and if the Renter is not the driver, the Renter shall also ensure that the driver does) any notice of claim demand, summons or the like which the Renter or the driver may receive in connection with the vehicle;
14.4 The Renter and/or driver warrant that the information completed in the Company’s claim form as referred to in clause 14.1.1 will be complete, true and correct in every respect;
14.5 The Renter shall not be entitled to carry out or authorise repairs or modifications to the vehicle. In the event of the Company having to effect repairs as a result of any action taken by the Renter, such repairs will be for the account of the Renter;
14.6 Failure and/or refusal to adhere to the conditions as set out in clause 14.1, will render the Renter and/or driver liable for any damages suffered by the Company.
15. INDEMNITY OF THE COMPANY BY THE RENTER AND/OR DRIVER
15.1 Neither the Company nor any of its directors, officers, employees, servants or agents shall be liable for any loss or damage (including any loss or damage to property left or transported in the vehicle, any loss of life or any loss or damage arising from the installation or condition of a child seat or any other accessory in and/or on the vehicle), whether direct, indirect, consequential or otherwise arising from the rental by the Renter of the vehicle, including, without limitation, any defect in and/ or mechanical failure of the vehicle (howsoever arising and of whatever nature) or the failure of the Company to detect defects in or mechanical problems with the vehicle and whether such loss or damage results from breach of contract or delict (including negligence or gross negligence) or otherwise, which may be suffered by the Renter and/or any third party and/or passenger;
15.2 The Company, its directors, officers, employees, servants or agents are accordingly indemnified by the Renter or his estate against any claim of any nature whatsoever and howsoever arising for any damages or loss which might be instituted against it arising from or connected with or pursuant to the renting of the vehicle contemplated in these terms and conditions.
16.1 The rental agreement contains the entire agreement between the parties regarding the matters contained herein and neither party shall be bound by any undertakings, representations, warranties, promises or the like not recorded by the Company;
16.2 If any provision of this agreement is found by a court of law to be invalid or void, such provision will be severed from the remaining provisions, without affecting the remainder of the provisions hereof;
16.3 No extension, latitude or other indulgence that may be given or allowed by the Company in respect of performance of any of the Renter’s obligation hereunder, and no delay or forbearance in the enforcement of any right of the Company arising from this agreement, and no single or partial exercise of any right under this agreement will, in any circumstances be construed as implied consent or election by the Company or operate as a waiver or a novation or otherwise affect it’s rights in terms of this agreement or preclude it from enforcing strict compliance with any provision or term hereof;
16.4 The Renter authorises the Company to insert any particulars in the agreement that are not known or are unavailable at the time of signature;
16.5 This agreement and all matters or disputes arising there from or incidental thereto shall be governed and construed in accordance with the laws of the Republic of South Africa;
16.6 The Renter further consents to the jurisdiction of the Magistrates Court, should the Company, at its election, bring legal proceedings in a Magistrates Court, notwithstanding the fact that the amount involved exceeds the jurisdiction of the Magistrates Court. The Renter agrees, however, that the Company in its sole discretion may institute any such action or proceedings in any division of the High Court that may have jurisdiction;
16.7 The Renter shall not be entitled to cede any of his rights or obligations under this agreement or to rent or part with possession of the vehicle, its tools or equipment;
16.8 If the Company institutes any legal proceedings against the Renter to enforce any of its rights under this agreement it shall be entitled to recover from the Renter all the legal costs it incurs to its own attorneys in accordance with their then usual charges and assessed as between attorney and own client including but not limited to collection commission and tracing agent charges;
16.9 If the Renter enters into this agreement as an agent on behalf of any disclosed or undisclosed principal, he shall be jointly and severally liable as surety and co-principal debtor in solidum with his principal for the due fulfilment of all of the obligations of his principal to the Company in terms of this agreement;
16.10 If the driver or additional driver is not the same as the Renter, then the driver by his signature on the rental agreement binds himself/herself as surety and co-principal debtor in solidum with the Renter in favour of the Company for the due fulfilment of all of the obligations of the Renter to the Company in terms of this agreement;
16.11 The Renter chooses the address specified on the face of the rental agreement as his domicilium citandi et executandi (i.e. his address for service of all legal processes);
16.12 The Renter authorises the Company to conduct with any one or more credit bureau whatever checks, on the Renter, the Company deems necessary to adequately assess the risk of contracting with the Renter. The Company shall be entitled to record any default by the Renter with any credit bureau. Such records may be made available by the credit bureau to third parties, in which case the Renter indemnifies the Company from any repercussions which such disclosures may have on the Company;
16.13 The Renter acknowledges that certain vehicles may be fitted with a management system to record certain information relating to the vehicle rented. The Company shall be entitled to use such information (including in court proceedings) as it deems fit.