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1 .1 “Agreement” – shall mean the face of this document read together with the terms and conditions set out hereunder;
1.2 “Commencement Date” – shall mean the date set out on the face hereof and which shall be interpreted to mean the Rental Period shall begin operating;
1.3 “Licenced Driver” – shall mean the natural person who has been authorised by Top Notch and the Renter (if applicable) to be the driver of the Motor Vehicle to the Rental Period and who is listed as such on the face of this document;
1.4 “Motor Vehicle” – shall mean the motor vehicle which is being hired by the Renter and which is reflected on the face of this document and any substitute or replacement vehicle;
1.5 “Parties” – shall mean the signatories to this Agreement, Namely the Renter, additional drivers and Top Notch;
1.6 “Rental Period” – shall mean the period for which the Motor Vehicle is being hired by the Renter from Top Notch;
1 .7 “Renter” – shall mean the natural person to whom the Motor Vehicle is being rented, alternatively the corporate entity which is renting the Motor Vehicle and which is represented by the signatory to this Agreement, as reflected on the face of this document;
1.8 “Return Date” – shall mean the date and time stipulated on the face of this document, which shall be the date and time at which the Renter shall return the Motor Vehicle to Top Notch; (This works on a 24 hour cycle = 1 day);
1.9 “Top Notch” -shall mean Top Notch Rental CC, a close corporation registered in terms of the laws of the Republic of South Africa, with registration number 2001/083924CK;
2. RENTAL AND DELIVERY
2.1 Top Notch hereby rents to the Renter the Motor Vehicle subject to all the terms and conditions contained in this Agreement.
2.2 The Licensed Driver by his/her signature on the face of this document binds themselves in respect of all the obligations of the Renter, insofar as same may be applicable to the Licenced Driver and all references to the Renter throughout this Agreement shall include the Licenced Driver in those instances where the Licenced Driver and the Renter are different persons. A Valid Driver’s Licence is the new credit card type of driver’s licence or an International Driver’s Licence or foreign Drivers licence printed in English provided they are not Permanent Residents.
2.3 The Agreement between the Parties shall commence on the Commencement Date upon the Renter taking delivery of the Motor Vehicle and shall terminate once the Motor Vehicle has been returned by the Renter to Top Notch.
2.4 The Renter hereby undertakes to return the Motor Vehicle to Top Notch on the Return Date undamaged and in the same condition as when it was received, fair wear and tear excepted.
2.5 Ownership of the Motor Vehicle shall always remain vested in Top Notch. The Renter is under obligation to ensure that all and any dents, scratches or chips are noted at the commencement of the Agreement.
2.6 Upon signature of this Agreement, the renter acknowledges that they have taken delivery of the Motor Vehicle in good order and condition and acknowledges that the fuel-tank, oil reservoir and radiator are, at the time of receipt of the Motor Vehicle, filled to capacity. The Renter hereby undertakes to return the Motor Vehicle to Top Notch with a full tank of fuel. In the event that the Motor Vehicle is returned to Top Notch and the fuel tank is not filled to capacity, Top Notch shall refill the tank and such refueling shall be for the account of the Renter. Should payment be effected by Credit Card, a 5% surcharge for Credit Card payment will be levied on the fuel.
2.7 The Renter hereby confirms that he/she is at least 21 (twenty one) years of age and has a valid and unendorsed driver’s licence, which is valid for the class of Motor Vehicle being hired. The Renter further confirms that his/her driver’s licence has not been suspended, revoked or restricted in any way.
3. RENTER’S OBLIGATIONS
The Renter hereby undertakes that the Motor Vehicle shall not be used or driven:
3.1 for the conveyance of any person or property for consideration, whether expressed or implied;
3.1.2 in contravention of the law;
3.1.3 by any person who has given any false information;
3.1 .4 in any race, speed test or other motor sport event;
3.1.5 to tow or propel any other vehicle or trailer unless specified trailer on the Agreement.
3.1.6 by any person under the age of 21 (twenty one) years of age; (full value of vehicle liable within 7 days or liable to interest on outstanding amount;
3.1.7 By anyone other than the Renter and/or the Licenced Driver, if applicable or by any person under the influence of alcohol or drugs;
3.1.8 Should any of these obligations be contravened, then the Renter is liable for the full retail value of the Motor Vehicle or all costs to restore the Motor Vehicle to its original state within 7 (seven) days or be liable for interest charged on the outstanding amount.
3.2 The Renter shall in addition not:
3.2.1 lend or hire the Motor Vehicle to any third person;
3.2.2 permit the Motor Vehicle to be in the possession to anyone other than the Renter and/or the Licenced Driver, if applicable;
3.3 The Renter further undertakes to take all reasonable endeavours to protect the Motor Vehicle from theft or damage and the Renter shall be responsible for locking the Motor Vehicle and activating any alarms, immobilisers or any other anti-theft devices;
3.4 If the Renter and the Licenced Driver are not the same person, the Renter hereby acknowledges that he/she shall be liable for any actions of such Licenced Driver and in addition guarantees any obligations of such Licenced Driver to Top Notch.
3.5 The Renter undertakes to return the Motor Vehicle to Top Notch for service and lubrication after every 10,000km (ten thousand kilometres) travelled or alternatively, to satisfy Top Notch that it has effected at its own cost, the service and lubrication required in accordance with the manufacturer’s specifications. Failing the Renter’s compliance with this clause, he/she shall be liable for any damage or loss whatsoever which Top Notch may suffer in consequence of such failure to service and/or lubricate the Motor Vehicle.
3.6 The Renter undertakes that in the event of a collision or damage of the Motor Vehicle, he/she shall not be entitled to arrange to the towing or repair of the Motor Vehicle without the prior consent of Top Notch or the Renter will be liable for such accounts personally. Breakdowns outside of South Africa refer clause 3.4.
Top Notch hereby rents the Motor Vehicle to the Renter at the daily tariff set out on the face of this document. The Renter hereby undertakes to pay to Top Notch on demand all additional charges which may be applicable as they become due and payable and in this respect the Renter shall be liable to pay:
4.1.1 a charge calculated at the kilometre rate specified on the face of this document for the kilometres covered during the Rental Period. The Renter hereby confirms that the odometer reading of the Motor Vehicle on the Commencement Date. In the event that the odometer ceases to function through mechanical failure during the Rental Period, the distance in kilometres covered shall be assessed by Top Notch in its discretion and such assessment shall be binding upon the Renter. In the event that the odometer ceases to function during the Rental Period for any other reason,
Top Notch may at its option either assess the distance in kilometres covered or, where the seals have been broken or tampered with, charge the Renter and additional charge calculated rate 400km (four hundred kilometres) per day for the full Rental Period.
4.1.2 A collection charge calculated at the kilometre rate specified on the face hereof, per kilometre travelled by Top Notch in collecting the Motor Vehicle plus a charge for all the fuel consumed during such collection, in the event of the Motor Vehicle not being returned to a depot or agreed place of return;
4.1.3 all taxes as are payable in law;
4.1.4 all fines, penalties and Court cost imposed for parking or traffic offences in respect of the Motor
Vehicle which are incurred during the Rental Period;
4.1.5 Top Notch’s legal costs on the attorney and client scale, including collection costs in the event of Top Notch having to enforce any of its rights hereunder;
4.1.6 all insurance costs set out in clause 5 hereto; the reasonable valet costs for cleaning the Motor Vehicle which shall not exceed R300.00 (Three hundred rands) in the event that the Motor Vehicle is returned to Top Notch in a condition in which the interior is excessively soiled, which Top Notch shall assess in its sole and absolute discretion;
4.1.7 rental costs based on the daily tariff set out on the face hereof, in the event that the Motor Vehicle has to be repaired as a result of any damage caused to the Motor Vehicle during the Rental Period, which daily shall be levied for each day upon which the Motor Vehicle cannot be utilised due to the repair work being undertaken and shall be levied in respect of loss of income suffered by Top Notch;
4.1.8 any other additional charges or costs which Top Notch may incur during the Rental Period for miscellaneous services rendered.
4.2 All amounts due and payable in terms of this clause 4 shall be paid in full on the date upon which the Motor Vehicle is returned to Top Notch by the Renter:
4.3 The Renter shall upon collection of the Motor Vehicle on the Commencement Date, pay to Top Notch a deposit which is refundable upon return of the Motor Vehicle at the conclusion of the Rental Period.
4.4 Notwithstanding anything to the contrary contained herein, the Renter shall be liable to pay interest on any outstanding amounts due and payable hereunder, calculated at the prime lending rate as quoted by Top Notch’s bank, from the date upon which the payment fell due until the date of payment in full.
4.5 The Renter’s liability will be doubled in the event of damage being caused to the Motor Vehicle by driving on roads not suitable for the Motor Vehicle or, where the Motor Vehicle was damaged in a collision or incident where no other vehicle came into physical contact with the Motor Vehicle. This includes any accident between 00.00hr & 05.00hr, driving on gravel roads or weekends.
The Motor Vehicle is insured in terms of an insurance policy. In respect of the said insurance and as a condition of the Agreement, the Renter warrants that:
5.1.1 neither he/she nor any person who will drive the Motor Vehicle who to his knowledge has defective vision or hearing, has ever had a fit, has any physical infirmity, has been convicted of any offence in connection with the driving of any motor vehicle, or has had any driver’s licence endorsed, suspended, revoked or cancelled;
5.1.2 no insurer or underwriter in respect of any motor insurance has ever declined his/her application; cancelled his/her policy, refused to renew his/her policy; required an increased premium or imposed conditions on him/her.
5.2 The Motor Vehicle is covered under the insurance policy which has been issued by a registered insurer and is insured against:
5.2.1 loss and/or damage to the Motor Vehicle;
5.2.2 theft and hijacking;
5.2.3 fire; and/or damage to the property of third parties other than where such damage is caused through the fault of the Renter.
5.3.1 If for any reason whatsoever (as long as not attributable to Top Notch) the Motor Vehicle is impounded by the Police or Traffic Authorities, the Renter agrees to pay Top Notch as and by way of a genuine and fair estimate of Top Notch’s damages. All the charges provided herein calculated from the date of inception of this contract until the release of the Motor Vehicle to Top Notch. If the Motor Vehicle is still impounded after six months of date of signature of the contract, it shall be deemed irrecoverable and the Renter shall forthwith pay Top Notch (in addition to the damage specified above) the cost of replacing the Motor Vehicle with an identical new one.
5.4 The contents of the Motor Vehicle are excluded from the benefits of the insurance policy:
5.5 Subject to compliance with the warranties set out in clause 5 above and subject to the provisions of clause 3.1 above, and provided that the Renter shall have initialled the box under the heading “Vehicle Insurance” on the face of this document, the Renter shall be entitled to the benefits of such insurance policy, provided further that the Renter:
5.5.1 has not breached any provisions of this Agreement;
5.5.2 has immediately reported any damage, accident, breakdown or theft involving the Motor Vehicle or its accessories to Top Notch and the South African Police Services;
5.5.3 immediately delivers to Top Notch every demand, notification, summons or process received relating to any claim, action or prosecution in connection with any collision or occurrence involving the Motor Vehicle; refrains from admitting any liability for any claim or assisting any claimant in regard thereto;
2.5.4 co-operates with Top Notch or its insurer in the investigation and defence of any prosecution, claim or action and completes any documentation required by Top Notch, the insurer or South African Police Services;
5.6 In the event that the Renter complies with the provisions of clause 5.4 hereto, it shall only be responsible for the compulsory excess referred on the face of this document.
5.7 Should the Renter decline, fail or neglect to initial the box under the heading “Vehicle insurance” on the face of this document, he/she shall be fully liable for the total amount of damages sustained to the Motor Vehicle irrespective of whether the Motor Vehicle was driven by the Renter personally or by anyone else.
5.8 The insurance policy does not apply to or cover:
5.8.1 any damage which Top Notch may suffer as the result of loss of use of the Motor Vehicle which expenses are for the account of the Renter as set out in clause 4.1.8 or any contents of the Motor Vehicle;
5.8.2 claims arising from injuries caused to passengers of the Motor Vehicle. The driver of the Motor Vehicle or any third parties, which claims shall be for the account of the Renter, and
5.8.3 damage or destruction of property owned by, rented to, in charge of, or transported by the Renter, which damages shall be for the account of the Renter;
5.8.4 loss and/or damage to wheels, tyres, rims of the tyres and/or the windscreen of the Motor Vehicle and such costs shall be for the account of the Renter;
5.8.5 any damage, loss or destruction not caused as a result of a collision, hijacking, theft or fire, which damages shall be for the account of the Renter;
5.9 the Renter shall be liable for any and all damage to the vehicle of whatsoever nature and cause or any theft of the Motor Vehicle or out of thereof whilst the Motor Vehicle is in the Renter’s possession, subject to the condition that the Renter’s liability shall be limited to 10% (ten per cent) of the retail value of the Motor Vehicle.
Should the Renter’s insurance claim be repudiated by his insurer and/or otherwise agreed between the Renter and his insurer for whatever reason, then the entire cost of renting any vehicle in terms of this Agreement will be for the Renter’s account.
7.1 Top Notch accepts no responsibility for any delays caused or damages suffered as a consequence of the breakdown of the Motor Vehicle and/or other circumstances beyond the control of Top Notch.
7.2 Top Notch shall not be liable for the loss or damage to any property left or transported in or upon the Motor Vehicle.
7.3 Top Notch shall not be liable for any loss or damage caused, whether direct or indirect arising out of any mechanical failure of the Motor Vehicle, nor for any indirect loss, loss of profit or consequential damages suffered as a result thereof.
8.1 This agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof and no representation by either of the Parties or their agents, whether made prior or subsequent to the signing of this Agreement, shall be binding on either of the Parties unless in writing and signed by both Parties hereto.
8.2 Under no circumstances shall the Renter be deemed nor shall it purport to be an agent; servant or employee of Top Notch.
8.3 The Renter shall not in any manner cede, assign, alternate or transfer any of its rights or obligations arising out of this Agreement, without the prior written consent of the Renter.
8.4 In the event of a breach of any of the terms and conditions of the Agreement by the Renter or if in the opinion of Top Notch the Motor Vehicle is being driven or utilised in a manner which is likely to be prejudicial to Top Notch or any third person, it shall be entitled forthwith to terminate this Agreement and take possession of the Motor Vehicle without prejudice to any other claims of any nature whatsoever that it may have against the Renter.
8.5 No variations or waiver of any of the conditions hereof shall be operative against Top Notch unless reduced to writing and signed by both parties hereto.
8.6 No indulgence, extension of time, relaxation or latitude which any party (“the Grantor’) may show, grant or allow to another (“the Grantee”) shall constitute a waiver by the Grantor of any of the Grantor’s rights and the Grantor shall not thereby be prejudiced or stopped from exercising any of its rights against any Grantee which may have arisen in the past or which might arise in the future.
8.7 Unless the context indicates otherwise the rights and obligations of any party arising from this Agreement shall devolve upon and bind its successors-in-title.
8.8 The Parties agree that they will do all things and sign all documents necessary to give effect to the terms of this Agreement and to all transactions deriving therefrom.
8.9 The Parties hereto agree that any legal proceedings arising out of or in connection with this Agreement, shall fall within the jurisdiction of the Magistrate’s Court, notwithstanding that the amount claimed in such proceedings, shall exceed the normal jurisdiction of the Magistrate’s Court.
8.10 The Renter hereby elects as its domicilium citandi et execuiandi, the address set out on the face of this document, in the box entitled “Local Address”. Any notice posted to this address or hand delivered thereto shall be deemed to have been delivered within 7 (seven) days of posting thereof or on the date of delivery thereof, if hand delivered.
9. INDEMNITIES, ACCIDENTS AND LOSS
9.1 lF the Motor Vehicle is damaged in any way whilst in the Renter’s possession, the Renter will be fully responsible for the cost of all repairs to the Motor Vehicle at a panel shop of Top Notch’s choosing. In addition the Renter agrees to pay the standard brochure hire rates for that particular Motor Vehicle while it is off the road for said repairs. If the Motor Vehicle is deemed irreparable (damage beyond economic repairs) by Top Notch in its sole discretion, the Renter shall forthwith pay Top Notch the cost of replacing the Motor Vehicle with an identical new one, less the salvage value which Top Notch is able to obtain for the Motor Vehicle.
9.2 Should the Renter not return the Motor Vehicle to Top Notch for any reason. including but not limited to the loss of the vehicle due to theft or hijacking, the Renter shall forthwith pay to Top Notch the cost of replacing the vehicle with an identical new one.
9.3 Where negligence of the Renter is a factor in any proceedings arising hereout, such negligence shall be presumed and the onus of disproving same shall be on the Renter.
9.4 The Renter shall:
9.4.1 immediately report any breakdown of the vehicle, any collision in which it is involved or theft thereof or damage thereto, to Top Notch and the Police and immediately after any verbal report to Top Notch confirm same In writing.
9.4.2 do all things reasonably required by Top Notch, its insurers or any authority rising out of contingencies hereof, failing which it shall be responsible for any damage suffered by Top Notch arising from its omission.
9.5 Should a driver be supplied to the Renter by Top Notch, such driver shall be deemed the employee of the Renter during the duration of this Agreement.
9.6 The Renter will be responsible for the payment of any fines for traffic offences, and in the event that Top Notch is obliged to pay any fined, undertakes to repay Top Notch on demand.
10.1 The Renter indemnifies Top Notch against any claim by any person for any damages whatsoever suffered as a result of any incident involving the Motor Vehicle whether as a result of Top Notch’s negligence or other.
10.2 Top Notch shall not be liable for any damage arising out of any defect either mechanical failure of the Motor Vehicle nor any loss of or damage to any property transported or left in the Motor Vehicle nor for any indirect damages, consequential loss, loss of profits, or any other damages which the Renter or the driver of or any person transported in the Motor Vehicle may suffer arising out of this Agreement or by virtue of the use of the Motor Vehicle.