1. Definitions and interpretation
1.1 In this document unless the context otherwise clearly indicates:
"Basic Rental" means the amount reflected in the Schedule which is payable by the Hirer to the Owner for the hire of the Bus, provided the distance travelled by the Bus during the Rental Period does not exceed the maximum distance reflected in the Schedule;
"the Bus" means the bus rented by the Owner to the Hirer as described in the Schedule together with all its equipment, accessories and appurtenances;
"Commencement Date" means the time and date stipulated in the Schedule when the Hirer will take delivery of the Bus at the Owner's Premises on the terms and conditions of this Hire Agreement;
"Hirer" means the person described as such in the Schedule which person is bound by the terms of this Hire Agreement;
"Hire Agreement" means these terms and conditions and the Schedule;
"Owner" means Luxliner Coaches (Pty) Limited with registration number 1996/001879/07
"the Owners Premises" means the premises from which the Owner conducts business situated at 6 Dunswart Avenue, Dunswart, Boksburg;
"Rental Period" means the period between the Commencement Date, and the Return Date;
"Return Date" means the time and date stipulated in the Schedule when the Hirer will return the Bus to the Owner at the Owner's Premises on the terms and conditions of this Hire Agreement;
"the Schedule" means the schedule of details appearing on the face of these terms and conditions;
"Surcharge" means the amount reflected as such in the Schedule which is payable by the Hirer to the Owner in addition to the Basic Rental in the event that the distance travelled by the Bus during the Rental Period exceeds the maximum distance reflected in the Schedule.
1.2 The headnotes of the clauses of this Hire Agreement are included for reference purposes only and shall not affect the interpretation of the provisions to which they relate.
1.3 Words and phrases defined in any clause shall, for the purpose of that clause, bear the meaning therein assigned thereto.
1.4 In this Hire Agreement, unless the context clearly indicates a contrary intention, words importing the singular shall include the plural, and vice versa; a reference to any one gender shall include the other genders; a reference to a natural person shall include a body corporate, close corporation, firm or association and vice versa, and cognate expressions shall bear corresponding meanings.
2. Hire
2.1 The Owner hereby lets to the Hirer, which hereby hires the Bus for the Rental Period.
2.2 Ownership in the Bus shall, at all times, vest with the Owner whilst risk in the Bus for the duration of the Rental Period and any extension thereof shall remain with the Hirer.
3. Duration
3.1 This Hire Agreement will commence on the Commencement Date, endure for and remain in full force and effect for the Rental Period and cease on the Return Date unless terminated earlier by the Owner.
3.2 The Owner is not obliged to allow any extension of the Rental Period beyond the Return Date.
4. Rental
4.1 As consideration for the hiring of the Bus, the Hirer will pay to the Owner the Basic Rental, any Surcharge and such other amounts as may become payable by the Hirer to the Owner in terms of this Hire Agreement.
4.2 In the event that the Hirer is a company, close corporation, or other legal person, the individual signing this Hire Agreement by such signature binds himself as surety and co-principal debtor in solidum with the Hirer for the payment of all or any amounts which become due and payable by the Hirer to the Owner in terms of this Hire Agreement from any cause whatsoever.
4.3 Payment of the Basic Rental and Surcharge must be made by the Hirer to the Owner as follows:-
the Basic Rental will be paid to the Owner in full on or before the Commencement Date and any Surcharge or other amounts which may be or become payable by the Hirer during the Rental Period will be paid on the Return Date, or, if unascertainable on the Return Date, then within seven days of the date on which the Owner issues a statement for such amount to the Hirer; or
in the event that the Owner, in its sole discretion, agrees to account to the Hirer at the end of the Rental Period, the Basic Rental, any Surcharge and any other amount which may be or become payable by the Hirer will be paid within 30 days of the date on which the Owner issues a statement for such amount to the Hirer.
4.4 In addition to the Basic Rental and Surcharge, the Hirer will be liable for and pay to the Owner on demand:-
any damage or loss suffered by the Owner due to the failure of the Hirer to return the Bus on the Return Date;
all fines and court costs levied against the Owner during the Rental Period in respect of the Bus for any legal violation assessed against the Bus, the Owner or the Hirer except where caused through the fault of the Owner;
any costs, including all attorneys fees on the scale of attorney and own client, collection commissions and tracing charges incurred directly or indirectly by the Owner in enforcing any of its rights or recovering any amounts due in terms of or pursuant to any breach of this Hire Agreement;
all costs incurred by the Owner in repairing any damage of any nature to the Bus howsoever caused (unless if caused through the negligence of the Owner’s driver) and/or any loss suffered by the Owner in respect of the Bus as a result of theft, fire or any other cause whatsoever during the Rental Period, provided that if the Hirer was not in breach of any provision of this Hire Agreement when such damage or loss arose, the Hirer's liability for such damage or loss will be limited to the amount of the loss or damage not recovered by the Owner under its relevant insurance cover.
4.5 All amounts falling due for payment by the Hirer to the Owner in terms of this Hire Agreement will be made without deduction or set-off of any kind, and shall be paid in cash, free of exchange or other charges, at the Owner's Premises or in such other manner and at such other address which the Owner may notify the Hirer in writing from time to time.
4.6 If any payment due by the Hirer in terms of this Hire Agreement is not made on due date thereof then, without prejudice to any other rights of the Owner contained in this Hire Agreement, the amount due shall bear interest at a rate of 2% above the prime overdraft interest rate charged by Nedbank from time to time as certified by a manger of any branch thereof, whose capacity it will not be necessary to prove.
5. Insurance
5.1 The Owner has comprehensively insured the Bus against all loss or damage caused to the Bus. Any excess payable under any insurance policy in respect of the Bus shall be payable by the Hirer on demand unless if caused through the negligence of the Owner’s driver. Notwithstanding this, the Hirer hereby indemnifies the Owner against any claim by any third party for any loss or damage of any nature whatsoever as a result of any accident or occurrence involving the Bus, whether as a result of the Owner's negligence or otherwise to the extent that the full amount of such claim is not covered or payable by the relevant insurer of the Owner.
5.2 If, during the Rental Period, the Owner takes the Bus into any area or on any road where there is a risk that the Bus may be damaged, stolen or lost through civil disturbance, riot or any act of political unrest or any act associated with the aforegoing, and without limiting the generality thereof, any act of arson, stone throwing, petrol bombing or any similar act by third parties, then the Hirer will be liable for all loss or damage to the Bus suffered by the Owner, provided that should any claim by the Owner under an insurance policy issued to the Owner by the South African Special Risk Association, (a copy of which is available for inspection at the Owner's Premises) be paid by the South African Special Risks Association, then the Hirer shall be reimbursed with any amount which it has paid to the Owner in terms of this clause or the amount received by the Owner from the South African Special Risk Association under such insurance policy, whichever is the lower.
5.3 In the event of the Bus being involved in any incident or accident or is lost or stolen and in order to protect the Owner's interest in any of the insurance policies referred to in this clause 5, the Hirer shall:-
obtain the names of parties and witnesses involved in any incident or accident;
immediately notify the Owner and the police, giving full and accurate details of any incident or accident;
under no circumstances, admit liability or guilt in respect of any incident or accident or release any party from any liability or potential liability, nor settle any claim or potential claim against or by any person nor accept any disclaimer of liability;
under no circumstances, abandon the Bus without adequate provisions being made for safeguarding and securing it;
immediately deliver to the Owner any demand, notification, summons or similar process received by the Hirer relating to any claim, action or prosecution in connection with the Bus or any incident or accident involving the Bus; and
co-operate fully with the Owner and any authority in the investigation and defence of any prosecution, claim or action relating to any incident or accident involving the Bus.
6. Maintenance and repairs
6.1 The Hirer shall use the Bus with due diligence and care and take all reasonable steps and precautions to avoid incident or accident and shall safeguard the Bus against loss or damage and excessive wear and tear.
6.2 The Owner shall be responsible for the costs and payment of the servicing and repairing of the Bus as recommended by the manufacturers of the Bus as being necessary in the normal course. The Owner shall also be responsible for any necessary repairs to and replacement of mechanical and electrical equipment, including batteries and tyres, except where such repair or replacement is necessary as a result of any accident or improper or negligent use of the Bus by the Hirer or use in breach of any term or condition of this Hire Agreement.
6.3 In the event of any breakdown or malfunction due to a mechanical fault with the Bus, the Hirer shall forthwith notify the Owner of such breakdown or malfunction and the place where the Bus is situated. Only the Owner or its duly authorised representative shall effect any repairs to the Bus and in the event of the Hirer effecting any repairs to the Bus without the prior written authority of the Owner, the costs of such repairs shall be borne by the Hirer.
6.4 The Hirer shall be liable to pay the full Basic Rental, Surcharge and other amounts to the Owner for the duration of this Hire Agreement notwithstanding that it does not have the use of the Bus due to any, repairs or loss of the Bus during the period of hire.
6.5 The Owner shall not be obliged to place another bus at the disposal of the Hirer in the event of the Bus being damaged, stolen or rendered unfit for use unless such damage is caused through the negligence of the Owner’s driver.
7. Hirer's general obligations
7.1 The Hirer shall:-
only permit the Bus to be used in strict accordance with this Hire Agreement and any terms and conditions of any insurance policy then in force in respect of the Bus;
only permit the Bus to be used for the purpose for which it was designed;
use the Bus within the boundaries of the Republic of South Africa, unless the Owner has, in writing, agreed to the contrary; and
not have any authority whatsoever to incur any liability on behalf of the Owner, whether for repairs to the Bus or otherwise;
return the Bus to the Owner on the Return Date in the same condition as when it was delivered to the Hirer, fair wear and tear alone excepted.
7.2 Without derogating from the generality of the aforegoing, the Hirer:
is prohibited from conveying any goods or luggage whatsoever which, in the sole opinion of the Owner, may cause damage to the Bus;
shall not permit or cause more passengers to be carried than are number of seats available on the Bus;
shall ensure that all passengers sit in their designated seats at all times;
undertakes to ensure that any lawful and/or reasonable instruction given by the driver of the Bus are obeyed insofar as the they relate to the safety of the passengers and the Bus concerned; and
undertakes to ensure that no passenger shall, in any way whatsoever, hinder, impede or obstruct the driver of the Bus in the course of his duty.
7.3 Any tampering by the Hirer with the odometer of the Bus shall be regarded as fraud entitling the Owner to summarily cancel this Hire Agreement and take further criminal action in its discretion. The Hirer shall immediately report to the Owner each failure or malfunction of the odometer of the Bus as soon as such failure or malfunction becomes known to it.
7.4 , The Owner will provide the Hirer with the service of a driver for the Bus whose services the Hirer must utilise and the Hirer undertakes to ensure that no person, other than the driver provided by the Owner, will be permitted to drive the Bus during the Rental Period.
8. Acknowledgements
8.1 The Hirer acknowledges that:-
it has carefully examined and inspected the Bus and hires the Bus in the condition in which it stands as at the Commencement Date;
save as expressly provided in this Hire Agreement, no employee, representative or director of the Owner or any person has authority to make any verbal representation, statement, warranty or guarantee which has any binding effect on the Owner.
8.2 Notwithstanding any other provision of this Hire Agreement, should the Hirer:-
fail to pay any amount due by the Hirer to the Owner in terms of this Hire Agreement on the due date thereof; or
commit a breach of any term or condition of this Hire Agreement or permit a breach of any such term or condition,
the Owner shall have the right forthwith and without any notice to the Hirer whatsoever to cancel this Hire Agreement and take possession of the Bus.
8.3 Nothing in clause 9 shall prejudice any claim which the Owner may have against the Hirer for the full amount of the Basic Rental and/or the Surcharge and/or any other amount payable by the Hirer in terms of this Hire Agreement and/or for damages whether direct, indirect or consequential, which the Owner may suffer by reason of the Hirer's breach of this Hire Agreement.
8.4 The Owner's right in terms of this clause 9 shall be in addition to any other rights which may be available to the Owner in law.
9. Owner's right to sub-contract
The Owner reserves the right to sub-contract in case of emergency, but when this right is exercised the bus substituted will as nearly as circumstances permit, compare with the Bus in style, comfort and reliability.
10. Indemnity
10.1 The Hirer hereby indemnifies the Owner against any claim by any person for any damage of any nature whatsoever suffered as a result of any incident or accident involving the Bus whether as a result of the Owner's negligence or otherwise.
10.2 The Owner shall not be liable for any damage arising out of any defect in or mechanical failure of the Bus, nor for any loss or damage to any property or luggage transported in or left in the Bus, nor for any indirect damages, consequential loss, loss of profits or any other damages which the Hirer or any person transported in the Bus may suffer arising out of this Hire Agreement.
10.3 The provisions of this clause 11 are stipulated for the benefit of the Owner, its employees, agents, nominees and sub-contractors who are each indemnified accordingly.
11. General
11.1 The Hirer is not entitled to cede or assign any of its rights or obligations under this Hire Agreement or to sub-let or part with possession of the Bus, its tools or equipment or any part thereof.
11.2 The Owner shall be entitled, at its option, to institute any legal proceedings against the Hirer which may arise out of or in connection with this Hire Agreement in any Magistrates Court having jurisdiction in respect of the Hirer, notwithstanding that the claim or the value of the matter in dispute exceeds the jurisdiction of the Magistrates Court. Not withstanding the aforegoing, the Owner shall in its sole and absolute discretion be entitled to institute any legal proceedings against the Hirer which might arise out of or in connection with this Agreement in the High Court.
11.3 This Hire Agreement constitutes the whole of the agreement between the Owner and the Hirer and no amendment, alteration, addition, variation or consensual cancellation shall be of any force or effect unless reducing to writing and signed by the Owner and the Hirer hereto or their authorised representatives. Furthermore, the Owner and the Hirer agree that no conditions, warranties or representations, whether express or implied, shall apply hereto.
11.4 The Owner and Hirer select as their respective domicilia citandi et executandi for the purpose of giving or sending any notice provided for or required hereunder, their physical and postal addresses appearing in the Schedule or such other address as may be substituted by notice given as herein required. Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address within the Republic of South Africa which is not a post office box or poste restante.
11.5 Any notice addressed to a party at its physical or postal address shall be sent by prepaid registered post or delivered by hand.
11.6 Any notice shall be deemed to have been given:
if posted by prepaid registered post, five days after the date of posting hereof; and
if hand delivered during business hours on a business day, on the day of delivery.
11.7 In the event of the Owner having to institute any legal proceedings or having to engage the services of an attorney and/or counsel in contemplation of such legal proceeding and/or for the purpose of enforcing any of the Owner's rights in terms of this Hire Agreement and/or recover any amount due by the Owner in terms of this Hire Agreement, then and in such event, the Hirer shall be liable for all the legal costs of the Owner on the scale as between attorney and own client, including collection commission.
11.8 No granting of time, indulgence or any other conduct of the Owner shall constitute a waiver of the Owner's rights under and in terms of this Hire Agreement, nor shall any single or partial exercise of any right, power to privilege of the Owner under this Hire Agreement preclude any other or further exercise thereof, or the exercise of any other right, power or privilege.