TERMS AND CONDITIONS HERTZ
1. DEFINITIONS AND INTERPRETATIONS
1.1. In this Rental Agreement unless the context indicates otherwise:
1.1.1. “Additional Driver” means any person who has signed the Rental Form as an additional driver;
1.1.2. “CPA” means the Consumer Protection Act 68 of 2008, including its regulations, as amended or replaced from time to time;
1.1.3. “Damage(s)” means any and all damages, costs or expenses, suffered by the Lessor, of whatsoever nature in relation to the Vehicle, and includes a Total Loss where applicable. An invoice, job card, quotation or similar document produced by the Lessor shall be regarded as sufficient proof of any such damages, costs or expenditure;
1.1.4. “Day” means a period of 24 hours (or any part thereof), calculated from the time the Vehicle is rented by the Renter;
1.1.5. “Driver” means the person who has been identified on the Rental Form as the Driver and who shall be at least 18 years old;
1.1.6. “Excess” means the amount payable by the Renter in respect of a claim accepted by the Lessor in terms of a Waiver as set out in the Rental Form;
1.1.7. “Insurance Brochure” means the booklet which shall be made available to the Renter on request, by the Lessor’s representative upon the Renter collecting the Vehicle, which booklet shall contain the essential terms and conditions of the personal accident insurance product more fully described therein (“Insurance Product”);
1.1.8. “Lessor” means the party described as such on the Rental Form;
1.1.9. “Loss/Damage Administration Fee” means an administration fee charged by the Lessor for the processing of claims relating to damage or loss incurred in respect of, or theft of, the Vehicle as set out in the Rental Form;
1.1.10. “Official Rates Brochure” means the Lessor’s current official brochure on the Rates for corporate clients and other general information issued from time to time;
1.1.11. “Rates” means the rates payable by the Renter for the Rental of a Vehicle in terms of this Rental Agreement;
1.1.12. “Rental” means the renting of a Vehicle by the Renter as contemplated in this Rental Agreement;
1.1.13. “Rental Agreement” means the Rental Form read together with these Terms and Conditions of Rental, the Insurance Brochure, warnings and instructions provided when the keys of the Vehicle are handed to the Renter and all notices sent or provided to the Renter;
1.1.14. “Rental Form” means the printed form to which these Terms and Conditions are attached;
1.1.15. “Rental Period” means the period commencing on the date and at the time at which the Driver completes the Rental Form and terminating on the date and at the time at which the Driver is required to return the Vehicle to the Lessor, and includes an extended period as contemplated in clause 3 below;
1.1.16. “Renter” means the person (including juristic persons) who entered into this Rental Agreement with the Lessor, and includes the Driver and, if applicable, the Additional Driver, jointly and severally;
1.1.17. “Collision Damage Waiver” means that the Lessor will waive any claim it may have against the Renter in respect of Damage to the Vehicle, save in respect of the circumstances set out in clause 14.1;
1.1.18. “Theft Protection Waiver” means that the Lessor will waive any claim it may have against the Renter in respect of the theft of the Vehicle, save in respect of the circumstances set out in clause 14.1;
1.1.19. “Super Collision Damage Waiver” means that the Lessor will waive any claim it may have against the Renter in respect of Damage to the Vehicle, save in respect of the circumstances set out in clause 14.2;
1.1.20. “Total Loss” means an amount equal to the retail value of the Vehicle as reflected in the Auto Dealer’s guide, as published by TransUnion Auto Information Solutions or any replacement publication nominated by the Lessor, or if not reflected therein, the new list price of the Vehicle as supplied by the manufacturer, as at the date of loss, less any salvage, where damage occurs to the Vehicle to such an extent that the estimated cost of repairs is such that the Vehicle is, in the reasonable assessment of the Lessor, uneconomical to repair in relation to the value of the Vehicle and the condition of the Vehicle, or the Vehicle is stolen;
1.1.21. “Super Theft Protection Waiver” means that the Lessor will waive any claim it may have against the Renter in respect of the theft of the Vehicle, save in respect of the circumstances set out in clause 14.2;
1.1.22. “Vehicle” means each motor vehicle described in a Rental Form as the motor vehicle which is the subject of a Rental, including without limitation all keys, tyres, tools, equipment, accessories and documents in and on the Vehicle when the Renter takes delivery of the Vehicle and includes any replacement vehicle ; and
1.1.23. “Waiver” means any of the Super Collision Damage Waiver, Collision Damage Waiver, Super Theft Protection Waiver or Theft Protection Waiver;
1.2. Words and phrases defined in the Rental Form shall have the same meaning assigned to them in these Terms and Conditions and the other way round.
1.3. No provision herein shall be construed against or interpreted to the disadvantage of a party by reason of such party having or being deemed to have structured, drafted or introduced such provision.
1.4. The words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.
1.5. Reference to one gender includes all the genders; and the singular form of a word includes the plural and the plural form includes the singular.
2. RENTAL OF THE VEHICLE
The Lessor rents the Vehicle to the Renter, who hires the Vehicle for the duration of the Rental Period, subject to the terms and conditions contained in the Rental Agreement.
3. TERM OF THE RENTAL AGREEMENT
3.1. This Rental Agreement commences on the commencement date as indicated in the Rental Form to which these terms and conditions are attached and will continue until the return date, unless terminated earlier in accordance with the provisions of this Rental Agreement.
3.2. The Renter acknowledges and agrees that –
3.2.1. the return date as set out in the Rental Form is the expiry date of this Rental Agreement; and
3.2.2. this Rental Agreement will not automatically continue after the return date.
3.3. The Renter may request an extension of the Rental Period by giving the Lessor at least 24 hours written notice prior to the return date. The Rental Period shall only be extended on acceptance by the Lessor in writing of the proposed extended period by the Lessee, and will be subject to the terms and conditions of this Rental Agreement.
3.4. The Renter may cancel this Rental Agreement before the return date by returning the vehicle to the Lessor. The Renter will be liable to pay the Lessor –
3.4.1. all amounts which the Renter owes to the Lessor under this Rental Agreement at that time, which includes the usual Rates and charges applicable to the period for which the Vehicle was actually rented and/or kilometres actually travelled; and
3.4.2. a reasonable early cancellation fee.
4. INDEMNITY
4.1. Except to the extent that –
4.1.1. the Lessor acted with gross negligence or fraudulent intent;
4.1.2. the Lessor acted in breach of its obligations in terms of this Rental Agreement; or
4.1.3. the Lessor provided the Renter with an unsafe, hazardous or defective vehicle, as contemplated in section 53 of the CPA, the Lessor will not be liable for any loss or damage which may be suffered by the Renter and/or any third party and/or passenger during the Rental of the Vehicle by the Renter.
5. DELIVERY OF THE VEHICLE
5.1. Delivery of the Vehicle to the Renter shall occur at the time and at the Lessor’s office (“Renting Location”) at which the Renter takes possession of the keys and/or the Vehicle.
5.2. The Renter hereby acknowledges that he has been given a reasonable opportunity to inspect the Vehicle before delivery. The Renter has inspected the Vehicle for damage to paintwork, upholstery and other visible parts of the Vehicle and confirms that-
5.2.1. save as recorded on the Vehicle inspection report provided to the Renter when the Renter takes delivery of the Vehicle as contemplated in clause 5.1 above, there are no defects or damage to the Vehicle and that on the date of collection the Vehicle was in good repair, running order and in roadworthy condition;
5.2.2. the Vehicle is fit for the purpose for which it is being hired by the Renter;
5.2.3. all wheel caps, the spare wheel, all tools and other accessories (the “accessories”) were all present in or on the Vehicle on the date of collection, and in good working order.
6. USE OF VEHICLE
6.1. The Vehicle may only be driven by the Driver and/or the Additional Driver during the Rental Period.
6.2. During the Rental Period, the Vehicle may not be used –
6.2.1. for the conveyance of passengers and/or goods for reward;
6.2.2. to propel or tow any other vehicle, (including any caravan or trailer) unless authorised by the Lessor in writing;
6.2.3. on any surface other than a tarred road, unless authorised by the Lessor in writing;
6.2.4. for any illegal purpose of any nature whatsoever, to transport goods in violation of any customs laws or in any other illegal manner;
6.2.5. in any motor sport or similar high risk activity;
6.2.6. beyond the borders of the Republic of South Africa, unless authorised by the Lessor in writing; or
6.2.7. in any area where there is or may be a risk of incidents of civil unrest, political disturbance or riot or any activity associated with any of the aforegoing.
6.3. If the Renter uses the Vehicle in breach of his obligations under clause 6, the Renter acknowledges that if it has purchased any of the Waivers in respect of such Vehicle, such Waivers may not apply in respect of any loss, theft of or damage to the Vehicle.
6.4. The Renter shall, for the duration of the Rental Period –
6.4.1. make adequate provision for the safety and security of the Vehicle including keeping the Vehicle properly locked, secured and immobilised when not in use; activating the burglar alarm and vehicle tracking or monitoring system (if any); and ensuring that any anti-theft device in the Vehicle is properly secured and in place; and
6.4.2. take all reasonable steps to ensure that the Vehicle remains in good and safe working order, including regularly checking the oil, water and tyre pressure, immediately ceasing all use of the Vehicle (and contacting the Lessor) should the electronic diagnostics of the Vehicle indicate the presence of a fault or problem in relation to the Vehicle and undertaking reasonable inspections of the Vehicle before and after use.
6.5. The Renter will ensure that the keys of the Vehicle are under the Renter’s control at all times.
7. RETURN OF THE VEHICLE
7.1. The Renter must return the Vehicle, at the Renter’s expense to the Lessor at such date and time and at the Renting Location indicated in the Rental Form, or as otherwise agreed by the Lessor.
7.2. The Renter acknowledges that failure to return the Vehicle in terms hereof –7.2.1. shall constitute unlawful possession by him, and the Lessor may, without prejudice to any other rights which it may have in law, institute legal action to repossess the Vehicle at the cost of the Renter; and
7.2.2. may result in a termination of any Waiver purchased by the Renter in terms of the Rental Form.
7.3. The Vehicle must be returned to the Lessor in the same condition as it was delivered to the Renter in terms of clause 5.2, fair wear and tear excepted. The Renter must ensure that the fuel tank of the Vehicle is refilled at the time of its return. If the fuel tank is not refilled, the Renter agrees to be liable to the Lessor for an amount equal to the retail fuel price then applicable for the fuel required to refill the fuel tank of the Vehicle, and for an administration charge raised by the Lessor for doing so.
7.4. When the Renter returns the Vehicle to any Renting Location, the Renter must –
7.4.1. park the Vehicle in the Lessor’s designated parking area
7.4.2. ensure that the Vehicle is properly locked and secure;
7.4.3. complete and sign a vehicle inspection report together with a duly authorised representative of the Lessor. If no such report is completed and signed by the Renter, the Renter shall be deemed to have accepted the contents of the vehicle inspection report completed by the Lessor; and
7.4.4. return the keys to the Lessor.
7.5. In the event that the vehicle is not returned in accordance with clause 7.4 above, the risk of loss or damage to the vehicle will remain vested in the Renter until such time as the Lessor has recorded the return of the Vehicle.
8. DECLARATIONS AND WARRANTIES BY THE RENTER.
8.1. The Renter warrants and declares that –
8.1.1. the Renter has been given an adequate opportunity to read and understand the terms and conditions of this Rental Agreement and is aware of all the terms thereof, particularly those printed in bold. The Renter understands and accepts its risks and costs as well as its rights and obligations under this Rental Agreement;
8.1.2. the Renter has full power and authorisation to effect and carry out the obligations in terms of this Rental Agreement and, if the Renter is a corporate entity, association, partnership or a trust, that all necessary corporate and/or other actions were taken to authorise the execution of this Rental Agreement;
8.1.3. all the information the Renter provided to the Lessor in connection with the conclusion of this Rental Agreement is true, complete and accurate and the Renter is not aware of any material facts or circumstances not disclosed to the Lessor and which, if disclosed, may adversely affect the decision to enter into this Rental Agreement;
8.1.4. the Renter has the necessary legal capacity to enter into this Rental Agreement and is not subject to an administration order referred to in section 74(1) of the Magistrates Court Act, any sequestration, liquidation or judicial management order or any business rescue proceedings;
8.1.5. the Lessor did not make an offer to the Renter which would automatically have resulted in a Rental Agreement if the Renter had not declined the offer;
8.1.6. the Lessor has not induced, harassed or forced the Renter to enter into this Rental Agreement;
8.1.7. this Rental Agreement was completed in full at the time of the Renter signing the Rental Agreement;
8.1.8. the Vehicle will not at any time during the Rental Period be driven by any person who is not authorised to drive the Vehicle in terms of the Rental Agreement;
8.1.9. the Driver and Additional Driver will have a valid licence to drive the Vehicle;
8.1.10. the Driver and Additional Driver will at all times comply with all applicable laws and with the provisions of this Rental Agreement
8.1.11. the Renter will inform the Lessor of any physical impairment of a person who wishes to be authorised to drive the Vehicle.
8.2. If the Renter fails to notify the Lessor of such physical impairment as contemplated in 8.1.11, the Renter will bear the full liability and responsibility for Damages in the event of an accident involving the Vehicle.
8.3. If the Vehicle is driven by anyone other than the Renter, the Driver or the Additional Driver then, without derogating from any rights or remedies which the Lessor may have, the Renter shall remain liable for all his obligations in terms of this Rental Agreement and in particular, he shall be liable to the Lessor as if he had been driving the Vehicle.
9. RENTER’S RISKS AND LIABILITIES
9.1. The Renter assumes the risk in and to the Vehicle (fair wear and tear excepted) from the time that the Vehicle is delivered to the Renter in terms of clause 5 until such time as the Vehicle is returned to the Lessor in terms of clause 7. Except to the extent that the Lessor acted with gross negligence, fraudulent intent or in breach of its contractual obligations, the Renter shall be liable for any Damage and/or Total Loss sustained to the Vehicle while it is at the risk of the Renter, and such Damage and/or Total Loss shall be payable by the Renter immediately on demand by the Lessor or its duly authorised representative.
9.2. The Renter agrees that the Lessor may determine the party who shall repair any damage to the Vehicle and/or provide any parts or service in connection with such repair/s or provide any replacements of any lost or damaged item and that the Lessor may enter into an agreement with such party or parties.
10. WAIVER
10.1. It is specifically recorded that –
10.1.1. the Lessor does not act as agent in procuring the Waiver;
10.1.2. the Lessor gives no advice and makes no recommendations regarding the appropriateness or otherwise of the any Waiver;
10.1.3. the Waiver is not to be regarded as insurance for purposes of the Short Term Insurance Act 53 of 1998, nor as a financial product for purposes of the Financial Advisory and Intermediary Services Act 37 of 2002;
10.1.4. the Renter, Driver and Additional Driver must obtain their own professional advice regarding the Waivers.
10.2. In the event that the Renter has purchased a Waiver, the liability of the Renter in terms of this Rental Agreement shall be limited to the extent and manner provided in clauses 13 and 14 with regard to such Waiver.
10.3. If the Renter purchases a Waiver as indicated in the Rental Form, his acceptance shall constitute an acceptance by him of the benefit of such Waiver and other accompanying arrangements, if any, but subject to all the terms and conditions of that Waiver. The Renter acknowledges that the Lessor shall not under any circumstances have any liability to him under or for any of the benefits under that Waiver. Factual details of the Waivers are contained in the Insurance Brochure which will be made available to the Renter on request at the place at which he has taken delivery of the Vehicle, and a separate explanatory brochure is available for inspection by the Renter at the Lessor’s Head Office.
11. WAIVER (REDUCTION) OF LIABILITIES
11.1. If the Renter elects to purchase the Super Collision Damage Waiver or the Collision Damage Waiver, the Waivers will have the effect of reducing the Renter’s liability in respect of any Damage which occurs to the Vehicle for the duration of the Rental Period to the extent of the Excess reflected in the Rental Form and/or in the Official Rates Brochure in force at the time of Rental.
11.2. If the Renter elects to purchase the Super Theft Protection Waiver or the Theft Protection Waiver, the Waivers will have the effect of reducing the Renter’s liability in respect of any theft which occurs in respect of the Vehicle for the duration of the Rental Period to the extent of the Excess reflected in the Rental Form and/or in the Official Rates Brochure in force at the time of Rental.
11.3. If the Renter elects to purchase the Collision Damage Waiver or the Super Collision Damage Waiver, the Renter will have no liability in respect of third party claims for property damage, up to a sum of R1,000,000.00 (one million rand).
11.4. Notwithstanding any other provision of this Rental Agreement (including any Waiver), if the Vehicle is involved in any incident resulting in Damage, or if the Vehicle is stolen or lost, where the terms of the Rental Agreement have been breached by the Driver or the Additional Driver, the Renter will be liable for all damages, costs and expenses suffered or incurred by the Lessor.
12. LIMITATIONS IN RESPECT OF WAIVERS
12.1. The Collision Damage Waiver and/or the Theft Protection Waiver does not cover-
12.1.1. any Damage to tyres, rims and glass;
12.1.2. costs of towing, transporting or storing the Vehicle;
12.1.3. Damage and/or Total Loss suffered –
12.1.3.1. as a result of the negligence of the Renter;
12.1.3.2. whilst the Renter is in breach of any applicable traffic laws, regulations or ordinance;
12.1.3.3. where accidents are not reported to the police within 24 hours of the occurrence ;
12.1.3.4. where an accident takes place outside the country in which the Vehicle was rented unless prior written authority for the Vehicle to be taken outside such country has been obtained by the Renter from the Lessor;
12.1.3.5. if at any time the Vehicle is driven by an unauthorised driver;
12.1.3.6. when in the reasonable opinion of the Lessor the Vehicle has been driven or used in a manner which prejudices the Lessor’s interest or rights;
12.1.3.7. where the Driver or Additional Driver was not holding a valid unendorsed drivers licence at the time the Damage and/or Total Loss was sustained;
12.1.3.8. where an extension of the Rental Agreement was not authorised by the Lessor and where the Rental Period has expired;
12.1.3.9. as a result of the Vehicle being driven on an untarred road or on a road which in the reasonable opinion of the Lessor was not suitable for the Vehicle; and
12.1.3.10. where no other vehicle, animal, object or person (in or on the road surface) was involved (i.e. no physical contact was made with any of the aforementioned).
12.1.4. If the Lessor accepts a claim for Damage or Total Loss suffered in circumstances contemplated in 14.1.3.9 and 14.1.3.10, the Renter acknowledges and agrees that the Renter may be held liable by the Lessor for four times the Excess which is payable in terms of the relevant Waiver.
12.2. The Super Collision Damage Waiver and/or the Super Theft Protection Waiver does not cover –
12.2.1. any Damage to tyres, rims and glass;
12.2.2. costs of towing, transporting or storing the Vehicle;
12.2.3. Damage and/or Total Loss suffered –
12.2.3.1. as a result of the negligence of the Renter;
12.2.3.2. whilst the Renter is in breach of any applicable traffic laws, regulations or ordinances;
12.2.3.3. where accidents are not reported to the police within 24 hours of the occurrence;
12.2.3.4. where an accident takes place outside the country in which the Vehicle was rented unless prior written authority for the Vehicle to be taken outside such country has been obtained by the Renter from the Lessor;
12.2.3.5. if at any time the Vehicle is driven by an unauthorised driver;
12.2.3.6. when in the opinion of the Lessor the Vehicle has been driven or used in a manner which prejudices the Lessor’s interest or rights;
12.2.3.7. where the Driver or Additional Driver was not holding a valid unendorsed driver’s license at the time the Damage and/or Total Loss was suffered;
12.2.3.8. where an extension of the Rental Agreement was not authorised by the Lessor and where the Rental Period has expired;
12.2.3.9. as a result of the Vehicle being driven on an untarred road or on a road which in the reasonable opinion of the Lessor was not suitable for the Vehicle; and
12.2.3.10.where no other vehicle or animal or object or person (in or on the road surface) was involved (i.e. no physical contact was made with any of the aforementioned).
12.2.4. If the Lessor accepts a claim for Damage or Total Loss suffered in circumstances contemplated in 14.2.3.9 and 14.2.3.10, the Renter acknowledges and agrees that the Renter may be held liable by the Lessor for four times the Excess which is payable in terms of the relevant Waiver.
13. CONSEQUENTIAL DAMAGES
The Renter acknowledges and agrees that (save to the extent that the Lessor acted with gross negligence, fraudulent intent or in breach of its obligations under this Rental Agreement), if the Renter does not purchase any of the Waivers, then the Renter may be held liable by the Lessor for any loss suffered by the Lessor as a consequence of the Lessor being unable to rent the Vehicle due to Damages caused by the Renter or due to the Renter being in breach of the Rental Agreement. The loss for which the Renter may be liable shall be calculated on the basis of the rates indicated on the Rental Form or in the Official Rates Brochure plus 100 kilometres per day that the Vehicle was unavailable for hire subject to a maximum of 30 days.
14. BREACH
14.1. In the event of any party (“defaulting party”) committing a material breach of any of the terms of this Rental Agreement and failing to remedy such breach within a reasonable period of time (having regard to the term of this Rental Agreement as contemplated in clause 3 above), after receipt of a written notice from the other party (“aggrieved party”) calling upon the defaulting party so to remedy, then the aggrieved party shall be entitled, without prejudice to any of its other rights in law, either to claim specific performance of the terms of this Rental Agreement or to cancel this Rental Agreement forthwith, in either case with or without claiming and recovering damages from the defaulting party.
14.2. The Renter will be liable to the Lessor for all legal costs incurred by the Lessor, as may be permissible in law, in recovering any amount that the Renter owes to the Lessor.
14.3. A certificate signed by a manager of the Lessor specifying the amount owing by the Renter and further stating that such amount is due, owing and payable by the Renter, shall be sufficient (prima facie) proof of the amount thereof and of the fact that such amount is so due, owing and payable for the purpose of obtaining provisional sentence or other judgment against the Renter in any competent court. It shall not be necessary to prove the appointment of the person signing any such certificate.
15. RIGHTS TO RETURN
15.1. The Renter has the right to cancel any Rental Agreement resulting from direct marketing without reason or penalty by written notice to the Lessor within 5 (five) business days after the later of the date on which the Rental Agreement was concluded or the Vehicle was delivered to the Renter.
15.2. If the Renter returns the Vehicle for a lawful reason other than a product failure or defect, the Renter must do so within 10 (ten) business days after the date of the Rental Agreement. Subject to applicable law, the Lessor retains the right to charge the Renter the Rates as set out in the Rental Form for use of the Vehicle during the time it was in the Renter’s possession, and for necessary restoration costs to render the Vehicle fit for re-stocking
15.3. If the Renter wishes to return the Vehicle due to a product failure or defect, the Renter may do so immediately, and the Lessor will replace the Vehicle for the remaining term of the Rental.
16. GOVERNING LAW AND JURISDICTION
16.1. This Rental Agreement is in all respects governed by the laws of the Republic of South Africa.
16.2. In terms of section 45 of the Magistrates’ Courts Act 32 of 1944, the Renter consents to the jurisdiction of any Magistrates’ Court in the area which the Renter resides or works, notwithstanding the amount involved. This does not prevent the Lessor from bringing legal proceedings in a High Court that has jurisdiction.
17. GENERAL
17.1. No indulgence, latitude or extension of time which the Lessor may allow the Renter, shall be regarded to be a waiver of rights by the Lessor or a novation of the Renter’s liabilities under this Rental Agreement.
17.2. If any term or condition of this Rental Agreement becomes unenforceable for any reason whatsoever, that term or condition is severable from and shall not affect the validity of any other term or condition in this Rental Agreement.
17.3. The terms and conditions of this Rental Agreement may not be amended, changed or cancelled unless it is reduced to writing and signed by both parties.
17.4. The Lessor shall be entitled to carry out a credit check on a Renter with one or more credit agencies who may retain a record thereof and the Lessor shall be entitled to record any default by the Renter with any credit agency.
If the Driver and/or Additional Driver (if applicable) is not the same as the Renter, then the Driver and/or Additional Driver shall binds himself/themselves as surety and co-principal debtor in solidum with the Renter in favour of Hertz for the due fulfilment of all of the obligations of the Renter to Hertz in terms of this agreement