THE KEMPSTON GROUP
(Prop. Vincemus Investments (Pty) Ltd – Co. Reg. No. 1969/004762/07)
STANDARD CONDITIONS OF CONTRACT
(THIS IS AN IMPORTANT DOCUMENT WHICH, TOGETHER WITH THE STANDARD TERMS OF INDEMNITY
DOCUMENT, SET OUT YOUR RIGHTS AND OBLIGATIONS AND MUST BE READ CAREFULLY.)
1.1. The “Lessor” means Vincemus Investments (Pty) Ltd trading as Kempston Truck Hire and as Kempston Car Rental.
1.2. The “Hirer” means the persons, natural or juristic, who hire the vehicle and/or whose name appears on the agreement/invoice/delivery note.
2. HIRE RATES AND CHARGES
2.1. The Hirer shall pay to the Lessor the charges for hire as reflected on the agreement/invoice/delivery note or quotation and if no rate is reflected or quotation given then at the Lessor’s standard rates as may then be applicable. In the event that the Hirer fails to make payment of any amount which becomes due, owing and payable by the Hirer to Lessor, the full outstanding balance at any one time will immediately become due and payable without notice to the Hirer. 2.2. In determining the charges the distance travelled by the vehicle (where required) shall be determined by reference to the odometer on the vehicle which, unless the contrary be proved, shall be deemed to be accurate.
2.3. Should the odometers cease to operate efficiently, the Hirer shall immediately notify the Lessor and furnish the Lessor with full particulars in regard to the use to which the vehicle has been put during the period of hire, and the distance travelled shall be reasonably assessed by the Lessor, the decision of the Manager of the Hire Department at the Lessor being final in the case of dispute.
2.4. The Hirer shall not be entitled to any discount or reduction in charges should any amount due by the Hirer to the Lessor not be paid on due date. The lessor shall have the right to claim interest on any arrear amounts, at the maximum permissible rate of interest as determined from time to time in terms of the provisions of the National Credit Act, No. 34 of 2005, such interest to be reckoned monthly in advance from due date to date of payment.
2.5. The Hirer shall at its own expense apply for and obtain any permits, licenses, certificate, permissions or exemptions which may be required for and in connection with the entry and use of the vehicle on any site or secure premises.
2.6. The Hirer shall be responsible for the payment of all toll fees and for all fines or penalties imposed for any contravention of the law for the period of this Contract in respect of this vehicle.
3. RENTAL OF VEHICLE
3.1. The Lessor rents to the Hirer, who hires the vehicle subject to the terms and conditions set out herein, which conditions apply notwithstanding that the Lessor may not be the driver of the vehicle.
3.2. The Hirer undertakes to provide the Lessor with the full names, residential address, postal address and copy of the ID and driving licence of the Hirer and/or the nominated driver and furthermore undertakes that no person other than the Hirer or the duly nominated driver approved of by the Lessor shall drive the vehicle, nor shall the Hirer have the right to sublet the hired vehicle except with the written approval of the Lessor. If such approval is granted by the Lessor, the Hirer shall nevertheless be responsible for the due fulfilment of each and every condition of hire.
3.3. The Lessor shall not be obliged to place another vehicle at the disposal of the Hirer in the event of the vehicle being damaged, stolen or rendered unfit for use.
3.4. The Hirer agrees that in the event of a breach by him of any of the conditions hereof, or should the Hirer fail to return the vehicle to the Lessor upon notice given in terms of clause
3.5 below, or if, in the opinion of the Lessor, any person who drives the vehicle during the period of hire is an inefficient driver, or utilises the vehicle in a manner deemed by the Lessor to prejudice its rights and interests then the Lessor shall be entitled forthwith to terminate this contract and to resume immediate possession of the vehicle, without prejudice to its right to claim from the Hirer any loss of rental and/or damages.
3.5. Notwithstanding anything to the contrary contained in this contract, the Lessor shall have the right, in its sole discretion, to terminate this contract of hire on twenty four (24) hours’ notice given to the Hirer to that effect. Notwithstanding such termination, the obligations of the Hirer and nominated driver, and the rights of the Lessor, shall continue in full force and effect until the vehicle is returned to the Lessor and the Hirer has complied with all his obligations and paid all amounts due in terms hereof.
3.6. In the event of the Hirer failing to query or dispute in writing such charges levied by the Lessor under this contract within one calendar month from receipt of invoice, then such charges levied shall be deemed to be correct and due and payable. Any certificate issued by a Director or Manager of the Lessor reflecting the amount so payable shall be sufficient and satisfactory proof for the purpose of obtaining judgement against the Hirer.
4.1. The Hirer hereby acknowledges that the vehicle is solely at the risk of the Hirer from the moment it leaves the Lessor’s premises and/or the key/remote to the vehicle is handed to the Hirer or his driver until such time as the vehicle and key is returned to the Lessor. The Hirer shall be liable for any damage and/or loss sustained to the vehicle, howsoever that damage or loss is caused and whether or not it is attributable to any fault or negligence on the part of the Hirer and/or his driver.
4.2. Without affecting any of the Lessor’s rights in terms hereof, and in circumstances where the Hirer hires a vehicle and insures same, such insurance documents shall be endorsed to record the Lessor as sole beneficiary, and the Lessor’s entitlement to all compensation thereunder.
4.3. Save for any damage or defect which has been recorded in writing and signed by both parties, the Hirer hereby acknowledges that the vehicle shall be deemed to have been delivered to him by the Lessor in good order and repair with all its appurtenances in working order and a roadworthy condition and that the radiator, oil and automatic transmission fluid reservoir and petrol tank were properly filled.
4.4. The Hirer shall return the vehicle to the Lessor for lubrications, and service in accordance with the Manufacturer’s specifications. Alternatively, and provided the Hirer shall first have obtained the written approval of the Lessor, he shall, at his own expense, have the said vehicle lubricated and services in accordance with the Manufacturer’s specifications by a recognised and authorised motor vehicle workshop. In the event of the Hirer’s failure to comply with the terms and conditions of this clause, or should any work performed on the said vehicle by a workshop appointed by the Hirer result in damage to the vehicle and/or to the Lessor, or should the vehicle be damaged as a result of being driven with insufficient water, oil or automatic transmission fluid, then the Hirer shall be fully liable for the cost of repair.
4.5. The Hirer agrees that if, when the vehicle is returned to the Lessor, it is necessary to effect repairs thereto, then the Lessor shall forthwith cause the repairs to be effected. The hire of the vehicle shall, however, be deemed to continue until such repairs are completed and the Hirer shall be obliged to continue to pay the basic rental to the Lessor. Should the vehicle be written off or damaged beyond repair and/or stolen and not recovered within 7 (seven) days of the said theft, then the hire shall also continue until receipt by the Lessor of payment of the full assessed amount from the Insurers of the vehicle.
4.6. The Hirer shall not be entitled to effect any repairs to the vehicle without the written authority of the Lessor. Should the Hirer effect any repairs to the vehicle without the Lessor’s written authority, the cost of such repairs shall be borne by the Hirer and if the Lessor, in its sole discretion, deems it necessary to effect any further repairs or to rectify any defective repairs on return of the vehicle to the Lessor, then the Hirer shall be liable to the Lessor for the costs thereof.
If the Hirer applies for Vehicle Damage Indemnity and the application is accepted by the Lessor, then the Hirer and his nominated Driver’s liability for any damages or loss caused to or by the hired vehicle and, provided that the agreement of hire has been concluded with the Kempston Truck Hire Division, also by the hired vehicle, will, subject to the terms and conditions set out in the Lessor’s Standard Terms of Indemnity, and the exceptions recorded therein be reduced after the first amount payable by the Hirer to the extent detailed therein. The Hirer’s attention is drawn to the fact that the Hirer will be responsible for the first R40 000.00 of damages or loss unless a different amount is recorded on the agreement / invoice / delivery note or quotation and that no indemnity will apply if any of the Standard Terms of Indemnity are not fully complied with. The Hirer is urged to familiarise himself with all those Terms and the consequences of his or his nominated driver’s failure to strictly observe those General Conditions and the Standard Terms of Indemnity.
6.1. The Hirer warrants and represents (which warranty and representation has been relied upon by the Lessor) that he or his nominated driver (as the case may be) is properly qualified to driver the hired vehicle in the Republic of South Africa and undertakes to produce to the Lessor whenever required to do so his valid driver’s license and valid Professional Driving Permit (whichever is applicable) such license or professional driving permit to be free of any endorsements.
6.2. Neither the Lessor nor any of its officers, employees or agents shall be liable for any loss or damage (including to property left or transported in the vehicle) and any injury or loss of life which may be suffered by the Hirer and/or any third party and/or passenger and whether direct or indirect, consequential or otherwise, arising from the hire of the vehicle, or from any defect in and/or mechanical failure of the vehicle (howsoever arising) and whether such loss or damage results from breach of contract or delict or otherwise (including negligence or gross negligence or the failure of the Hirer to detect defects in or mechanical problems with the vehicle). The Hirer accordingly indemnifies the Lessor and its officers, employees and agents against any claim of any nature whatsoever and howsoever arising and for any damages or loss which might be instituted against it from or in connection with or pursuant to the hire or use of the vehicle by the Hirer.
6.3. The Hire undertakes to immediately report to the Lessor any theft or hijacking of the vehicle within 2 hours of the occurrence and to report any accident in which it was involved or any serious breakdown of the vehicle and to co-operate fully with the Lessor in obtaining all the details required for the completion of the Lessor’s Standard Accident Report form, including details of the identity and address of witnesses.
6.4. In the event of the hired vehicle being stolen or hijacked the Hirer shall be liable for the reasonable recovery costs, towing and storage costs incurred by the Lessor in recovering the vehicle in addition to any other costs for which the Hirer would be liable in terms of this contract.
6.5. The Hirer undertakes that no articles shall be carried in the vehicle which may cause damage to the vehicle or the upholstery.
7.1. The Hirer shall under no circumstances drive the hired vehicle beyond the territorial limits of the Republic of South Africa without the written approval of the Lessor.
7.2. The parties hereby consent, in terms of Section 45 of Act No. 32 of 1944 as amended that any Magistrate’s Court having territorial jurisdiction over that party, within the Republic of South Africa shall have jurisdiction in respect of proceedings arising under or by virtue of this contract whether in respect of damages or otherwise, even though the subject matter or cause of action would otherwise be beyond such courts’ jurisdiction. In the event of it being necessary for either party to institute legal proceedings for recovery of any amounts owing by the other party then the other party shall be liable for all legal costs incurred in such proceedings on the scale as between attorney and client, including the collection commission and tracing fees.
7.3. The Hirer hereby warrants and represents that all statements contained in the credit application or cash ID form are true and correct and that this contract is entered into on the basis thereof. In the event of the Hirer being a firm, partnership, corporations, company, trust, voluntary association or club, then the signatory hereby warrants and undertakes that he is the necessary authority to bind the Hirer to this contract. Should he not have the requisite authority or in the event of the Hirer denying that such authority has been given to him (whether or not such authority was in fact given), then the Lessor shall be entitled in its sole and absolute discretion to hold such signatory liable in his personal capacity for payment of all amounts owing in terms of this contract. The Hirer undertakes to notify the Lessor in writing within 7 (seven) days of any change in ownership of the Hirer’s business or, should the Hirer be a company, of any share transactions whereby the majority shareholding is affected.
7.4. Any relaxation, variation or failure to require strict observance of any of the terms or conditions of this contract shall in no way prejudice, or be construed as a waiver of any of the rights of either party unless set out in writing and signed by the Parties.
7.5. The transport of goods and passengers shall be undertaken at the sole risk of the Hirer who shall be solely liable and responsible for any loss of life or injury or damage to any person or property left on or transported in, upon or lowed by the vehicle. The Hirer hereby waives all claims and indemnifies the Lessor in respect of any claim which may be made against the Lessor for damages arising out of the conveyance or transport of passengers or goods on or towed by the hired vehicle.
7.6. The Lessor shall not be responsible, either directly or indirectly, for the loading or offloading of the vehicle and for any damages, including consequential damages, arising from the loading and offloading of such vehicle.
7.7. Any driver, assistant driver or any other person supplied by the Lessor who may drive the vehicle or assist the driver of the vehicle or assist with the loading or offloading of the vehicle, including the equipment operator for the vehicle and/or crane or other equipment accompanying\ same, shall be under the direct control of the Hirer and shall further be deemed to be an employee of the Hirer and not of the Lessor for the duration of the hire period. The Hirer hereby indemnifies the Lessor against any claims which may arise from the any act or omission, negligent or otherwise, on the part of any such person/s.
7.8. For the duration of this Agreement and for a period of 6 (six) months after its termination or cancellation, the Hirer undertakes that he will not, without the Lessor’s consent, offer employment to, or employ, whether directly or indirectly or through any associate, associate company, subsidiary or holding company, any employee of the Lessor who is or was employed directly or indirectly in the performance, monitoring and/or supervision of the obligations of the Lessor under this Agreement. In the event of a breach of this agreement, it is agreed that a placement fee equivalent to 15 (fifteen percent) of the gross annual wages, will be paid to the Lessor.
8. OPERATOR FITNESS
8.1. The Hirer warrants and undertakes that:-
8.1.1. He is aware of the requirements of the National Road Traffic Act 93 of 1996 (as amended) and the Administrative Adjudication of Road Traffic Offences Act 45 of 1998 (as amended) (“the Acts”) and undertakes to comply with them and to ensure that at all times the driver of the vehicle complies with the requirements of the Acts.
8.1.2. He will ensure that the vehicle never carries a load in excess of the legal maximum permissible as per regulations 231 to 243 of the Road Traffic Act 93 of 1996 or any other Law or regulation that may apply (as amended);
8.1.3. In the event of the vehicle becoming unroadworthy he will immediately cease using the vehicle and will notify the Lessor so that the necessary repairs may be carried out. In an emergency situation and where it is not reasonable possible for the HIRER to notify the Lessor of the unroadworthiness of the vehicle then the Hire, notwithstanding the provisions of Clause 4 above, shall be entitled and obliged to cause the necessary repairs to be undertaken to put the vehicle in a roadworthy condition. The cost of such repairs may be set off against the cost of hire on production of the invoice provided that the repairs were necessary for the roadworthiness of the vehicle and were reasonably incurred. In the case of a dispute between the Lessor and the Hirer regarding repairs, then the decision of the Lessor shall be final.
8.1.4. He will not under any circumstances whatsoever cause any vehicle to be operated in contravention of the Explosives Act 26 of 1956 (as amended), the Fire Brigade Services Act 99 of 1987 (as amended) including any Municipal by-laws promulgated in pursuance thereof, the Hazardous Substances Act 15 of 1973 (as amended), the Nuclear Energy Act 131 of 1993 (as amended) and the Animal Protection Act 71 of 1962 (as amended) and will timeously notify the Lessor to enable the parties to ensure compliance with the above laws when he intents or contemplates using any vehicle for the purpose of transporting dangerous goods, as defined therein.
8.2. Should the Hirer breach any of the warranties and undertaking in this clause 8, then the Hirer shall be liable for any loss or damages including consequential loss caused as a result of the breach.
9. NATIONAL CREDIT ACT AND CREDIT LIMIT
9.1. The Hirer hereby consents that the Lessor may:
9.1.1. Perform a credit search of the Hirer’s record with registered Credit Bureaus when assessing the Hirer’s application for credit and ongoing facility and use new information and data obtained in respect of credit granted.
9.1.2. Record and disclose the existence of the Hirer’s account and conduct thereof with any Credit Bureau or any other potential creditor of the Hirer.
9.1.3. Vary the Hirer’s credit granted from that applied for in the credit application at its sole discretion. The credit limit applied for will serve only as a guide to the Lessor in its internal processes, and shall in no way limit the Hirer’s liability to the Lessor.