TERMS AND CONDITIONS
TERMS AND CONDITIONS OF HIRE
In these conditions:
1.1 Rainbow Coaches means RAINBOW COACHES CAPE TOWN CC;
1.2 Rainbow Coaches’ Premises mean the premises from which the Rainbow Coaches conducts business situated at85 Conrad Drive, Blairgowrie, Randburg
1.3 Hirer means the person described as such in the Quotation and Confirmation;
1.4 The Bus means the bus/vehicle described in the Quotation and Confirmation, together with all its equipment, accessories and appurtenances;
1.5 The Quotation means any quotation submitted by Rainbow Coaches in response to a request for same from the Hirer;
1.6 Confirmation means the Hirer’s written acceptance of any quotation;
1.7 Basic Rental means the amount which is payable by the Hirer to Rainbow Coaches for the hire of the Bus, provided the distance and number of days travelled by the Bus during the Rental Period does not exceed the maximum distance, number of days or hours of service allowed for as stipulated on the Hirer’s original requested itinerary quoted on by Rainbow Coaches;
1.8 Surcharge means the amount calculated and which is payable by the Hirer in addition to the Basic Rental in the event that either the distance travelled by the Bus during the Rental Period or the expected hours / days of services exceed the maximum distance and hours Quoted and Confirmed.
1.9 Rental Period means the period between the Commencement Date and the Return Date as stipulated in the Quotation.
1.10 Commencement Date means the time and date as requested by the Hirer, quoted and confirmed, from which date the Hirer will be entitled to the use of the Bus on the terms and conditions of this Hire Agreement;
1.11 Return date means the date upon which the Hirer is obliged to return the Bus in terms of the Hire Agreement;
1.12 Hire Agreement means the agreement embodied in this document and the Quotation and Confirmation;
1.13 The head-notes 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.
1.14 Words and phrases defined in any clause shall for the purpose of that clause bear the meaning therein assigned thereto. 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 WHOLE CONTRACT
All quotations, acceptances of the Hirer’s orders and all hiring of buses by Rainbow Coaches are expressly limited to and made conditional upon the Hirer’s acceptance of and assent to the following conditions of sale, notwithstanding receipt of, or acknowledgment of the customer’s order form or stipulations containing additional or different provisions or conflicting oral representations by any agent or employee of Rainbow Coaches.
3.1 Subject to the terms and conditions set out in this Hire Agreement ESPECIALLY 5.1 BELOW Rainbow Coaches hereby hires the Bus to the Hirer, who hereby takes it on hire for the Rental Period;
3.2 The Hirer will pay to Rainbow Coaches the Basic Rental and such other amounts as may become payable in terms of this Hire Agreement for the hire of the Bus;
3.3 Rainbow Coaches is not obliged to:
3.3.1. Allow any extension of the Rental Period beyond the Return Date specified on the Confirmation document.
3.3.2. Provide a replacement Bus to the Hirer in the event of the Bus being damaged, stolen or rendered unfit for use.
3.4 Subject to the provisions of clause 3.5 hereunder, Rainbow Coaches will provide the Hirer with the service of a driver whose services the Hirer will utilise, and the Hirer undertakes to ensure that no person other than the driver provided by Rainbow Coaches will be permitted to drive the Bus during the Rental Period.
3.5 In the event that the Hirer wishes to use his own driver (hereafter referred to as the “Hirer’s Driver”) to drive the Bus during the Rental Period, provided the original driver’s licence and original public driving permit of the Hirer’s Driver are produced to Rainbow Coaches before the Commencement Date, Rainbow Coaches may consent to the Hirer’s Driver driving the Bus during the Rental Period. Neither the consent of Rainbow Coaches to permit the Hirer’s Driver to drive the Bus during the Rental Period nor anything else contained herein will be construed as any form of approval by Rainbow Coaches as to the suitability of the Hirer’s Driver, and Hirer hereby indemnifies Rainbow Coaches against any loss, damage or claim of any passenger or third party directly or indirectly caused or arising from any act or omission by the Hirer’s Driver.
This Hire Agreement will commence on the Commencement Date and endure for and remain in full force and effect for the Rental Period unless terminated earlier by the Owner.
5 PAYMENT AND LIABILITY FOR PAYMENT
5.1 In the event that the Hirer is a company, close corporation, or other legal person, the individual signing the Confirmation document by such signature binds himself as surety and co-principal debtor in solidum with the Hirer for the payment of all or any amounts becoming payable by the Hirer to Rainbow Coaches in terms of this Hire agreement from any cause whatsoever.
5.2 Any failure of the Hirer to sign the Confirmation document will not compromise the validity of the Hire Agreement and the same shall remain of full force and effect.
5.3 Payment of the Basic Rental and Surcharge must be made by the Hirer to Rainbow Coaches as follows:
5.3.1 Prices are as quoted by Rainbow Coaches and are payable in South African currency unless otherwise expressly stated. Prices quoted are exclusive of VAT
5.3.2 Unless Rainbow Coaches, in its discretion, agrees to account to the Hirer at the end of the Rental Period, in which event payment will be effected as provided in clause 5.3.3. hereunder, the Basic Rental will be paid to Rainbow Coaches in full on or before the Commencement Date and any Surcharge or other amounts which may be or become payable by the Hirer will be paid on the date on which the Bus is returned to Rainbow Coaches if determinable on that date, or if not so determinable, then within 7 (seven) days of the date of Rainbow Coaches’ statement;
5.3.3 In the event that Rainbow Coaches agrees to account to the Hirer at the end of the Rental Period the Basic Rental and any Surcharge and any other amount, which may be or become payable by the Hirer will be paid within 30 (thirty) days of the date on which services were commenced.
5.3.4 If at any time payment by the Hirer shall be overdue then without prejudice to any other legal remedy, Rainbow Coaches may cancel the contract and recover from the Hirer payment of all monies then due or owing and payment of such damages as Rainbow Coaches may have sustained.
5.3.5 Rainbow Coaches shall charge the Hirer interest at the rate of one and one half per centum (1½%) per month on all accounts outstanding in excess of thirty (30) days from due date provided, however, that nothing herein contained shall be interpreted as obliging Rainbow Coaches to afford the Hirer any such indulgence to effect payment after due date.
5.4 In addition to the Basic Rental and Surcharge the Hirer will be liable for and pay to Rainbow Coaches on demand:
5.4.1. Any damage or loss suffered by Rainbow Coaches due to the failure of the Hirer to return the Bus on the Return Date.
5.4.2. All fines, legal and court costs payable by Rainbow Coaches for any legal violation assessed against the Bus, Owner or Hirer except where caused through specific fault of Rainbow Coaches .
5.4.3. Any costs, including all attorneys fees on the scale of attorney and own client, collection commissions and tracing charges incurred directly or indirectly by Rainbow Coaches in enforcing any of its rights or recovering any amounts due in terms of or pursuant to any breach of this Hire Agreement.
5.4.4 All costs incurred by Rainbow Coaches in repairing any damage of any nature to the Bus howsoever caused and/or any direct or indirect loss suffered by Rainbow Coaches in respect of the bus as a result of theft, fire or any other cause whatever, consequential or otherwise, during the Hire Period. These costs shall include but shall not be limited to cleaning of the Bus or repairing damages and the cost of repairs, loss of income and related costs for any sub-hired vehicles that have to be hired to meet Rainbow Coaches’ commitments if the Bus is out of commission due to misuse of or damage to the Bus during the Hire 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 Rainbow Coaches under its relevant insurance cover.
5.5 All amounts failing due for payment by the Hirer to Rainbow Coaches in terms of this Hire Agreement will be made without deduction or set- off of any kind, and be paid in cash, free of exchange or other charges, at Rainbow Coaches’ premises or such other address which Rainbow Coaches may notify the Hirer in writing from time to time.
5.6 Strikes, differences with workmen, accidents to machinery, failure of usual sources of supply of materials, war, civil commotion, acts of Government or quasi Government or legislation or other contingencies whatsoever beyond the control of Rainbow Coaches shall be sufficient excuse for any delay in or suspension of performance. Rainbow Coaches may, after the occurrence of any such contingency, if requested in writing by the Hirer cancel the order, failing which Rainbow Coaches shall perform as rapidly as possible.
6.1. Cancellations made less than 21 days prior to the commencement of hiring services will be subject to a 25% cancellation fee.
6.2. Cancellations made less than 14 days prior to the commencement of services will be subject to a 50% cancellation fee.
6.3. Cancellations made less than 10 days prior to the commencement of services will be subject to a 100% cancellation fee.
6.4 Rainbow Coaches reserves the right to recover from the Hirer any costs incurred or charges received from suppliers up to the date of cancellation. Where the services of an outside supplier are purchased on behalf of the Hirer by Rainbow Coaches, the cancellation charges applicable to the provider of the service will apply.
7.1 If, during the Rental Period, the Bus is taken 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 incurred by Rainbow Coaches , provided that should any claim by Rainbow Coaches under an insurance policy issued to Rainbow Coaches by the South African Special Risk Association, (a copy of which is available for inspection at Rainbow Coaches ‘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 Rainbow Coaches in terms of this clause or the amount received by Rainbow Coaches from the South African Special Risk Association under such insurance policy, whichever is the lower.
7.2. Notwithstanding that the Bus is insured, the Hirer indemnifies Rainbow Coaches against any claim by any 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 Rainbow Coaches’ negligence or otherwise to the extent that the full amount of such claim is not covered or payable by any insurer.
7.3. In order to protect Rainbow Coaches’ interests in any of the insurance policies referred to in this clause 5, the Hirer shall in the event of an accident or incident:
7.3.1. Obtain the names of parties and witnesses involved in any accident;
7.3.2. Not admit liability or guilt;
7.3.3. Not abandon the Bus without adequate provisions for safeguarding and securing it.
7.3.4. Immediately advise a police officer in the event of any accident or incident involving possible criminal liability or in the event of any person being injured.
7.3.5. Immediately deliver to Rainbow Coaches any demand, notification, summons or similar process received by the Hirer relating to any claim, action or prosecution in connection with the Bus;
7.3.6 Co-operate fully with Rainbow Coaches and the investigation and defence of any prosecution, claim or action.
8 HIRER’S OBLIGATIONS
8.1 The Hirer shall:
8.1.1. Only use the Bus for the purpose for which it was designed and within the boundaries of the Republic of South Africa and those of its neighboring countries for which Rainbow Coaches has valid cross border permits, unless Rainbow Coaches has specifically agreed to the contrary;
8.1.2. Not permit the Bus to be driven by any person who is not lawfully licensed to do so or who does not have Rainbow Coaches’ specific consent to drive the Bus, or who is under the influence of alcohol or drugs having a narcotic effect;
8.1.3. Not have any authority whatsoever to incur any liability on behalf of Rainbow Coaches, whether for repairs to the Bus or otherwise.
8.1.4. Not be entitled to sub-let the Bus or part with possession thereof and/or cede any of its rights under the Hire Agreement.
8.1.5. Comply strictly with all statutes, ordinances, by laws, regulations and instructions of any lawful authority applicable to the use of and/or possession of the Bus during the Hire Period, and shall, without detracting from the generality of the afore-going, ensure strict compliance with the provisions of the Compulsory Motor Vehicle Insurance Act 58 of 1972 as amended and the Road Traffic Act 29 of 1989 and the regulations promulgated under the aforementioned statues.
8.1.6. The Hirer shall return the Bus to Rainbow Coaches in the same condition as when it was delivered to the Hirer, fair wear and tear alone excepted.
8.1.7. Pay for the costs of the driver’s accommodation, meals and beverages during the duration of the Hire. Should such accommodation, meals and beverages not be provided or paid for by the Hirer, the Hirer will be in breach of this agreement. Rainbow Coaches will immediately inform the Hirer of such breach which breach is to be rectified immediately by the Hirer. Should the Hirer not rectify the breach then Rainbow Coaches will be entitled to withdraw the services of the driver and the coach/bus/vehicle without the repayment of any reimbursement in part, or whole, of the total amount of the hire price.
9 ACKNOWLEDGMENTS AND UNDERTAKINGS
The Hirer acknowledges that:
9.1.1. It has carefully examined and inspected the Bus and hires the Bus in the condition in which it stands;
9.1.2. Neither Rainbow Coaches nor anyone else on its behalf has given any warranties or guarantees nor made any representations of whatsoever kind, whether express or implied, relating to or concerning or in connection with the Bus or any matter relating thereto. Save as expressly provided in this Hire Agreement, no servant, representative or director of Rainbow Coaches or any person has authority to make any verbal representation, statement warranty or guarantee which has any binding effect on Rainbow Coaches.
9.1.3. The Hirer shall use the Bus with care and take all reasonable steps and precautions to avoid accident and to safeguard the Bus against loss or damage and excessive wear and tear. In the event of any breakdown or malfunction of the Bus due to a mechanical fault with the Bus, the Hirer shall forthwith notify Rainbow Coaches of such breakdown or malfunction and the place where the Bus is situated. Only Rainbow Coaches 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 authority of Rainbow Coaches, the costs of such repairs shall be borne by the Hirer.
10 OWNER’S RIGHT TO SUB-CONTRACT
Rainbow Coaches 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, and compare with the Bus in style, comfort and reliability.
Rainbow Coaches is hereby exempted from and shall not be liable for any loss or any damage, direct or indirect, consequential or otherwise, caused to and/or suffered by the Hirer or any other party (including through negligence on the part of the Rainbow Coaches , its agents or servants) due to and/or arising from:
11.1. Any defect in the Bus and/or arising from the use by the Hirer of the Bus.
11.1. Any luggage and/or property stolen from the Bus or damaged while in the Bus or left in the Bus after its return to Rainbow Coaches. The provisions of this clause are stipulated for the benefit of Rainbow Coaches, its servants, agents, nominees and sub-contractors who are exempted accordingly.
12 LUGGAGE AND PERSONAL EFFECTS
12.1. The conveyance of any goods or luggage whatsoever which in the opinion of Rainbow Coaches may cause damage to the Bus is prohibited.
12.2. Baggage and personal belongings are carried entirely at owner’s risk. Rainbow Coaches shall not be liable for any loss or damages to luggage or personal belongings, under any circumstances.
12.3. Passengers shall, under no circumstances, carry with them on the coach or on any trailer attached thereto weapons, explosives or items which are, in the sole opinion of Rainbow Coaches, its employees or officials, dangerous or hazardous or of such nature as is likely to cause offence to or injury to other passengers or damage to their property.
13 SEATING CAPACITY
The Hirer shall not permit or cause more passengers to be carried than authorised than the actual number of seats in the Bus, and the Hirer shall not allow passengers to sit anywhere on the Bus other than in the passenger seats provided.
14 DRIVER’S INSTRUCTIONS
The Hirer undertakes to ensure that any lawful and/or reasonable instructions given by the driver of the Bus provided by Rainbow Coaches are obeyed insofar as they relate to the safety of the passengers and the Bus concerned. The Hirer further 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.
The Hirer hereby warrants and undertakes that he has obtained the necessary authority, motor carrier transportation from the Local Road Transportation Board or any other authority concerned to lawfully utilise the Bus for the purpose to which he intends using the Bus. In the event that the Hirer does not obtain any authority, certificate or exemption necessary, the Hirer will be liable for all consequences flowing there-from and hereby indemnifies Rainbow Coaches against any loss, damage or claim of any nature whatsoever arising from a breach by the Hirer of the warranty contained herein.
- GENERAL PROVISIONS
16.1 No granting of time, indulgence or any other conduct of Rainbow Coaches shall constitute a waiver of Rainbow Coaches’ rights under and in terms of this Hire Agreement, nor shall any single or partial exercise of any right, power to privilege of Rainbow Coaches under this Hire Agreement preclude any other or further exercise thereof, or the exercise of any other right, power or privilege.
16.2 If any of the terms and conditions herein contained shall be invalid the same shall not invalidate the remainder of the contract.
16.3 Rainbow Coaches shall, at its option and notwithstanding that the amount of its claim or the nature of the relief sought by it exceeds the jurisdiction of the Magistrates’ Court, be entitled to institute action out of such Court. Nothing herein contained shall invalidate the Rainbow Coaches’ right to proceed in any other Court of competent jurisdiction.
16.4 No liability will be accepted by Rainbow Coaches for any loss or damage caused, of whatever nature, by any failure to make advertised or perceived connections from one route to another or from one provider of passenger transport services to another.
16.5 It is the responsibility of passengers to ensure that their own Passports, Visas, Health Documents and all other documents are correct and in order.
16.6 Any agreements of which these Conditions form part shall be governed by the laws of theRepublicofSouth Africa. No servant or agent of the Company has authority to vary these conditions.
16.7 The Hire Agreement constitutes the whole of the agreement between Rainbow Coaches and the Hirer relating to the subject matter hereof and save as otherwise provided herein no amendment, alteration, addition, variation or consensual cancellation shall be of any force or effect unless reducing to writing and signed by Rainbow Coaches and the Hirer hereto or their authorised representatives. Furthermore, Rainbow Coaches and the Hirer agree that no conditions, warranties or representations, whether express or implied, whether by statute or otherwise, shall apply hereto.
17 DOMICILE AND SERVICE
17.1 Rainbow Coaches and Hirer select as their respective domicilia citandorum et executandorum for the purpose of giving or sending any notice provided for or required hereunder, their physical and postal addresses appearing in clause 1 above 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 others, to vary its domicilium to any other address within theRepublic ofSouth Africa which is not a post office box or poste restante.
17.2. Any notice addressed to a party at its physical or postal address shall be sent by prepaid registered post or delivered by hand.
17.3. Any notice shall be deemed to have been given, if posted by prepaid registered post 5 (five) days after the date of posting thereof and if hand delivered during business hours on a business day, on the day of delivery.
18.1 Should the Hirer:
18.1.1. Fail to pay an amount due by the Hirer in terms of this Hire Agreement on the due date thereof; or
18.1.2. Commit a breach of any terms of condition of this Hire Agreement or permit a breach of any such term or condition;then Rainbow Coaches shall have the right forthwith and without any notice whatsoever to cancel this Hire Agreement and take possession of the Bus, but without prejudice to any claim which Rainbow Coaches might 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, direct, indirect or consequential, which Rainbow Coaches may suffer by reason of the Hirer’s breach or the premature termination of this Hire Agreement.
18.2 Rainbow Coaches’ right in terms of clause 18.1 shall be in addition to any other rights, which may be available to the Hirer in law.
19.1 Rainbow Coaches 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 in terms of Section 32 of the Magistrates Court Act having jurisdiction in respect of the Hirer’s person, notwithstanding that the claim or the value of the matter in dispute exceeds the jurisdiction of the Magistrates Court. Not withstanding the afore-going, 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.